Langs v. State

• Decision Date: 25 January 2006
• Docket Number: No. PD-1763-04.,PD-1763-04.
• Citation: 183 S.W.3d 680
• Parties: Thessalonians LANGS, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

183 S.W.3d 680

Thessalonians LANGS, Appellant, v. The STATE of Texas.

No. PD-1763-04.

Court of Criminal Appeals of Texas.

January 25, 2006.

COPYRIGHT MATERIAL OMITTED

Barry J. Alford, Fort Worth, for Appellant.

Sylvia Mandel, Asst. Criminal District Atty., Fort Worth, Matthew Paul, State's Atty., Austin, for State.

OPINION

COCHRAN, J., delivered the opinion of the unanimous Court.

In this case we reiterate that the face of the trial record must clearly show a double jeopardy violation before a defendant may successfully raise a "multiple punishment" double jeopardy claim for the first time on appeal.¹

Appellant was convicted of two offenses: burglary of a habitation and retaliation. Under the disjunctive application paragraph of the charge, the jury could convict appellant of burglary of a habitation under either of two theories: (1) entry with the intent to commit retaliation; or (2) entry and the commission (or attempted commission) of retaliation. The general verdict form did not require the jury to specify which theory it relied upon.

On appeal, appellant claimed that his two convictions constituted multiple punishment in violation of the Double Jeopardy Clause because the jury could have rested its verdict on the second burglary theory which made retaliation a lesser-included offense of burglary.² The court of appeals held that appellant failed to preserve his double jeopardy claim because he did not object to the disjunctive jury charge at trial.³ We agree and affirm that decision.

I.

At trial, the evidence showed that appellant and Amanda had been involved in a four-year relationship that Amanda ended on November 3, 2001. That very night, appellant physically assaulted Amanda. She filed criminal charges against him. Appellant then embarked upon a campaign to harass and threaten Amanda into dropping the assault charge.

Appellant's campaign began with phone calls. Soon after the November 3rd assault, both appellant and his family called Amanda to persuade her to drop the charges. Amanda repeatedly refused and asked them to leave her alone. On December 3rd, appellant fabricated a story about his father recently dying to garner Amanda's sympathy. She again refused to meet with him and again asked him to leave her alone. Amanda was so distraught that she contacted the police, and they cited appellant for criminal trespass.

On December 5th, appellant contacted one of Amanda's friends and asked her a series of detailed questions to find out exactly where Amanda would be throughout the day. Concerned, Amanda's friend contacted Amanda to tell her about the conversation with appellant. Amanda felt scared and decided to spend the night at her mother's house.

That night, while Amanda slept, appellant knocked on the door of her mother's home. When Amanda's mother, Vickie, answered the door, appellant declared that he needed to see Amanda. Vickie told him to wait outside, and she shut the door behind her. Nonetheless, appellant barged through the door, went to Amanda's bedroom, grabbed her arm, and pulled her from her bed. Amanda told appellant, "You're not supposed to be here and you need to leave." Appellant ignored her. He dragged her out of her bedroom, bumping her shoulder against the walls, while she "was screaming `No' the whole way down the hall." Appellant pulled her out to his car, demanding that she sign an affidavit of non-prosecution. He fled in his car when police officers drove up to the house.

At the conclusion of the trial, the judge instructed the jury on both burglary of a habitation and retaliation.⁴ Under the burglary application paragraph, the jury could find that appellant entered a habitation without the effective consent of the owner and either: (1) entered with the intent to commit retaliation; or (2) after entering, attempted to commit or committed retaliation. The verdict form required only that the jury indicate whether it found appellant guilty of burglary of a habitation and whether it found him guilty of the separate offense of retaliation. Appellant did not object to the burglary application paragraph or the general verdict form.⁵

The jury found appellant guilty of both offenses and assessed his punishment at fifteen years' imprisonment for the burglary and ten years for the retaliation offense. Although appellant filed a motion for new trial, he made no double jeopardy claim.

