State v. Engelking

• Decision Date: 11 May 1989
• Docket Number: 01-88-1144-CR,Nos. 01-88-1143-C,s. 01-88-1143-C
• Citation: 771 S.W.2d 213
• Parties: The STATE of Texas, Appellant, v. Donald Wayne ENGELKING and Aaron Lambert Sloan, Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 213

771 S.W.2d 213

The STATE of Texas, Appellant, v. Donald Wayne ENGELKING and Aaron Lambert Sloan, Appellees.

Nos. 01-88-1143-CR, 01-88-1144-CR.

Court of Appeals of Texas Houston (1st Dist.).

May 11, 1989.

Discretionary Review Granted (Lambert) Aug. 30, 1989.

John B. Holmes, Dist. Atty., Winston E. Cochran, Jr., Asst Dist. Atty., Houston, for appellant.

Stanley G. Schneider, W. Troy McKinney, Law Office of Stanley G. Schneider, Houston, for appellees.

Before HUGHES, WARREN and DUNN, JJ.

OPINION

HUGHES, Justice.

Pursuant to Tex.Code Crim.P.Ann. art. 44.01(a)(1) (Vernon Supp.1989), the State appeals the trial court's dismissal of the indictments charging appellees Donald Wayne Engelking and Aaron Lambert Sloan with possession of less than 28 grams of methamphetamine. Tex.Rev.Civ.Stat.Ann. art. 4476-15, secs. 4.04(b), 4.02(b)(6) (Vernon Supp.1989).

A grand jury originally indicted appellees for possession of methamphetamine weighing at least 400 grams. Tex.Rev.Civ.Stat.Ann. art. 4476-15, sec. 4.04(c), (d)(2) (Vernon Supp.1989). Appellees were tried together, and the jury found them guilty and assessed punishment at 45 years confinement. They appealed their convictions to this Court, which affirmed the judgments. Sloan v. State, 738 S.W.2d 290 (Tex.App.--Houston [1st Dist.] 1987, pet. granted); Engelking v. State, 727 S.W.2d 694 (Tex.App.--Houston [1st Dist.] 1987, pet granted).

The Court of Criminal Appeals granted the appellees' petitions for discretionary review. The court found the evidence insufficient to prove that appellees possessed at least 400 grams of methamphetamine; noted that the evidence was sufficient to show possession of three to four grams; and reversed the judgments and remanded the cases to the trial court "with instructions to enter ... judgment[s] of acquittal to the offense of possession of methamphetamine weighing at least 400 grams." Sloan v. State, 750 S.W.2d 788 (Tex.Crim.App.1988); Engelking v. State, 750 S.W.2d 213 (Tex.Crim.App.1988).

Subsequently, a grand jury indicted appellees for possession of methamphetamine weighing less than 28 grams. The indictments were identical to the previous ones with the exception of the amount of methamphetamine alleged. Appellees filed motions to dismiss the indictments claiming that the prohibitions against double jeopardy under federal and state law barred their prosecution. U.S. Const. amends. V, XIV; Tex. Const. art. I, sec. 14. The trial court conducted a hearing wherein the parties introduced evidence consisting of the appellate transcripts and statement of facts from the previous cases and the opinions and mandates from the Court of Criminal Appeals reversing the convictions and ordering appellees' acquittal. The trial court granted appellees' motions and dismissed the indictments. The State appeals.

The State contends, in its first point of error, that "[t]he double jeopardy issue should not be considered as a pretrial matter, either via motion or via a writ application." Specifically, the State contends that the double jeopardy bar may be raised only by a special plea under Tex.Code Crim.P.Ann. arts. 27.05-.07 (Vernon Pamph.1989). The State raised this objection in its written response to appellees' motions to dismiss. Article 27.05 provides:

A defendant's only special plea is that he has already been prosecuted for the same or a different offense arising out of the same criminal episode that was or should have been consolidated into one trial, and that the former prosecution:

(1) resulted in acquittal;

(2) resulted in conviction;

(3) was improperly terminated; or

(4) was terminated by a final order or judgment for the defendant that has not been reversed, set aside, or vacated and that necessarily required a determination inconsistent with a fact that must be established to secure conviction in the subsequent prosecution.

Article 27.07 provides: "All issues of fact presented by a special plea shall be tried by the trier of the facts on the trial on the merits." The State argues that the granting of the written motions precluded the jury from resolving any fact issues relating to the claim of double jeopardy. Yet, in its response, the State identified no unresolved fact issue, and it has not identified one in its appellate brief. Thus, the State has shown no need for the involvement of a jury in the resolution of appellees' double jeopardy claims, and, accordingly, has failed to show how it was harmed by the pretrial consideration of the motions to dismiss.

