Victorick v. State (Ex Parte Victorick)

• Decision Date: 10 December 2014
• Docket Number: NO. 09–14–00112–CR, NO. 09–14–00190–CR,09–14–00112–CR
• Citation: 453 S.W.3d 5
• Parties: Ex Parte David Lee Victorick and David Lee Victorick, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

453 S.W.3d 5

Ex Parte David Lee Victorick

and

David Lee Victorick, Appellant

v.The State of Texas, Appellee

NO. 09–14–00112–CR

NO. 09–14–00190–CR

Court of Appeals of Texas, Beaumont.

Submitted on November 10, 2014

Opinion Delivered December 10, 2014

Discretionary Review Refused March 18, 2015

L.T. ‘Butch‘ Bradt, Sugar Land, for Appellant.

Brett W. Ligon, District Attorney, William J. Delmore III, Assistant District Attorney, Conroe, for Appellee.

Before McKeithen, C.J., Kreger and Johnson, JJ.

OPINION

LEANNE JOHNSON, Justice

This matter involves two appeals filed by David Lee Victorick relating to his indictment and subsequent conviction for online solicitation of a minor.¹ See Tex. Penal Code Ann. § 33.021(c) (West 2011). On March 7, 2014, the trial court denied Victorick's pre-trial application for writ of habeas corpus asserting a claim of double jeopardy. Victorick filed a notice of appeal and requested that his trial be stayed pending the resolution of Appeal No. 09–14–00112–CR, but this Court denied the motion to stay. Victorick was tried, convicted, and sentenced to five years of imprisonment. Victorick filed a notice of appeal of the final judgment, docketed in Appeal No. 09–14–00190–CR. We affirm the order denying the application for a writ of habeas corpus and the judgment of conviction.

Issues

Victorick presents two issues in Appeal No. 09–14–00112–CR (the pre-trial request for habeas relief). First, he contends a bond order that issued after his arrest on a previous indictment, which did not go to trial, constitutes punishment under the Fifth Amendment's Double Jeopardy Clause because the bond contained oppressive and onerous conditions that infringed upon his constitutional rights. Second, Victorick contends the oppressive and onerous conditions of his pre-trial bond on the indictment under which he was tried constitute punishment for double jeopardy purposes. In a motion to dismiss and with a suggestion of mootness, the State argues that Victorick's conviction mooted the appeal of the denial of pre-trial habeas relief.

Victorick presents three issues in Appeal No. 09–14–00190–CR (appeal of his conviction). First, he challenges the legal sufficiency of the evidence to support his conviction. Second, he contends he was deprived of an impartial magistrate. Third, Victorick contends the procedural rules that apply to recusal proceedings deprived him of due process because the rules do not provide for an interlocutory appeal.

Indictment and Conviction

The State initially indicted Victorick for online solicitation of a minor under subsection (b)(1) of section 33.021 of the Penal Code. See Tex. Penal Code Ann. § 33.021. After subsection (b)(1) was found to be unconstitutional by the Texas Court of Criminal Appeals in Ex parte Lo, Victorick was re-indicted under subsection (c) of section 33.021 for knowingly soliciting a fifteen year old girl to meet him with the intent that she engage in sexual contact, sexual intercourse, or deviate sexual intercourse with him. See 424 S.W.3d 10, 27 (Tex.Crim.App.2013). Victorick entered a not guilty plea and a jury found the appellant guilty as charged, and assessed his punishment at imprisonment for five years.

Mootness

Before we address Victorick's appellate issues we consider the State's argument that Victorick's appeal of the denial of the pre-trial request for habeas relief is moot. As a general rule, a habeas appeal relating to pre-trial bail is mooted by the subsequent conviction of the defendant because upon his conviction the habeas applicant is no longer being subjected to pre-trial confinement. See e.g., Martinez v. State, 826 S.W.2d 620, 620 (Tex.Crim.App.1992). Unlike a habeas claim concerning pre-trial bail in which the applicant seeks relief from an unconstitutional pre-trial confinement, if he is correct regarding his double jeopardy argument, Victorick may be entitled to relief from the sentence imposed in the judgment of conviction that has also been appealed to this Court. Therefore, Victorick's pre-trial request for habeas relief is not necessarily mooted by his conviction.

