Malone v. State

• Decision Date: 13 October 1993
• Docket Number: No. 2-92-022-CR,2-92-022-CR
• Citation: 864 S.W.2d 156
• Parties: Robert A. MALONE, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 156

864 S.W.2d 156

Robert A. MALONE, Appellant, v. The STATE of Texas, State.

No. 2-92-022-CR.

Court of Appeals of Texas Fort Worth.

Oct. 13, 1993.

Danny D. Burns, Fort Worth, for appellant.

Tim Curry, Crim. Dist. Atty., Danielle A. Legault, Asst. Crim. Dist. Atty., Fort Worth, for appellee.

Before FARRIS, LATTIMORE and WEAVER, JJ.

OPINION

LATTIMORE, Justice.

Robert A. Malone appeals his conviction for aggravated sexual assault of a child where a jury sentenced him to ninety-nine years in the Institutional Division of the Texas Department of Criminal Justice and a $10,000 fine. Malone complains in four points of error that the trial court erred in denying his pre-trial plea of prior jeopardy because the State was estopped from relitigating the same facts found in a prior civil proceeding and the criminal action brought against him was barred by double jeopardy.

We affirm the judgment of the trial court because the criminal action did not subject Malone to double jeopardy and the state is not estopped by collateral estoppel in litigating the facts necessary to the criminal action.

Prior to Malone's criminal prosecution, the Department of Human Services ("DHS") brought a civil proceeding against Malone to terminate his parental rights to his natural daughter, M.M. The mother of the child, Teresa Baley, had executed an irrevocable affidavit of relinquishment of parental rights prior to this lawsuit. In that suit the jury found by clear and convincing evidence that Malone "knowingly placed or knowingly allowed the child, [M.M.], to remain in conditions or surroundings which endangered the physical or emotional well-being of the child, [M.M.]" but failed to find that Malone "engaged in conduct or knowingly placed the child, [M.M.], with persons who engaged in conduct which endangered the physical or emotional well-being of the child, [M.M.]." The jury also found it would not be in the best interest of the child to terminate the parent-child relationship between Malone and M.M., but did find that the appointment of the DHS as managing conservator would be in the best interest of the child. Malone was ordered to pay child support, and was given visitation rights.

In points of error two and four, Malone contends that "[t]he trial court erred in denying the appellant David Malone's special plea of prior jeopardy for the reason that the criminal action was barred as a result of double jeopardy." Thus, Malone contends that "[t]he trial court committed fundamental error in failing to present the issue of prior jeopardy to the jury." Malone argues that the State had brought the same allegations of sexual abuse to trial in the termination suit as are alleged in the indictment, and since the jury found facts adverse to the State in the civil proceeding, i.e., that he had not "engaged in conduct or knowingly placed the child, [M.M.], with persons who engaged in conduct which endangered the physical or emotional well-being of the child," it cannot relitigate those same facts in the criminal proceeding. We disagree with Malone's position. Although no Texas case speaks directly to the issue before us, there is some case law which is instructive.

The double jeopardy clauses of the United States and the Texas Constitutions protect against second prosecutions for the same offense after acquittal, second prosecutions for the same offense after conviction and multiple punishments for the same offense. Jones v. Thomas, 491 U.S. 376, 380-81, 109 S.Ct. 2522, 2525, 105 L.Ed.2d 322, 330-31 (1989); Cervantes v. State, 815 S.W.2d 569, 572 (Tex.Crim.App.1991). Malone's position on double jeopardy appears to be that the State cannot try him for aggravated sexual assault since the State has already suffered an adverse finding on the issue of sexual assault in the termination case. Malone argues that "termination of parental rights is an obvious punitive action against [him]." Therefore, Malone has intermingled two aspects of double jeopardy, a second prosecution after acquittal and multiple punishments. We will first address his claim concerning the termination suit as a prior prosecution, and then his claim that the results of the termination suit was a punishment.

Courts in Texas and other jurisdictions have consistently held that only successive criminal prosecutions constitute double jeopardy. See e.g., Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917, 922 (1938); Ex parte Rogers, 804 S.W.2d 945, 946-47 (Tex.App.--Dallas 1990, no pet.) (civil forfeiture proceeding does not bar a successive criminal prosecution for possession of narcotics); In the Matter of F.A., 835 S.W.2d 748, 749 (Tex.App.--San Antonio 1992, no pet.) (certification of a juvenile as an adult did not serve to bar a later prosecution of a criminal offense, since guilt or innocence is not the subject of the inquiry); In the Matter of L.R.L.C., 693 S.W.2d 552, 553 (Tex.App.--San Antonio 1985, no pet.); Emory v. Texas State Bd. of Medical Examiners, 748 F.2d 1023, 1026 (5th Cir.1984) (administrative suspension of medical license is not criminal sanction but merely remedial); Ayars v. New Jersey Dep't of Corrections, 251 N.J.Super. 223, 597 A.2d 1084, 1088 (Ct.App.Div.1991) (forfeiture of public employment is not punishment, but removal from a position of trust). Whether the civil proceeding or the criminal prosecution comes first is irrelevant when analyzing a double jeopardy issue. See Ex parte Rogers, 804 S.W.2d at 947. Here, the first trial adjudicating the termination of parental rights was in the nature of a civil proceeding, and not a criminal prosecution with the attendant criminal penalties of confinement or fines. Malone does not cite, and we have not found, any case holding that a trial for the termination of parental rights is a criminal proceeding.

"The double jeopardy...