Shaffer v. State

• Citation: 477 S.W.2d 873
• Decision Date: 23 February 1971
• Docket Number: No. 44183,44183
• Parties: Hubert L. SHAFFER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 873

477 S.W.2d 873

Hubert L. SHAFFER, Appellant, v. The STATE of Texas, Appellee.

No. 44183.

Court of Criminal Appeals of Texas.

Feb. 23, 1971.

Rehearing Denied April 12, 1972.

Michael S. Thorne, Houston, for appellant.

Carol S. Vance, Dist. Atty., Joe S. Moss and Jim Skelton, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the state.

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for burglary with intent to commit theft. Trial was before a jury, with punishment assessed by the court at five years, which was probated.

Appellant raises two grounds of error, both of which concern the principle of collateral estoppel.

Prior to trial, appellant filed an unsworn 'Motion to Dismiss' in which he alleged that he had previously been tried and acquitted of the offense of misdemeanor theft in County Criminal Court No. 4 and no evidence was offered on such motion. He contended that the element of intent in the theft case and the element of intent in the burglary case were the same and that the prior acquittal was res judicata as to the issue of intent, relying on Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). He contended that the doctrine of collateral estoppel applied, and that to re-litigate the issue would place him twice in jeopardy. He did not specifically allege in his motion that the prior acquittal arose out of the same transaction as the burglary charge. Subsequent to the trial, appellant moved to include in the record of the present case the record of the prior misdemeanor case. The court ordered that the statement of facts be so included, and the statement of facts was forwarded to this Court on appeal. ¹ That record indicates that the prior trial did arise out of the same transaction.

We find that the issue of collateral estoppel is not properly before this Court, and therefore will not be considered. There are two reasons which lead us to this conclusion. First, there is no evidence in the record to indicate the final disposition of the earlier case. Secondly, there is no evidence to indicate that the prior case arose out of the same transaction.

The case law requires that the defendant go forth with evidence in support of his allegation of former jeopardy. Villarreal v. State, 172 Tex.Cr.R. 213, 355 S.W.2d 516 (1962); Davis v. State, 120 Tex.Cr.R. 330, 49 S.W.2d 805 (1932); Skelton v. State, 110 Tex.Cr.R. 621, 10 S.W.2d 554 (1928). This apparently is also the Federal Rule. See, Rothaus v. U.S.,319 F.2d 528 (5th Cir. 1963); Reid v. United States, 177 F.2d 743 (5th Cir. 1949). It likewise follows that a plea of collateral estoppel, being one form of former jeopardy, should be supported by evidence. In the present case, appellant offered no evidence in support of his unverified motion. There was no testimony as to the alleged prior acquittal, nor any certified records which would indicate the acquittal. The statement of facts from the prior trial, even if properly included in the record, contains neither the verdict of the jury nor the information upon which the trial was based. There is nothing in the record to indicate that appellant sought to offer evidence in support of his motion.

We also note that the statement of facts of the prior case which was filed after the trial, even if sufficient in form, was not properly before the trial court. Evidence presented after the trial obviously comes too late for the determination of fact issues which such evidence may raise, and cannot be considered. See, Galloway v. State, 420 S.W.2d 721 (Tex.Cr.App.1967); Hill v. State, 79 Tex.Cr.R. 555, 186 S.W. 769 (1916).

While the defense of former jeopardy is of federal constitutional dimension, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), nevertheless, we feel that appellant's failure to comply with our procedural requirements precludes consideration of the merits of the defense.

The requirement that the defendant present evidence in support of his allegation of former jeopardy serves a legitimate state interest. The trial court has no way of knowing that the allegations in the plea are true. The facts of the former jeopardy are certainly known to the defendant, and often are known to him alone. That he be required to come forward with evidence is only reasonable. Further, that he be required to come forward before the trial is not arbitrary in light of the fact that the trier of fact may need to determine issues such as the truth of the witnesses, or the identity of the defendant.

That the procedural requirements which must be followed are not 'arid ritual(s) of meaningless form' (see, Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302 (1958); and Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965)) is evidenced by the holdings of this Court that former jeopardy need not be specially pled in those instances where the trial court either knows or should know of the former proceeding, such as in those cases where the former jeopardy arose in the same case. Duckett v. State, 454 S.W.2d 755 (1970); De Leon v. State, 55 Tex.Cr.R. 39, 114 S.W. 828 (1908); Vela v. State, 49 Tex.Cr.R. 588, 95 S.W. 529 (1906); Robinson v. State, 21 Tex.App. 160, 17 S.W. 632 (1886); Samuels v. State, 25 Tex.App. 537, 8 S.W. 656 (1888). ² Thus, the rule does not apply in those circumstances where it is unnecessary, or where its enforcement would serve no purpose.

In Duckett v. State, supra, this Court stated:

'Further, in light of the decision of the United States Supreme Court holding the double jeopardy provisions of the Fifth Amendment applicable to the States 'as a fundamental ideal in our constitutional heritage,' Benton v. Maryland, And the undisputed facts and circumstances of the particular record before us, the constitutional right cannot be denied for failure to comply with a state statute (i.e., Article 27.05, V.A.C.C.P.).' 454 S.W.2d 755, 758 (emphasis added).

We should like to clarify that holding so as to make clear the fact that the state statute cannot seek to bar the assertion of a federal right in those circumstances where the enforcement of the rule would serve no purpose. However, Duckett should not be read as holding that the fact that a right is of constitutional dimension will, in itself, always justify the disregarding of our procedural rules. The test is whether the enforcement of the rule serves a legitimate state interest, or whether, under the circumstances of the particular case, the disregard of the rules did not affect such state interest. ³ In Duckett, supra, the two convictions were in the same court, on the same day, before the same judge, and were based on the same evidence. Clearly, the enforcement of the statutory requirements in that case would have served no state interest whatsoever. In the case at bar, however, such is not the case. The alleged former acquittal did not occur in the same court, and no evidence concerning the verdict in that cause was ever offered. The trial court had no way of knowing of the prior proceeding other than by way of evidence offered by appellant.

In Galloway v. Beto, 421 F.2d 284, 288 (5th Cir. 1970), cert. denied, 400 U.S. 912, 91 S.Ct. 137, 27 L.Ed.2d 151 (1970), the Court of Appeals for the Fifth Circuit held, in a habeas corpus proceeding, that the defense of former jeopardy was sufficiently raised in a Texas court by a pretrial motion to strike part of the indictment, and by affidavits which had been filed (apparently with the appellate brief filed in the trial court after the trial. See Galloway v. State, 420 S.W.2d 721 (Tex.Cr.App.1967)). The court cited no authority for its holding. It may...