PD-0915-15 PD-0915-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/17/2015 5:16:18 PM
Accepted 7/22/2015 3:48:12 PM
IN TI]E ABEL ACOSTA
CLERK
COURT OF CIIIMINAI- APPEAI,S OF TEXAS
ANTI.IONY IÌILL, $
APPELI,ANT s
s
V" s No.
s
s
THN STATE OF ]'EXAS, s
APPELI,EE $
sss
APPELLANT'S PETITION F'OII DISCRETIONARY IìEVIEW
$s$
MICHAEL LOGAN WARE
300 Burnett Street
Suitc 160
Fort Worth, TX 76102
July 22, 2015 Telephone: 817/ 338 - 4100
Telecopier: 817i 698- 0000
Texas Statc Bar Number:20864200
ATTOIìNEY FOII APPIì,LLANT'
IDIINTITIES OF PAIITIIìS AND COUNSEL
Appellant: Anthony lJill
lì.e¡rrcsented by: Michael Logan Ware (on pletlial wlit of habeas cor.pus
and on appeal)
Terri Moole (on pretrial writ of habeas colpus and on
appeal
300 Bulnett Stl'eet
Suire 160
l-ort Vy'orth, TX76102
A¡rpellee: 1-he State of Texas
Re¡rresented by: Susan Hawk, Criminal Disn"ict Attorney
Chris Plyor', Assi.stant l)istrict AÍtorney (on writ of
habeas colpus)
Brian P. Higginbotharn, Assistant District Attolney (on
appeal)
Dallas County District Attorney's Office
133 North Riverflont Boulevard
LB-19
l)allas, 'fX 7 5207 -4399
Trial Judge: The l{onorable Brandon Birminghani
Presiding Judge
292nd Judicial Distlict Couú
Dallas County, Texas
The IJonolable Lan'y Mitchell
.Tudge who plesided ovel'the Writ of lJabeas Corpus
292nd Judicial District
Dallas County, Iexas
u
TAI}LE OF CONTENTS
PAGE
lNDllXOFAUlllORlTllìS.. .... iv
STATEMENT REGARDING ORAL ARGUMENT . .
STATEMI]NT OF- I-I-IE CASI]
STATEMENTOFPROCEDURALHISTORY ........,.. 2
GROUNDSANDREASONSFORREVIEW .......3
ARGUMENT SUPPORTING GROI]NDS AND REASONS
FORREVIEW .........9
PRAYERFORRELIEF ......... 20
CERTIFICA"I]] OF COMPLIANCE. . ..... 2I
CERTIFICATE OF SERVICE .. .. 22
COURT OF APPEALS' OPINION (May 20,20t5). ... . APPENDIX A
COURT OF APPEALS ORDER DENYING MOTION I.-OR REHEARING
(June 17,2015.. . . .. APPENDIXB
ul
INÐEX OIéUT:IIAßIT]ES
Cases
Abneyv. UnitedStates,43 1U.S.651 (1977) ....... 11
Aekins v. Srate, 447 S.W.3d 270 (Tex.Cr.im .App. 2014) .... . 10
Ashe v. Swenson,397 U.S. 436 (1970) . . 16-17
Bigonv. State,252 S.W.3d 360 (Tex.Cr.im.App.1970) ... ... 13
Blockburger v. United States, 284 U.S. 299 (1932) .. . 3,1-8,13,15,17-19
Brownv. Ohio,432 U.S. 161 (1977) . .. . 13-17
Cooper v. State,430 S.W.3d 426 (Tex.Crirn.App. 2014) .... . 13
Diaz v. United States,223 U.S. 442 (1912) 2,6-7,15-16
Ex ¡tarfe Amador,326 S.W.3d 202 (Tex.Crirn.App. 2010) ......... . 14
Ex parte Carle,369 S.V/.3d 879 (Tex.Clirn .App.2012) .... . 13
Ex parte Chaddock,369 S.W.3d 880 (Tex.Crirn.App. 2012) . . . . . 9,18-19
Ex Parte lIill, 2015 Tex.App.l-EXIS 5 1 32 (Tex.App.Dallas May 20,2015) ... . 2
Graves v. State,539 S.W.2d 890 (Tex.Crirn .App. 1976) .... . 17
Green v. Uniled States,355 U.S. 184 (1951) .... . 9,11
I.ittrellv. SÍate.,271 S.W.3d 273 (Tex.Cr.in,.App.2008) ..... 13
North Carr¡linav. Pearce,3gs U.S.711 (1969) 10,16 17
Price v. State,434 S.V/.3d 601 (Tex.Cr.irn .App.2014) ..... . l3
Shelby v. State, 448 S.W.3d (Tex.Clim.App. 2014) ........ . 13
Tibbsv.Florida,457U.S.31(1982) .......9
I4thalenv.UniledStates,,294U.S.299,304(1932) . ........ 14
