McElwee v. State

• Citation: 589 S.W.2d 455
• Decision Date: 21 November 1979
• Docket Number: No. 54136,54136
• Parties: Maurice McELWEE, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 455

589 S.W.2d 455

Maurice McELWEE, Appellant, v. The STATE of Texas, Appellee.

No. 54136.

Court of Criminal Appeals of Texas, En Banc.

Nov. 21, 1979.

Steven M. Mason and Wilson McVicker, Jr., Lufkin, for appellant.

Gerald A. Goodwin, Dist. Atty., Lufkin, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON REMAND FROM THE UNITED STATES SUPREME COURT

ONION, Presiding Judge.

"A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines." ¹

On original submission, a panel of this court affirmed this murder conviction, wherein the punishment assessed was ninety-nine (99) years' imprisonment. We held, among other things, that the appellant's rights against being placed in double jeopardy had not been violated. After granting appellant's petition for certiorari to this court, the United States Supreme Court vacated the judgment of this court and remanded the cause for further consideration in light of the decision in Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978), which held that the federal procedure as to the time when jeopardy attaches in a criminal trial was preferable to the various procedures followed by the states, and therefore constitutionally mandated.

A brief recitation of the facts pertinent to the dispositive issue in this cause might be helpful. In October of 1974, the appellant was indicted for murder. No prior convictions were alleged in the indictment. On February 4, 1975, the case was called to trial and the jury was impaneled and sworn. However, the indictment was not read nor did the appellant plead to the indictment. In fact, the proceedings advanced no further at that time because the trial judge was engaged in another trial. After being admonished, the jury was told to return on February 7, 1975 for trial. Because of a delay in the progression of the trial already underway, the trial judge was forced to delay the trial again until February 10. However, prior to this date, the State moved for dismissal of the indictment so that newly discovered previous felony convictions of the appellant could be added for enhancement of punishment purposes in a new indictment. The motion was granted and the jury was discharged. Appellant was reindicted for murder in March of 1975. The new indictment, which reflected two prior felony convictions, was sustained on March 24, 1975, when appellant's plea of former jeopardy was overruled by the trial court. The trial commenced before a new jury on December 9, 1975, which resulted in the appellant's conviction and this appeal.

In affirming appellant's conviction, this court held in pertinent part as follows:

"The Fifth Amendment to the United States Constitution provides that '. . . nor shall any person be subject for the same offense to be twice put in jeopardy of life and limb . . . .' and this provision of the Fifth Amendment was made applicable to the states under the Due Process Clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); Taylor v. State, 474 S.W.2d 207 (Tex.Cr.App.1972); Duckett v. State, 454 S.W.2d 755 (Tex.Cr.App.1970).

"Under the federal case law, a termination of the trial after jeopardy attaches can only be proper when required by 'manifest necessity' or the 'ends of public justice,' and jeopardy generally attaches when the jury is selected and sworn. Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 525 (1973); United States v. Jorn, 400 U.S. 486, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963).

"However, it has long been the rule in Texas that jeopardy does not attach until the jury is selected and sworn And the defendant pleads to the indictment. Lockridge v. State, 522 S.W.2d 526 (Tex.Cr.App.1975); Vardas v. State, 518 S.W.2d 826 (Tex.Cr.App.1975), cert. den. 423 U.S. 904, 96 S.Ct. 206, 46 L.Ed.2d 135 (1975); Ochoa v. State, 492 S.W.2d 576 (Tex.Cr.App.1973); Steen v. State, 92 Tex.Cr.R. 99, 242 S.W. 1047 (1922); Yerger v. State, 41 S.W. 621 (Tex.Cr.App.1897); Anderson v. State, 24 Tex.App. 705, 7 S.W. 40 (1886).

"Finding no compelling reason to overturn this longstanding rule, we adhere to those holdings and overrule appellant's first ground of error. He was not placed in jeopardy when the jury was selected and sworn on February 4, 1975, and thus his subsequent trial on the new indictment was not barred by the Fifth Amendment to the United States Constitution."

