Ex parte Rogers

• Citation: 804 S.W.2d 945
• Decision Date: 29 November 1990
• Docket Number: No. 05-90-01091-CR,05-90-01091-CR
• Parties: Ex parte Clifford Joseph ROGERS.
• Court: Court of Appeals of Texas

Page 945

804 S.W.2d 945

Ex parte Clifford Joseph ROGERS.

No. 05-90-01091-CR.

Court of Appeals of Texas,

Dallas.

Nov. 29, 1990.

Rehearing Denied Jan. 10, 1991.

Tim K. Banner, Dallas, for appellant.

Pamela Sullivan Berdanier, Asst. Dist. Atty., Dallas, for appellee.

Before ENOCH, C.J., and LAGARDE and BURNETT, JJ.

OPINION

LAGARDE, Justice.

This appeal presents the question of whether the United States Constitution's fifth amendment prohibition against double jeopardy is triggered by a civil forfeiture proceeding under the Controlled Substances Act ¹ and whether a subsequent criminal prosecution is consequently barred. Because we conclude that double jeopardy does not preclude the State from criminally prosecuting appellant, we overrule appellant's point of error and affirm the trial court's order denying appellant's preconviction writ of habeas corpus.

On August 30, 1989, pursuant to a search warrant, Dallas police searched appellant's residence. ² Various items were seized during the search, including 653 grams of "crack" cocaine. The State filed an original notice of seizure and intention to forfeit some of the items confiscated during the search. See TEX.REV.CIV.STAT.ANN. art. 4476-15, subch. 5 (Vernon Supp.1989). The notice of seizure and intention to forfeit alleged that the property seized was "derived from the sale, manufacture, distribution, dispersion or delivery of a controlled substance or other commercial undertaking violative of the Texas Controlled Substances Act...." The trial court entered an agreed judgment of forfeiture on September 17, 1989. The property forfeited included: $6,406 in cash; one 1986 Chevrolet; one 1985 Nissan; two safes; one television; and one mobile phone.

The State subsequently attempted to criminally prosecute appellant for possession of over 400 grams of cocaine with the intent to deliver. Appellant filed a preconviction writ of habeas corpus asserting that jeopardy attached at the forfeiture proceeding and that, therefore, he could not subsequently be criminally prosecuted. The trial court entered an order denying appellant's writ of habeas corpus and appellant perfected this appeal. In a single point of error, appellant contends that the forfeiture of his property pursuant to the Texas Controlled Substances Act was punitive in nature and bars his criminal prosecution for the offense of possession of more than 400 grams of cocaine with the intent to deliver.

The double jeopardy clause protects against: 1) a second prosecution for the same offense after acquittal; 2) a second prosecution for the same offense after conviction; and 3) multiple punishments for the same offense. See North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). Appellant does not specifically state on which prong of the double jeopardy clause's protection he relies; however, the case he cites in support of his argument pivots on the third prohibition: the prohibition against multiple punishments for the same offense. Thus, we focus on that prong.

In this case, the forfeiture proceeding occurred before the State attempted criminal prosecution. In the double jeopardy case upon which appellant relies, the defendant was first criminally prosecuted and convicted and then subjected to an allegedly civil fine. We view this distinction in the timing of the criminal prosecution as irrelevant. See U.S. v. Marcus Schloss & Co., 724 F.Supp. 1123, 1126 (S.D.N.Y.1989) ("If in fact a civil sanction may fairly be characterized 'only as deterrent or retribution', then its exaction before imposition of criminal punishment should have the same double jeopardy effect as exaction afterwards.").

Appellant consented to the forfeiture, and signed an agreed judgment. The defendant's conduct is relevant in a double jeopardy analysis. See, e.g., Jeffers v. United States, 432 U.S. 137, 152-54, 97 S.Ct. 2207, 2216-18, 53 L.Ed.2d 168 (1977) (if the accused could have been tried in one proceeding for various offenses, but chooses separate trials, he cannot complain of a double jeopardy violation). A defendant may waive double jeopardy protection by consenting to a mistrial before the jury's verdict is rendered. See United States v Bauman, 887 F.2d 546, 549 (1989), cert. denied, 493 U.S. 1077, 110 S.Ct. 1128, 107 L.Ed.2d 1034 (1990). The cases holding that the defendant's consent waives double jeopardy protection deal with the double jeopardy clause's prohibition against two prosecutions for the same offense. The cases do not address the consent issue in the context of the double jeopardy clause's protection against multiple punishments.

