January v. State

• Decision Date: 30 May 1985
• Docket Number: No. 13-83-549-CR,13-83-549-CR
• Parties: Frank JANUARY, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 215

695 S.W.2d 215

Frank JANUARY, Appellant, v. STATE of Texas, Appellee.

No. 13-83-549-CR.

Court of Appeals of Texas,

Corpus Christi.

May 30, 1985.

Joseph A. Connors, III, McAllen, for appellant.

Theodore C. Hake, Dist. Attorney's Office, Edinburg, for appellee.

Before UTTER, KENNEDY and KEITH ¹, JJ.

OPINION

UTTER, Justice.

On January 26, 1983, appellant kidnapped Luis Reyes and shot him several times. On June 8, 1983, the Hidalgo County Grand Jury indicted appellant for aggravated kidnapping in Cause No. CR-550-83-D and for attempted capital murder in Cause No. CR-556-83-D.

On July 18, 1983, appellant's motion to consolidate the two causes was denied; and, in a jury trial following a plea of not guilty, appellant was convicted for aggravated kidnapping and was sentenced to 90 years in the Texas Department of Corrections. ²

Four months after the trial for aggravated kidnapping, appellant pled not guilty to the charge of attempted capital murder and was tried before a jury. The evidence presented at this second trial was effectively identical to the evidence presented at the aggravated kidnapping trial, which had been held before the same trial judge. The jury found appellant guilty and assessed his punishment at 50 years in the Texas Department of Corrections. Appellant gave notice of appeal; it is this conviction for attempted capital murder which is currently before this Court for review.

In his first ground of error, appellant contends that the attempted capital murder conviction violates his federal and state constitutional and statutory rights against double jeopardy for the same offense. A review of the procedural history and the evidence of this case as well as the applicable penal provisions is necessary.

The evidence shows that, on January 26, 1983, Luis Reyes was leaving work when he was approached by a man seeking a ride to a gasoline station in McAllen. Reyes agreed to take this man, whom he identified as appellant, to the gas station. When they arrived at the gas station, appellant, instead of departing, asked Reyes to drive him to Mission. Reyes refused, and appellant drew a gun and forced Reyes to continue to drive. They eventually concluded their drive near a rural canal, where Reyes attempted to escape. The escape was unsuccessful, and appellant threatened to kill Reyes. Ultimately, Reyes ignored the warning and again tried to escape. This time, appellant fired several shots which struck Reyes, who fell to the ground and feigned death until he later heard appellant apparently attempting to reload the gun. Reyes then got up and ran towards a paved road from where a passing motorist took him to a hospital. The evidence showed that Reyes sustained five gunshot wounds.

For this criminal activity, appellant was indicted for aggravated kidnapping under TEX.PENAL CODE ANN. § 20.04(a)(5) (Vernon Supp.1985). The indictment charged that appellant:

"... did then and there intentionally and knowingly abduct Luis Reyes with intent to terrorize the said Luis Reyes..."

Appellant was also indicted for attempted capital murder under TEX.PENAL CODE ANN. § 19.03(a)(2) (Vernon Supp.1985). That indictment charged that appellant,

"... did then and there while in the course of committing and attempting to commit the kidnapping of Luis Reyes, the said (appellant) did then and there intentionally and knowingly with the specific intent to commit the offense of murder attempt to cause the death of an individual, namely, Luis Reyes by shooting him with a gun, said attempt amounting to more than mere preparation that tends but fails to effect the commission of the offense intended..."

Prior to the first trial, the appellant filed a motion to consolidate the two causes. The State opposed the motion, and the trial court denied the consolidation. ³

The record does not show that appellant made any effort to raise the double jeopardy issue by filing an application for writ of habeas corpus to ultimately secure a pre-trial appellate review of his double jeopardy claim, even though numerous courts of this State have allowed such pre-trial review. See Ex parte Robinson, 641 S.W.2d 552 (Tex.Crim.App.1982); Ex parte Maldonado, 681 S.W.2d 86 (Tex.App.--Amarillo 1984, pet. ref'd.); Bustos v. State, 675 S.W.2d 811 (Tex.App.--El Paso 1984, no pet.); Ex parte Padgett, 673 S.W.2d 303 (Tex.App.--Dallas 1984, pet. granted); Ex parte Loffland, 670 S.W.2d 390 (Tex.App.--Fort Worth 1984, pet. ref'd.); Ex parte Gonzales, 667 S.W.2d 932 (Tex.App.--Austin 1984, pet. ref'd.); Ex parte Rathmell, 664 S.W.2d 386 (Tex.App.--Corpus Christi, pet. granted). Also, the record does not show that appellant made any effort to secure a pre-trial ruling from the trial court concerning his double jeopardy claim before trial.

