Sorola v. State

• Decision Date: 01 March 1989
• Docket Number: No. 1112-87,1112-87
• Citation: 769 S.W.2d 920
• Parties: Ex parte Joe SOROLA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 920

769 S.W.2d 920

Ex parte Joe SOROLA, Appellant, v. The STATE of Texas, Appellee.

No. 1112-87.

Court of Criminal Appeals of Texas En Banc.

March 1, 1989.

Rehearing Denied April 5, 1989.

Richard E. Langlois, San Antonio, for appellant.

Alger H. Kendall, Jr., Dist. Atty., and Stella Saxon, Asst. Dist. Atty., Karnes City, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

TEAGUE, Judge.

We granted the petition for discretionary review that was filed on behalf of Joe Sorola, henceforth appellant, in order to consider appellant's contention that the San Antonio Court of Appeals, see Sorola v. State, 737 S.W.2d 118 (Tex.App.-4th 1987), erred in not sustaining his claim that because of the Double Jeopardy Clauses of the Federal and State Constitutions, in the event of retrial and reconviction for capital murder, his punishment should be automatically fixed at life imprisonment. ¹

This Court's records reflect that in 1982 appellant was convicted by a jury of committing the offense of capital murder, i.e., he committed the offense of murder in the course of committing or attempting to commit the offense of robbery. See V.T.C.A. Penal Code § 19.03(a)(2). ² Acting pursuant to Art. 35.25, V.A.C.C.P., ³ the District Attorney notified the trial judge and appellant that he would not seek the death penalty. The jury was selected as though the case was going to be a non-death penalty case. The jury found appellant guilty of capital murder, after which the trial judge, and not the jury, assessed appellant's punishment at life imprisonment. The trial judge acted pursuant to his and the attorneys' interpretation of Art. 35.25, supra. The trial judge never, however, either expressly or implicitly, answered either of the mandatory special issues, see Art. 37.071, V.A.C.C.P., in the negative, nor did he make any finding, either expressly or implicitly, that was favorable to appellant. He simply assessed appellant's punishment at life imprisonment, believing that that was the only punishment available.

Appellant thereafter appealed his capital murder conviction and life sentence to the San Antonio Court of Appeals, which sustained his contention that the trial judge erred in discharging the jury and assessing his punishment at life imprisonment. See Sorola v. State, 674 S.W.2d 809 (Tex.App.-4th 1984).

The court of appeals rejected the State's argument that because the State was not seeking to have appellant's punishment assessed at death, and had expressly waived it pursuant to Art. 35.25, supra, the trial judge was authorized to assess appellant's punishment at life imprisonment. In rejecting the State's argument, the court of appeals relied upon this Court's decision of Batten v. State, 533 S.W.2d 788 (Tex.Cr.App.1976), which we find, although not directly on point, contains language therein that supports the holding of the court of appeals that in a capital murder prosecution the State cannot waive trial by jury or the death penalty, and the defendant cannot waive trial by jury on punishment if convicted of capital murder.

Thereafter, this Court granted the State's petition for discretionary review, after which it affirmed the judgment of the court of appeals. See Sorola v. State, 693 S.W.2d 417 (Tex.Cr.App.1985).

After this Court affirmed the judgment of the court of appeals, pursuant to Ex parte Robinson, supra, appellant filed an application for the writ of habeas corpus asserting therein that under the Double Jeopardy Clauses of the Federal and State Constitutions, in the event he is again found guilty of capital murder, his punishment should be automatically fixed at life imprisonment. The trial judge denied his application.

Appellant again appealed to the San Antonio Court of Appeals, which this time affirmed the trial court's decision to deny him any relief. See Sorola v. State, 737 S.W.2d 118 (Tex.App.-4th 1987).

In affirming the trial court's decision, the court of appeals treated the error that the trial judge had committed at appellant's first trial, by erroneously discharging the jury and assessing appellant's punishment at life imprisonment, as "trial error", and held that "Generally, double jeopardy does not attach when a case is reversed because of trial error. Franklin v. State, 693 S.W.2d 420 (Tex.Cr.App.1985), cert. denied, 475 U.S. 1031, 106 S.Ct. 1238, 89 L.Ed.2d 346 (1986) and Ex parte Duran, 581 S.W.2d 683 (Tex.Cr.App.1979)." (119). The court of appeals went on to further hold: "Nor is this a case where the special issues of TEX.CODE CRIM.PROC.ANN. art. 37.071 (Vernon 1987) were decided in any factual manner. The trial court merely bypassed art. 37.071 and imposed a life sentence. This action does not constitute an implied finding against the imposition of the death penalty. A complete retrial because of the trial error that occurred does not subject appellant to double jeopardy." (119). The court of appeals finally held that there was no evidence of prosecutorial vindictiveness on the part of the District Attorney in his efforts to reprosecute appellant for capital murder and, if convicted by the jury, have the jury, if possible, answer the special issues that would be submitted to it pursuant to Art. 37.071, V.A.C.C.P.

