State v. Rocha, 13-95-398-CR

CourtCourt of Appeals of Texas
Citation944 S.W.2d 701
Docket NumberNo. 13-95-398-CR,13-95-398-CR
PartiesThe STATE of Texas, Appellant, v. Ramiro Villela ROCHA, Appellee.
Decision Date27 March 1997

Rene Guerra, District & County Atttorney, Theodore C. Hake, Asst. Criminal District Attorney, Edinburg, for appellant.

J.R. Bobby Flores, McAllen, for appellee.



YANEZ, Justice.

The State appeals the dismissal of its indictment against appellee, Ramiro V. Rocha, for possession of controlled substances on the ground that it issued after a controlled substances tax was assessed against appellee by the Texas Comptroller of Public Accounts and therefore constituted double jeopardy. By three points of error, the State argues that mere notice of tax assessment is not evidence that the assessment has been paid or evidence of a former jeopardy. We affirm.

On January 19, 1994, appellee was arrested for possession of marihuana and cocaine. TEX. HEALTH & SAFETY CODE ANN. §§ 481.121 & 481.115 (Vernon Supp.1997). By notice dated February 17, 1994, the Comptroller's Office assessed a tax due against appellee in the amount of $22,759.80, in consideration of his possession of the controlled substances. TEX. TAX CODE ANN. § 159.101(a) (Vernon 1992). The indictment for possession of controlled substances was filed on June 29, 1994. On July 17, 1995, appellee filed a motion to dismiss the indictment, arguing that in assessing the tax against him the State already had sought to punish him for possession of the controlled substances, and that prosecuting him pursuant to the indictment would constitute multiple punishments by the State, which is proscribed by the double jeopardy clauses of both the United States and Texas Constitutions.

At the hearing on the motion to dismiss, appellee testified that he first learned of the tax assessment on the day he was released from jail on bond, when he went to see his bank trustee. He testified that his trustee informed him that there was a lien on the money in his trust account 1 and that he assumed the lien pertained to his possession of cocaine and marihuana violation. He also testified that he thought that the State had collected at least some of the money, because the money has "gotten down like twenty thousand." On July 20, 1995, the trial court dismissed the indictment.

By its first and third points of error, the State claims the trial court erred in considering the tax assessment a "punishment." The State contends the evidence showed at most that appellee merely had been assessed the tax, not that it had been paid. The State also claims that the mere receipt of the tax assessment does not constitute a punishment in relation to the law of double jeopardy. At issue in the case before us, therefore, is whether an assessment of a tax against appellee for possession of controlled substances under the Tax Code constitutes a jeopardy, such that a subsequent indictment for possession of controlled substances under the Health & Safety Code cannot issue. Since the Texas controlled substances tax went into effect in 1989, there have been recent developments in both federal and Texas law regarding either this tax or similar ones and whether such taxes constitute "punishments" for double jeopardy purposes. We take this opportunity to chronicle these recent developments and review the state of the law on this issue.

The Fifth Amendment to the United States Constitution stipulates that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. CONST. amend. V. This provision has been made applicable to the states by incorporation into the Due Process Clause of the Fourteenth Amendment. Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 2264-65, 65 L.Ed.2d 228 (1980). The Texas Constitution also proscribes double jeopardy, TEX. CONST., art. I, § 14, but this provision does not require separate analysis, because the double jeopardy ban under the Texas Constitution affords no broader protection than the federal constitution. Stephens v. State, 806 S.W.2d 812, 815 (Tex.Crim.App.1990). The double jeopardy clause specifically protects against three distinct abuses by state authority: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple prosecutions for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076-77, 23 L.Ed.2d 656 (1969); Ex parte Herron, 790 S.W.2d 623, 624 (Tex.Crim.App.1990).

In Ex parte Kopecky, 821 S.W.2d 957 (Tex.Crim.App.1992), the applicant for writ of habeas corpus pleaded guilty to and was convicted of charges of aggravated possession of a controlled substance and possession of the substance without a certificate to indicate that he had paid the controlled substances tax assessed. He challenged the conviction and sentence for failure to pay the tax on the ground that he was twice punished for the same offense in violation of the Fifth Amendment double jeopardy clause. The Texas Court of Criminal Appeals determined that because the applicant pleaded guilty to both offenses in a single proceeding, the issue did not require "multiple prosecutions" analysis. Ex parte Kopecky, 821 S.W.2d at 958. In consideration of Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), the Court observed that the double jeopardy clause does not impose a limitation upon the Legislature's prerogative to prescribe a scope of punishment. Kopecky, 821 S.W.2d at 959 (citing Hunter, 459 U.S. at 368, 103 S.Ct. at 679). The Court therefore posed the question before it as "whether the Legislature intended that an accused in the applicant's position be punished for both aggravated possession of [a controlled substance] and separately for possession of [the substance] without payment of the required tax." Id. In examining the legislative intent of Chapter 159 of the Tax Code, the same chapter of the Code at issue in the instant case, the Court held that the Legislature did in fact intend for someone in applicant's position to be susceptible to punishment on both grounds. Id. Accordingly, they ruled that the Fifth Amendment did not bar that applicant's sentence for possession without payment of the tax assessed in the same proceeding as his conviction and sentence for aggravated possession. Id. at 961. The Court elected not to offer an opinion as to whether the applicant could have been convicted and sentenced in a subsequent prosecution, because the question was not before them. Id.