In the multiple punishments context, the double jeopardy clause insures that the total punishment does not exceed that authorized by the legislature. See Jones v. Thomas, 491 U.S. 376, 109 S.Ct. 2522, 2525, 105 L.Ed.2d 322 (1989). Its purpose is to insure that sentencing courts do not exceed, by the device of multiple punishments, the limits prescribed by the legislative branch of government, in which lies the substantive power to define crimes and prescribe punishments. Id. Hence, we conclude that a defendant's agreement to a statutorily authorized forfeiture does not waive his double jeopardy protection against multiple punishments. To hold otherwise would discourage agreed judgments. Defendants could logically fear that an agreement to a forfeiture judgment could result in a second punishment against which they possess no remedy. Here appellant timely asserted his double jeopardy claim in a preconviction writ of habeas corpus before the trial court. ³

The double jeopardy clause's protection against multiple punishments is triggered only by a sovereign's attempt to criminally punish a defendant twice for the same offense. See generally United States v. One Assortment of 89 Firearms, 465 U.S. 354, 364, 104 S.Ct. 1099, 1105, 79 L.Ed.2d 361 (1984); Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917 (1938). Typically, a statutory proceeding for the forfeiture of personal property is one in rem against the property itself and not one in personam against the owner or possessor of the property seized. State v. Rumfolo, 545 S.W.2d 752, 754 (Tex.1976); Fleming v. State, 704 S.W.2d 530, 531 (Tex.App.--Houston [14th Dist.] 1986, writ ref'd n.r.e.). The jurisdiction of the court entertaining a forfeiture proceeding depends on seizure of the physical object to be forfeited. See One Assortment of 89 Firearms, 465 U.S. at 364, 104 S.Ct. at 1105; Costello v. State, 774 S.W.2d 722, 723 (Tex.App.--Corpus Christi 1989, writ denied). In a forfeiture proceeding, the court does not need in personam jurisdiction over the owner of the property to be forfeited. See One Assortment of 89 Firearms, 465 U.S. at 364, 104 S.Ct. at 1105. A statutory forfeiture proceeding under the Controlled Substances Act may ultimately result only in the forfeiture of property. See TEX.REV.CIV.STAT.ANN. art. 4476-15, subch. 5 (Vernon Supp.1989). It results in neither the imposition of a fine nor in a criminal conviction of the owner of the property.

The civil nature of a forfeiture proceeding under the Texas Controlled Substances Act is further evidenced by the language of the statute itself. Section 5.07(b) provides that if the owner of the property files a verified answer denying that the property is subject to forfeiture then the burden is on the State to "prove by a preponderance of the evidence that the property is subject to forfeiture." TEX.REV.CIV.STAT.ANN. art. 4476-15, § 5.07(b) (Vernon Supp.1989). This is the burden of proof in most civil cases. We conclude that a forfeiture proceeding under the Texas Controlled Substances Act is a civil proceeding. See Costello, 774 S.W.2d at 723.

However, the United States Supreme Court has held that a civil proceeding may, in certain "rare cases," be "punitive" for purposes of a double jeopardy multiple punishments analysis. See United States v. Halper, 490 U.S. 435, 109 S.Ct 1892, 1901-02, 104 L.Ed.2d 487 (1989). In Halper, the Supreme Court determined that:

[U]nder the double jeopardy clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as deterrent or retribution.

Halper, 109 S.Ct. at 1902. Appellant contends that the civil forfeiture proceeding against his property under the Texas Controlled Substances Act falls within the Halper exception to the general rule that the double jeopardy clause does not apply to civil proceedings. ⁴

Appellant argues that he falls squarely within the prohibition against double jeopardy applied in Halper. Halper, manager of New City Medical Laboratories, submitted sixty-five separate false claims for reimbursement to Blue Cross and Blue Shield who, in turn, submitted them to Medicare. New City Medical Laboratories received $585 in reimbursement to which it was not entitled. The government prosecuted Halper under the criminal False Claims Act. Halper was convicted and sentenced to two years' imprisonment and a $5,000 fine. The government then brought suit against Halper under the civil False Claims Act. Based on the facts of Halper's criminal conviction and incorporated in the civil suit, the district court granted summary judgment for the government on the issue of liability. The civil Act provided that a civil penalty of $2,000 could be imposed for each violation of the Act. Because Halper violated the Act sixty-five times, he was subject to a statutory penalty of more than $130,000. The district court entered judgment for the government in the amount of $1,170. The court refused to impose the $2,000 fine per violation on the grounds that the Act, as applied to Halper, violated the U.S. Constitution's prohibition against double jeopardy. The United States Supreme Court agreed that the statutory penalty authorized...