Flores v. State

• Decision Date: 16 August 1995
• Docket Number: No. 04-93-00720-CR,04-93-00720-CR
• Citation: 906 S.W.2d 133
• Parties: Jorge Alberto FLORES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 133

906 S.W.2d 133

Jorge Alberto FLORES, Appellant, v. The STATE of Texas, Appellee.

No. 04-93-00720-CR.

Court of Appeals of Texas,

San Antonio.

Aug. 16, 1995.

John A. Pope, Law Office of John A. Pope, III, Rio Grande City, for appellant.

Heriberto Silva, District Attorney, San Diego, Jon William West, Asst. District Attorney, Rio Grande City, for appellee.

Before STONE, BUTTS ¹, ONION ², JJ.

OPINION

JOHN F. ONION, Jr., Justice (Assigned).

This appeal is taken from a conviction for burglary of a habitation, ³ the offense having been shown to have occurred on September 15, 1992. The jury, having found appellant, Jorge Alberto Flores, guilty, assessed his punishment at thirty-two years' imprisonment.

Appellant advances five points of error. In three of his points of error, appellant contends that the trial court erred in overruling his plea of double jeopardy in violation of the Fifth Amendment to the United States Constitution, the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and Article I, Section 14 of the Texas Constitution. The fourth point of error contends the trial court erred in overruling his double jeopardy plea based on the doctrine of collateral estoppel. The last point urges error in the admission into evidence of a photograph showing the body of the "owner"-decedent.

The record shows that appellant was indicted in cause number 92-CR-162 for capital murder. The indictment alleged that on or about September 15, 1992, appellant did then and there

intentionally and knowingly cause the death of an individual, namely, Lazaro Barrera, by shooting him with a deadly weapon, to wit: a firearm, and the defendant was then and there in the course of committing and attempting to commit the offense of Burglary of a Building of Lazaro Barrera, who was the owner of said building.

See Act of April 16, 1985, 69th Leg., R.S. Ch. 44, § 1, 1985 Tex.Gen.Laws 434, TEX.PENAL

CODE § 19.03(a)(2), ⁴ since amended. ⁵ Appellant was tried before a jury in Starr County, and on March 16, 1993, the jury found him "not guilty" of the capital murder alleged.

On April 1, 1993, appellant was indicted in cause no. 93-CR-60 for the offense of burglary of a habitation. The indictment in pertinent part alleged that on or about September 15, 1992, appellant did then and there: "with intent to commit theft, intentionally and knowingly enter a habitation, without the effective consent of Lazaro Barrera, the owner thereof." Appellant's motion to dismiss the indictment (plea of jeopardy) was overruled. As earlier noted, appellant was convicted and his punishment was assessed at thirty-two years' imprisonment.

We shall consider appellant's first two points of error together. The Fifth Amendment to the United States Constitution provides in pertinent part: "[N]or shall any person be subject for the same offense to be twice placed in jeopardy of life or limb; ...." U.S. CONST. amend. V. This guarantee was made applicable to the states by the Due Process Clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969). The Texas Constitution provides: "No person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction." TEX. CONST. art. I, § 14. These prohibitions serve to protect 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. Ex parte Herron, 790 S.W.2d 623, 624 (Tex.Crim.App.1990) (op. on reh'g); Smith v. State, 873 S.W.2d 773, 775 (Tex.App.--Fort Worth 1994, no pet.). Thus, both provisions protect against multiple punishments and successive prosecutions for the same offense. Ex parte Kopecky, 821 S.W.2d 957, 958 (Tex.Crim.App.1992); State v. Marshall, 814 S.W.2d 789, 791 (Tex.App.--Dallas 1991, pet. ref'd).

To determine whether a prosecution violates the protection against multiple punishments, courts apply the same-elements test set out in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). To make this determination, courts must examine the statutes that define each offense to see whether each statute requires proof of an additional fact or element the other does not. Id.; Marshall, 814 S.W.2d at 791. "Blockburger requires a straightforward comparison of the elements of each offense, without reference to the actual proof that will be introduced at trial, to determine whether there is any difference between the crimes." Peter J. Henning, Precedents in a Vacuum: The Supreme Court Continues to Tinker with Double Jeopardy, 31 AM.CRIM.L.REV. 1, 9 (1993) [hereinafter Henning]. Blockburger has been held to be a rule of statutory construction. Albernaz v. United States, 450 U.S. 333, 340, 101 S.Ct. 1137, 1142-43, 67 L.Ed.2d 275 (1981); Whalen v. United States, 445 U.S. 684, 691, 100 S.Ct. 1432, 1437, 63 L.Ed.2d 715 (1980).

