Williams v. State

• Decision Date: 09 August 1989
• Docket Number: No. 04-88-00262-CR,04-88-00262-CR
• Parties: Thomas Hiram WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 812

775 S.W.2d 812

Thomas Hiram WILLIAMS, Appellant, v. The STATE of Texas, Appellee.

No. 04-88-00262-CR.

Court of Appeals of Texas,

San Antonio.

Aug. 9, 1989.

Discretionary Review Granted Oct. 25, 1989.

Terrance McDonald, San Antonio, for appellant.

W.C. Kirkendall, Seguin, for appellee.

Before CADENA, C.J., and BUTTS, REEVES, CHAPA, PEEPLES, BIERY and CARR, JJ.

ON APPELLANT'S MOTION FOR REHEARING EN BANC AND MOTION FOR REHEARING

PEEPLES, Justice.

The opinion of this Court issued April 19, 1989, is withdrawn, and this opinion is substituted.

Appellant Williams contends that the fifth amendment's double jeopardy clause and its Texas counterpart bar an indictment for attempted capital murder because he was earlier held in contempt of court and punished for the same episode, which violated a civil injunction against physical contact or bodily injury. The trial court denied his request for a writ of habeas corpus, and he appeals.

The essential facts are not disputed. In a civil lawsuit Thomas Williams was enjoined in March of 1987 from "causing or threatening to cause physical contact or bodily injury to the Defendants [Robert and Robbie Buffington]." On June 18, 1987, Williams shot both Buffingtons with a shotgun, and on November 24, 1987 he was held in contempt of court for causing bodily injury in violation of the March 1987 order. The district attorney's office became aware of the contempt proceedings after the judge had ruled from the bench on November 24 but before he signed a written order of contempt and commitment on January 25, 1988, sentencing Williams to 30 days' confinement, which he has served. On January 6, 1988, Williams was indicted on two counts of attempted capital murder of the Buffingtons based upon the shooting incident.

Williams sought a writ of habeas corpus in district court, asking that the indictment be dismissed because the contempt adjudication and sentence should bar the criminal prosecution under double jeopardy principles. ¹ He is entitled to appellate review of his jeopardy plea in this habeas corpus proceeding prior to undergoing the Williams relies on Ex parte Englutt, 619 S.W.2d 279 (Tex.Civ.App.--Texarkana 1981, no writ), and Ex parte Brown, 574 S.W.2d 618 (Tex.Civ.App.--Waco 1978, no writ). Both of those cases hold that the double jeopardy clause bars a contempt proceeding after the State has already prosecuted the respondent and obtained a criminal conviction for the same conduct. ² The present appeal involves the reverse sequence; here a contempt conviction preceded the State's criminal case. That a private litigant brought the first case is an important difference between the present appeal and Englutt and Brown. If a contempt action pursued by a private litigant will bar a later criminal prosecution brought by the State, one of two things will happen: (1) private citizens who pursue motions for contempt will thereby waive society's right, acting through the district attorney, to enforce the State's criminal statutes involving the incident; or (2) judges and private litigants might hesitate to enforce court orders by contempt, at least in cases of violence, for fear of barring later criminal cases. ³

trial that he contends would expose him to double jeopardy. Ex parte Rathmell, 717 S.W.2d 33, 34 (Tex.Crim.App.1986); Ex parte Robinson, 641 S.W.2d 552, 553-54 (Tex.Crim.App.1982). For the reasons set forth below, we affirm the denial of Williams' request for a writ of habeas corpus and allow the prosecution to proceed.

The statutes of Texas certainly do not give private litigants this kind of power to abort criminal cases. Only the district attorney is given the authority to represent the State in criminal cases in district court. TEX.CODE CRIM.PROC.ANN. art. 2.01 (Vernon Supp.1989). Moreover, only "the attorney representing the State"--that is, the district attorney and not a private citizen--may dismiss felony criminal prosecutions. Id. art. 32.02.

We question whether a private litigant should be able to waive a State's right to prosecute a crime when even separate governmental entities do not have that power. A criminal conviction by one governmental entity does not waive a different sovereign's right to prosecute the same conduct. See Heath v. Alabama, 474 U.S. 82, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985) (Georgia murder conviction does not bar Alabama from bringing capital murder charge based on same homicide); Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959) (state-federal); Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959) (federal-state); United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978) (Indian tribal conviction does not bar federal prosecution of same conduct); cf. Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970) (because city and state are not separate sovereignties, both cannot prosecute same offense).

