King v. State

• Decision Date: 05 April 2005
• Docket Number: No. 06-04-00110-CR.,06-04-00110-CR.
• Citation: 161 S.W.3d 264
• Parties: James Chynell KING, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Supreme Court

161 S.W.3d 264

James Chynell KING, Appellant, v. The STATE of Texas, Appellee.

No. 06-04-00110-CR.

Court of Appeals of Texas, Texarkana.

Submitted February 23, 2005.

Decided April 5, 2005.

Lew Dunn, Law Office of Lew Dunn, Longview, for appellant.

Ray Bowman, Asst. Dist. Atty., Longview, for appellee.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Justice ROSS.

James Chynell King appeals from a revocation of his community supervision, collaterally attacking his original sentence on the basis of double jeopardy. We affirm the trial court's judgment.

According to a police officer's report filed in the record, Officer Shane Guthrie stopped King November 23, 2001, for driving with a suspended license. After confirming that King's license was still suspended, Guthrie attempted to arrest him, but King resisted. Guthrie sprayed King with his chemical dispensing device, after which King fled to a residence and Guthrie followed. Both entered the residence, where they engaged in an altercation, during which King gained control of Guthrie's chemical dispensing device and sprayed Guthrie. Guthrie, by the use of his sidearm, was able to ultimately subdue King, and, with assistance, consummate the arrest.

In two separate indictments returned by the same grand jury, King was indicted for the felony offenses of assault on a public servant and taking a weapon from a peace officer. See TEX. PEN.CODE ANN. § 22.01(b)(1) (Vernon Supp.2004-2005), § 38.14(e) (Vernon 2003). On February 27, 2002, a jury found King not guilty of the assault on a public servant charge. On May 28, 2002, King pled guilty before a jury to the taking a weapon from a peace officer charge, and the jury assessed his punishment at five years' imprisonment, but recommended King be granted community supervision. The trial court sentenced King to five years' imprisonment, but, in accordance with the jury's verdict, suspended imposition of that sentence and placed King on community supervision for five years.

On May 11, 2004, the State filed an application to revoke King's community supervision, contending King had violated a condition of his supervision by testing positive for use of marihuana. King pled true to the allegation June 7, 2004. The trial court revoked King's community supervision and imposed the sentence of five years' imprisonment. In this appeal, King contends his prosecution for taking a weapon from a peace officer was in violation of the Double Jeopardy Clauses of the United States and Texas Constitutions.

The Double Jeopardy Clause in the Fifth Amendment to the United States Constitution 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. Similarly, the Texas Constitution provides that "[n]o 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; see TEX.CODE CRIM. PROC. ANN. art. 1.10 (Vernon 2005).

The Double Jeopardy Clause in the Fifth Amendment embodies several concepts: it protects a person from being twice prosecuted for the same offense; it precludes the state from prosecuting someone for the same offense or a lesser-included offense after a jury has acquitted the accused; and it bars punishing a person more than once for the same offense. Ex parte Infante, 151 S.W.3d 255, 260 (Tex.App.-Texarkana 2004, no pet.) (citing Monge v. California, 524 U.S. 721, 727-28, 118 S.Ct. 2246, 141 L.Ed.2d 615 (1998)). The Fifth Amendment's Double Jeopardy Clause is enforceable against the States through the Fourteenth Amendment. Infante, 151 S.W.3d at 260. Conceptually, the United States and the Texas double jeopardy provisions are identical. See Stephens v. State, 806 S.W.2d 812, 815 (Tex. Crim.App.1990). King apparently relies on that aspect of the Double Jeopardy Clause precluding the State from prosecuting a person for the same offense after a jury has acquitted that person.

We must first decide if it is permissible for King to raise the issue of double jeopardy for the first time on appeal, thus collaterally attacking his original sentence on that basis. The general rule is that, in an appeal from revocation of community supervision, an appellant may raise issues relating to the original plea proceeding only in appeals taken when community supervision was first imposed. Manuel v. State, 994 S.W.2d 658, 661 (Tex.Crim.App. 1999); Whetstone v. State, 786 S.W.2d 361, 363 (Tex.Crim.App.1990). However, a judgment that is void is an exception to the general rule. Nix v. State, 65 S.W.3d 664, 667 (Tex.Crim.App.2001).