Codes and Articles
U.S.Constitution,FifthAmendment .. "....9
TexasRules ofAppellatePlocedureRule66.3(a),(b), &(c). .. .. .. . 4-8
TexasPenalCode$1.07(46)...,. ........16
DoubleJeopaldy:UnravelingaGordianKnot(2013) ....... 17
STATEMENT IìEGARDING OR
'l-his case involves cor.nplex issues ol'làct and law.'ì'he undersigned counsel believes
this Court's understanding of the relevant factual and legal issues could be substanlially
enhanced by oral argurnent. Appellant requests oral argument
STATEMENT OF THE CASE
Appellant and his co-defendant wele each indicted for the aggravated lobbely
of Ryarr Lusk, which was alleged to have occurred on ol' about March 18, 2012. The
indictrnent, filed April 25,2012, alleged that Appellant had shot Ryan Lusk with a
firearm causing serious bodily injury, during the coul'se of comlnitting theft of
property.
Ayear later, on April 4,2013, Appellant, on the advice of his then counsel,
waived a jury and pled guilty to the coult. On May 17 ,2013 and June 21, 2013, the
trial court heard punishment evidence. On June 21,2013, the tlial cou¡t found
Appellant guilty of agglavated robbery as alleged, which included shooting Ryan
l-usk with a fireann, causing him selious bodily injury. The trial cour1 assessed a
sentence of 45 years in plison. Judgment was entered June 24, 2013.
On Novernber 19, 2013,, five months after Appellant was convicted and
sentenced, Ryan Lusk died, allegedly due, at least in sorne part, to the gunshot wound
sustained on ol about March 18, 2012. Appellant was then indicted (filed Decernber
30, 2013) for tlre capital lnul'der of lìyar.r Lusk, "by shooting thc deceased with a
fit'eat'rn, and the defendant was theli and there in the course o1'committirrg. . . r'obbely
of said deceased."
Appellant filed a pre-tlial writ of habeas corpus alleging that a successive
pt'osecution, oonviction, and punishrnent for the grealer ol'lense ofcapital murder a1ler
having been ah'eady finally convicted ofand sentenced for the lesser'-included offense
ofagglavated lobbery, would violate the doublejeopardy protections guatanteed by
the United States and Texas Constitutions. The trial court agreed and by court order.
dated Decelnber 29,2014, barred fulther prosecution under the capital rnurder.
indictnrent fi led Decen.rber 30, 2013.
The State appealed to the Dallas Court of Appeals.
STATDMENT OF PROCEDURAL HISTORY
In a published opinion, handed down on May 20,2015, the coult of appeals
leversedtlretrial court, ExParteHill,20l5 Tex.App.LEXlS 5132(Tex.App.Dallas
May 20,2015). 1'he Coult of Appeals held that Appellant could be prosecuted,
convicted, and punished fol the greater offense ofcapital murder, even after.having
beeu convicted of and sentenced for, the lesser,included offense of aggravated
lobbely, because of a purpolted exception to double jeopaldy plotection cleated by
the United States Suprerne Coult in Diaz v. United States,223 U.S. 442 (1912). The
Cor-rft of Alrpeals held that neìther Blockburger v. United States,284 U.S. 299 ( I932)
nor legislative intent was eitl.rer controlling or even l.rad any real application to this
case.
