Rios v. State

• Decision Date: 20 April 1988
• Docket Number: No. 04-85-00536-CR,04-85-00536-CR
• Citation: 751 S.W.2d 892
• Parties: Benjamin RIOS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 892

751 S.W.2d 892

Benjamin RIOS, Appellant, v. The STATE of Texas, Appellee.

No. 04-85-00536-CR.

Court of Appeals of Texas San Antonio.

April 20, 1988.

Rehearing Denied May 17, 1988.

Joe Mike Egan, Jr., Kerrville, for appellant.

E. Bruce Curry, Dist. Atty., Kerrville, for appellee.

OPINION

CADENA, Chief Justice.

Appellant Benjamin Rios, who is charged with aggravated assault in Cause No. 3,939 in the District Court of Kerr County, Texas, appeals from the denial of his special plea in bar filed pursuant to TEX.CODE CRIM.PROC.ANN. art. 27.05 (Vernon Supp.1988) and from the denial of his application for writ of habeas corpus. His special plea and application for writ of habeas corpus were based on the contention that his prior conviction for driving while intoxicated under TEX.REV.CIV.STAT.ANN. art. 6701l -1(f) (Vernon Supp.1988) bars this prosecution for the felony offense of aggravated assault under TEX.PENAL CODE ANN. art. 22.02 (Vernon Supp.1988).

The State contends that this Court is without jurisdiction to consider this appeal because pretrial motions in a criminal case are not appealable. See Williams v. State, 464 S.W.2d 842 (Tex.Crim.App.1971).

The State further asserts that we lack jurisdiction to consider the appeal from the trial court's denial of the writ of habeas corpus because the trial court denied the application for writ of habeas corpus rather than granting the application and then denying the relief requested. Ex parte Noe, 646 S.W.2d 230, 231 (Tex.Crim.App.1983) (en banc).

The Court of Criminal Appeals recently held that art. 1, § 14 of the Texas Constitution accords a defendant the right to a determination of a double jeopardy claim and an appeal from denial of that claim before being subjected to a second trial. Ex parte Robinson, 641 S.W.2d 552 (Tex.Crim.App.1982); see also Ex parte Rathmell, 717 S.W.2d 33 (Tex.Crim.App.1986) (en banc). Prior case law holding that there is no appeal from the denial of an application for writ of habeas corpus or a special plea in bar must give way to appellant's constitutional right to a determination and review of his double jeopardy claim. Appellant's right to bring a claim under the Constitution cannot be denied merely because a state statute does not provide a proper and timely mode for presenting such a claim. Carter v. State, 39 Tex.Crim. 345, 48 S.W. 508 (1898), rev'd on other grounds, 177 U.S. 442, 20 S.Ct. 687, 44 L.Ed. 839 (1900). "... [T]he enumeration of causes by the Code [of Criminal Procedure] is not exclusive of other fundamental grounds." Id.

While the Legislature is empowered to prescribe the limits of the jurisdiction of the Court of Appeals and the Court of Criminal Appeals, its power is limited by art. 1, § 19 of the Texas Constitution which provides that "no citizen of this State shall be deprived of life, liberty, property, privileges, or immunities or in any manner disfranchised except by the due course of the law of the land." Appellant's right to a pretrial determination and appeal of his double jeopardy claim is rendered meaningless if our courts can, by careful use of language, such as "the application for habeas corpus is denied," deprive the defendant of a forum in which his claim can be heard. Where a defendant has been deprived of due process, we are obliged to take action to enforce the provisions of the Constitution and will consider the merits of this appeal.

We agree that the Double Jeopardy Clause bars the State from prosecuting appellant for an aggravated assault arising from the same incident which was the basis for a previous prosecution for driving while intoxicated and causing serious bodily injury to another while committing that offense.

We are not limited to the rule set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), that no double jeopardy is involved if each statutory offense requires proof of a fact that is not required by the other. Id. at 304, 52 S.Ct. at 182. The Blockburger analysis is reserved for evaluating the double jeopardy implications of the State's attempt to assess multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); see also, May v. State, 726 S.W.2d 573 (Tex.Crim.App.1987). The Double...