On appeal, appellant claimed that the disjunctive application paragraph could have allowed a double jeopardy "multiple punishments" violation because the jury might have convicted appellant of burglary based on the second theory—one based on retaliation as a lesser-included offense. The court of appeals, relying on our opinion in Gonzalez v. State,⁶ held that "an objection is required to preserve a double jeopardy complaint when the face of the record fails to show a multiple punishment violation."⁷ Because the jury's verdict "could have rested on paragraph one, which alleged burglary with intent to commit retaliation, the record does not necessarily show on its face a multiple punishment violation."⁸

In this Court, appellant contends that the court of appeals erred by failing to apply the more nuanced analysis in Ex Parte Ervin⁹ to determine if a double jeopardy violation was clearly apparent from the record's face.

II.

There are three distinct types of double jeopardy claims: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.¹⁰ A multiple punishments claim can arise in two contexts:

(1) the lesser-included offense context, in which the same conduct is punished twice; once for the basic conduct, and a second time for that same conduct plus more (for example, attempted assault of Y and assault of Y; assault of X and aggravated assault of X);¹¹ and

(2) punishing the same criminal act twice under two distinct statutes when the legislature intended the conduct to be punished only once (for example, causing a single death by committing both intoxication manslaughter and involuntary manslaughter).¹²

The "same elements" test first articulated by the United States Supreme Court in Blockburger v. United States¹³ is used to determine if two convictions constitute "multiple punishment" under the Double Jeopardy Clause:

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.¹⁴

This Court adopted the Blockburger test long ago, and we continue to apply it as the first means of analyzing a multiple-punishment double-jeopardy claim when the legislature's intent is not clearly expressed.¹⁵

When a defendant is convicted of both burglary and a separate felony committed during that burglary, a Blockburger multiple-punishment analysis depends on the type of burglary charged. It is well-settled that a defendant may not be punished for both the underlying felony and burglary if the burglary allegation is that the defendant entered a home without the consent of the owner and then committed the underlying felony within the home as defined in § 30.02(a)(3).¹⁶ Thus, the State may obtain either a burglary or the underlying felony (or theft or assault) conviction if it alleges a burglary under Section 30.02(a)(3) of the Penal Code,¹⁷ but not both. Under Blockburger, burglary under Section 30.02(a)(3) requires proof of a fact that the felony charge does not, namely, entry without consent. However, to prove the burglary charge, the State must prove all of the elements of the underlying felony. Thus, the felony offense would not require proof of an additional element that the burglary offense does not also require.¹⁸

Conversely, it is equally well settled that a substantive felony and a burglary by entering a home without the consent of the owner and with the intent to commit that felony are two distinct offenses.¹⁹ The entry of the home with felonious intent and the felony committed within are two distinct criminal acts, and each requires the State to prove an element that the other does not. A person charged with burglary under Section 30.02(a)(1)²⁰ is guilty of that offense the moment that he crosses the threshold of a habitation without consent and with the intent to commit the underlying felony.²¹ It matters not whether he actually does commit that felony or even if he attempts to commit it.

III.

In this case, appellant's two convictions may or may not violate the double jeopardy clause. Because of the jury charge and structure of the verdict form, we cannot be certain whether the jury relied upon the first (entry with intent to commit a felony) or second (entry and then commission of a felony) burglary theory. This court has, however, made it clear that a potential multiple-punishment double-jeopardy claim may be forfeited if a defendant does not properly preserve that claim.²²

When offenses, one of which could give rise to a multiple-punishment doublejeopardy violation, are listed disjunctively in a jury charge, the burden is upon the defendant to "preserve, in some fashion a double jeopardy objection at or before the time the charge is submitted to the jury."²³

In Gonzalez, we held that because of the "fundamental nature of the double jeopardy protections, a double jeopardy claim may be raised for the first time on appeal or even for the first time on collateral attack" if two conditions are met: (1) "the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record"; and (2) "when enforcement of the usual rules of procedural default serves no legitimate state interest."²⁴

Morever, in Gonzalez, we reasoned that, when separate theories for an offense are issued to the jury disjunctively, a double jeopardy violation is not...