Appellant's tirnely Motion fol Rchearing was denied on June 17 , 2015. This
petition was then filed with the Clerk of the Coult of Clirninal Appeals within thirty
(30) days aftel such lhnal luling, to wit on July 17,2015.
GROUNDS FOIì REVIEW
GROUND FOR REVIEW NO. 1
THE COURT OF APPEALS ERRED IN HOLDING THAT THE DOUBLE
JEOPARDY CLAUSE OF THE UNITED STATES CONSTITUTION
PERMITS THE STATE TO CONVICI'A Dì]FENDANT OF BOTH A
I-ESSER INCLUDED AND A GREATER OÞ-FENSE IN SUCCESSIVE
PROSECUTIONS, REGARDLES S OF LEGISLATIVE INTENT.
REASONS FOR REVIEV/
In holding that the double jeopardy clause of the United States Constitution
per'rnits the state to convict a defendant ofboth a lesser included and a greatel offense
in successive prosecutior.rs, even when there is no legislative intent to pennit it, the
coult of appeals made a decision that conflicts with the applicable decisions of the
Couft of Climinal Appeals, the United States Supleme Court, and othel courts of
appeal on the same issue. In the altelnative, the coult ofappeals decided an irnportant
question of'state and federal law that has not been, but should be settled by the Courl
o1' Climinal Appeals. $_eç, Iìule 66. 3 (a),(b), & (c), T.R.A.P.
GROUND FOR REVIEW NO.2
TIIE COUIìT Oþ' APPEAI-S ERRED IN HOLDING '|HAT THE DOUBLE
JEOPARDY CLAUSE OF TIJE UNITED STATES CONSTITUTION
PERMITS TI-IE STATE TO IMPOSE MULTIPLE PUNISHMENTS ON A
DEFENDANT FOR BOTH A LESSER,INCLUDED AND A GREATER
OIììENSE IN SUCCËSSIVts PIìOSECUTIONS, RÌ]GARDLESS OF
I-EGISLATìVE INTtrNT.
REASONS FORREVIEW
In holding that the double jeopardy clause of the United States Constitution
permits the state to irnpose rnultiple punishrnents on a defendant for both a lesser-
included and greater offense in successive prosecutions, even when thel'e is no
legislative intent to perrnit it, the court of appeals made a decision that conflicts with
the applicable decisions ofthe Courl of Criminal Appeals, the United States Supreme
Court, and other courts of appeal on the same issue. ln the alternative, the court of
appeals decided an irnpodant question of state and l"edelal law that has not been, but
should be settled by the Courl of Criminal Appeals. See, Iìule 66.3(a),(b), &. (c),
T.R.A.P.
GROUND F'OIì RIìVInW NO.3
.TI]E
COURT OF APPEALS ERIìED IN HOLDING TI IA'1' CI]ARGING AND
TRYING A DI]FENDANT I]OR THB OIìIENSE OI.- CAPITAL MURD]]Iì,
AFTER TI]E DEFHNDAN]' IIAS ALREADY BEI]N FINALI-Y
CONVICT'Ëì) AND SENTENCED FOIì THE LESSI]R INCLUD]]D
oFtìllNSE (AGGRAVA'IED ROBBÌ]RY) OF TIIAT SAMII ALLIIGED
..CAPITAI- MT]RDER'"
DOI]S NOl'VIOI-ATE TI-IE DOUI]LE J]]OPARDY
PROVISION OF TI-IE TJNITED S]]AI'ËS CONSI]TU'TION.
REASONS I]OR REVIEV/
In holding that charging and trying a defendant for capital mulder., after.the
defendant has already been finally convicted and sentenced for the lesser included
offense (aggravated robbely) ofthat same alleged "capital r.nuLdeL", does not violate
the doublejeopaldy plovision ofthe United States Constitution, the court ofappeals
made a decision that conflicts with the applicable decisions of the Coul't of Crirninal
Appeals, the United States Supreme Court, and othel' coults of appeal on the same
issue. ln the alternative, the court ofappeals decided an irnportant question of state
and fedel'al law that has not been, but should be settled by the Court of Criminal
Appeals. See, Rule 66.3(a),(b), & (c), T.R.A.P.
