TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-97-00197-CR
NO. 0962670, HONORABLE JON WISSER, JUDGE PRESIDING
THE CONTROVERSY
In 1990, two-year old C.W. was severely beaten. He died from his injuries. Zuliani was indicted for intentionally and knowingly causing serious bodily injury to a child. See Act of May 29, 1989, 71st Leg., R.S., ch. 357, § 1, 1989 Tex. Gen. Laws 1441 (Tex. Penal Code Ann. § 22.04(a), since amended). He was convicted for the lesser offense of recklessly causing the injury. Zuliani's conviction was reversed by this court in 1995 for trial error and remanded for a new trial. See Zuliani v. State, 903 S.W.2d 812 (Tex. App.--Austin 1995, pet. ref'd).
On January 21, 1997, the State filed a new indictment against Zuliani. Under count one of the new indictment, Zuliani is charged with murder; (1) under count two, he is charged with recklessly causing serious bodily injury to a child. Zuliani filed an application for writ of habeas corpus, alleging that the murder count was barred by double jeopardy. (2) The trial court denied relief. Zuliani appeals.
DISCUSSION AND HOLDINGS
In 1990, Zuliani's indictment read:
Gerald Christopher Zuliani, on or about the 2nd day of January A.D. 1990, . . . in the County of Travis, and State of Texas, did then and there intentionally and knowingly engage in conduct that caused serious bodily injury to [C.W.], a child younger than 14 years of age, by shaking the said [C.W.] and by striking the said [C.W.] and by pushing and shoving the said [C.W.] into a wall and by causing the head of the said [C.W.] to strike a blunt object the description of which is to the Grand Jurors unknown and in a manner and by a means which are to the Grand Jurors unknown. (emphasis added)
The jury found Zuliani guilty only of "recklessly causing serious bodily injury to a child," impliedly acquitting Zuliani of "intentionally and knowingly causing serious bodily injury to a child younger than 14 years of age." See Green v. United States, 365 U.S. 184 (1957); see also Tex. Code Crim. Proc. Ann. art. 37.14 (West 1981).
The question presented is whether Zuliani's implied acquittal for intentionally or knowingly causing serious bodily injury to a child in the prior trial prevents the State from trying Zuliani on count one of the pending indictment, which reads as follows:
Gerald Christopher Zuliani, on or about the 2nd day of January, A.D. 1990 . . . in the County of Travis, and State of Texas, did then and there intentionally and knowingly cause the death of an individual, [C.W.], by preventing Robbi Boutwell from obtaining medical care for the said [C.W.].
United States v. Dixon, 509 U.S. 688 (1993), reestablished Blockburger v. United States, 284 U.S. 299 (1932), as the sole criteria for analyzing sameness under the double jeopardy clause of the United States Constitution. Under Blockburger, any two penal statutes define different offenses when "each provision requires proof of an additional fact which the other does not." Id. at 304. "Blockburger requires a straightforward comparison of the elements of each offense, without reference to the actual proof that will be introduced at trial, to determine whether there is any difference between the crimes." Peter J. Henning, Precedents in a Vacuum: The Supreme Court Continues to Tinker with Double Jeopardy, 31 Am. Crim. L. Rev. 1, 9 (1993).
In this case, it is clear that Blockburger alone will not bar Zuliani's prosecution for murder. In the offense of injury to a child, the victim must be 14 years old or younger. There is no such requirement for murder. In the offense of murder, the death of a human being is essential to a conviction, but death is not essential to a conviction for injury to a child. See Wright v. State, 866 S.W.2d 747, 750 (Tex. App.--Eastland 1993, pet. ref'd) (offenses of murder and injury to a child different under Blockburger test); see also Florio v. State, 814 S.W.2d 778, 783 (Tex. App.--Houston [14th Dist.] 1991), aff'd, 845 S.W.2d 849 (Tex. Crim. App. 1992) (under Blockburger, injury to a child and murder do not constitute same offense because each offense requires proof the other does not).
