Gentry v. State

• Decision Date: 03 June 1994
• Docket Number: No. 05-93-00318,05-93-00318
• Citation: 881 S.W.2d 35
• Parties: Michael Ray GENTRY v. The STATE of Texas. /00319-CR.
• Court: Texas Court of Appeals

Page 35

881 S.W.2d 35

Michael Ray GENTRY v. The STATE of Texas.

No. 05-93-00318/00319-CR.

Court of Appeals of Texas Dallas.

June 3, 1994.

Rehearing Denied July 7, 1994.

C. Wayne Huff, Dallas, for appellant.

Anne Wetherholt, Asst. Dist. Atty., Dallas, for appellee.

Before LAGARDE, BARBER, and WHITTINGTON, JJ.

OPINION

BARBER, Justice.

Michael Ray Gentry was convicted by a jury of attempted murder, in cause number F92-05040-NU, and aggravated sexual assault, in cause number F92-05041-NU. Appellant also pleaded true to two enhancement paragraphs contained in each indictment. In the attempted murder case, the jury made an affirmative finding that appellant used or exhibited a deadly weapon, to-wit: a knife, during the commission of the offense. The jury assessed punishment at life imprisonment in each case. In five points of error, appellant asserts that the trial court erred in: (1) instructing the jury that appellant was charged with having previously been convicted of two felony offenses over appellant's timely objection; (2) instructing the jury panel that appellant was charged with having previously been convicted of two felony offenses without first conducting a hearing to determine whether the prejudicial effect of such an instruction outweighed any probative value; (3) proceeding to trial in both cases against appellant because the joint trial placed appellant in jeopardy twice for the same offense in violation of the Texas Constitution, the Texas Code of Criminal Procedure, and the United States Constitution; and (4) replacing a disabled juror with another juror over appellant's timely objection. We affirm the trial court's judgments.

FACTUAL HISTORY

Appellant does not challenge the sufficiency of the evidence to support his conviction. Therefore, we will give only a brief recitation of the facts.

The complainant met appellant in late July or early August, 1992. She exchanged telephone numbers with appellant, who called her several times. On one occasion, the complainant went to appellant's home. She declined to go out with appellant several times after that.

On September 3, 1992, the complainant again went out with appellant. She picked appellant up at his home at about 10:20 p.m. that night. Appellant gave the complainant directions to a location where they could obtain some marijuana. The complainant followed appellant's directions, and they came to a field that had a fence. Appellant told the complainant twice to turn off the car lights. He then hit her in the face with his fist. Appellant forced the complainant to engage in oral and vaginal intercourse.

When appellant finished sexually assaulting the complainant, he told her to back out of the area in which she was parked. She complied with his order, and began driving away. Appellant then told her to stop the car. He told the complainant, "I got to kill you," and pulled a necktie from his pants pocket. The complainant fought with appellant. During the struggle, appellant choked the complainant with the tie and with his hands. The complainant reached for a knife she kept in her car. Appellant and the complainant struggled for the knife. Appellant then stabbed the complainant with the knife, and possibly stabbed her with a pair of scissors. After appellant left the scene of the attack, the complainant walked to a house. The occupants of the house summoned an ambulance and the police. The complainant identified appellant as her attacker.

DOUBLE JEOPARDY CLAIMS

In separate indictments, the State charged appellant with the offenses of attempted murder, a second-degree felony, and aggravated sexual assault, a first-degree felony. The two indictments were tried in a single trial. The jury convicted appellant of both offenses and sentenced appellant to life imprisonment in both cases. In his third point of error, appellant contends that the joint trial placed appellant in jeopardy twice for the same offense in violation of the Texas Constitution and article 1.10 of the Texas Code of Criminal Procedure. ¹ In his fourth point of error, appellant claims that the joint trial placed appellant in jeopardy twice for the same offense in violation of the Fifth and Fourteenth Amendments to the United States Constitution.