GROUND FOR RDVIEW NO. 4
THE COURT OF APPEALS ERRED IN HOLDING THAT
PUNISHING/SENTENCING A DEFENDANT Þ-OR CAPITAL MURDER
AFTER THE Dì]FENDANT IJAS ALREADY BEEN FINALLY
CONVICTED AND SENTENCED FOR THE LESSER INCLUDED
OFFENSE (AGGRAVAIED ROBBERY) O}'TI]AT SAME ALLEGED
..CAPITAL MIJRDER'" DOES
NOT VIOLATETHE DOUBLE JEOPARDY
PROVISION OF TIIE UNITED SI'ATES CONSTITIJTION.
IìEAS ON S ìlOR IììrVlEV/
In holding that punishing/sentencing a defendant fol capital murdel'after the
delèndant has ah'eady been linally cclnvicted and sentenced fol'the lessel includecl
offense (aggravated robber'y) of that same alleged "capital ruur.der", does not violate
the double jeopardy plovision of the United States Constitution, the cour.t of appeals
made a decision that conflicts with the applicable decisions of the Coud of Crirninal
Appeals, the United States Suprerne Court, and other cour.ts of appeal on the same
issue. In the altemative, the coult of appeals deoided an important question of state
and federal law that has not been, but should be settled by the Courl of Crirninal
Appeals. See, Rule 66.3(a),(b), & (c), T.R.A.P.
GROUND FOR REVIEW NO. 5
]-I-IE COURT OF APPEAI,S ERRED IN HOLDING 'IHA'T' DIAZ V. L]NITED
STATES,223 U.5.442 (19t2), rS GOOD LAW AND CREATED A CARTE
BLANCIIE EXCEPTION TO THE DOUBLE JEOPARDY PROTECTION
OTHEIì.WISE PROVIDED BY THE UNITED STATES CONSTITUTION.
REASONS FORREVIEW
In holding thatDiaz v. United States,223 U.S. 442 (1912), is still good law and
creating a cal'te blanche exception to the double jeopar.dy protection otherwise
provided by the United States Constitution, the coult ofappeals made a decision that
conflicts with the applicable decisions of the Court of Criminal Appeals, the United
States Supreme Couft, and other courts of appeal on the same issue. ln the alternative,
the court ofappeals decided an irlporlant question of state and fedel'al law that has
not been, but should be settled by the Coult of Cliruinal ,Appeals. See, ltule
66.3(a),(b), & (c), T.R.A.P.
GROUND IIOIì IIEVIDW NO. 6
THE COURT OF APPEALS ERRED IN Ì.IOLDING THAT ANY
EXCEPTION TO DOTJBLE JEOPARDY PROTECTION CIìEA'|ED BY
D|AZ V. UNITED STATES,223 U.S. 442 (1912), APPLIES TO THU CASE-
AT-BAR.
REASONS FOR REVIEW
ln holding that any exception to double jeopat'dy protection cl'eated by Diaz v.
United States,,223 U.S. 442 (1912), applies to the case-at-bar', the court of appeals
tnade a decision that conflicts with the applicable decisions of the Court of Clirninal
Appeals, the United States Suprerne Court, and other courts of appeal on the same
issue. In the altelnative, the coult of appeals decided an important question of state
and federal law that has not been, but should be settled by the Courl of Criminal
Appeals. See, Rule 66.3(a),(b), & (c), T.R.A.P.
GROUND FOR REVTEW NO. 7
THE COT]]I]' OF APPEALS ERRED IN HOI-DING THAT ]-HE
*BLOCKBU]IG¿,¿ì", SAME OFFENSE TEST, DOES
NOT APPLY TO
SIJCCESSIVE PIìOStsCUTIONS, DOUBLE JEOPARDY ANALYSIS ìN
THE CASE-AT-BAR.
