Neal v. State, 06-02-00200-CR.

• Decision Date: 20 August 2003
• Docket Number: No. 06-02-00200-CR.,06-02-00200-CR.
• Parties: Ronnie Joe NEAL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

117 S.W.3d 301

Ronnie Joe NEAL, Appellant, v. The STATE of Texas, Appellee.

No. 06-02-00200-CR.

Court of Appeals of Texas, Texarkana.

Submitted June 19, 2003.

Decided August 20, 2003.

Kathryn B. Moon, Longview, for appellant.

Bill Saban, Asst. County Atty., G. Kyle Freeman, County & Dist. Atty., Henderson, for appellee.

Before MORRISS, C.J., CARTER and GRANT,^* JJ.

OPINION

Opinion by Justice GRANT (Retired).

Ronnie Joe Neal appeals from his conviction by the trial court for possession of a deadly weapon in a penal institution. The trial court sentenced Neal to six years' imprisonment.

Neal contends that his conviction violated the Double Jeopardy Clause, that the trial court erred by failing to grant his motion to quash the indictment, and that the conviction was in violation of his rights because of prosecutorial vindictiveness.

A review of the background to this case is critical to understanding this prosecution. While incarcerated, and two months after he was convicted on the underlying offense, the State indicted Neal on September 9, 1998, for possession of a weapon in a penal institution. Two years later, on November 13, 2000, Neal signed a plea bargaining agreement (also signed by the State) agreeing to accept two years' confinement on that charge. He was bench warranted to Rusk County for the plea hearing. However, on the date of the hearing, defense counsel discovered that Neal had been returned from the Rusk County Jail to the Texas Department of Criminal Justice for medical reasons.

Thereafter, on November 17, 2000, the State's attorney filed a motion to dismiss the prosecution.

Four months later, on March 6, 2001, the State reindicted Neal for the same offense.

The evidence shows that on May 20, 2000, Neal had filed a federal lawsuit against Rusk County alleging violations of civil rights. On February 28, 2001, the federal court held a one-day trial. Six days later, on March 6, the State reindicted Neal. It is unclear when judgment was rendered in the case, but Neal testified he received the "lawsuit packet" on April 19, documenting he had won a $6,000 judgment, and he testified Rusk County had paid the judgment.

DOUBLE JEOPARDY

Neal first contends this prosecution should have been terminated because the conviction was obtained in violation of the Double Jeopardy Clause of the United States Constitution.¹ The Double Jeopardy Clause protects against the risk of multiple punishments for the same offense and against the risk of successive prosecutions. United States v. Dixon, 509 U.S. 688, 695-96, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). Generally, however, the State is free to dismiss an indictment and reindict without implicating the constitutional prohibition against double jeopardy. Proctor v. State, 841 S.W.2d 1, 3 (Tex.Crim.App.1992); State v. Roberts, 932 S.W.2d 700, 702 (Tex. App.-Tyler 1996, no pet.); Serna v. State, 882 S.W.2d 885, 888 (Tex.App.-Corpus Christi 1994, no pet.).

The key question is whether the dismissal occurs after jeopardy attaches. If, after jeopardy attaches, a charge is dismissed, waived, or abandoned, the State is barred from later relitigating those allegations. State v. Florio, 845 S.W.2d 849, 852 (Tex.Crim.App.1992); Ex parte Preston, 833 S.W.2d 515, 517 (Tex.Crim.App. 1992). Jeopardy attaches when the jury is empaneled and sworn, Hill v. State, 90 S.W.3d 308, 313 (Tex.Crim.App.2002), or for bench trials, when both sides have announced ready and the defendant has pleaded to the charging instrument. See Ortiz v. State, 933 S.W.2d 102, 105 (Tex. Crim.App.1996); Preston, 833 S.W.2d at 518; State v. Henry, 25 S.W.3d 260, 263 (Tex.App.-San Antonio 2000, no pet.).

As applied:

In this case, the evidence shows that even though the State had signed a plea bargaining agreement, Neal was sent back to prison without the knowledge of the trial court or his lawyer before the plea of guilty was taken. Under the cases cited above, jeopardy did not attach, and his double jeopardy argument therefore fails.

MOTION TO QUASH

Neal next contends the trial court erred by denying his Motion to Quash the indictment. Neal argues the court erred by denying his motion—not on the merits of his double jeopardy contention—but because it was properly a pretrial motion that was not timely filed.

The hearing covers a number of items, but focuses on the fact that Neal had been indicted previously for the offense and that the indictment had been dismissed. Although the trial court wrote a letter stating it had denied the motion because it was untimely filed under Tex.Code Crim. Proc. Ann. art. 28.01 (Vernon 1989), the order merely states that the motion was denied.

