State v. Jorge Alberto Restrepo

State v. Restrepo

IN THE

TENTH COURT OF APPEALS

No. 10-93-182-CR

     THE STATE OF TEXAS,

                                                                                              Appellant

     v.

     JORGE ALBERTO RESTREPO,

                                                                                              Appellee

From the 178th District Court

Harris County, Texas

Trial Court # 606,109

                                                                                                    

O P I N I O N

                                                                                                    

      The State appeals from an order quashing a murder indictment against Jorge Restrepo. The court concluded that double-jeopardy principles prevented the State from prosecuting Restrepo for murder due to a prior prosection for the same offense that ended in an acquittal. We will affirm.

      Restrepo was indicted for murder. At his trial, the jury was given the options of finding him guilty of murder, guilty of voluntary manslaughter, or not guilty. The jury found him guilty of voluntary manslaughter but was unable to agree on punishment. After seven and one-half hours of deliberation, the court declared a mistrial over Restrepo's objection.

      The State again obtained an indictment charging Restrepo with murder, and he raised double jeopardy as a bar to reprosecution of the offense. He argued that the jury implicitly acquitted him of murder when it convicted him of the lessor-included offense of voluntary manslaughter. The court found "that the offense of murder . . . had been previously adjudicated and the defendant had been acquitted . . . as the result of the jury returning a verdict of guilty to the offense of voluntary manslaughter; thus prosecution for the offense of murder was barred" and quashed the indictment. The State appeals from this order.

      Voluntarily manslaughter is a lesser-included offense of murder. Nobles v. State, 843 S.W.2d 503, 511 (Tex. Crim. App. 1992). When the jury is given the option of convicting on either a greater or lesser-included offense, a guilty verdict on the lesser offense is an implied acquittal of the greater offense. Green v. United States, 355 U.S. 184, 190, 78 S. Ct. 221, 225, 2 L. Ed. 2d 199 (1957); see also Tex. Code Crim. Proc. Ann. art. 37.14 (Vernon 1981). Although the jury is not required by the court's charge to return an express finding of "not guilty" on the greater offense, the verdict can be treated as though "the jury had returned a verdict which expressly read: ‛We find the defendant not guilty of [the greater offense] but guilty of [the lesser-included offense].'" Green, 355 U.S. at 191, 78 S. Ct. at 225. Thus, when the jury returned a verdict finding Restrepo guilty of manslaughter, it implicitly acquitted him of the charged offense of murder. See id.

      The State argues, however, that jeopardy does not attach unless there is a complete verdict, including punishment. See Tex. Code. Crim. Proc. Ann. art. 37.07, § 3(c) (Vernon 1981). Because the court declared a mistrial before the jury agreed on punishment, the State reasons, the verdict was not complete and Restrepo can be reprosecuted on the murder charge.

      The Houston court of appeals recently addressed the issue presented in this appeal. See Monroe v. State, 871 S.W.2d 801 (Tex. App.—Houston [14th Dist.] 1994, no pet.). A jury found Monroe not guilty of attempted capital murder, but found him guilty of the lesser-included offense of aggravated assault of a peace officer. Id. at 802. Before the punishment phase of the trial, the court granted Monroe's request for a mistrial based on a comment made by the bailiff to the jury. Id. Monroe challenged the state's ability to reprosecute him on the attempted capital murder charge by a pretrial writ of habeas corpus. Id. at 803. The trial court denied him relief and he appealed. Id. The court of appeals reasoned that "[t]he jury's verdict was complete as to the offense of attempted capital murder because the jury need not consider punishment after an acquittal. Therefore, jeopardy attached on the singularly charged offense of attempted capital murder, and the State is barred from retrying [Monroe] for this offense." Id. at 804-05.

      We agree with the Houston court's reasoning in Monroe and apply the reasoning and result here. Thus, we conclude that the verdict was complete in regard to the offense of murder before the court declared the mistrial. See id. Jeopardy attached and the State is prohibited from reprosecuting Restrepo for murder. See id. The trial court's ruling was correct.

      The judgment is affirmed.

                                                                                 BOB L. THOMAS

                                                                                 Chief Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed June 15, 1994

Publish

ting practices of Mike and the various entities under his control.

Generally, money damages may be inadequate to compensate an injured party for the loss of property deemed to be legally “unique” or irreplaceable.  N. Cypress Med. Ctr. Operating Co. v. St. Laurent, 296 S.W.3d 171, 175 (Tex. App.—Houston [14th Dist.] 2009, no pet.).  The “uniqueness” rule is most commonly applied when the disputed property involves real estate.  See Lavigne v. Holder, 186 S.W.3d 625, 629 (Tex. App.—Fort Worth 2006, no pet.); In re Stark, 126 S.W.3d 635, 640 (Tex. App.—Beaumont 2004, orig. proceeding [mand. denied]) (finding that real estate is unique and therefore, may constitute some evidence of an irreparable injury). 