Iì]]AS ONS IìOR R]]VII]W
In holding that the "Blockburger, sarne offense test, does not apply to
successive prosecutions, double jeopardy analysis in the case-at-bar, thc cor-u't of
appeals urade a decision that conflicts with the applicable decisions of the coufi of
crirninal Appeals, the united States Supleme court, and other courts of appeal or.r tl, e
saure issue. In the alternative, the courl ofappeals decided an irnportant question of
state and federal law that has not been, but should be settled by the Court of Crirninal
Appeals. See, Rule 6ó.3(a),(b), & (c), T.R.A.P.
GIìOUND FOR REVIEW NO. 8
TIIE COURT OF APPEALS ERRED IN HOLDING THAT 'fHE
"BLOCKBURGER'1 SAME OFFENSE TEST, DOES NOT APPLY TO
MULTIPLE PUNISIIMENT, DOUBLE JEOPARDY ANALYSIS IN TIIì]
CASE-AT-BAR.
REASONS FOR REVIEW
In holding thafthe "Blockburger" , same offense test, does not apply to multiple
punishrnent, doublejeopaldy, analysis in the case-at-bar, the court ofappeals rnade
a decision that conflicts with the applicable decisions of the coul't of climinal
Appeals, the United States Supreme Court, and othel.cour.ts of appeal on the salne
issue. In the altelnative, the court ofappeals decided an irnpottant question of state
and fedelal law tl.rat has not been, but should be settled by the coult of climinal
Appeals. See, Rule 66.3(a),(b), & (c), T.R.A.P.
ARGUMENT SUPPOIìTING GIì.OUNDS ÄND IìEASONS FOIì REVIEW 1-8
The double jeopardy clause of the lifth amendment to the Ullited States
Constitutior.r, protects the individual against the abusive governrnent "evils attendanl
upon successive prosecutions, namely the 'embarrassment, expense, and ordeal' of
t'epetitive trials, 'compelling fthe accused] to live in a continuing state of anxiety and
insecurity' and creating 'a risk of conviction through sheel governrnent
pe1'severance."' Ex parte Chaddock, 369 S.V/.3d 880, 886 (Tex.Crirn.App.
2012)(quoting,Greenv. United States,355 U.S. 184 (1957),Tibbs v. Florida,45l
u.s. 31 (1e82)).
The government's plosecutorial powel and discretion to charge a citizen with
a crirninal offense is ahnost unlimited. The government is, likewise virlually
unaccountable for its chalging decisions. Although a grand jury indicted Appellant,
at the time the capital tnurdeL case was plesented to the grand jury, Appellant had
"resolved" his case through a plea ofguilty and had begun serving his forty-f,rve year.
sentence for aggravated robbely. Appellant had no reason to know that the case was
again being presented to the gland jury, this time as a capital rnulder', which canies
the possibility of tl're death penalty, and had no reason to know he still needed
counsel. Appe llant was the¡efole not l'epresented by counsel when the grand jury met
with the plosecutor and voted to indict fol capital mul'der. Any algurnent that
l'epresentatiorl by counsel would probably not have made a dil'l'elence would be, to
sonlc extent, an acknowledgment of the govemrnent's virlually unlirnited power and
discretion to charge (in this case capital ururder', the most selious existent offense
under Texas law), and what little mitigating effect the grand july really has on that
power and discletion.
Likewise, the government has vast resources to pursue convictions, once they
have charged a citizen. The governrnent is generally ready and willing to expend vast
l'esources in pursuit of convictions and sevele sentences in "big cases", such as a
capital murder case. Of coul'se, once the state obtains a conviction in a capital murder'
case, the only possible punishments are death or life without the possibility ofparole.
In this case, either punishrnent would necessarily be cumulative of the 45 years
agglavated tirne Appellant began serving in2013.
h"t North Carolina v. Pearce,,395 U.S. 7ll (1969), the Supreme Court stated
that the guarantee against double jeopaldy consists of three separate constitutional
protections:
first, it plotects againsl a second prosecution fol the same offense after
acquittal; second, it protects against a second prosecution for the same
offense aftel' colrviction; and tliird, it protects against rnultiple
punishments fol' the same offense.
Aekins v. State,447 S.W.3d 270,274 ('l'ex.Criur.App. 2014xcitine, Pearce af 717).
