Hernandez v. State

• Decision Date: 05 July 1995
• Docket Number: Nos. 04-94-00793-C,04-94-00794-CR,s. 04-94-00793-C
• Citation: 904 S.W.2d 808
• Parties: Henry David HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 808

904 S.W.2d 808

Henry David HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.

Nos. 04-94-00793-CR, 04-94-00794-CR.

Court of Appeals of Texas,

San Antonio.

July 5, 1995.

Rehearing Overruled July 27, 1995.

Mark Stevens, San Antonio, for appellant.

Edward F. Shaughnessy, III, Assistant Criminal District Attorney, San Antonio, for appellee.

Before RICKHOFF, HARDBERGER and DUNCAN, JJ.

HARDBERGER, Justice.

Appellant, Henry David Hernandez, was twice indicted for the aggravated assault of a jail guard. ¹ Prior to trial appellant filed a written pre-trial application for habeas corpus. The application alleged that appellant had already been punished by prison officials for the assault; he received 15 days administrative detention and was restricted from access to the commissary, newspapers, visitors, telephones, and other programs. A writ was issued by the 187th Judicial District Court of Bexar County, the Honorable Pat Priest presiding. Following an evidentiary hearing, however, the trial court denied relief.

Appellant raises two points of error. The first point of error charges that the Double Jeopardy Clause of the Fourteenth Amendment bars the State from prosecuting him for aggravated assault. Appellant claims that since he was already "punished" by prison officials for the assault, subsequent prosecution would violate the Double Jeopardy Clause. The second point of error argues that Article I, § 14 of the Texas Constitution also bars criminal prosecution.

DISCUSSION

We begin with the Double Jeopardy Clause of the Fifth Amendment, which provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. CONST. amend. V. It protects against three distinct abuses: 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. United States v. Halper, 490 U.S. 435, 441, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487, 496 (1989). It is the third of these protections which is at issue here.

Appellant's argument rests on his interpretation of two relatively recent decisions from the United States Supreme Court, United States v. Halper, 490 U.S. at 435, 109 S.Ct. at 1892, and Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994). In Halper, the defendant was convicted on 65 counts of filing false medicare claims. After he was sentenced to two years in prison and fined $5,000, the Government filed a separate civil action under the Federal False Claims Act, 18 U.S.C. § 287, to recover a $2,000 civil penalty for each of the 65 violations. Id. at 437, 109 S.Ct. at 1895-96. The district court concluded that the civil penalty for which Halper would be liable, $130,000, violated the Double Jeopardy Clause. Id. at 437-39, 109 S.Ct. at 1895-97. The Supreme Court agreed, holding that the disparity between the government's approximated expenses of $16,000 and Halper's liability of $130,000 was sufficiently disproportionate that such a civil penalty constituted a second punishment for double jeopardy purposes. Id. at 452, 109 S.Ct. at 1903-04. The Court remanded the case for a determination of the government's actual damages. Id.

The Court explained that labels do not control in a double jeopardy analysis. Id. at 448, 109 S.Ct. at 1902. Instead, "the determination whether a given civil sanction constitutes punishment in the relevant sense requires a particularized assessment of the penalty imposed and the purposes that the penalty may fairly be said to serve." Id. at 448, 109, S.Ct. at 1901. Thus, the Court concluded that "under the Double Jeopardy Clause, a defendant who has already been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not be fairly characterized as remedial, but only as deterrent or retribution." Id. at 448-49, 109 S.Ct. at 1902.

In Kurth Ranch, the Kurth family operated a grain and livestock farm in Montana with a sideline business in marijuana production and sales. Montana law enforcement officers raided the farm, arresting the Kurths and confiscating all of the marijuana plants, materials and paraphernalia they found. Id. at ----, 114 S.Ct. at 1941-42. After conviction and sentence, Montana imposed a marijuana tax on the Kurths of $896,940.99. The Kurths eventually filed for bankruptcy protection and the Bankruptcy court disallowed the tax, concluding it violated the Double Jeopardy Clause. The Supreme Court agreed, holding that "a tax was not immune from double jeopardy scrutiny simply because it was a tax." Id. at ----, 114 S.Ct. at 1946. It then concluded the Montana tax was "a concoction of anomalies, too far removed in crucial respects from a standard tax assessment to escape characterization as punishment for the purpose of Double Jeopardy analysis." Id. at ----, 114 S.Ct. at 1948.

