Stephens v. State

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 *814evidence 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 determine4 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 *815prohibition 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 5.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, Y.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 Y.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)(l-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 *816person “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 insufficient to sustain the verdict. Bullington v. Missouri, 451 U.S. 430, 442, 101 S.Ct. 1852, 1860, 68 L.Ed.2d 270 (1981); Burks v. United States, 437 U.S. 1, 16, 98 S.Ct. 2141, 2149-50, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. at 24, 98 S.Ct. at 2154.

In In re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889), the Supreme Court addressed the issue of whether the Double Jeopardy Clause barred a subsequent prosecution for a lesser included offense following a conviction for the greater. In dicta, the Supreme Court commented on the effect of an acquittal on a subsequent prosecution:

In Mr. Wharton’s treatise on Criminal Law, vol. 1, § 560, the rule is stated as follows, to wit: “an acquittal or conviction for a greater offence included is a bar to a subsequent indictment for a minor offence included in the former, wherever, under the indictment for the greater offence, the defendant could have been convicted of the less; ” and he instances several cases in which the rule applies; for example, “an acquittal on an indictment for robbery, burglary, and larceny, may be pleaded to an indictment for larceny of the same goods, because upon the former indictment the defendant might have been convicted of the *817larceny.” “If one be indicted for murder, and acquitted on that indictment, he cannot be again indicted for manslaughter. ” “If a party charged with the crime of murder, committed in the perpetration of a burglary, be generally acquitted on that indictment, he cannot afterwards be convicted of a burglary with violence, under Wm.IV and 1 Vic. c.86, 2, as the general acquittal on the charge of murder would be an answer to that part of the indictment containing the allegation of violence.”

131 U.S. at 189, 9 S.Ct. at 676 (emphasis added); see also United States v. Ball, 163 U.S. 662, 670-71, 16 S.Ct. 1192, 1194-95, 41 L.Ed. 300 (1896). The Court acknowledged there was some contrary authority that indicated that retrial on a lesser included offense might not be barred in the case of an acquittal of a greater offense. 131 U.S. at 190, 9 S.Ct. at 677. However, these observations offer little solace for the State’s position in the instant case in light of the policy concerns expressed in the Supreme Court’s more recent decisions.

In Tibbs v. Florida, the Supreme Court explained that the prohibition against successive prosecutions contained in Burks and Greene rest upon two closely related policies:

First, the Double Jeopardy Clause attaches special weight to judgments of acquittal. A verdict of not guilty, whether rendered by the jury or directed by the trial judge, absolutely shields the defendant from retrial. A reversal based on the insufficiency of the evidence has the same effect because it remains that no rational factfinder could have voted to convict the defendant.

Second, Burks and Greene implement the principle that “[t]he Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” Burks, supra, at 11 [98 S.Ct. at 2147]. This prohibition, lying at the core of the Clause’s protections, prevents the State from honing its trial strategies and perfecting its evidence through successive attempts at conviction. Repeated prosecutorial sallies would unfairly burden the defendant and create a risk of conviction through sheer governmental perseverance. See Green v. United States, 355 U.S. 184, 187-188 [78 S.Ct. 221, 223-224, 2 L.Ed.2d 199] (1957); United States v. DiFrances-co, 449 U.S. [117] at 130 [101 S.Ct. 426 at 433, 66 L.Ed.2d 328 (1980)]. For this reason, when a reversal rests upon the ground that the prosecution has failed to produce sufficient evidence to prove its case, the Double Jeopardy Clause then bars the prosecutor from making a second attempt at conviction.

457 U.S. 31, 41-42, 102 S.Ct. 2211, 2218, 72 L.Ed.2d 652 (1982) (emphasis added).

Turning to the instant case, the State contends that since it did not oppose appellant’s request for a lesser included offense instruction, that it should not be penalized for the trial court’s failure to include the lesser offense in the charge to the jury. In its brief, the State concedes that Texas law provides for consolidating greater and lesser included offenses by including both in the charge to the jury on the trial of the greater offense. See also V.A.C.C.P. §§ 37.08; 37.09. However, the State contends that under Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977), the State is not precluded from re-prosecuting a defendant so long as it does not affirmatively impair the appellant’s double jeopardy protection.

In Jeffers, the defendant opposed the consolidation of the two offenses with which he was charged, but he failed to object on double jeopardy grounds. The Court held that the defendant had thus waived his double jeopardy claim. 432 U.S. at 154, 97 S.Ct. at 2218. The Supreme Court observed that: “[t]he considerations relating to the propriety of a second trial obviously would be different if any action by the Government contributed to the separate prosecutions on the lesser and greater charges. No hint of that is present in the case before us, since the Government affirmatively sought trial on the two indictments together.” 432 U.S. at 152-53 n. 20, 97 S.Ct. at 2217 (emphasis added). We *818read Jeffers, to stand for the proposition that a defendant may waive his double jeopardy protections under the Fifth Amendment. Id.

In the instant case, the State prosecuted the appellant on the greater offense. Nothing prevented the State from requesting a lesser included offense instruction. See V.A.C.C.P. 36.15. By electing to proceed only on the greater offense, the State can hardly claim that it did not contribute to the error. We find that Jeffers does not support the State’s contention.

