Littrell v. State

• Decision Date: 15 October 2008
• Docket Number: No. PD-1555-07.,PD-1555-07.
• Citation: 271 S.W.3d 273
• Parties: Jared Daniel LITTRELL, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

271 S.W.3d 273

Jared Daniel LITTRELL, Appellant, v. The STATE of Texas.

No. PD-1555-07.

Court of Criminal Appeals of Texas.

October 15, 2008.

Rehearing Denied November 26, 2008.

Deborah Smith McClure, Amarillo, for appellant.

John L. Owen, Asst. Dist. Atty., Amarillo, Jeffrey L. Van Horn, State's Atty., Austin, for state.

OPINION

PRICE, J., delivered the opinion of the Court in which MEYERS, WOMACK, JOHNSON, KEASLER, HERVEY, HOLCOMB and COCHRAN, JJ., joined.

In a single jury trial, the appellant was tried and convicted, and his punishment was assessed, for both the offense of felony murder and the offense of aggravated robbery. The court of appeals held that convicting and punishing the appellant for both offenses did not violate the Fifth Amendment prohibition against being punished twice for the same offense. We granted discretionary review on our own motion to examine this holding. We will reverse the judgment of the court of appeals.

FACTS AND PROCEDURAL POSTURE

In a multi-count indictment, the appellant was charged, inter alia, with felony murder and aggravated robbery, committed against the same victim on the same date.¹ The jury charge authorized the jury to convict the appellant of both offenses, which it did. The jury assessed punishment, enhanced with two prior convictions, at thirty years' confinement in the penitentiary for the felony-murder conviction, and twenty-five years' confinement for the aggravated-robbery conviction.² The appellant contended on appeal that he could not be punished for both offenses consistent with the Fifth Amendment prohibition against double jeopardy. Relying upon this Court's opinion in Cervantes v. State,³ the Amarillo Court of Appeals disagreed. In an unpublished memorandum opinion, the court of appeals held that, because murder and aggravated robbery each contain an element that the other does not, the appellant suffered no double-jeopardy violation.⁴ The court of appeals observed:

To prove aggravated robbery as alleged in the indictment, the State had to prove, among other things, the commission of theft coupled with aggravating circumstances; such was not required to prove ... murder.... To prove murder, the State had to establish that an act of appellant caused [the complainant]'s death; that element is missing in ... aggravated assault [sic].... So, the test espoused in Cervantes was met and no problems with double jeopardy arose.⁵

For the following reasons, we conclude that the court of appeals's analysis is flawed.

THE LAW

The Double Jeopardy Clause of the Fifth Amendment, applicable to the states through the Fourteenth Amendment,⁶ protects an accused against a second prosecution for the same offense for which he has been previously acquitted or previously convicted.⁷ It also protects an accused from being punished more than once for the same offense.⁸ The instant case involves the issue of multiple punishments stemming from a single prosecution. In the multiple-punishments context, two offenses may be the same if one offense stands in relation to the other as a lesser-included offense, or if the two offenses are defined under distinct statutory provisions but the Legislature has made it clear that only one punishment is intended.⁹ Sameness in this context is a matter of legislative intent.¹⁰

The traditional indicium of that legislative intent is the so-called "same elements" test of Blockburger v. United States.¹¹ According to that test, it should be presumed that the Legislature did not regard two statutorily defined offenses to be the same if "each provision requires proof of a fact which the other does not."¹² However, for purposes of multiple-punishments analysis, the Blockburger test is only a tool of statutory construction—and not even an exclusive one.¹³ An accused may be punished for two offenses that would be regarded as the same under a Blockburger analysis if the Legislature has otherwise made manifest its intention that he should be.¹⁴

In the instant case, we must address two questions. First we must determine whether the aggravated robbery is a lesser-included offense of the felony murder. We make that determination as a matter of state law "by comparing the elements of the greater offense, as the State pled it in the indictment, with the elements of the statute that defines the lesser offense."¹⁵ If the aggravated robbery is a lesser-included offense under this analysis, the judicial presumption is that they are the same for double-jeopardy purposes and that the accused may not be punished for both.¹⁶ The second question, in that event, is whether the Legislature has clearly expressed a contrary intention that the accused should in fact be punished for both the greater and the lesser-included offenses.¹⁷

