Ex parte Perez

• Decision Date: 19 October 2017
• Docket Number: NO. 01-17-00196-CR,01-17-00196-CR
• Citation: 536 S.W.3d 877
• Parties: EX PARTE Jorge Alberto PEREZ
• Court: Texas Court of Appeals

536 S.W.3d 877

EX PARTE Jorge Alberto PEREZ

NO. 01-17-00196-CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued October 19, 2017

Tristan LeGrande, LEFRANDE LAW, 1445 North Loop West, Suite 760, Houston, TX 770008, for Appellant.

John F. Healey, Jr., District Attorney—Fort Bend County, John J. Harrity, III, Assistant District Attorney, Fort Bend County, 301 Jackson Street, Room 101, Richmond, TX 77469, for State.

Panel consists of Chief Justice Radack and Justices Keyes and Massengale.

Michael Massengale, Justice

Appellant Jorge Alberto Perez appeals from the trial court's denial of his pretrial application for a writ of habeas corpus. In the trial court, Perez has been charged with misapplication of fiduciary property or property of a financial institution of the value of $1,500 or more but less than $20,000. In a prior proceeding involving the same property, the State sought to prosecute Perez on a different charge of theft of property of the value of $1,500 or more but less than $20,000. Perez's habeas-corpus application argued that the State's prosecution of him for misapplication of fiduciary property unconstitutionally places him in double jeopardy because it subjects him to a risk of multiple punishments.

The State was barred from prosecuting Perez on the prior theft charge. He therefore is not at risk of multiple punishments arising from the separate prosecutions, and the sole issue in this appeal has become moot. Accordingly, we dismiss the appeal.

Background

A grand jury indicted Jorge Alberto Perez for the offense of theft of property of a value over $1,500 but less than $20,000.¹ The State proceeded to trial and a jury was empaneled. The trial court then recessed the trial to allow for a competency examination of Perez. The court recalled the jury, but only five of the original twelve jurors returned. As a result, the trial court declared a mistrial.²

The State then sought to retry Perez for theft. He filed an application for a pretrial writ of habeas corpus, claiming that his retrial for theft was barred by double jeopardy. The trial court denied the application and Perez appealed.³ The Fourteenth Court of Appeals reversed the trial court's order. It remanded the case with instructions to enter an order discharging the prosecution against Perez, barring any further prosecution against him for the same offense.⁴

Before the denial of Perez's habeas application in the theft case, a grand jury returned a different indictment, which charged him with the distinct offense of misapplication of fiduciary property or property of a financial institution of the value of $1,500 or more but less than $20,000.⁵ Perez filed a pretrial application for a writ of habeas corpus. He argued that the prosecution for misapplication of fiduciary property was barred by double jeopardy because it arose out of the same conduct as the prosecution against him for theft, subjecting him to multiple punishments. The trial court denied the application. Perez appealed.⁶

Analysis

Perez challenges the trial court's denial of his application for a pretrial writ of habeas corpus. In the trial court, and now on appeal, his argument has been that the State's prosecution of him for misapplication of fiduciary property violates the Double Jeopardy Clause of the U.S. Constitution because it arises out of the same conduct as his prior prosecution for theft. In the trial court his argument was that this prosecution violates a federal constitutional prohibition against multiple punishments for the same offense. Perez's application for a writ of habeas corpus was expressly based on the multiple-punishments theory of double jeopardy, and it did not offer a legal analysis or argument that a writ should issue because multiple prosecutions were barred under the circumstances.⁷

The Double Jeopardy Clause, which has been applied to the states as "a fundamental ideal in our constitutional heritage,"⁸ states that no person shall be "subject for the same offence to be twice put in jeopardy of life or limb."⁹ Courts have recognized three types of double-jeopardy claims: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense.¹⁰ "A multiple-punishments violation can arise either in the context of lesser-included offenses, when the same conduct is punished under a greater and a lesser-included offense, and when the same conduct is punished under two distinct statutes although the Legislature only provided for the conduct to be punished once."¹¹ In his pretrial habeas-corpus application, Perez argued that latter has occurred in this case.¹²

While this appeal was pending, the original theft case against Perez was remanded to the trial court with instructions to enter an order "barring prosecution" for the theft offense.¹³ Therefore Perez was not punished, and he will not be punished, for the offense of theft based on the underlying events.