Double Jeopardy Claim

The indictment accusing Victorick of online solicitation of a minor under section 33.021(c) of the Texas Penal Code alleged, in part, that Victorick, on or about June 2, 2013, did “knowingly solicit by text message, K.E., a minor, to meet the defendant, with the intent that K.E. would engage in sexual contact and sexual intercourse and deviate sexual intercourse with the defendant[.]” After indictment, Victorick filed an application for writ of habeas corpus in which he alleged that he was being illegally confined because “[t]he Court has set conditions of bond that are not only oppressive, they have denied him constitutionally-guaranteed rights.” Victorick alleged that “Double Jeopardy forbids his trial on the present indictment.” Victorick's petition for habeas relief contends that subjecting him to a trial and potential conviction and sentence for a second degree felony would violate the Double Jeopardy Clause's prohibitions against multiple punishments because he had already been subjected to punishment within the scope of the Double Jeopardy Clause by conditions of his bond that prohibited him from: (1) possessing any firearms; (2) contacting the alleged victim's family; (3) going within 100 yards of the residence of the alleged victim; (4) contacting any child under seventeen years of age; or (5) having any contact with any computer or internet connection. Victorick argues that the conditions of his bond effectively denied him his right to bear arms, to associate with his wife, to attend church, to move about freely and peaceably in public places, and to work. No evidence was offered in the pre-trial habeas hearing. The trial court denied the application.

The Fifth Amendment states that “[n]o person shall ... be subject for the same offense to be twice put in jeopardy of life or limb....” U.S. Const. amend. V. Victorick argues that placing him on bond under conditions that he contends are oppressive and onerous constitutes punishment for Fifth Amendment double jeopardy purposes. Citing United States v. Jorn, Victorick contends that judicial overreaching triggers double jeopardy protections. See 400 U.S. 470, 483–84, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) (plurality op.). Jorn held the Double Jeopardy Clause barred a re-trial after the trial court sua sponte discharged the jury without manifest necessity for calling a mistrial and without considering granting a continuance. Id. at 487, 91 S.Ct. 547. Jorn was a successive prosecution case in which jeopardy attached with the seating of the jury in the first trial and terminated when the trial court discharged the jury; jeopardy would attach a second time with the seating of a new jury, thereby implicating the Fifth Amendment's protection against successive prosecution. See id. at 484, 91 S.Ct. 547.

Victorick argues the trial court erred in failing to apply the Jorn successive prosecution concept, notwithstanding the fact that jeopardy attached only once in his case. Victorick contends without citing any authority that by referring to the complaining witness as the “victim” in the order setting conditions of bond, the trial court determined that he had committed a crime and the entry of the order functioned as an adjudication of guilt. The law of this state is well settled that with respect to a jury trial, jeopardy attaches when the jury is empaneled and sworn, and for a bench trial jeopardy attaches when the defendant pleads to the charging instrument. See Ortiz v. State, 933 S.W.2d 102, 105 (Tex.Crim.App.1996) (The constitutional prohibition against double jeopardy does not apply until the defendant enters a plea before the trier of facts.). Jeopardy does not attach in a preliminary hearing regardless of what facts may be determined during the proceeding. See id.

Nevertheless, when the defendant has been subjected to a single trial, “the Double Jeopardy Clause ‘prevent[s] the sentencing court from prescribing greater punishment than the legislature intended.’ ” Ervin v. State, 991 S.W.2d 804, 807 (Tex.Crim.App.1999) (quoting Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983) ). Factors considered in determining legislative intent include whether two provisions imposing separate punishments are contained within the same statutory section, whether they are phrased in the alternative, whether they are named similarly, whether they have common punishment ranges, whether they have a common focus or gravamen, and whether that common focus tends to indicate a single instance of conduct, whether the elements that differ between them can be considered the same under an imputed theory of liability which would result in the offenses being considered the same under the Blockburger test, and whether there is legislative history articulating an interest to treat the offenses as the same or different for double jeopardy purposes. Ervin, 991 S.W.2d at 814 (citing Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ).

The State cites cases from other jurisdictions, which hold that conditional pre-trial release cannot be considered punishment for purposes of the Double Jeopardy Clause because it serves a remedial rather than a punitive purpose and a bond condition is not based on a determination of guilt.See State v. Torres, 890 So.2d 292, 296 (Fla.Dist.Ct.App.2d Dist.2004) (conditions of pre-trial release requiring accused to attend sex offender treatment were not punitive and double jeopardy did not attach); accord Parent v. State, 900 So.2d 598, 599–600 (Fla.Dist.Ct.App.2d Dist.2004) (special conditions placed on pre-trial release of DUI defendant did not bar further prosecution under the double jeopardy clause); Halikipoulos v. Dillon, 139 F.Supp.2d 312 (E.D.N.Y.2001) (pre-trial release condition requiring defendant to attend “stoplift” counseling program did not constitute...