Gonzalez v. State

• Decision Date: 05 January 2000
• Citation: 8 S.W.3d 640
• Parties: (Tex.Crim.App. 2000) ALFRED GONZALEZ, Appellant v. THE STATE OF TEXAS NO. 1466-98
• Court: Texas Court of Criminal Appeals

Page 640

8 S.W.3d 640 (Tex.Crim.App. 2000)

ALFRED GONZALEZ, Appellant v. THE STATE OF TEXAS

NO. 1466-98

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

January 5, 2000

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE THIRD COURT OF APPEALS TRAVIS COUNTY

McCormick, P. J., delivered the opinion of the Court, in which Mansfield, Keller, Holland, Womack and Keasler, JJ., joined.

Before the court en banc

O P I N I O N

In this case we decide that appellant's "multiple punishments for the same offense" federal constitutional double jeopardy claim¹ is a forfeitable claim which may not be raised for the first time on appeal.²

Count I of appellant's indictment charged aggravated robbery in three separate paragraphs alleging alternative means of committing this offense. These paragraphs were submitted to the jury disjunctively. Count II of appellant's indictment charged injury to an elderly individual in a single paragraph. In a single proceeding a jury convicted appellant of both offenses by a general verdict.

Appellant claimed for the first time on appeal that it was possible he was multiply punished for the same offense because the injury to an elderly individual offense is a lesser included offense of the aggravated robbery offense as set out in paragraphs one and three and the jury's general guilty verdict of aggravated robbery could have rested on one of these paragraphs.³ Appellant conceded that if the jury's general guilty verdict of aggravated robbery rested on paragraph two, then no multiple punishments issue was presented.⁴

The Court of Appeals, therefore, rejected appellant's multiple punishments claim because the jury's general guilty verdict of aggravated robbery could have rested on paragraph two. See Gonzalez v. State, 973 S.W.2d 427, 430-31 (Tex.App.--Austin 1998). The Court of Appeals also decided that because of this it was appellant's "burden to preserve, in some fashion, a double jeopardy objection at or before the time the charge [was] submitted to the jury." See id. The Court of Appeals did not analyze whether, and effectively decided it did not matter that, the injury to an elderly individual offense is a lesser included offense of the aggravated robbery offense as set out in paragraphs one and three. See id.

We granted appellant's discretionary review petition on two grounds. Ground one asserts the Court of Appeals erred to reject appellant's multiple punishments claim because the jury's general guilty verdict of aggravated robbery could have rested on paragraphs one or three. Appellant argues that if the injury to an elderly individual offense is a lesser included offense of the aggravated robbery offense as set out in paragraphs one and three, then he should be "afforded [double jeopardy] protection." See Gonzalez, 973 S.W.2d at 431. Ground two asserts the Court of Appeals erred to decide that it was appellant's burden to preserve "in some fashion" his multiple punishments claim "at or before the time the charge [was] submitted to the jury." See id.

The general substantive constitutional rule implicated by ground one is that "a general verdict [is] valid so long as it [is] legally supportable on one of the submitted grounds--even though that [gives] no assurance that a valid ground, rather than an invalid one, [is] actually the basis for the jury's action." See Griffin v. U.S., 502 U.S. 46, 112 S.Ct. 466, 469-74, 116 L.Ed.2d 371 (1991). The United States Supreme Court carved out an exception to this general rule in Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931).

The Stromberg exception applies when one of the invalid submitted grounds rests on constitutionally protected speech or conduct. See Griffin, 112 S.Ct. at 471;⁵ Street v. New York, 394 U.S. 576, 89 S.Ct 1354, 1362-64, 22 L.Ed.2d 572 (1969) (issue was whether defendant's constitutionally protected speech "could have been an independent cause" of his flag-burning conviction), and at 1370 (Warren, C.J., dissenting) ("teaching of Stromberg" is "that, if there is any possibility the general verdict below rests on speech or conduct entitled to constitutional protection, then the conviction must be reversed");⁶ see also Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969);⁷ Cramer v. United States, 325 U.S. 1, 65 S.Ct. 918, 921, 935-41, 89 L.Ed. 1441 (1945) (treason conviction could have rested on conduct "not clearly within the constitutional definition" of treason under Article III, Section 3, of the United States Constitution); Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 210, 87 L.Ed. 279 (1942) (North Carolina conviction could have rested on constitutionally protected conduct by virtue of out-of-state divorce decree that North Carolina was constitutionally compelled to honor under the Full Faith and Credit Clause). Most United States Supreme Court cases applying the Stromberg exception are First Amendment cases in which the United States Supreme Court characterized the invalid submitted ground as involving constitutionally protected "speech."⁸ For the Stromberg exception to apply here, we arguably would have to decide that robbing, assaulting and injuring elderly individuals are constitutionally protected conduct.