However, the record does show that, during the initial phase of voir dire examination, the trial court first raised the possibility of double jeopardy when it informed the jury that, if the defendant filed a special plea of double jeopardy, the jury might be required to make some factual determinations regarding double jeopardy. At that time, defense counsel interrupted the trial court and requested that the trial court make no ruling at that time upon his motion to dismiss the case on double jeopardy grounds, which had earlier been filed in the cause. ⁴ Thereafter, the trial court and counsel discussed appellant's right to "appeal" an adverse ruling under Ex Parte Robinson. ⁵ The trial court made no ruling on the double jeopardy motion. Thereafter, the trial proceeded, and the State presented its evidence. Appellant did not raise the double jeopardy issue until the beginning of his case-in-chief. He then attempted to introduce before the jury various pleadings and the statement of facts from the prior aggravated kidnapping trial. The trial court refused to allow the jury to consider these documents but then recessed the jury and permitted appellant to present the evidence to the court.

On appeal, appellant now vigorously argues that the State violated his rights against double jeopardy. Appellant argues that, considering "the fundamental nature of jeopardy pleas, jeopardy can be raised for the first time by way of appeal." ⁶ Although the State concedes that appellant may raise a double jeopardy claim for the first time on appeal, we deem it appropriate to discuss whether appellant waived his right to assert a double jeopardy claim as a result of his active acquiescence to the second trial while by-passing pre-trial appellate review of a colorably meritorious double jeopardy claim.

The issue regarding the preservation of double jeopardy claims was discussed by the Austin Court of Appeals in Allen v. State, 656 S.W.2d 592 (Tex.App.--Austin 1983, no pet.):

Initially, the State argues that by failing to file a special plea of former jeopardy in accordance with Tex.Code Cr.P.Ann. arts. 27.02 and 27.05, appellant waived his right to complain on appeal. The question of former jeopardy has been held to be fundamental in nature and capable of being raised for the first time on appeal. Jones v. State, 586 S.W.2d 542, 544 (Tex.Cr.App.1979); Muncy v. State, 505 S.W.2d 925 (Tex.Cr.App.1974). Other cases hold that a plea of former jeopardy is unnecessary when the second trial is pursuant to an indictment arising out of the same transaction, provided that the second trial is in the same court, is before the same judge, as in the instant case. Duckett v. State, 454 S.W.2d 755, 758 (Tex.Cr.App.1970); see Ex parte Myers, 618 S.W.2d 365, 367 (Tex.Cr.App.1981); see also Ex parte Scelles, 511 S.W.2d 300 n. 3 (Tex.Cr.App.1974) (Correcting misleading language in Duckett v. State, supra). The State's waiver argument is without merit and we will examine appellant's claim of double jeopardy.

Id., 656 S.W.2d at 594.

The rules mentioned by the Austin Court of Appeals were effective before the United States Supreme Court subsequently held that an accused had a right to an appellate review of double jeopardy matters prior to trial. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). While this right to pre-trial review may have been based initially on the construction of a federal statute, the Supreme Court has unmistakingly held since Abney that the accused's right to pre-trial appellate review of a double jeopardy claim is grounded on the United States Constitution's Fifth Amendment. For example, in United States v. Hollywood Motor Car Company, Inc., 458 U.S. 263, 102 S.Ct. 3081, 73 L.Ed.2d 754 (1982), the Supreme Court stated:

"In Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), we permitted interlocutory appeal of an order denying a pretrial motion to dismiss an indictment on double jeopardy grounds. Perhaps most important among the relevant factors, we recognized that 'the rights conferred on a criminal accused by the Double Jeopardy Clause would be significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence.' Id., at 660, 97 S.Ct., at 2040. One right guaranteed by the Double Jeopardy Clause was the right not to be tried twice for the same offense. '[I]f a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs.' "

Id., 102 S.Ct. at 3083.

Since the Double Jeopardy Clause protects an accused from being twice put to trial for the same offense, the Supreme Court reasoned that, if an accused had to wait until an appeal from a conviction to challenge the constitutionality of the proceeding, then the intended protection would be defeated by the trial, and the claim would be effectively unreviewable on appeal.

It seems somewhat incongruous to us that appellant is able to assert the double jeopardy claim now when he failed to present it at a time when his rights...