The partnership agreement between the parties states that the interest of each partner is personal property and that “[a]ll property and interests in the property, real or personal, owned by the Partnership shall be deemed owned by the Partnership as an entity, and no Partner or Assignee, individually, shall have any ownership of such property or interest owned by the Partnership except as a Partner in the Partnership or an Assignee.  Each of the Partners and the Assignees irrevocably waives, …, any right that such Partner or Assignee may have to maintain any action for partition with respect to any of the assets of the Partnership.”  Clint’s interest in the partnership is that of a limited partner in Forrest Cleburne Properties, L.P., and he has no direct ownership interest in the real property at all. 

Because Clint’s interest is not an interest in real estate, we do not consider the evidence regarding the unique nature of that real estate to be evidence of an irreparable injury or of the existence of an inadequate remedy at law.   See N. Cypress Med. Ctr. Operating Co., 296 S.W.3d at 175 (limited partner’s shares of the limited partnership not sufficient to constitute a unique interest in real estate.); see also, e.g., Doerwald v. MBank Fort Worth, N.A., 740 S.W.2d 86, 90-91 (Tex. App.—Fort Worth 1987, no writ) (ample evidence to support trial court’s finding that applicant failed to prove irreparable injury or inadequate remedy at law from foreclosure where applicant did not own equity interest in property).

Further, it is important to note that the burden of proof to establish a probable, immediate, and irreparable injury was on Clint.  See N. Cypress Med. Ctr. Operating Co., 296 S.W.3d at 177; Marketshare Telecom, L.L.C. v. Ericsson, Inc., 198 S.W.3d 908, 925 (Tex. App.—Dallas 2006, no pet.).  A party proves irreparable injury for injunction purposes by proving that damages would not adequately compensate the injured party or cannot be measured by any certain pecuniary standard.  Butnaru, 84 S.W.3d at 204; Frequent Flyer Depot, Inc. v. American Airlines, Inc., 281 S.W.3d 215, 227 (Tex. App.—Fort Worth 2009, pet. denied).  Damages are an inadequate remedy if they are difficult to calculate.   Frequent Flyer Depot, 281 S.W.3d at 228-29.

In the hearing, Mike Forrest testified that he was uncertain as to where certain monies had gone, but that his accountants had all of the financial information of the partnership.  Clint’s claims were for money damages for a breach of fiduciary duty and tortious interference.  Clint claims that Mike had driven Forrest Chevrolet-Cadillac, Inc. into insolvency.  Further, Clint contends that the insolvency of Forrest Chevrolet-Cadillac, Inc., taken with Mike’s intent to use the property of the partnership to resurrect it, establishes a substantial risk that the real property would be lost.  This would render any damage award too late.  However, no evidence was presented at the temporary injunction hearing regarding the financial condition of either Mike Forrest individually or of Forrest Property Management, Inc. for the trial court to determine whether either Mike or Forrest Property Management, Inc. were incapable of responding to monetary damages.

Clint further contends that his damages are difficult to calculate due to the unique nature of the property at issue and “the convoluted mess of accounting and business practices utilized by the partnership, the appellant and his dealership.”  Because we have determined that the unique nature of the real property is not a factor, we turn to the calculation of damages.  While there was testimony of some large sums of money that were unaccounted for, there was also testimony that the accountants used for the limited partnership and the other entities involved were in possession of all of the financial information for the entities and that the monies could be accounted for by them.  

Thus, on the record presented, Clint did not meet his burden of proof to establish that money damages could not compensate him or that such damages are incapable of calculation.  Absent proof of an irreparable injury, Clint was not entitled to injunctive relief.  See N. Cypress Med. Ctr. Operating Co., 296 S.W.3d at 175.  Accordingly, we reverse the trial court’s order, dissolve the temporary injunction, and remand this cause to the trial court for further proceedings.

Conclusion

            We find that the trial court abused its discretion in granting the temporary injunction.  Therefore, we reverse the trial court’s order, dissolve the temporary injunction, and remand this cause to the trial court for further proceedings.

 

                                                                        TOM GRAY

                                                                        Chief Justice

 

 

Before Chief Justice Gray,

            Justice Reyna, and

            Justice Davis

Reversed and remanded

Opinion delivered and filed July 21, 2010

[CV06]