We, however, find it unnecessary to decide whether the Stromberg exception applies here because we agree with the Court of Appeals that appellant had the burden to "preserve, in some fashion, a double jeopardy objection at or before the time the charge [was] submitted to the jury." We, therefore, dismiss ground one of appellant's discretionary review petition, overrule ground two of appellant's discretionary review petition, and hold appellant forfeited his multiple punishments double jeopardy claim.

Our case-law on preservation of double jeopardy claims is not a model of clarity.⁹ The overriding principles expressed by this case-law are that, because of the fundamental nature of double jeopardy protections, a double jeopardy claim may be raised for the first time on appeal¹⁰ We note, however, that we recently addressed the merits of a multiple punishments claim for the first time on collateral attack in Ex parte Ervin, 991 S.W.2d 804, 806 (Tex.Cr.App. 1999). It would be unusual to decide that a defendant like the one in Ervin may not raise a multiple punishments claim for the first time on appeal but he may raise it for the first time on collateral attack. Of course, Ervin addressed no procedural default or preservation issues as none were raised. or even for the first time on collateral attack¹¹ when the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and when enforcement of usual rules of procedural default serves no legitimate state interests. Cases such as Shaffer v. State¹² and Ex parte Evans¹³ illustrate these principles.¹⁴

In Shaffer, the defendant raised a successive prosecutions claim in the trial court based only on an unsworn declaration of a prior acquittal. See Shaffer, 477 S.W.2d at 876-77. This Court decided the double jeopardy claim was not properly raised in either the trial court or this Court because any double jeopardy violation was not apparent on the face of the record and enforcement of the usual rules of procedural default served legitimate state interests. See Shaffer, 477 S.W.2d at 876-77.¹⁵

In Evans, the habeas corpus applicant raised a successive prosecutions claim for the first time on habeas corpus. See Evans, 530 S.W.2d at 591. Relying on Duckett,¹⁶ Evans decided, based on the now discarded "carving" doctrine, that the habeas corpus applicant could raise the successive prosecutions claim for the first time on collateral attack essentially because the double jeopardy violation was apparent on the face of the record. See Evans, 530 S.W.2d at 591-92; but see Gardner, 959 S.W.2d at 199.

Federal law is more or less consistent with our Shaffer line and Duckett/Evans line of cases. Compare United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989), with, Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975). Consistent with our Shaffer line of cases, Broce decided that a defendant who pled guilty to "two counts with facial allegations of distinct offenses" could not raise a successive prosecutions claim for the first time on collateral attack primarily because this would have required "further proceedings at which to expand the record with new evidence." See Broce, 109 S.Ct. at 763-66.

Consistent with our Evans/Duckett line of cases, Menna decided that a guilty-pleading defendant could raise a successive prosecutions claim for the first time on appeal because the claim could have been resolved "on the basis of the existing record" which showed an indictment "facially duplicative of the earlier offense of which the defendant had [previously] been convicted." See Menna, 96 S.Ct. at 242; see also Broce, 109 S.Ct. at 765-66. In Menna, the Court stated:

"We do not hold that a double jeopardy claim may never be waived. We simply hold that a plea of guilty to a charge does not waive a claim that--judged on its face--the charge is one which the State may not constitutionally prosecute." Menna, 96 S.Ct. at 242 fn 2. (Emphasis Supplied).

It has, however, been suggested that our decision in Phillips v. State¹⁷ stands as authority that all multiple punishments claims may be raised for the first time on appeal. Relying on the United States Supreme Court's decision in Jeffers v. United States,¹⁸ Phillips decided that the defendant's "waiver" of a successive prosecutions claim with a successful "motion to consolidate"¹⁹ did not "waive" a multiple punishments claim which the defendant raised for the first time on appeal.

The suggestion that Phillips and Jeffers stand for the proposition that all multiple punishments claims may be raised for the first time on appeal reads too much into these cases. Phillips and Jeffers fit within the Evans/Duckett line of...