Texas courts have consistently held that disciplinary sanctions imposed by prison officials for crimes committed within the prison do not bar subsequent prosecution for those crimes in a court of competent jurisdiction. See, e.g., McKinney v. State, 491 S.W.2d 404, 407-08 (Tex.Crim.App.1973) (assault with intent to murder prison official); Mott v. State, 846 S.W.2d 398, 399 (Tex.App.--Houston 14th Dist.] 1992, no pet.) (aggravated assault on prison guard); Smith v. State, 827 S.W.2d 71, 72 (Tex.App.--Houston [1st Dist.] 1992, no pet.) (aggravated assault on correctional officer); Rose v. State, 807 S.W.2d 626, 630 (Tex.App.--Houston [14th Dist.] 1991, no pet.) (aggravated assault on correctional officer); Whitten v. State, 711 S.W.2d 661, 664 (Tex.App.--Tyler 1985, no pet.) (aggravated assault on prison guard).

Federal courts have reached the same result. See, e.g., Lucero v. Gunter, 17 F.3d 1347, 1351 (10th Cir.1994) ("Prison disciplinary hearings are not part of criminal prosecution, ... and therefore do not implicate double jeopardy concerns."); United States v. Newby, 11 F.3d 1143, 1146 (3rd Cir.1993) ("Disciplinary sanctions imposed by prison authorities for infractions prison regulations do not bar a subsequent criminal prosecution"); United States v. Rising, 867 F.2d 1255, 1259 (10th Cir.1989) ("It is well established in this Circuit that administrative punishment imposed by prison officials does not render a subsequent judicial proceeding, criminal in nature, violative of the double jeopardy clause."); Kerns v. Parratt, 672 F.2d 690, 691-92 (8th Cir.1982) ("It is well settled that there is no bar to separate criminal prosecution for an offense such as [petitioner's] assault upon his fellow inmate"); United States v. Williamson, 469 F.2d 88, 89 (5th Cir.1972) ("Administrative discipline of an escapee does not prohibit criminal prosecution for the escape.") (quoting Keaveny v. United States, 405 F.2d 821 (5th Cir.1969)); Fano v. Meachum, 520 F.2d 374, 376 n. 1 (1st Cir.1975), reversed on other grounds, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976) ("We do not share the view that prosecution may not constitutionally be based on conduct which is also the subject of [prison] disciplinary proceedings."). We also note that the Supreme Court has stated, albeit in a different context, that "[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply." Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974); see also Breed v. Jones, 421 U.S. 519, 528, 95 S.Ct. 1779, 1785, 44 L.Ed.2d 346 (1975) ("Jeopardy denotes risk" of an "essentially criminal" nature).

Appellant argues that Kurth Ranch implicitly overrules these lines of authorities. We reject this argument for several reasons. To begin with, we note that in the year since Kurth Ranch was decided not one court, state or federal, according to our research, has cited it for the proposition appellant advances here, i.e., that prison disciplinary sanctions prohibit subsequent criminal prosecution. The same could be said of Halper, decided more than five years ago. Indeed, recent decisions addressing this issue continue to hold that disciplinary sanctions imposed by prison officials do not bar subsequent criminal prosecution. See United States v Hernandez-Fundora, 49 F.3d 848, 853 (2nd Cir.1995) ("subsequent prosecutions will be barred only in those exceedingly rare circumstances where the disciplinary sanction imposed is grossly disproportionate to the government's interest in maintaining prison order and discipline"); Garrity v. Fiedler, 41 F.3d 1150, 1152 (7th Cir.1994) ("We have previously held that prison discipline does not preclude a subsequent criminal prosecution or punishment for the same acts."); State v. Walker, 35 Conn.App. 431, 646 A.2d 209, 212, cert. denied, 231 Conn. 916, 648 A.2d 159 (1994) ("We similarly conclude that the sanction imposed on the defendant by the department of correction in this case [for assaulting a prison employee] did not constitute punishment for the purposes of double jeopardy."); Guerrero v. State, 893 S.W.2d 260, 261 (Tex.App.--Waco 1995, no pet.) (federal constitution's "prohibition against double jeopardy does not preclude the State from trying an inmate when he has already been punished for the same conduct in administrative proceedings.").

Second, we think appellant has misinterpreted the holding of Kurth Ranch. In that case, the primary issue was whether a tax may be characterized as punishment for double jeopardy purposes. 511 U.S. at ----, 114 S.Ct. at 1945. Citing Halper, the Court noted that "[a] defendant convicted and punished for an offense may not have a nonremedial civil penalty imposed against him for the same offense in a separate proceeding." Id. The Court also declared, "Here we ask only whether the tax has punitive characteristics that subject it to the constraints of the Double Jeopardy...