Further, we note that the failure to comply with articles 27.05-.07 does not preclude the assertion of the federal prohibition against double jeopardy. Galloway v. Beto, 421 F.2d 284, 288 n. 4 (5th Cir.1970); Ex parte Scelles, 511 S.W.2d 300, 302 (Tex.Crim.App.1974).

We overrule the State's first point of error.

The State contends, in its second and third points of error, that the trial court erred in dismissing the indictments because they are not barred by the federal and state prohibitions against double jeopardy. All parties agree that the possession of 28 grams or less of methamphetamine is a lesser included offense of possession of at least 400 grams of methamphetamine.

An offense is a lesser included offense if:

(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged....

Tex.Code Crim.P.Ann. art. 37.09 (Vernon 1981).

Proof of possession of 400 grams of methamphetamine necessarily establishes possession of 28 grams or less. The same proof establishes commission of the charged offense, possession of the larger amount, and possession of the smaller amount; therefore, under article 37.09, possession of the smaller amount is a lesser included offense of possession of the larger.

The issue presented is whether the prosecution of a lesser included offense is barred by the prohibitions against double jeopardy after a jury convicts a defendant of the greater offense, and an appellate court subsequently finds the evidence insufficient to support the conviction for the greater offense, orders an acquittal on the greater offense, but does not find the evidence insufficient to convict on the lesser included offense.

The Court of Criminal Appeals has consistently held that the ordering of an acquittal on a greater offense by an appellate court does not bar subsequent prosecution for a lesser included offense. Black v. State, 637 S.W.2d 923, 926 (Tex.Crim.App.1982); Taylor v. State, 637 S.W.2d 929, 934 (Tex.Crim.App.1982); Granger v. State, 605 S.W.2d 602, 605 (Tex.Crim.App.1980); Ex parte Harris, 600 S.W.2d 791, 792 (Tex.Crim.App.1980) (op. on reh'g); Rogers v. State, 575 S.W.2d 555, 559 (Tex.Crim.App.1979); Moss v. State, 574 S.W.2d 542, 546 (Tex.Crim.App.1978) (op. on reh'g); but see Garrett v. State, 749 S.W.2d 784, 791-95 (Tex.Crim.App.1986). Garrett, a plurality opinion, purportedly overruled Moss and its progeny, and held that prosecution of the lesser included offense is barred. The plurality opinion on rehearing, however, calls the previous opinion's discussion of double jeopardy "advisory" and further states: "We express no opinion at this time as to whether appellant could be tried for some lesser included offense." 749 S.W.2d at 804. We interpret Garrett as not overruling Moss and its progeny. Accordingly, we hold that Moss is controlling.

Further, the parties have cited no authority, and we have found none, that holds that the Texas prohibition against double jeopardy provides protections surpassing those of its federal counterpart. The federal and state prohibitions against double jeopardy do not bar prosecution of the appellees for the lesser included offense of possession of less than 28 grams of methamphetamine. Contra Ex parte Stephens, 753 S.W.2d 208 (Tex.App.--Dallas 1988, pet. granted).

We sustain the State's second and third points of error.

We reverse the trial court's orders granting the motions to dismiss, reinstate the indictments, and remand the cases to the trial court.

DUNN, J., dissenting.

DUNN, Justice, dissenting.

I respectfully dissent.

I disagree with the majority in its conclusion that Moss and its progeny control the resolution of the federal double jeopardy issue. I agree with the plurality opinion in Garrett, which concluded that holdings like those in Moss and its progeny allowing an appellant to be tried for a lesser included offense after an appellate court has determined that a previous conviction for the greater offense is not supported by the evidence and orders the defendant's acquittal are advisory and not controlling. 749 S.W.2d 803-04.

Moss did not address an actual controversy capable of final adjudication because no indictment had been filed charging the lesser included offense when the court ordered an acquittal on the greater offense. A plurality of justices in Garrett called such an opinion "advisory":

In the instant case, the Court of Appeals determined that the State could try appellant for any lesser included offenses of murder despite appellant's acquittal for the offense of murder. However, at that point the Court of Appeals did not know if the State would attempt to retry appellant for some lesser included offense. Moreover, without an information or indictment naming a particular offense, the Court of Appeals could not rule with any specificity or certainty. In sum, the Court of Appeals' holding did not resolve an actual controversy capable of final adjudication. It anticipated a controversy and presumed hypothetical facts.

The Court of Appeals had no power to decide that issue because the issue of double jeopardy could only arise if appellant were subsequently charged with some lesser included offense.

749 S.W.2d at 803-04. The plurality also concluded that its previous opinion holding that prosecution of the lesser included offense was barred was advisory. For the same reasons, I conclude that Moss and its progeny...