The Supreme Court has vacated this holding in light of their opinion in Crist v. Bretz, supra. The relevant facts in Crist are summarized as follows from the opinion of the Court as delivered by Justice Stewart:

"The appellees, Merrel Cline and L. R. Bretz, were brought to trial in a Montana court on charges of grand larceny, obtaining money and property by false pretenses, and several counts of preparing or offering false evidence. A jury was empaneled and sworn following a three-day selection process. Before the first witness was sworn, however, the appellees filed a motion drawing attention to the allegation in the false pretenses charge that the defendants' illegal conduct began on January 13, 1974. Effective January 1, 1974, the particular statute relied on in that count of the information, Mont.Rev.Codes Ann. § 94-1805 (1947), had been repealed. The prosecutor moved to amend the information, claiming that '1974' was a typographical error, and that the date on which the defendants' alleged violation of the statute had commenced was actually January 13, 1973, the same date alleged in the grand larceny count. The trial judge denied the prosecutor's motion to amend the information and dismissed the false pretenses count. The State promptly but unsuccessfully asked the Montana Supreme Court for a writ of supervisory control ordering the trial judge to allow the amendment.

"Returning to the trial court, the prosecution then asked the trial judge to dismiss the entire information so that a new one could be filed. That motion was granted, and the jury was dismissed. A new information was then filed, charging the appellees with grand larceny and obtaining money and property by false pretenses. Both charges were based on conduct commencing January 13, 1973. Other than the change in dates, the new false pretenses charge described essentially the same offense charged in the earlier defective count."

The defendants were convicted by a new jury under the allegations of the new information. Appeal was taken from that conviction which ultimately resulted in the decision under which we must now modify a rule which has long been recognized as a procedural doctrine in this as well as in other states and the federal system. See, e. g., Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970); Ludwig v. Massachusetts, 427 U.S. 618, 96 S.Ct. 2781, 49 L.Ed.2d 732 (1976); Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963); Vardas v. State, 518 S.W.2d 826 (Tex.Cr.App.1975), cert. den. 423 U.S. 904, 96 S.Ct. 206, 46 L.Ed.2d 135 (1975); Ochoa v. State, 492 S.W.2d 576 (Tex.Cr.App.1973); Anderson v. State, 24 Tex.App. 705, 7 S.W. 40 (1886).

In foisting upon the states a requirement of uniformity under the guise of a constitutional mandate, the 5-4 majority in Crist v. Bretz, supra, concluded there should be no variance between jurisdictions as to when jeopardy attaches in a jury trial. It was concluded that Montana's rule that jeopardy attaches only after the first witness is sworn was repugnant to the constitutional safeguards against double jeopardy. ² To this extent, it was decided that the federal rule that jeopardy attaches when the jury is impaneled and sworn, was preferable and therefore rationalized that the rule "both reflects (as well as) protects the defendant's interest in retaining a chosen jury," and is, therefore, "an integral part of the constitutional guarantee against double jeopardy." 437 U.S. at 38, 98 S.Ct. at 2162.

It now becomes the duty of this court to render a decision in the instant case which conforms our rule concerning the attachment of jeopardy to the federal timetable, now sanctified as a constitutional imperative. This should not be done, however, without an examination of the origin of the Texas rule and the study of the policies behind its application.

The creation of a safeguard against double jeopardy appeared in the Constitution of the State of Texas in 1845:

"No person for the same offense shall be twice put in jeopardy of life or limb, nor shall a person be again put upon trial for the same offense after a verdict of not guilty; and the right of a trial by jury shall remain inviolate." Article I, § 12, Constitution of the State of Texas, Vol. I, Paschal's Annot. Digest, Laws of Texas, p. 48 (1873).

This language was somewhat modified in 1856 and incorporated into the Code of Criminal Procedure:

"No person for the same offense can be twice put in jeopardy of life or limb. This is intended to mean that no person can be subjected to a second prosecution for the same offense, after having been once prosecuted in a court of competent jurisdiction, and duly convicted." Article 2484 (18), Code Criminal Procedure, Vol. I, Paschal's Annot. Digest, Laws of Texas, p. 476 (1873).

These protections have consistently been included as they evolved with the constitutional law of this state. Article I, § 14 of the Texas Constitution now provides:

"No person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction."

The statutory provision of the present day Code of Criminal Procedure still parallels the constitutional language. Article 1.10, V.A.C.C.P. ...