Stephens v. State, 914-88

Citation806 S.W.2d 812
Decision Date02 May 1990
Docket NumberNo. 914-88,914-88
PartiesHaron STEPHENS, Appellant, v. The STATE of Texas, Appellee.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

Michael D. Byck, on appeal only, Lawrence B. Mitchell, on appeal only, Dallas, for appellant.

John Vance, Dist. Atty. and Pamela Sullivan Berdanier and Michael A. Klein, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

Opinion on State's Petition for Discretionary Review

CAMPBELL, Judge.

Appellant was initially convicted by a jury of aggravated rape. 1 He was sentenced to twelve years' confinement in the Texas Department of Corrections. 2 On appeal, the Dallas Court of Appeals found the evidence insufficient to support the conviction and consequently reversed and ordered a judgment of acquittal. Stephens v. State, 683 S.W.2d 23 (Tex.App.--Dallas 1984) (Stephens I ). This Court affirmed the judgment of the Court of Appeals. Stephens v. State, 717 S.W.2d 338 (Tex.Cr.App.1986) (Stephens II ). 3

Subsequently, appellant was indicted for the offense of rape of the same victim arising out of the same incident. Appellant filed a pre-trial application for a writ of habeas corpus claiming that the prosecution for the lesser included offense of rape was barred by the Double Jeopardy Clause due to the previous appellate acquittal for aggravated rape [now aggravated sexual assault]. The trial court denied appellant's application for writ of habeas corpus. Subsequently, appellant filed a petition for discretionary review in the Dallas Court of Appeals.

In a published opinion, the Dallas Court of Appeals held that appellant's subsequent indictment for rape after the reversal of his prior aggravated rape conviction violated the Double Jeopardy Clause. Ex parte Stephens, 753 S.W.2d 208 (Tex.App.--Dallas 1988) (Stephens III ). We granted the State's petition for discretionary review to determine 4 whether appellate reversal of appellant's aggravated rape conviction solely on the ground that there was insufficient evidence to prove the aggravating element of the offense bars a subsequent prosecution for the lesser included offense of rape under the Double Jeopardy Clause. 5 We will affirm.

At the outset, it should be noted that the pretrial writ of habeas corpus is an appropriate remedy to review a double jeopardy claim. Ex parte Rathmell, 717 S.W.2d 33, 34 (Tex.Cr.App.1986). In Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), the Supreme Court observed that the preferred procedural vehicle for review of a double jeopardy claim was the writ of habeas corpus since:

"[T]he rights conferred on a criminal accused by the Double Jeopardy Clause would be significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence. To be sure, the Double Jeopardy Clause protects against being twice convicted for the same crime, and that aspect of the right can be fully vindicated on appeal following final judgment, as the Government suggests. However, the Court has long recognized that the Double Jeopardy Clause protects an individual against more than being subjected to double punishments. It is a guarantee against being twice put to trial for the same offense."

431 U.S. at 660-61, 97 S.Ct. at 2040-41 (emphasis in original).

The prohibition against double jeopardy is found in the Fifth Amendment to the United States Constitution. A similar provision may be found in Art. I, § 14 of the Texas Constitution. The Fifth Amendment prohibition against double jeopardy is fully applicable to the States through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 787, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969). Conceptually, the State and Federal double jeopardy provisions are identical. Phillips v. State, 787 S.W.2d 391, 393 n. 2 (Tex.Cr.App.1990).

As one commentator has observed, few provisions of the Bill of Rights have been more frequently litigated, but the mere volume of activity has not cast much light upon the meaning of the concept of double jeopardy. J. Sigler, Double Jeopardy: The Development of a Legal and Social Policy (1969). Its hoary antecedents have been traced from Greek and Roman times to its establishment in the common law in England before becoming a part of this Nation's jurisprudence. Benton v. Maryland, 395 U.S. 784, 795, 89 S.Ct. 2056, 2063, 23 L.Ed.2d 707 (1969); see also Ex parte Rathmell, 717 S.W.2d 33 (Tex.Cr.App.1986) (Teague, J., concurring and dissenting). "While the Clause itself simply states that no person shall 'be subject for the same offense to be twice put in jeopardy of life or limb' the decisional law in the area is a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator." 6 Albernaz v. United States, 450 U.S. 333, 343, 101 S.Ct. 1137, 1144, 67 L.Ed.2d 275 (1981). With these observations, it is necessary to emphasize what our analysis does or does not involve.

