Lozano v. State

• Decision Date: 05 July 1984
• Docket Number: No. 10-83-223-CR,10-83-223-CR
• Citation: 676 S.W.2d 433
• Parties: Joe Olivo LOZANO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 433

676 S.W.2d 433

Joe Olivo LOZANO, Appellant, v. The STATE of Texas, Appellee.

No. 10-83-223-CR.

Court of Appeals of Texas Waco.

July 5, 1984.

James L. Bruner, San Antonio, for appellant.

Sam D. Millsap, Jr., Crim. Dist. Atty., Ernie Glenn, Sam Ponder, Alan E. Battaglia,

Asst. Crim. Dist. Attys., San Antonio, for appellee

OPINION

THOMAS, Justice.

A jury convicted Appellant of delivering marihuana for remuneration and sentenced him to six years in prison. This appeal presents two questions. First, does jeopardy bar the State from prosecuting Appellant for delivery? Second, is the evidence sufficient to support Appellant's conviction, where the marihuana was not introduced as an exhibit (it had been destroyed before trial under a court order) and the charge instructed the jury not to convict Appellant unless it found "the exhibits introduced in evidence by the State are marihuana"? We affirm.

Following his arrest by an undercover narcotics officer, Appellant was indicted for delivery of marihuana for remuneration, a third-degree felony under Sec. 4.05(e) ¹. On September 19, 1981, Appellant pled guilty under a plea agreement to possession of marihuana over four ounces, a third-degree felony under Sec. 4.05(b)(1), and was sentenced to five years in prison and ordered to pay a $500 fine. On October 1st, the court ordered the marihuana destroyed. Appellant filed a motion for new trial, claiming his conviction was improper because the indictment did not allege the elements of possession over four ounces. The court granted him a new trial on November 5th. The crime lab destroyed the marihuana on November 10th.

The State prepared to try Appellant for delivery of marihuana for remuneration under the original indictment. He tried to dismiss the indictment before trial through a special plea of collateral estoppel. The plea asserted the State could not prosecute him for delivery, because that would allow the State to relitigate ultimate fact issues already determined in his favor when he was granted a new trial on his conviction for possession. The plea was denied.

Appellant's first ground contends the court erred in overruling his plea of collateral estoppel. In the trial on delivery for remuneration, the State proved that Appellant knowingly and intentionally possessed and actually delivered approximately fifteen ounces of marihuana to an undercover narcotics agent for $300. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), prescribes the following test to determine whether more than one offense has arisen from the same act or transaction which constitutes a violation of two distinct statutory provisions: does each statutory provision require proof of an additional fact which the other does not require? Ex parte Mike, 632 S.W.2d 594 (Tex.Cr.App.1982).

Conviction for felony possession requires proof of the amount of marihuana possessed but does not require proof of remuneration. Sec. 4.05(a)(b)(1). Conviction of delivery for remuneration requires proof of remuneration but does not require proof of the amount of marihuana delivered. Sec. 4.05(d)(e)(f). After applying the Blockburger test, we hold the proof established that Appellant violated two distinct statutory provisions, both resulting in third-degree felonies, in the same act or criminal transaction: (1) possession of marihuana over four ounces; and (2) delivery of marihuana for remuneration. As both offenses are third-degree felonies, neither could be a lesser included offense of the other. A single act may be an offense against two statutes. If each statute requires proof of an additional fact which the other does not require, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other. Blockburger v. United States, supra. Under the facts presented, jeopardy does not bar the State from prosecuting Appellant for delivery of marihuana for remuneration, even though he may have been convicted or acquitted in a prior proceeding for possession of marihuana over four ounces.

The court correctly overruled the plea of collateral estoppel for other reasons as well. Appellant's conviction for felony possession was a nullity, because the indictment did not allege the elements of possession of marihuana over four ounces. Under the circumstances, the court lacked jurisdiction to convict and, thus, jeopardy did not attach. Houston v. State, 556 S.W.2d 345 (Tex.Cr.App.1977). Furthermore, collateral estoppel only arises where the prior judgment results in an actual acquittal of the defendant. Jones v. State, 514 S.W.2d 255 (Tex.Cr.App.1974). To constitute an acquittal, the judge's ruling must actually represent a resolution, correct or not, of some or all of the factual elements of the offense charged. Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 52 L.Ed.2d 80 (1977). Here, the court granted Appellant a new trial, an act which did not resolve any factual elements in his favor;...