Pope v. State

• Decision Date: 29 May 1974
• Docket Number: No. 48525,48525
• Citation: 509 S.W.2d 593
• Parties: David Charles POPE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 593

509 S.W.2d 593

David Charles POPE, Appellant, v. The STATE of Texas, Appellee.

No. 48525.

Court of Criminal Appeals of Texas.

May 29, 1974.

Randy Taylor, Dallas, for appellant.

Henry Wade, Dist. Atty., W. T. Westmoreland, Jr., Asst. Dist. Atty., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DALLY, Commissioner.

The conviction is for assault with the intent to murder with malice; the punishment, imprisonment for twenty-five years.

The appellant was tried before two juries upon the same indictment charging that he 'did unlawfully, voluntarily and with malice aforethought in and upon Shelia Diane Brumley make an assault with the intent then and there to murder the said Shelia Diane Brumley.'

The appellant argues he has been twice put in jeopardy for the same offense in violation of the Fifth Amendment to the Constitution of the United States. The Fifth Amendment's Double Jeopardy Clause has been applied to the States through the Fourteenth Amendment. See Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The question presented is whether the appellant was acquitted by a jury in a former trial for the same offense for which he here stands convicted. We find that he was so acquitted and we reverse the judgment.

At the first trial the jury was instructed on assault with intent to murder both with and without malice, on the intentional infliction of physical injury on a child fourteen years of age or younger, and on aggravated assault. The Court instructed the jurors that they were first to consider whether the appellant was guilty of assault with intent to murder with malice. If they did not find that the appellant was guilty of that offense beyond a reasonable doubt, they were to find him not guilty of that offense and next consider whether he was guilty of assault with intent to murder without malice. They were further charged that if they did not find him guilty beyond a reasonable doubt of that offense, they were to find him not guilty of that offense and next consider whether he was guilty of the offense of intentionally inflicting physical injury on a child fourteen years of age or younger. If they did not find him guilty of that offense beyond a reasonable doubt, they were to find him not guilty of that offense and next consider whether he was guilty of the offense of aggravated assault.

The jury found that the appellant was guilty of '. . . an intentional infliction of physical injury on a child fourteen years of age or younger as included in the indictment . . .' The jury then assessed punishment of imprisonment for five years.

The instruction authorizing a conviction for the intentional infliction of physical injury on a child fourteen years of age or younger was erroneously submitted, because Article 1148a, Vernon's Ann.P.C. did not become effective until after this offense was committed on July 13, 1971. See Article 1, Section 16, Constitution of the State of Texas, Vernon's Ann.St.; Ex parte Alegria, 464 S.W.2d 868 (Tex.Cr.App.1971); Millican v. State, 145 Tex.Cr.R. 195, 167 S.W.2d 188 (1942); Cain v. State, 105 Tex.Cr.R. 204, 287 S.W. 262 (1926); cf. Stell v. State, 496 S.W.2d 623 (Tex.Cr.App.1973). The State does not dispute this.

The Agreed Statement of Facts recites:

'That subsequent to the trial the judge declared judgment and sentence to be ex post facto in nature and thus void ab initio. That the Court, on its own motion, set the matter for trial, and thereafter the defendant through his counsel filed on April 9, 1973, a motion for speedy trial, which motion was granted the same day. That after the motion for speedy trial was granted the case was set for trial by the Court on May 7, 1973. That on May 7, 1973, this case came on to be heard for the second time and both sides announced. That the defendant's announcement of ready was specifically made subject to his special plea, said plea urging prior jeopardy.'

The appellant's plea urging prior jeopardy was overruled and the appellant was again tried before a jury on the same indictment and substantially the same proof offered in the first trial. The jury in the second trial was authorized by the Court's charge to find and it did find the appellant '. . . guilty of the offense of assault with intent to murder with malice as charged in the indictment . . .' and thereafter assessed appellant's punishment at imprisonment for twenty-five years.

We face the question whether the prior improper verdict constitutes an acquittal of the offense for which appellant was convicted at the second trial.

In Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), the defendant was charged on two counts with arson and with first degree murder. The trial court instructed the jury it could find the defendant guilty under the indictment's second count of either first degree murder or second degree murder. The jury found the defendant guilty under the second count of second degree murder, but was silent as to first degree murder.

'. . . The trial judge treated second degree murder, which is defined by the District Code as the killing of another with malice aforethought and is punishable by imprisonment for a term of years or for life, as an offense included within the language charging first degree murder in the second count of the indictment.' 355 U.S. at 185--186, 78 S.Ct. at 222, (Footnote omitted.)

The Supreme Court, citing the Double Jeopardy Clause of the Fifth Amendment, held that a finding of guilty of second degree murder constituted an implied acquittal of the charge of first degree murder. The Court concluded that the defendant could not be retried for first degree murder after reversal of his conviction for second degree murder.

Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970), involved a State prosecution. There, the defendant was originally charged with murder but was found guilty by a jury of the lesser included offense of voluntary manslaughter. After the case was reversed due to an erroneous...