Landers v. State

• Decision Date: 26 November 1997
• Docket Number: No. 1736-96,1736-96
• Citation: 957 S.W.2d 558
• Parties: Glenn Ray LANDERS, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

Page 558

957 S.W.2d 558

Glenn Ray LANDERS, Appellant, v. The STATE of Texas.

No. 1736-96.

Court of Criminal Appeals of Texas,

En Banc.

Nov. 26, 1997.

Allan K. Butcher, Allan K. Butcher, Jr., Fort Worth, for appellant.

John A. Stride, Assistant District Attorney, Fort Worth, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

KELLER, Judge, delivered the opinion of the Court, in which McCORMICK, Presiding Judge, and MANSFIELD, PRICE, HOLLAND and WOMACK, Judges, joined.

Appellant stole a truck. Concerning this conduct, the State indicted appellant on two counts: (1) theft of property valued at $750 or more but less than $20,000 and (2) unauthorized use of a motor vehicle (UUMV). ¹ Both counts alleged the same owner and the same occurrence date, on or about June 27, 1994. Habitual allegations were included in the indictment.

The jury convicted appellant on count 2 (UUMV) and on a lesser included offense of count 1--the lesser-included offense being theft of property valued at $250 or more but less than $750. The jury assessed punishment at 62 years confinement in the Institutional Division of the Texas Department of Criminal Justice for the UUMV and at 9 months confinement in the county jail for the theft offense.

The Court of Appeals held that conviction on both offenses violated the Fifth Amendment's The sole issue before us is the proper remedy for the double jeopardy violation. ² The Supreme Court has directed that when a defendant is convicted in a single criminal action of two offenses that are the "same" for double jeopardy purposes, the remedy is to vacate one of the convictions. Ball v. United States, 470 U.S. 856, 864-865, 105 S.Ct. 1668, 1673-1674, 84 L.Ed.2d 740 (1985). ³ In Ball, the defendant was convicted of two offenses under federal law: (1) receiving a firearm and (2) possessing a firearm. Id. at 857-858, 105 S.Ct. at 1669-1670. ⁴ Possessing a firearm was logically a lesser-included offense of receiving a firearm. Id. at 862 & 862 n. 9, 105 S.Ct. at 1672 & 1672 n. 9. The Supreme Court initially explained that double jeopardy did not prevent the government from trying both offenses and submitting both offenses to the jury for verdict. Id. at 860, 860, ns. 7 & 8, 865, 105 S.Ct. at 1670-1671, 1670-1671, ns. 7 & 8, 1673. The Court then held that double jeopardy required vacating one of the convictions (and its sentence), but the Court did not specify which one. Id. at 865, 105 S.Ct. at 1673-1674.

double jeopardy clause because UUMV was a lesser-included offense of theft, and the court reformed the judgment to delete the conviction and sentence for theft. In his petition for discretionary review, appellant contends that the Court of Appeals should have dismissed the conviction for UUMV rather than for the theft offense. We will affirm.

The Supreme Court's analysis in Ball shows that federal double jeopardy principles do not dictate which conviction must be set aside. If conviction on the "greater" offense necessarily foreclosed conviction on the "lesser" one, as appellant contends, then, logically, the prosecution would not be permitted to submit both offenses to the jury as separate counts; instead, both offenses would be submitted in the alternative. But the Supreme Court held that the government could, indeed, submit both offenses as separate counts. Moreover, if double jeopardy required always dismissing the "lesser" offense, the Supreme Court could have easily said so, but it did not. Instead, by remanding the cause for dismissal of one of the convictions, the Supreme Court indicated that it did not matter for double jeopardy purposes which conviction was vacated.

Which conviction to vacate, therefore, is a question of state law. And because the Legislature has not enacted a statute addressing this situation, ⁵ we must fashion a judicial rule for that purpose. We have already fashioned a judicial rule in the misjoinder context. See Ex Parte Pena, 820 S.W.2d 806 (Tex.Crim.App.1991)(plurality opinion); see also Ex Parte Drake, 883 S.W.2d 213, 216 (Tex.Crim.App.1994)(citing Pena with approval). Pena held that, when a defendant is convicted of two or more offenses that were misjoined, the remedy is to retain the most serious offense and vacate the remaining offenses. 820 S.W.2d at 809. The most serious offense is determined by the degree of the felony, the range of punishment and the sentence imposed, with rules of parole eligibility and good conduct time as a tie-breaker.