The decisions in Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977), Whalen, 445 U.S. at 684, 100 S.Ct. at 1433-34, Albernaz, 450 U.S. at 333, 101 S.Ct. at 1139-40, Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980), and Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), clearly indicate that the Blockburger test was being applied to successive prosecution cases as well as in the multiple punishments context. See Henning, supra, at 9-11.

In Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), overruled by United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), the United States Supreme Court determined that the Blockburger test would not further the policy interests of the double jeopardy doctrine as set forth in Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957). Grady, 495 U.S. at 518-19, 110 S.Ct. at 2091-92. Justice Brennan, writing for the majority, stated that Blockburger applied only to cases involving multiple punishments because successive prosecutions raised concerns which the Blockburger standard could not and did not address. Id. First, the Blockburger test, focusing on the statutory elements of the two offenses, was to be applied. If the offenses were the same under that test, the prosecution would be barred. If not, a second prong would be applied. The court would be required to consider whether if "to establish an essential element of an offense charged in that prosecution [the government] will prove conduct that constitutes an offense for which the defendant has already been prosecuted." Grady, 495 U.S. at 521, 110 S.Ct. at 2093.

In United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), the Supreme Court declared the Grady "same conduct" test to be badly reasoned and unworkable. Id. at ----, 113 S.Ct. at 2863. The spading of an early grave for Grady revived the 1932 Blockburger test as the sole test for determining whether a prosecution violates the protection against successive prosecutions in the double jeopardy context. Parrish v. State, 869 S.W.2d 352, 353 (Tex.Crim.App.1994). Courts, relying on Dixon for guidance, may face difficulty in properly applying the standard in successive prosecution cases. As reflected by the fragmented voting in Dixon, Justice Scalia's analysis of Blockburger applies a more flexible approach to the same elements test that looks both to the strict application of the Blockburger analysis and whether one statute is a "species of a lesser-included offense." ⁶

Alvin Dixon was charged with second degree murder. He was released on bail under the condition that he not commit "any criminal offense" pending trial and was warned that a violation of this condition would subject him to a contempt prosecution. Dixon, 509 U.S. at ----, 113 S.Ct. at 2853. While awaiting trial for murder, Dixon was arrested and indicted for possession of cocaine with intent to distribute. The trial court subsequently found Dixon guilty of criminal contempt, concluding that the government had established beyond a reasonable doubt that Dixon had possession of the cocaine with intent to distribute, proving each element of the cocaine charge in order to get a contempt conviction. Id. Dixon later moved to dismiss the cocaine possession indictment on double jeopardy grounds, and the trial court granted the motion. Id. Justice Scalia reasoned that the prosecution for the cocaine charge failed the Blockburger "same elements" test because the cocaine possession offense did not include any element not contained in Dixon's previous contempt offense. Id. at ----, 113 S.Ct. at 2857.

Thus, Justice Scalia concluded that the prosecution for the cocaine possession violated the double jeopardy clause. Id. at ----, 113 S.Ct. at 2858; ⁷ see also Ex parte Brosky, 863 S.W.2d 783, 788 (Tex.App.--Fort Worth 1993, no pet.). In finding that the substantive act (cocaine possession) was a "species of lesser included offense" of the charge of contempt, Justice Scalia appears to have focused on the underlying conduct of the offenses. ⁸ He relied upon Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) (per curiam), where it was held that a subsequent prosecution for robbery with a firearm was barred by the double jeopardy clause because the defendant had already been tried for felony murder based on the same underlying felony. Dixon, 509 U.S. at ----, 113 S.Ct. at 2858. This part of the Dixon opinion does not have the support of the majority. Only Justice Kennedy joined Justice Scalia in this part of the opinion. Id. at ----, 113 S.Ct. at 2852; Brosky, 863 S.W.2d at 788.

The net effect of Dixon is that Grady has been overruled, leaving Blockburger as the sole...