In Wheeler, a unanimous Supreme Court stated that "undesirable consequences" would result from imposing a double jeopardy bar to successive prosecutions by different sovereignties: "Prosecution by one We believe that Brown and Englutt do not apply to the present case because the State has not yet prosecuted Williams for the shooting incident. As the Supreme Court has said in a different context, to hold otherwise "would deny the State its right to one full and fair opportunity to convict those who have violated its laws." Ohio v. Johnson, 467 U.S. 493, 502, 104 S.Ct. 2536, 2542, 81 L.Ed.2d 425 (1984). See also, Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 830, 54 L.Ed.2d 717 (1978) ("prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial").

sovereign for a relatively minor offense might bar prosecution by the other for a much graver one, thus effectively depriving the latter of the right to enforce its own laws." 435 U.S. at 318, 98 S.Ct. at 1083.

In addition, we decline to follow Englutt and Brown because they rest on a palpable misreading of Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975), and because they fail to consider and apply settled double jeopardy principles. In Menna the defendant, who had been held in contempt of court for refusal to testify to a grand jury, was later indicted for the offense of refusing to testify before a grand jury. He pleaded guilty to the criminal offense, and then appealed his conviction on double jeopardy grounds. The state courts affirmed his conviction by refusing to consider his jeopardy contention on the sole ground that his guilty plea had waived it. The Supreme Court disagreed with the waiver ruling, reversed, and remanded with instructions to consider Menna's double jeopardy claim, "a claim," said the Court, "on which we express no view." 423 U.S. at 62, 96 S.Ct. at 242. Although Justices Brennan and Marshall, concurring, would have sustained Menna's double jeopardy argument, seven members of the court did not. To say the least, under these circumstances, Menna certainly does not announce a general rule that a criminal prosecution bars all subsequent contempt proceedings arising from the same incident, as Englutt and Brown held.

The Court's opinion in Menna does state in a footnote that Menna's "double jeopardy claim is a strong one," suggesting that the contempt holding against him was "for the same crime as the one charged in the instant indictment." 423 U.S. at 62 n. 1, 96 S.Ct. at 242 n. 1 (emphasis added). Menna was indicted for refusal to answer questions before a grand jury, having been held in contempt for failure to testify before the grand jury, precisely the same offense. Nevertheless, seven members expressed no view on the double jeopardy contention. ⁴

After diligent research we have not found a single reported decision from any state or federal court in this country, with the exceptions of Englutt and Brown, that has cited Menna for the proposition that a contempt ruling bars a subsequent criminal proceeding, or vice versa. We respectfully submit that Englutt and Brown mistakenly accepted the Brennan-Marshall view on this important double jeopardy issue, even though the remaining seven members of the Menna court considered it an open question and went out of their way to say so. ⁵

Most of the other jurisdictions that have considered this question have concluded that a contempt conviction does not bar a later criminal prosecution. See generally Annot., 26 A.L.R.4th 950 (1983). Some courts have held that a criminal contempt ruling concerning conduct in open court does not bar a subsequent criminal prosecution concerning the same conduct. See, e.g., United States v. Rollerson, 449 F.2d 1000 (D.C.Cir.1971) (contempt sentence for assaulting prosecutor during trial did not bar later assault prosecution); United States v. Mirra, 220 F.Supp. 361 (S.D.N.Y.1963) (contempt sentence for assaulting prosecutor during trial did not bar later assault prosecution); State v. Warren, 186 N.J.Super. 35, 451 A.2d 197 (1982) (summary contempt ruling for failure to testify before grand jury did not bar criminal charge of hindering prosecution); Maples v. State, 565 S.W.2d 202 (Tenn.1978) (contempt fine for false testimony did not bar prosecution for perjury).

Several courts have held that constructive contempt--based upon acts committed outside the court's presence that violated a court order--does not bar a later criminal prosecution. See, e.g., People v. Matheson, 671 P.2d 968 (Colo.App.1983) (contempt sentence for violating order that restrained husband from going near wife's residence did not bar criminal prosecution for sexual assault during same incident); State v. Newell, 532 So.2d 1114 (Fla.App.1988) (contempt conviction for damaging spouse's car did not bar criminal mischief prosecution based upon same act); ⁶ People v. Totten, 118 Ill.2d 124, 113 Ill.Dec. 47, 514 N.E.2d 959 (1987) (contempt for violating protective order did not bar ...