Smith v. State

• Decision Date: 25 November 1992
• Docket Number: No. 2-91-240-CR,2-91-240-CR
• Citation: 842 S.W.2d 401
• Parties: Kenneth Reed SMITH, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 401

842 S.W.2d 401

Kenneth Reed SMITH, Appellant, v. The STATE of Texas, State.

No. 2-91-240-CR.

Court of Appeals of Texas Fort Worth.

Nov. 25, 1992.

Discretionary Review Refused

March 3, 1993.

Michael Logan Ware, William H. "Bill" Ray, Fort Worth, for appellant.

Tim Curry, Dist. Atty., Susan Ayres, Michael Parrish, and Sylvia Mandel, Assts., Fort Worth, for appellee.

Before FARRIS, MEYERS and DAY, JJ.

OPINION

DAY, Justice.

Kenneth Reed Smith (Smith) appeals his conviction of aggravated sexual assault pursuant to TEX.PENAL CODE ANN. § 22.021(a)(1)(B)(i), (2)(A)(iv), & (b) (Vernon 1989). The jury assessed punishment, enhanced by a prior felony conviction, at fifty-five years imprisonment in the Texas Department of Criminal Justice, Institutional Division, and a $10,000 fine.

We affirm.

The sufficiency of the evidence is not at issue in this appeal, and so we will limit our discussion of the facts to those addressed in each point of error.

In his first two points of error, Smith complains that the trial court improperly denied his special plea of double jeopardy in violation of the United States and Texas Constitutions. In his remaining point of error, Smith complains that the trial court improperly overruled defense counsel's objection to the State's jury argument at the guilt/innocence phase of trial.

Prior to trial, Smith was convicted of capital murder in an unconnected case. ¹ At the punishment phase of the capital murder trial, in conjunction with special issue number two regarding Smith's future dangerousness, the State introduced evidence of the unadjudicated sexual assault of R.F., the complainant in this case. The jury answered "no" to special issue number two. Thereafter Smith was indicted and tried for the aggravated sexual assault of R.F. Before trial Smith moved, unsuccessfully, to dismiss the case on double jeopardy grounds under both the federal and state constitutions.

In his first point of error, Smith complains that the trial court erroneously denied his double jeopardy plea, thus violating his right to be free from double jeopardy under the Fifth and Fourteenth Amendments to the United States Constitution. The double jeopardy clause ² "protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." Grady v. Corbin, 495 U.S. 508, 515, 110 S.Ct. 2084, 2090, 109 L.Ed.2d 548 (1990).

Smith asserts that he was prosecuted, and thus placed in jeopardy, for the sexual assault of R.F. at the capital punishment phase of the capital murder trial and then retried for that identical conduct in the present case. Smith further contends that the jury's "no" answer to special issue number two in the capital murder case precludes the State from prosecuting Smith for sexually assaulting R.F. ³ These arguments are without merit.

Smith mistakenly relies on Grady as authority for his position. In that case the United States Supreme Court ruled that "the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted." Grady, 495 U.S. at 521, 110 S.Ct. at 2093, 109 L.Ed.2d at 564. The Court went on to state, however, that "[t]he critical inquiry is what conduct the State will prove, not the evidence the State will use to prove that conduct.... [T]he presentation of specific evidence in one trial does not forever prevent the government from introducing that same evidence in a subsequent proceeding." 495 U.S. at 521-22, 110 S.Ct. at 2093, 109 L.Ed.2d at 564 (citing Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990)) (emphasis added).

In the recent case of United States v. Felix, 503 U.S. 378, 112 S.Ct. 1377, 118 L.Ed.2d 25 (1992), the Supreme Court held that the double jeopardy clause does not bar the government from prosecuting a defendant for substantive crimes that were used as evidence against the defendant in a prior trial. Felix, 503 U.S. at ----, 112 S.Ct. at 1381.

In Felix the defendant was first prosecuted in Missouri for attempting to manufacture methamphetamine. At trial, Felix claimed that he never had criminal intent but had acted under the belief that he was participating in a covert DEA operation. In order to establish Felix's criminal intent, the government put on evidence that Felix had previously manufactured methamphetamine in Oklahoma. Felix was convicted at the Missouri trial, and the Eighth Circuit affirmed. Id. at ----, 112 S.Ct. at 1380-81.