The State also contends that the Supreme Court’s decision in Montana v. Hall, 481 U.S. 400, 107 S.Ct. 1825, 95 L.Ed.2d 354 (1987) is applicable to the instant case. In Hall, four days before trial, the defendant moved to have the original indictment charging him with sexual assault dismissed, arguing that because the victim was his stepdaughter he could only be prosecuted for incest. The trial court granted his motion to dismiss the original indictment and he was subsequently indicted for and convicted of incest. The Montana Supreme Court set aside the conviction as violating the ex post facto prohibition because, at the time the crime was committed, the incest statute did not apply to stepchildren. The Montana Supreme Court also held that a subsequent prosecution for sexual assault would be barred by double jeopardy.

The United States Supreme Court reversed the lower court, holding that the defect found in Hall was the result of trial error in the jury charge. 481 U.S. at 404, 107 S.Ct. at 1827. Since the reversal by the Montana Supreme Court was based on grounds unrelated to guilt or innocence, a retrial for the same offense was not barred. Id. at 403, 107 S.Ct. at 1827. In the instant case, the appellant’s conviction was reversed because the evidence was insufficient to prove the aggravating element of the offense. Stephens, 717 S.W.2d at 341. A conviction that is reversed because the evidence is insufficient will bar a retrial for the same offense. See Burks v. United States, 437 U.S. at 16, 98 S.Ct. at 2149-50.

Next, the State contends that reprosecution of the appellant should not be barred because the appellant was in “continuing jeopardy.” The State relies on Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970) for the proposition that appellant remained in “continuing jeopardy.” This reliance is misplaced. The conviction in Price was originally reversed because of trial error. Therefore, the defendant could still be retried. The Supreme Court noted that it had “consistently refused to rule that jeopardy for an offense continues after an acquittal.” 398 U.S. at 329, 90 S.Ct. at 1761. A verdict of acquittal is final, ending a defendant’s jeopardy. Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957). A reversal based on insufficiency of the evidence has the same effect as an acquittal. Tibbs, 457 U.S. at 41, 102 S.Ct. at 2218. Accordingly, appellant’s jeopardy ended when he secured a reversal of his original conviction based on insufficiency of the evidence. Appellant was placed in jeopardy again when he was reindicted for the “same” offense.8

*819Essentially, the State would have this Court re-examine our opinion in Stephens II, and hold that it is improper for an appellate court to reverse on sufficiency grounds without first determining whether there are reversible trial errors. The State’s argument, in essence, is that the Court of Appeals’ reversal of appellant’s conviction in Stephens I should have been based on the failure of the trial court to give the requested lesser included instruction, transforming the reversal from one based on sufficiency of the evidence to one based on trial error. We find that, while appellant’s conviction might have been reversed because the jury charge failed to include the timely requested instruction, this Court’s final disposition was predicated on the reversal and acquittal by the Court of Appeals due to insufficiency of the evidence, not trial error. See Stephens II, 111 S.W.2d at 340 n. 2.

Any opinion by the Court of Appeals as to the propriety of the refusal of the trial court to give a lesser included offense instruction would have been advisory. Even if the State were correct, once a defendant has been acquitted, no matter how “egregiously erroneous” the legal rationale leading to that conclusion might be, the Double Jeopardy Clause would bar a retrial of the appellant. See Sanabria v. United States, 437 U.S. 54, 75, 98 S.Ct. 2170, 2184, 57 L.Ed.2d 43 (1978); Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 672, 7 L.Ed.2d 629 (1962).

Finally, the State argues that there are important policy interests that support the position that the appellant should be repro-secuted. The State, with respect to the lesser included offense, argues that a reversal based on insufficiency of the evidence as to the aggravating element should not be accorded the same status as other appellate reversals because the issue of the lesser included offense was never presented to the jury. The State also argues that society has a legitimate interest in convicting and punishing those who violate its laws. Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). Further, the State argues that the Court of Appeals’ decision in Stephens III will hinder prosecutors from charging defendants with aggravated crimes for fear of reversal and that defendants will “get away with ‘free’ lesser included offenses.” In its petition for discretionary review, the State argues that “[t]he State is not asking for more than one bite at the apple. The State merely requires a new bite to replace the bite which appellant took away through his successful appeal.” We find these arguments unpersuasive.

In Ashe v. Swenson, the State’s attorney on appeal made the frank acknowledgment that the trial prosecutor had treated the first trial as a dry run: “No doubt the prosecutor felt the state had a provable case on the first charge and, when he lost, he did what every good attorney would do — he refined his presentation in light of the turn of events at the first trial.” 397 U.S. at 447, 90 S.Ct. at 1196. The Supreme Court held that this was precisely what the Double Jeopardy Clause prohibits. Id. This is no less true when the State, as in the instant case, has elected to pursue the greater offense and now seeks to “hone its trial strategies” and perfect its case with a second trial.