After the retrial of the theft charge was barred, this court notified Perez that his appeal apparently had become moot because he no longer could be subject to multiple punishments for the theft and misapplication of fiduciary property offenses.¹⁴ In response, Perez introduced a new argument that his appeal is not moot because the Double Jeopardy Clause also protects defendants against a second prosecution for the same offense after acquittal.¹⁵

"Pretrial habeas, followed by an interlocutory appeal, is an extraordinary remedy,"¹⁶ which is "reserved ‘for situations in which the protection of the applicant's substantive rights or the conservation of judicial resources would be better served by interlocutory review.’ "¹⁷ Perez did not argue in his pretrial habeas-corpus application that the State's prosecution of him for misapplication of fiduciary property would constitute a second prosecution after acquittal.

In reviewing an order denying habeas relief, an intermediate court of appeals only reviews issues that were properly raised in the habeas petition and addressed by the trial court.¹⁸ Requiring Perez to raise his multiple-prosecutions claim for the first time in the trial court serves legitimate state interests. The trial court and the prosecution should have an opportunity to remove the basis for the objection,¹⁹ and it is an inappropriate waste of scarce resources for this court to unnecessarily address issues raised for the first time in an interlocutory appeal, when the issue still can be raised and addressed for the first time by the trial court.²⁰ Accordingly, because Perez did not present to the trial court his argument that the State's prosecution of him for misapplication of fiduciary property would be an impermissible second prosecution after acquittal, he may not raise the argument for the first time on appeal from a pretrial habeas-corpus application that was based on a different argument, and it is no basis for reversing the trial court's order at this stage of proceedings.²¹

Perez is no longer subject to punishment in the State's previous prosecution of him for theft. As a result, he will not be subject to multiple punishments for the same offense if the State prosecutes him for misapplication of fiduciary property,²² and his argument that he will be subject to multiple punishments for the same offense has become moot.²³

Conclusion

We dismiss the appeal.

Justice Keyes, dissenting.

Evelyn V. Keyes, Justice, dissenting.

I respectfully dissent. Appellant Jorge Alberto Perez was charged with the offense of misapplication of fiduciary property or property of a financial institution. See TEX. PENAL CODE ANN . § 32.45 (West 2016). He appeals the trial court's denial of a pretrial writ of habeas corpus. In his petition in this Court, Perez alleges that the State's prosecution of him for misapplication of fiduciary property violated the Double Jeopardy Clause of the United States Constitution because it subjected him to multiple punishments for the same acts for which the State had charged him with theft in a separate proceeding.

At the time Perez filed for habeas corpus relief in this case, his appeal of the denial of a similar petition for habeas corpus relief on double jeopardy grounds in his theft case was pending in our sister court, the Fourteenth Court of Appeals. During the pendency of this appeal in this Court, the Fourteenth Court issued an opinion dismissing the theft charge and barring further prosecution of that charge. Ex parte Perez , 525 S.W.3d 325 (Tex. App.—Houston [14th Dist.] 2017, no pet.).

After the Fourteenth Court of Appeals' decision barring prosecution of the theft charge, this Court sent an inquiry to Perez asking whether his appeal from the trial court's denial of habeas corpus in this case, claiming double jeopardy on the ground of multiple punishments for the same offense, was moot in light of the holding in Ex parte Perez. Perez responded that his appeal in this case was not mooted by the Fourteenth Court of Appeals' decision because he was "being twice placed in jeopardy, by being prosecuted for the same offense after an acquittal." (Emphasis added.)

The majority refuses to consider the double jeopardy issue raised in Perez's response to its question why this appeal is not moot. It concludes that the double jeopardy issue raised by the Fourteenth Court's ruling is not properly before this Court because Perez only pled in his underlying habeas petition that he was subject to multiple punishments , not multiple prosecutions. The majority dismisses Perez's habeas application as moot because the original ground has disappeared.

The majority's ruling directly contravenes the controlling Texas Court of Criminal Appeals case on point, Garfias v. State , 424 S.W.3d 54, 57–58 (Tex. Crim. App. 2014), which requires consideration of a double jeopardy issue raised for the first time on appeal when the undisputed facts show the double-jeopardy violation on the face of the record and...