Lindley v. State, 12-88-00063-CR

• Decision Date: 20 May 1993
• Docket Number: No. 12-88-00063-CR,12-88-00063-CR
• Citation: Lindley v. State, 855 S.W.2d 729 (Tex. App. 1993)
• Parties: Judy LINDLEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 729

855 S.W.2d 729

Judy LINDLEY, Appellant, v.The STATE of Texas, Appellee.

No. 12-88-00063-CR.

Court of Appeals of Texas Tyler.

May 20, 1993.

Clifton L. Holmes, Longview, for appellant.

C. Patrice Savage, Longview, Matthew W. Paul, Asst. State's Atty., Austin, for appellee.

BILL BASS, Justice.

Appellant was convicted of engaging in organized criminal activity, the indictment alleging that from September 3, 1986 until September 12, 1986, she did "with intent to establish, maintain and participate in a combination, knowingly and intentionally conspire to commit the offense of unlawful delivery of [cocaine]...."

In an earlier trial, Appellant had been convicted of the aggravated possession of cocaine.The indictment in that case charged that John Lindley, "on or about 12 September 1986, ... did ... intentionally possess with intent to deliver a controlled substance ... namely cocaine, in the amount of at least 400 grams."

This Court found error in the trial court's overruling of Lindley's "Special Plea of Double Jeopardy," and we ordered Lindley acquitted.We so held because "the State, in prosecuting the indictment for engaging in organized criminal activity to distribute cocaine between September 3, 1986, and September 12, 1986, relied on proof of Lindley's possession of cocaine with intent to distribute on or about September 12, 1986."Lindley v. State, 855 S.W.2d 723(Tex.App.--Tyler, 1990).The Court of Criminal Appeals granted the State's petition for discretionary review to consider the impact of Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548(1990), upon successive prosecution of offenses arising in one criminal episode or transaction when proof of the same conduct is offered to establish elements of both offenses.The United States Supreme Court subsequently delivered its opinion in United States v. Felix, 503 U.S. 378, 112 S.Ct. 1377, 118 L.Ed.2d 25(1992).The Court of Criminal Appeals vacated our judgment and remanded the case to us for reconsideration in light of Felix.Lindley v. State, 838 S.W.2d 257, 259(Tex.Cr.App.1992).

Our earlier decision in the case was based upon our interpretation of the relatively recent holding in Grady v. Corbin.Grady v. Corbin bars prosecution where "the government, to establish an essential element of an offense, will prove conduct that constitutes an offense for which the defendant has already been prosecuted."495 U.S. at 521, 110 S.Ct. at 2093.To prove Lindley's participation in the conspiracy to deliver cocaine, the State proved the same conduct which it had already proven in convicting Lindley of possession with intent to deliver.

In United States v. Felix, the defendant was prosecuted in Oklahoma for substantive drug offenses and conspiracy to commit those offenses.Two of the overt acts alleged in the conspiracy accusation were the same conduct for which Felix had already been prosecuted in Missouri.On appeal, Felix argued that his successive prosecutions violated the rule in Grady v. Corbin, since the government introduced evidence of the same conduct in both trials, conduct for which he had already been prosecuted.The Tenth Circuit agreed, and set aside Felix's convictions.

The Supreme Court reversed.The Supreme Court restated the precedent recognized long before the advent of Grady v. Corbin, that a substantive crime and a conspiracy to commit that crime are not the "same offense" for double jeopardy purposes.See, i.e., United States v. Bayer, 331 U.S. 532, 67 S.Ct. 1394, 91 L.Ed. 1654(1947);Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489(1946).The rationale for the rule is that the essence of a conspiracy offense is the agreement or confederation to commit a crime, and the agreement to do the act is distinct from the act itself.In its opinion, the Court emphasizes that neither Grady nor its progenitors questioned this "long standing" precedent.Justice Rehnquist acknowledged the difficulty of reconciling this long standing authority with Grady.But the rule announced in Felix is crystal clear.

Faced with the necessity...