ANALYSIS

The State's theory of felony murder, as expressed in Count One of the indictment, is that the appellant committed an act clearly dangerous to human life that caused the complainant's death during the commission (or attempted commission) of aggravated robbery. Count Two of the indictment alleges that self-same predicate aggravated robbery. In order to establish felony murder as alleged in Count One, the State need prove no more than the aggravated robbery (or attempted aggravated robbery) alleged in Count Two,¹⁸ plus additional facts. In order to prove the aggravated robbery, the State need prove no additional fact that is not already contained in Count One. As they are pled in the indictment, then, Count Two is clearly subsumed within, and therefore constitutes a lesser-included offense of, Count One, both as a matter of state law and for double-jeopardy purposes.¹⁹

In holding otherwise, the court of appeals seems to have lost sight of the fact that the appellant was charged with felony murder under Section 19.02(b)(3) of the Penal Code,²⁰ rather than murder under Section 19.02(b)(1).²¹ Had the appellant been charged under the latter provision, we agree that aggravated robbery would not have constituted a lesser-included offense. Murder under such an indictment would require proof only that the appellant intentionally or knowingly caused the complainant's death and would not involve proof of a predicate felony such as aggravated robbery. Aggravated robbery would require proof of other elements not required to prove murder by way of intentionally or knowingly causing death.²² Thus, those two offenses would (at least presumably) not be the same for jeopardy purposes, since on the face of the pleadings each would require proof of at least one fact that the other would not.²³ But an intentional or knowing murder was not the theory that the State chose to pursue in Count One.

Moreover, Cervantes v. State,²⁴ upon which the court of appeals principally relied, is distinguishable. In Cervantes, the defendant was charged with attempted capital murder in one count and aggravated robbery in another.²⁵ He alleged that punishing him for both offenses, even after only a single proceeding, violated his double-jeopardy rights. The theory of attempted capital murder was that Cervantes attempted to cause the death of a peace officer who was acting in the lawful discharge of an official duty. On the other hand, the count alleging aggravated robbery did not even allege that the complainant (the same complainant as in the attempted capital-murder count) was a peace officer. The complainant was off duty at the time of the alleged attempted capital murder and aggravated robbery. Cervantes argued that it was necessary for the State to prove the commission of the aggravated robbery in order to establish that the off-duty peace officer had been acting in the lawful discharge of an official duty at the time Cervantes tried to kill him.²⁶ Even if this were true as a matter of the available evidence, however, it does not establish that the aggravated robbery was a lesser-included offense of the attempted capital murder as both those offenses were defined by the pleading. Comparing the elements of the respective offenses as pled in the indictment in Cervantes,²⁷ it is clear that the allegation of aggravated robbery was not wholly subsumed by the allegation of attempted capital murder in that case. Each offense as alleged required proof of at least one fact that the other did not.²⁸ Cervantes's claim of double jeopardy could have prevailed only under "same evidence" or "same conduct" conceptions of lesser-included offense law and double-jeopardy law—conceptions we have flatly rejected.²⁹

Because aggravated robbery as pled in Count Two of the appellant's indictment is a lesser-included offense of felony murder as pled in Count One, the presumption applies that they constitute the same offense for double-jeopardy purposes. We turn next, then, to the question of whether the Legislature has clearly expressed an intention that an accused should be punished for both offenses, notwithstanding the Blockburger analysis. We find no such legislative expression.

The Legislature knows well enough how to plainly express its intention that an accused should suffer multiple punishments for the same offense. There are examples readily to be found in the Penal Code. One is Section 22.04(h), which makes it clear that an accused who is charged with injury to a child, elderly individual, or disabled individual may also be prosecuted (and presumably, punished) for any other penal-code violation to which his conduct may subject him.³⁰ Similarly, Section 71.03(3) of the Penal Code provides that "[i]t is no defense to prosecution" for engaging in organized criminal activity that the accused has also been charged with one of the predicate offenses.³¹ We have held this to be a clear enough indication of a legislative "intention that a defendant charged with engaging in organized criminal activity may also be charged (at least in the same proceeding) with the underlying offense and punished for both."³² We find no comparable language in either Section 19.02, the murder st...