A. Applicable Law

The Fifth Amendment provides that no person shall be "subject for the same offence to be twice put in jeopardy of life or limb...." U.S. CONST. amend. V. The Double Jeopardy clause of the Fifth Amendment applies to the states through the Fourteenth Amendment to the United States Constitution. Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228 (1980). Similarly, the Texas Constitution states that "no person, for the same offense, shall be twice put in jeopardy of life or liberty...." TEX. CONST. art. I, § 14. The constitutional prohibition against double jeopardy provides three separate guarantees:

(1) It protects against a second prosecution for the same offense after acquittal.

(2) It protects against a second prosecution for the same offense after conviction.

(3) It protects against multiple punishments for the same offense.

Vitale, 447 U.S. at 415, 100 S.Ct. at 2264; Cervantes v. State, 815 S.W.2d 569, 572 (Tex.Crim.App.1991), cert. denied, 502 U.S. 1110, 112 S.Ct. 1213, 117 L.Ed.2d 451 (1992); Marshall v. State, 814 S.W.2d 789, 791 (Tex.App.--Dallas 1991, pet. ref'd). Since appellant's case did not involve successive prosecutions, only the third protection is implicated. "With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983).

Initially, we note that although appellant separately briefed his state and federal constitutional arguments, he relies on essentially the same authority to support both points of error. This Court found no support for an appellant's contention that the Texas Constitutional provision against multiple punishments was broader than that of the United States Constitution. Marshall, 814 S.W.2d at 792. Since appellant, in this case, does not point us to any authority indicating that a higher standard than that found in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), should be utilized in evaluating his Texas Constitutional double jeopardy claim, we will analyze his federal and state constitutional claims under the same standard.

Whether or not attempted murder and aggravated sexual assault are the same offense for purposes of double jeopardy is governed by the test set forth in Blockburger, which provides:

The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.

Id. at 304, 52 S.Ct. at 182. This test is a rule of statutory construction used in determining whether the legislature intended multiple punishments. See Hunter, 459 U.S. at 366, 103 S.Ct. at 678. The Blockburger test is satisfied if each offense requires proof of an element that the other does not. See Cervantes, 815 S.W.2d at 573.

The Texas Penal Code defines the offenses of attempted murder and aggravated sexual assault as the following:

§ 15.01. Criminal Attempt

(a) A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.

TEX.PENAL CODE ANN. § 15.01(a) (Vernon Supp.1994).

§ 19.02. Murder

(a) A person commits an offense if he:

(1) intentionally or knowingly causes the death of an individual.

TEX.PENAL CODE ANN. § 19.02(a)(1) (Vernon 1989).

§ 22.021. Aggravated Sexual Assault

(a) A person commits an offense:

(1) if the person:

(A) intentionally or knowingly:

(i) causes the penetration of the anus or female sexual organ of another person by any means, without that person's consent; and

(2) if:

(A) the person:

(i) causes serious bodily injury or attempts to cause the death of the victim or another person in the course of the same criminal episode....

TEX.PENAL CODE ANN. § 22.021 (Vernon 1989).

B. Application of Law to Facts

Appellant argues that since the aggravating factor in the aggravated sexual assault case was that appellant attempted to cause the death of the complainant, the attempted murder indictment did not require proof of any element that was not contained in the aggravated sexual assault indictment. Appellant contends, therefore, that these were the same offense, and double jeopardy bars punishment for both offenses.

"[S]imply because two criminal statutes may be construed to proscribe the same conduct under the Blockburger test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes." Hunter, 459 U.S. at 368, 103 S.Ct. at 679. The court of criminal appeals has held that attempted murder and aggravated rape are not the same offenses under the Blockburger test. Ex parte Silvas, 632 S.W.2d 598, 598 (Tex.Crim.App.1982) (en banc). In 1983, the Texas Legislature redefined aggravated rape as aggravated sexual assault, and revised the elements of, penalties for, and period of limitation applicable to the offense. ² However, the former aggravated rape statute contained, as an aggravating element, the provision that the actor caused serious bodily injury to or attempted to cause death of the victim or another in the course of the same criminal episode. ³

Double jeopardy does not prevent multiple punishment simply because the State has to prove conduct constituting one offense to obtain a conviction for another offense. See Cervantes, 815 S.W.2d at 573-74. In Cervantes, ...