The Double Jeopardy Clause bars a second prosecution that would require the accused to “run the gauntlet” again. Therefore, we hold that when a defendant has obtained a reversal of a conviction for a greater offense solely on the ground that there was insufficient evidence to prove the aggravating element of that offense, the Double Jeopardy Clause bars a subsequent prosecution for a lesser included offense.

Accordingly, we find that the appellant’s subsequent prosecution for rape would be precluded by the Double Jeopardy Clause. *820The judgment of the Court of Appeals is affirmed.

McCORMICK, P.J., dissents.

OPINION ON DENIAL OF STATE’S MOTION FOR REHEARING PETITION FOR DISCRETIONARY REVIEW

. V.T.C.A. Penal, § 21.03, now repealed and superseded by V.T.C.A. Penal, § 22.021. The term sexual assault has now been substituted for that of rape.

. Now the Texas Department of Criminal Justice, Institutional Division.

. This Court noted appellant could have been convicted of the lesser included offense of rape if it had been submitted to jury. 717 S.W.2d at 339. However, the trial court refused appellant’s request for a charge on the lesser included offense. The State did not respond to or comment on appellant’s request.

. This opinion does not purport to answer the question whether the Double Jeopardy Clause would bar a subsequent prosecution if the jury charge had included an instruction on the lesser included offense or if the trial court had erroneously refused the State’s request for a lesser included offense instruction.

. We granted the State’s petition for discretionary review for the following reasons: (1) it raises an important question of state and federal law which has not been, but should be, settled by this Court, Tex.R.App.Pro. 200(c)(2); and (2) the justices of the Dallas Court of Appeals have disagreed upon an important question of law necessary to their decision, Ex parte Stephens, 753 S.W.2d 208 (Tex.App. — Dallas 1988) (Kin-keade, J., dissenting); Tex.R.App.Pro. 200(c)(5).

The precise issue addressed today has been presented to this Court previously in the case of Garrett v. State, 749 S.W.2d 784 (Tex.Cr.App. 1986). This Court initially found that such a subsequent prosecution was barred on double jeopardy grounds; however, that opinion was disavowed as an advisory opinion since the issue was not ripe for review. Garrett v. State, 749 S.W.2d 784, 804 (Tex.Cr.App. 1986) (opinion on State's Motion for rehearing).

. See e.g., Beverly v. Jones, 854 F.2d 412 (11th Cir.1988), cert. denied, 490 U.S. 1082, 109 S.Ct. 2104, 104 L.Ed.2d 665 (1989); Beverly v. State, 497 So.2d 530 (Ala. 1986); State v. Simons, 549 So.2d 785 (Fla.Dist.Ct.App.1989); State v. McBride, 504 So.2d 840 (La. 1987); State v. Walker, 514 So.2d 602 (La.Ct.App.1987); State v. DeLuca, 108 N.J. 98, 527 A.2d 1355, cert. denied, 484 U.S. 944, 108 S.Ct. 331, 98 L.Ed.2d 358 (1987); State v. Muniz, 228 N.J.Super. 492, 550 A.2d 487 (App.Div.1988); Commonwealth v. Williams, 379 Pa.Super. 538, 550 A.2d 579 (1988).

. This analysis does not implicate an application of the doctrine of collateral estoppel as is implicitly found in the Double Jeopardy Clause. Garrett, 749 S.W.2d at 791 (citing Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970)).

. The State also argues that the reversal of appellant’s original conviction did not work as an implied acquittal of the lesser offense of rape and thus, retrial should not be barred. The State is correct that the appellant was not impliedly acquitted of rape. However, its reliance on Mortis v. Mathews, 475 U.S. 237, 106 S.Ct. 1032, 89 L.Ed.2d 187 (1986) is misplaced.

In Mathews, the defendant and an accomplice robbed a bank. When the two were apprehended, the accomplice was found dead, an apparent suicide. The defendant pled guilty to aggravated robbery. Subsequently, the defendant admitted to killing his partner. The defendant was later indicted and convicted of aggravated murder, the aggravating factor being the bank robbery. The Ohio Supreme Court found that the conviction was jeopardy barred and reformed the judgment to reflect a conviction for murder pursuant to state statutory authority. The United States Supreme Court affirmed. Morris v. Mathews, 475 U.S. 237, 106 S.Ct. 1032, 89 L.Ed.2d 187 (1986).

Unlike the Ohio Supreme Court, this Court does not have the authority to reform a conviction of a greater felony found to be based on insufficient evidence to lesser felony, which the evidence will support. See generally Morris v. Mathews, 475 U.S. 237, 106 S.Ct. 1032, 89 L.Ed.2d 187 (1986); See Tex.R.App.Pro. 80, formerly V.A.C.C.P. 44.24(b). The instant case rep*819resents a “second” prosecution, unlike Mathews which was one proceeding.

The instant case is also distinguishable for other reasons. First, in Mathews, the defendant was still in a "continuing” state of jeopardy. Second, the commission of the robbery and the murder took place in different criminal episodes. Neither required proof of the other to sustain a conviction and, therefore, were not the “same" offense for purposes of the Double Jeopardy Clause. Therefore, the Double Jeopardy Clause did not bar a conviction for murder.