Under Texas law, however, our analysis is not complete until we compare the charging instruments as well as the relevant statutes. The Texas Court of Criminal Appeals in Parrish v. State, 869 S.W.2d 352, 354 (Tex. Crim. App. 1994) stated:
In Texas, an offense is considered to be included within another if, among other things, "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. Proc. Ann. art. 37.09(1) (West 1981). Our statute law thus describes includedness in much the same way Blockburger describes sameness. Yet we have long considered more than merely statutory elements to be relevant in this connection . . . We likewise think it reasonably clear from the various opinions in Dixon that the essential elements relevant to a jeopardy inquiry [under Blockburger] are those of the charging instrument, not of the penal statute itself.
Id. We compare side by side the proof required by the indictments at issue:
ORIGINAL INDICTMENT PRESENT INDICTMENT
(1) intentionally or knowingly engaged (1) intentionally or knowingly
in conduct that
(2) caused serious bodily injury (2) caused the death
(3) to a child younger than fourteen years (3) of an individual
of age
(4) by shaking and striking . . . [the child] (4) by preventing Robbi Boutwell
from obtaining medical care
At first glance, it appears the charging instruments differ in precisely the same way as the relevant statutes: only the first indictment requires proof that the victim was a child; only the second requires proof of death.
Zuliani argues, however, that element two of the first indictment ("serious bodily injury") is in fact identical to element two of the second indictment ("death"), making the first a bar to the second. "Serious bodily injury" is defined as "bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Tex. Penal Code Ann. § 1.07(a)(46) (West 1994) (emphasis added). Zuliani argues that Parrish requires us to look not only to the charging instruments, but also to the record and to the facts actually proved at trial, in order to complete our analysis. Looking at the record in the first trial, Zuliani argues, it is clear that the State in fact proved that the result of Zuliani's conduct was the death of C.W.
In Parrish, the question was whether the appellant's prior conviction for speeding was a jeopardy bar to her subsequent prosecution for DWI. See Parrish, 869 S.W.2d at 353. The DWI statute required proof that a person "operated" a motor vehicle in a "public place" while "intoxicated." The speeding statute required proof that a person "drove" on a "highway" at an "[excessive] speed."
At first glance, the elements seemed to be different. In appellant's indictment for DWI, however, the State actually alleged that the appellant "drove" a motor vehicle in a public place, rather than "operated" it, requiring the State to prove under both indictments the same thing: that the appellant "drove" the motor vehicle. See id. at 354.
The court next examined the second element of the DWI statute, that the appellant operated the vehicle in a "public place." This differed from the speeding element of "highway." But the court noted that the facts to be proved with regard to this element were also identical, because "the record makes it clear that [appellant] was on a 'highway. . . . '" Id. (emphasis added).
Thus, certain circumstances may require an examination of the record in addition to an examination of the charging instruments. But does an examination of the record in the case at issue show that the State was required to prove the same facts under the two charging instruments? We think not. The State did present to the jury in the first trial evidence that C.W. ultimately died from his injuries. But we disagree with Zuliani's contention that the presentation of this evidence makes the relevant elements "identical" for jeopardy purposes.
In Parrish, the State was required to prove that the appellant operated her vehicle in a "public place" in order to secure a DWI conviction. The public place where she operated her vehicle was a "highway." The State was required to prove not only "public place," but under the circumstances, "highway."
Also instructive is the opinion in Jacob v. State, 892 S.W.2d 905 (Tex. Crim. App. 1995). In that case, the defendant was indicted and tried for burglary of a habitation with intent to commit aggravated assault. See Tex. Penal Code Ann. § 30.02(a)(1) (West 1994). The evidence at trial showed that the defendant in fact severely beat the complaining witness. The question presented on appeal was whether, given this evidence, the trial court was authorized to convict the defendant of aggravated assault as a lesser included offense of the charged offense. The Court of Criminal Appeals held that it was not, because under section 30.02(a)(1), "the State is not required to prove that an aggravated assault occurred. Rather, the State must show only that the defendant intended to commit such assault. . . . While it may be true that when the State proves an aggravated assault, the proof shows an intent to commit the assault, under Article 37.09(1) facts showing a completed assault are not 'required' to prove the intent to commit such assault." Jacob, 892 S.W.2d at 909.