The State takes the position that Neal's motion is purely pro forma and that it does not raise double jeopardy claims. This is incorrect. The motion contains several parts, one of which focuses clearly and with specificity on Neal's claim that double jeopardy should apply and that the prosecution should therefore be terminated.

A double jeopardy claim may be raised for the first time on appeal or in a collateral attack when the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and when enforcement of usual rules of procedural default serves no legitimate State interests. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex.Crim.App.2000); Duvall v. State, 59 S.W.3d 773, 776-77 (Tex. App.-Austin 2001, pet. ref'd).

This Court has recently discussed Gonzalez in Barnett v. State, 83 S.W.3d 810, 813 (Tex.App.-Texarkana 2002, no pet.). We recognized there that the type of double jeopardy claim being asserted, as in this case, is "successive prosecution for the same offense." Bauder v. State, 921 S.W.2d 696, 697 (Tex.Crim.App.1996).

Motions are to be analyzed not simply by their titles, but by their contents. In other words, a court should look to a motion's content rather than its title to determine its nature. See Tex.Code Crim. Proc. Ann. art. 1.27 (Vernon 1977); Tex.R. Civ. P. 71; In re B.O.G., 48 S.W.3d 312, 316 (Tex.App.-Waco 2001, pet. denied); Wilson v. Kutler, 971 S.W.2d 557, 559 (Tex.App.-Dallas 1998, no pet.); Matz v. Bennion, 961 S.W.2d 445, 452 (Tex.App.-Houston [1st Dist.] 1997, writ denied); Hodge v. Smith, 856 S.W.2d 212, 214 n. 1 (Tex.App.-Houston [1st Dist.] 1993, writ denied).

In this case, we have already reviewed the double jeopardy contention, and we have found it to be without merit. Thus, the trial court did not err in overruling the motion.

PROSECUTORIAL VINDICTIVENESS

Neal further contends the second prosecution is the result of prosecutorial vindictiveness. The following dates are relevant to our discussion of this issue:

Relevant Dates

June 16, 1998 Neal possessed sharpened toothbrush while in Rusk County jail.

September 9, 1998 Neal indicted for possession of a deadly weapon, to wit: sharpened toothbrush, in a penal institution.

May 20, 2000 Neal filed federal suit against the county for alleged civil rights violations while in jail.

November 13, 2000 Parties signed plea bargaining agreement on the possession of a deadly weapon charge agreeing that Neal would receive two years in the penitentiary.

On or about November 14-16, 2001 Neal returned to the penitentiary without a hearing and without notice to his attorney.

November 17, 2001 Deadly weapon charge dismissed by the State because, "The Defendant was convicted in another case."

February 28, 2001 One-day trial held in federal court on the civil suit brought by Neal.

March 6, 2001² Neal reindicted in Rusk County on the deadly weapon charge (# 2001-076).

April 19, 2001 Neal received notice that he won the federal lawsuit judgment against the county for $6,000.00 for treatment while he was in jail.

August 15, 2002 Neal pleads "not guilty" at a bench trial, and punishment assessed at six years in the penitentiary.

In the present case, the State is accused of acting in a vindictive manner because Neal filed and won a civil lawsuit against Rusk County for acts that occurred while he was in the Rusk County jail.

One of the earliest, perhaps the first case, to recognize prosecutorial vindictiveness was North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). This case held that the Fourteenth Amendment was applicable to the states and forbade multiple punishments for the same offense.

The underlying rule of law is set out in Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978).

To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, and for an agent of the State to pursue a course of action whose objective is to penalize a person's reliance on his legal rights is "patently unconstitutional."

Id. at 363, 98 S.Ct. 663 (citations omitted).

Cases in other jurisdictions applying this rule involve reprosecutions or reindictments of individuals following their successful appeals and choices made by prosecutors to change the prosecutions to include enhancements, additional charges, or the like.

For example, in Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), the United States Supreme Court used the rationale of Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, to hold that a State may not bring a charge that is more severe after a defendant has had his or her conviction overturned on appeal. Blackledge, 417 U.S. at 29-30, 94 S.Ct. 2098. The Court reasoned that

A person convicted of an offense is entitled to pursue his statutory right to a trial de novo, without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration.

Id. at 28, 94 S.Ct. 2098. In such a situation, it is not necessary to prove malice or bad faith on the part of the prosecutor. Id. at 27, 94 S.Ct. 2098; Doherty v. State, 892 S.W.2d 13, 15 (Tex.App.-Houston [1st Dist.] 1994...