A judgment is void in very rare situations, usually due to a lack of jurisdiction.¹ The question of whether double jeopardy is a jurisdictional defect has not been decided by this Court. If we determine that it is, and if King is correct that the judgment adjudging him guilty of taking a weapon from a peace officer was in violation of the prohibition against double jeopardy, then the trial court was without jurisdiction and such judgment, and the order placing him on community supervision pursuant to that judgment, are void. Under those circumstances, King may raise the issue of double jeopardy for the first time on appeal. Ex parte Seidel, 39 S.W.3d 221, 224 (Tex.Crim.App.2001) (lack of jurisdiction over case renders judgment void and it may always be collaterally attacked). If, on the other hand, we determine that double jeopardy is not a jurisdictional defect, then the trial court was not without jurisdiction (even if King is correct in his claim of double jeopardy), and he was required to raise that issue at the time he was placed on community supervision, and having failed to do so, he cannot now raise it for the first time on appeal.

The Texas Court of Criminal Appeals has declined to rule that double jeopardy is a jurisdictional defect. See Haight v. State, 137 S.W.3d 48, 49 n. 5 (Tex.Crim. App.2004); Harrison v. State, 767 S.W.2d 803, 804 n. 1 (Tex.Crim.App.1989). The Austin Court of Appeals has determined that, until the Texas Court of Criminal Appeals holds otherwise, the Austin court will treat double jeopardy claims as nonjurisdictional errors. Yount v. State, No. 03-96-00565-CR, 1998 WL 3205, 1998 Tex. App. LEXIS 25 (Tex.App.-Austin Jan.8, 1998, no pet.) (not designated for publication) (citing Berrios-Torres v. State, 802 S.W.2d 91, 94 (Tex.App.-Austin 1990, no pet.)). The Waco Court of Appeals has also concluded that double jeopardy is a nonjurisdictional defect. Ramirez v. State, 36 S.W.3d 660, 663 (Tex.App.-Waco 2001, pet. ref'd). Other courts of appeals have reached the opposite conclusion. Okigbo v. State, 960 S.W.2d 923 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd); Cole v. State, 776 S.W.2d 269 (Tex.App.-Houston [14th Dist.] 1989, no pet.); Rodriguez v. State, 750 S.W.2d 906 (Tex.App.-Corpus Christi 1988, pet. ref'd); Harrison v. State, 721 S.W.2d 904 (Tex.App.-Dallas 1986), vacated & remanded on other grounds, 767 S.W.2d 803 (Tex.Crim.App.1989).

We now align ourselves with those courts holding that double jeopardy is a nonjurisdictional defect and agree with the Waco court that "it is more accurate to say that the double jeopardy clause may deprive the second proceeding of being a valid conviction, but does not deprive the trial court of its jurisdiction over the matter." Ramirez, 36 S.W.3d at 663.

Even if King could complain in this appeal that the original proceeding in which he pled guilty violated the prohibition against double jeopardy, he must still preserve the complaint for our review. Generally, a timely objection is required to preserve error for review. See TEX.R.APP. P. 33.1. King therefore had the burden to preserve, in some fashion, a double jeopardy objection at or before the time the issue of his guilt was submitted to the trial court to decide. See Gonzalez v. State, 8 S.W.3d 640, 642 (Tex.Crim.App.2000). This he failed to do—he failed to object to the second prosecution before he was adjudged guilty by the trial court. Further, he made no special plea "that he has already been prosecuted for the same or a different offense arising out of the same criminal episode that was or should have been consolidated into one trial, and that the former prosecution" resulted in an acquittal. See TEX.CODE CRIM. PROC. ANN. art. 27.05 (Vernon 1989). Even at the hearing on the State's motion to revoke community supervision, King pled true to the alleged violation and still did not raise the issue of double jeopardy. King did nothing before, during, or after being placed on community supervision to preserve the error he now raises on appeal. He cannot accept the benefits of community supervision and then complain of double jeopardy for the first time after that supervision is revoked. The Texas Court of Criminal Appeals has held that...