Thereafter, the government indicted Felix in Oklahoma, charging him with seven substantive counts involving the manufacture and possession of methamphetamine. At trial, the government introduced much of the same evidence that had been proffered in the Missouri trial. The jury convicted Felix on all counts. Id. Felix argued on appeal that the double jeopardy clause barred most of the Oklahoma charges, but the United States Supreme Court held otherwise. The Court noted:

The actual crimes charged in each case were different in both time and place; there was absolutely no common conduct linking the alleged offenses. In short, none of the offenses for which Felix was prosecuted in the Oklahoma indictment is in any sense the "same offense" as the offense for which he was prosecuted in Missouri.

Id. at ----, 112 S.Ct. at 1382. Although the Tenth Circuit had found it decisive that the government had introduced evidence of Felix's drug manufacturing in Oklahoma to show criminal intent at the Missouri trial, the Supreme Court found it "clear that, no matter how much evidence of the Oklahoma transactions was introduced by the Government to help show Felix' state of mind, he was not prosecuted in the Missouri trial for any offense other than the Missouri attempt offense with which he was charged." Id. (emphasis in original). Additionally, the Court stated that "a mere overlap in proof between two prosecutions does not establish a double jeopardy violation." Id.

The situation presented in Felix is similar to the instant case. First, Smith was prosecuted for capital murder. At the punishment phase of that trial, evidence was introduced of Smith's alleged sexual assault of R.F. The jury reached a decision, ostensibly based at least in part on that evidence. The State then indicted and tried Smith for the sexual assault of R.F., and the jury found Smith guilty as charged.

The actual crimes charged in the capital murder case and the R.F. case were different in both time and place, however, and no common conduct linked the alleged offenses. Even though there is some overlap in evidence between the two cases, Smith was not in any way prosecuted in the case at bar for the same offense for which he was prosecuted in the capital murder case. See Felix, 503 U.S. at ----, 112 S.Ct. at 1383 (introduction of relevant evidence of particular misconduct in a case is not the same thing as prosecution for that conduct); Lester v. State, 824 S.W.2d 775, 778 (Tex.App.--Houston [14th Dist.] 1992, no pet.) (double jeopardy is no more violated by using an unadjudicated offense as evidence of defendant's character to assess punishment than when a court considers prior criminal activity to arrive at a proper sentence). ⁴

Smith also points us to Ex parte Sewell, 742 S.W.2d 393 (Tex.Crim.App.1987) as support for his position. In that case the Court of Criminal Appeals ruled that the federal and state double jeopardy clauses bar the State from attempting to have the defendant declared a habitual offender at the retrial of a primary offense if the evidence regarding the enhancement allegations was insufficient at the initial trial. Id. at 395. See also Taylor v. State, 755 S.W.2d 548, 552 (Tex.App.--Houston [1st Dist.] 1988, pet. ref'd).

Sewell is not in point here, however. At Smith's capital murder trial the State did not seek to prove that Smith sexually assaulted R.F., and the jury made no specific finding that Smith did not assault R.F. Rather, the State sought to prove Smith's future dangerousness based on evidence of his alleged sexual assault of R.F. Thus, while the State would be collaterally estopped from relitigating the issue of Smith's future dangerousness in a capital murder case based on evidence of the sexual assault against R.F., the State was free to prosecute Smith for the sexual assault itself. See State v. Nash, 817 S.W.2d 837, 840-42 (Tex.App.--Amarillo 1991, pet. ref'd) ("guilt or innocence is not at issue in a probation revocation hearing ... double jeopardy protections do not apply to a proceeding wherein the result is deemed to be neither a conviction nor acquittal"; collateral estoppel does not preclude litigation of offense used to revoke probation). Id. at 840.

Finally, Smith's reliance on two Arizona cases is unfounded because both of those cases are clearly distinguishable from the matter before us. Both Mullet v. Miller, 168 Ariz. 594, 816 P.2d 251 (1991), cert. denied, 502 U.S. 1122, 112 S.Ct. 1245, 117 L.Ed.2d 477 (1992) and State v. Mojarro, 169 Ariz. 1, 816 P.2d 260 (1991) involved situations in which the defendant-appellants had previously been punished in some way for the identical conduct for which they were later tried in criminal proceedings. ⁵ Smith, on the other hand, had not been previously punished for his sexual assault of R.F. Use of an unadjudicated offense during the punishment phase of a capital murder trial does not implicate the double jeopardy clause because the defendant is not actually punished for the unadjudicated offense. Rather, the previous criminal conduct only justifies heavier punishment for the offense for which the defendant has just been convicted. See Sekou v. Blackburn, 796 F.2d 108, 112 (5th Cir.1986); United States v....