An initial question before this Court is whether aggravated rape and rape are the "same" offense for the purpose of the Double Jeopardy Clause. In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Supreme Court established the test for determining whether a "second" statutorily defined offense is the "same" for purposes of double jeopardy. The Supreme Court held:

The applicable rule is where the same act or transaction constitutes a violation of two distinct statutory provisions the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact that the other does not.

284 U.S. at 304, 52 S.Ct. at 182. Although the Supreme Court has since made it clear that Blockburger is the principal statutory construction test for determining whether a successive prosecution is barred, Illinois v. Vitale, 447 U.S. 410, 416, 100 S.Ct. 2260, 2265, 65 L.Ed.2d 228 (1980), the Court also reaffirmed the "same incidents" test contained in In re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889).

Turning to the instant case, in 1982 at the time of appellant's trial, V.T.C.A. Penal Code, § 21.02 defined the elements of rape as: (1) a person; (2) has sexual intercourse; (3) with a female; (4) not his wife; (5) without the female's consent. A person committed aggravated rape if, in addition to committing rape as defined in V.T.C.A. Penal Code, § 21.02, he committed any of the aggravating acts listed in V.T.C.A. Penal Code, § 21.03(a)(1-5). As is invariably true of greater and lesser included offenses, the lesser offense--rape--requires no proof beyond that of the greater--aggravated rape. Brown v. Ohio, 432 U.S. 161, 168, 97 S.Ct. 2221, 2226, 53 L.Ed.2d 187 (1977). The greater offense is therefore by definition the "same" as any lesser offense included in it. Id. Clearly, under Blockburger, rape is the "same" offense as aggravated rape for purposes of the Double Jeopardy Clause.

The central issue in this case was reserved by the Supreme Court in Greene v. Massey, namely, whether appellate reversal of a conviction for a greater offense precludes retrial for a lesser offense. Greene v. Massey, 437 U.S. 19, 25 n. 7, 98 S.Ct. 2151, 2154-55, 57 L.Ed.2d 15 (1978). Our analysis begins with the literal language of the Fifth Amendment, that no person "be subject for the same offence to be twice put in jeopardy of life or limb." 7

Three separate guarantees are recognized in the Double Jeopardy Clause: (1) protection against reprosecution for the same offense following an acquittal; (2) protection against reprosecution for the same offense following a conviction; and (3) protection against multiple punishments for the same offense. Albernaz v. United States, 450 U.S. at 343, 101 S.Ct. at 1144-45; Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228 (1980); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969); Ex parte Peterson, 738 S.W.2d 688, 689 (Tex.Cr.App.1987). It is the first guarantee against successive prosecutions following an acquittal that is implicated in the instant case.

Where successive prosecutions are at issue, the guarantee against being placed "twice in jeopardy" represents a constitutional policy of finality of judgments for the defendant's benefit. Brown v. Ohio, 432 U.S. 161, 164, 97 S.Ct. 2221, 2224, 53 L.Ed.2d 187 (1977); United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971). The United States Supreme Court in Benton v. Maryland, observed:

Today, every State incorporates some form of the prohibition in its constitution or the common law. As this Court put it in Green v. United States, 355 U.S. 184, 187-188 [78 S.Ct. 221, 223-224, 2 L.Ed.2d 199] (1957), "[t]he underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence is that the State with all of its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty."

395 U.S. at 795-96, 89 S.Ct. at 2063. At the heart of this policy is the concern that permitting the sovereign freely to subject the citizen to a second trial for the same offense would arm Government with a potent weapon of oppression. United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 1353, 51 L.Ed.2d 642 (1977).

It is well-settled that upon conviction or acquittal in a trial court the Double Jeopardy Clause bars retrial for the "same" offense. See Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). The Double Jeopardy Clause also precludes a second trial once a reviewing court has determined that the evidence is...

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