In Olivarri v. State, 838 S.W.2d 902, 905 (Tex.App.--Corpus Christi, 1992, no. pet.), this Court relied on Kopecky in holding that double jeopardy was not violated by conviction of a defendant for possession of a controlled substance after the comptroller already had assessed a tax against him for possession of the controlled substance. In that case, appellant pleaded nolo contendere to the charge of possession of between 50 and 200 pounds of marihuana, and the trial court assessed punishment at five years in prison. By a special plea of double jeopardy, appellant had argued that the conviction for possession of marihuana placed him in jeopardy a second time, because the comptroller already had assessed a tax of over $2 million against him for failing to pay the tax on the purchase. Reviewing this point on appeal, this Court followed Kopecky in holding that because the Legislature authorized punishment under both the Controlled Substances Act and the Tax Code, the conviction for possession would not constitute a violation of double jeopardy. Olivarri, 838 S.W.2d at 905.

In Ward v. State, 870 S.W.2d 659 (Tex.App.--Houston [1st Dist] 1994, pet. ref'd), vacated, 513 U.S. 1011, 115 S.Ct. 567, 130 L.Ed.2d 485 (1994), the First Court of Appeals reviewed a similar case and reached a similar disposition. In that case, the applicant for habeas corpus relief was indicted for possession of marihuana and for possession of marihuana on which no tax had been paid. A month after this indictment, the Comptroller sent notice to the applicant that he owed over $109,000 in taxes, as well as a penalty of some $10,900 for having failed to pay the tax. The applicant made a $250 payment on the amount owed. The court examined the applicant's reliance on United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), which pertained to the circumstances under which a civil penalty might be considered a punishment for double jeopardy purposes, and which proscribed civil penalties subsequent to a criminal sanction that do not bear any rational relationship to the goal of compensating the government for some loss in relation to the offense committed. Ward, 870 S.W.2d at 662. The court reasoned that the assessment at issue in this case was not a punishment for two reasons. First, the applicant merely was assessed the tax. The State had not sought a judgment against him, and there had been no adjudication by a court. Halper was deemed to contemplate a criminal prosecution and a civil action that results in a judgment. Id. Second, because appellant did not pay the assessment in full or substantial part, the assessment did not constitute a punishment. Id.

With the issuance of this opinion, therefore, mere assessment of the Texas controlled substance tax on persons charged with possession of controlled substances was not necessarily recognized as double jeopardy in Texas courts because (a) the Texas Legislature authorized punishment via collection of the tax under the Tax Code irrespective of the punishment prescribed by the Health & Safety Code, and/or (b) mere assessment of the tax is not punishment, absent a judgment for the tax due or at least substantial payment of it. The matter of whether one could be prosecuted for either possession of controlled substance or possession without a...

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5 cases
  • Ex parte Ward
    • United States
    • Texas Court of Criminal Appeals
    • January 21, 1998
    ...and summarily conclude that "assessment" or "partial payment" constitutes punishment triggering jeopardy. See State v. Rocha, 944 S.W.2d 701 (Tex.App.--Corpus Christi 1997) (recognizing defendant was "punished" for possession of marihuana and cocaine when he received notice of tax assessmen......
  • Deshais v. State, 01-97-00447-CR
    • United States
    • Texas Court of Appeals
    • January 22, 1998 filed) (one is punished for double jeopardy purposes when controlled substance tax is assessed); State v. Rocha, 944 S.W.2d 701, 705-06 (Tex.App.--Corpus Christi 1997, pet. filed) (assessment, rather than full or partial payment of the tax, is punishment for double jeopardy purposes); ......
  • State v. Rocha
    • United States
    • Texas Court of Appeals
    • February 18, 1999
    ...In our original opinion in this case, issued on March 27, 1997, we affirmed the judgment of the trial court. See State v. Rocha, 944 S.W.2d 701 (Tex.App.--Corpus Christi 1997), vacated, 968 S.W.2d 360 (Tex.Crim.App.1998). The Texas Court of Criminal Appeals vacated our judgment and remanded......
  • DeLeon v. State, 14-94-00721-CR
    • United States
    • Texas Court of Appeals
    • August 28, 1997
    ...punishments for the same offense are imposed." Stennett, 941 S.W.2d at 916 (emphasis added); see also State v. Rocha, 944 S.W.2d 701, 705 (Tex.App.--Corpus Christi 1997, pet. filed) (holding the assessment, rather than full or partial payment of the tax, is a punishment for double jeopardy ......
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