We will affirm the judgment of the court of appeals.

Art. 44.29(a), V.A.C.C.P., expressly provides:

Where the court of appeals or the Court of Criminal Appeals awards a new trial to the defendant on the basis of an error in the guilt or innocence stage of the trial or on the basis of errors in both the guilt or innocence stage of the trial and the punishment stage of the trial, the cause shall stand as it would have stood in case the new trial had been granted by the court below.

Art. 44.29(c), supra, provides: "This section does not apply to convictions under Section 19.03 of the Penal Code (the capital murder statute). In such cases, the cause shall stand as it would have stood in case the new trial had been granted by the court below."

Thus, if reversible error is committed at the guilt stage of a capital murder trial, but not at the punishment stage of the trial, or if reversible error is committed at the punishment stage of a capital murder trial, but not at the guilt stage of the trial, the trial court's judgment and sentence must be set aside and the defendant is required to be granted a trial de novo on both guilt and punishment if he is retried, subject to the statutory law of this State and the case law of the Supreme Court of the United States and of this Court, which we will later set out and discuss in this opinion.

Previously, the law of this State was clear and absolute: the most that a defendant on appeal in a criminal case could receive was a trial de novo, and the double jeopardy clauses did not prevent retrial on either guilt or punishment.

In Dupree v. State, 56 Tex.Cr.R. 559, 120 S.W. 870, 873 (1909), this Court stated the following:

In such a case [where this Court grants the defendant a trial de novo] the doctrine of former jeopardy has no application whatever, for the simple reason that there had been no final adjudication of the case.

Also see Whitehead v. State, 162 Tex.Cr.R. 507, 286 S.W.2d 947, 948 (1956) (held, "The reversal awarded appellant a new trial, and he could then be tried on the original indictment or on the new indictment. The law against double jeopardy is not offended in the present conviction. (Citations omitted.)." In the dissenting opinion that Presiding Judge Onion filed in Kutner v. Russell, 658 S.W.2d 585, 591 (Tex.Cr.App.1983), he correctly pointed out the following: "In Beardsall v. State, 9 Tex.App. 262 (1880), it was held that the effect of the judgment of reversal was not merely to set aside the immediate proceedings of the court below from which the appeal was taken, but was to place the entire cause in the same position in which it was before there was any trial of it. See also Cox v. State, 7 Tex.App. 495 (1879); Hughes v. State, 68 Tex.Cr.R. 584, 152 S.W. 912 (1913)."

Thus, for many years, the law of this State was that the double jeopardy provisions of the respective Constitutions did not bar a retrial on either guilt or punishment after the defendant had succeeded on appeal in obtaining a reversal of his conviction, and this was true regardless of the reason for the reversal. "[T]he defendant was presumed in that instance to have waived any objection to being put a second time in jeopardy, and thus could be tried anew. See, for example, 1 Bish.Crim.Law (4th ed.) § 844; Sterling et al. v. State, 25 Tex.App. 716, 9 S.W. 45 (1888)." Ex parte Martin, 747 S.W.2d 789, 797 (Tex.Cr.App.1988) (Teague, J., dissenting opinion).

Today, however, as a result of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), also see Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), the Double Jeopardy Clauses of the Federal and State Constitutions can bar the State from reprosecuting the defendant if reversal occurs because the evidence is found to be insufficient. Furthermore, under the doctrine of collateral estoppel, if an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).

The distinction between double jeopardy and collateral estoppel is that "the traditional bar of double jeopardy prohibits the prosecution of the crime itself, whereas collateral estoppel in a more modest fashion simply forbids the government from relitigating certain facts in order to establish the fact of the crime." United States v. Mock, 604 F.2d 341 (5th Cir.1979).

Because the issue that appellant presents to us to resolve only concerns the "punishment stage" of his capital murder trial, we will not concern ourselves with the applicability of either the double jeopardy clauses or the doctrine of...