In this case, the indictments do not require the State to prove identical facts with regard to the result of Zuliani's conduct. The first indictment requires the State to prove only that Zuliani caused C.W. "serious bodily injury." The indictment does not require proof of death in order to secure a conviction. The evidence that C.W.'s serious injuries eventually resulted in his death was, for purposes of conviction, superfluous. Had the State omitted to present such evidence and instead presented only evidence that C.W. sustained serious head injuries as a result of Zuliani's actions, it still could have secured a conviction under the identical statute and the identical charging instrument.
Because we believe each of the two indictments presented requires proof of facts the other does not, we hold Zuliani's implied acquittal in the first trial is not, under the United States Constitution, a jeopardy bar to the current indictment for murder. Point of error two is overruled.
In his final point of error, Zuliani urges that the Texas Constitution's guarantee against double jeopardy "provides greater protection than its federal counterpart" and "requires application of the 'same conduct' test [for determining whether two offenses are the same]." This assertion is not supported by argument, analysis, or pertinent authority. We therefore decline to consider it. See Ex parte Hernandez, 953 S.W.2d 275, 285-86 (Tex. Crim. App. 1997). Point of error four is overruled.
The district court's order denying relief is affirmed.
John Powers, Justice
Before Justices Powers, Aboussie and B. A. Smith
Affirmed
Filed: September 24, 1998
Do Not Publish
1. Tex. Penal Code Ann.§ 19.02 (West 1994).
2. Zuliani complains on appeal of another indictment filed by the State in Travis County cause
number 0962670. Because the State has since dismissed the indictment, the issues raised in points
of error one and three are moot and we will refrain from discussing that indictment.
The court next examined the second element of the DWI statute, that the appellant operated the vehicle in a "public place." This differed from the speeding element of "highway." But the court noted that the facts to be proved with regard to this element were also identical, because "the record makes it clear that [appellant] was on a 'highway. . . . '" Id. (emphasis added).
Thus, certain circumstances may require an examination of the record in addition to an examination of the charging instruments. But does an examination of the record in the case at issue show that the State was required to prove the same facts under the two charging instruments? We think not. The State did present to the jury in the first trial evidence that C.W. ultimately died from his injuries. But we disagree with Zuliani's contention that the presentation of this evidence makes the relevant elements "identical" for jeopardy purposes.
In Parrish, the State was required to prove that the appellant operated her vehicle in a "public place" in order to secure a DWI conviction. The public place where she operated her vehicle was a "highway." The State was required to prove not only "public place," but under the circumstances, "highway."
Also instructive is the opinion in Jacob v. State, 892 S.W.2d 905 (Tex. Crim. App. 1995). In that case, the defendant was indicted and tried for burglary of a habitation with intent to commit aggravated assault. See Tex. Penal Code Ann. § 30.02(a)(1) (West 1994). The evidence at trial showed that the defendant in fact severely beat the complaining witness. The question presented on appeal was whether, given this evidence, the trial court was authorized to convict the defendant of aggravated assault as a lesser included offense of the charged offense. The Court of Criminal Appeals held that it was not, because under section 30.02(a)(1), "the State is not required to prove that an aggravated assault occurred. Rather, the State must show only that the defendant intended to commit such assault. . . . While it may be true that when the State proves an aggravated assault, the proof shows an intent to commit the assault, under Article 37.09(1) facts showing a completed assault are not 'required' to prove the intent to commit such assault." Jacob, 892 S.W.2d at 909.
In this case, the indictments do not require the State to prove identical facts with regard to the result of Zuliani's conduct. The first indictment requires the State to prove only that Zuliani caused C.W. "serious bodily injury." The indictment does not require proof of death in order to secure a conviction. The evidence that C.W.'s serious injuries eventually resulted in his death was, for purposes of conviction, superfluous. Had the State omitted to present such evidence and instead presented only evidence that C.W. sustained serious head injuries as a result of Zuliani's actions, it still could have secured a conviction under the identical statute and the identical charging instrument.
Because we believe each of the two indictments presented requires proof of facts the other does not, we hold Zuliani's implied acquittal in the first trial is not, under the United States Constitution, a jeopardy bar to the current indictment for murder. Point of error two is overruled.
In his final point of error, Zuliani urges that the Texas Constitution's guarantee against double jeopardy "provides greater protection than its federal counterpart" and "requires application of the 'same conduct' test [for determining whether two offenses are the same]." This assertion is not supported by argument, analysis, or perti