Id. We set out four reasons justifying our judicially-made rule:

First, it will be applicable to all cases where there is misjoinder of offenses.

Second, it does not attempt to make arbitrary distinctions based on which allegation or conviction preceded the others. The outcome of a case will not depend on the coincidence of the order of offenses in an indictment or jury charge.

Third, it assumes that if the State had been made to elect an offense, it would have chosen the most serious one. This will be true in a majority of the cases. It cannot be said that the State would usually pick the first offense.

Last, it is the most consistent with the objective of the Penal Code "to insure the public safety through: (A) the deterrent influence of the penalties hereinafter provided." V.T.C.A. Penal Code, sec. 1.02.

Id. (quoting Callins v. State, 780 S.W.2d at 176, 197-198 (Tex.Crim.App.1986)(Miller, J. concurring)). A reading of these reasons shows that they were not based upon the language or legislative history of the misjoinder statute but were simply policy reasons tailored to fit the misjoinder situation. A resort to such policy reasons is even more appropriate in the present context, where there is no legislative intent to divine.

We find that the kinds of policy reasons announced above favor adoption of what we will call the "most serious punishment" test. That test requires retaining the offense with the most serious punishment and vacating any remaining offenses that are the "same" for double jeopardy purposes. The "most serious punishment" is the longest sentence imposed, with rules of parole eligibility and good time serving as a tie-breaker.

The "most serious punishment" test satisfies the first policy reason because it will apply to all cases in which a double jeopardy violation arises from the prosecution and conviction, in a single criminal action, of two or more offenses that constitute the same offense.

The test satisfies the second policy reason because it eliminates the arbitrariness of relying upon how a statute is structured (i.e. the number of elements, or a logical relationship between broader and narrower elements) to determine "greater" and "lesser" offenses when that structure has no necessary relationship to the seriousness of the offense. To use the Blockburger test to characterize some offenses as "greater" and others as "lesser" is in many respects artificial. Such analysis works for double jeopardy purposes because the object of a double jeopardy analysis is to determine whether the offenses are the "same," not to sort out which offense is "greater" and which is "lesser." The Blockburger test is not suited for the latter inquiry because having more elements or being the broader offense does not necessarily mean that the offense is the more serious one. The present case is a good example of that situation. A couple of other obvious examples exist under older versions of the penal code. In 1993, voluntary manslaughter and second degree aggravated kidnapping contained more elements than their respective "greater" offenses, murder and first degree aggravated kidnapping. Compare Tex. Pen.Code §§ 19.02 and 19.04 (1993), and see Tex. Pen.Code § 20.04(b)(1993).

The third reason applies somewhat differently to the double jeopardy context than the misjoinder context and explains the difference in the judicially-made rules. In the misjoinder context, we fashioned a rule designed to best ascertain what offense the State would have elected to proceed on at trial. We did so because, in the misjoinder context, the State is not permitted to prosecute both offenses at the same time. Hence, our evaluation, in the misjoinder context, is a prospective evaluation of the seriousness of the offense, with the sentence coming into play only when the range of punishment and the degree of offense are the same. ⁶ In the type of double jeopardy context before us, however, the State is permitted to prosecute Finally, upholding the most serious punishment would also be consistent with the Penal Code's objective of insuring public safety through "the deterrent influence of the penalties" provided.

both offenses and submit both offenses to the jury for consideration. Because pursuing both offenses is proper in this context, the State should have the benefit of the most serious punishment obtained.

Application of the most serious punishment test shows that the Court of Appeals correctly decided which conviction to dismiss. The UUMV conviction carries a 62 year sentence while the theft conviction carried a sentence of only 9 months.

The judgment of the Court of Appeals is affirmed.

OVERSTREET, J., filed a dissenting opinion, in which BAIRD and MEYERS, JJ., joined.

OVERSTREET, Judge, dissenting.

Appellant was initially charged by indictment with unauthorized use of a motor vehicle, to-wit a truck, alleged to have occurred on or about June 27, 1994. Subsequently, he was re-indicted and charged in a single two-count indictment with the same unauthorized use of a truck, and theft of property, to-wit one truck, of the value of $750 or more but less than $20,000. Both counts alleged the same owner and the same occurrence date, i.e. on or about June 27, 1994. Habitual allegations were included in both the original and the reindictment.

Upon a trial by jury, appellant was found guilty of count two, the unauthorized use of a motor...