The case-at-bal' involves both impeltnissible successive plosecution, and
irnpennissible multiple punisl.urent issues.
ln Abney v. United States, 431 U.S. 65 I (1977), the Supr.eme Court
emphasized:
the Double Jeopardy Clause protects an individual against more than
being subjected to double punishments. It is a gualantee against being
twice put to trial on the sarne offense [d. at pp. ó60-661]. . . the
guarantee against double jeopaldy assures an individual that, arnong
other things, he will not be forced, with certain exceptions, to endule the
pelsonal strain, public embarrassrnent, and expense of a criminal tl.ial
tnore than once for the same offense. lt thus protects interests wholly
untelated to the plopriety of any subsequenl conviction. Mr'. Justice
Black aptly desclibed the purpose ofthe clause:
"The underlying idea, one deeply inglain ingtained in at least the
Anglo-Arnelicân system of julisprudence, is that the state with all its
resources and power should not be allowed to make repeated attempts
to convict ar.r individual fol an alleged offense, theleby subjecting hirn
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 rnay be found guilty." Green v.
Uníted States,335 U.S. 184, 187-188.
Id. at 661-662.
The doublejeopardy clauses in the United States and Texas Constitutions ale,
leal istically, the oniy checks on the govelnrnent's power to both cr.irninally charge and
to pul'sue criminal convictions and punishnrcnts against its citizens once they ar-e
chalged. In its opinion below, the Court of Appeals purports to seize on yet another
il
"exception" to a citizen's doublejeopaldy lights and lieleby ernpower the governnlent
even furtlier ir.r its charging decisions.
In the case-at-bar', Appellant was convicted and sentenced to 45 years iu pr.isou
for agglavated robbery. The indictment was filed on Aplil 25,2012 and r.eads, in
perlinent parl, as lollows:
On or about the 18'r'day of March A.D. 2Ol2 . .. intentionally and
knowingly, while in the course of comrnitting theft of pl'opelty . . . cause
selious bodily injuly to another Ryan Lusk . . . by shooting Cornplair.rant
withafir'earm...
Appellant was convicted and sentenced on June 21, 2013.
On November 19,2013, Ryan Lusk died, allegedly due, at least in part, to the
gunshot would he had sustained twenty rnonths earlier on March 18,2012.1
In an indictrnent filed on Decernber 3 0, 20 1 3, Appellant who had begun serving
his forly-five year sentence and who had no legal counsel and no reason to believe he
needed furthel legal counsel, was indicted fol capital rnurder, in pertinent pal-t, as
follows:
On or about the 18tr'day of Malch A .D.,2012. . . intentionally cause the
death of Ryan Lusk . . . by shooting the deceased with a firearrn, and the
defendant was then and thele in the course of comruitting . . . robbery of
said deceased.
¡11
is worth noting that the statutory definition ol'"serious bodily injury" includes, "bodily
irrjury . . .1hat causes death. . ." T.P.C. g 1.07(46).
12
The State concedes that undel a long line of lJnited States Suprerre Coult and
Texas Court o1'Climinal Âppeals cases, tl.rat the State is atternpting to couvict and
punish Appellee in a subsequent prosecution fol the salne offense (capital n.rulder'),
aftel convicting and punishing him fol the lesser-included offense of agglavated
robbery. In fact, undel any analysis, one offense (aggravated lobber'y) is the lesset'
included of and, therefore, fol double jeopardy purposes, the sarne offunse as, the
other'(capital rnulder). See. e.g.. ßlockburger v. United States,284 U.S. 299 (1932);
Brown v. Ohio,432U.5.161 (1977); Bigon v. State,252 S.W.3d 360 (Tex.Cr.im. App.
2008);Cooperv. State,430 S.W.3d 426 (Tex.Crim.App. 2014); Littrel.l.v. State,271
S.W.3d 273 (Tex.Crirn.App. 2008); Shelby v. State,448 S.W.3d ('l'ex.Crim.App.
2014); Ex Parte Carle,369 S.W.3d 879 (Tex.Crirn.App.2012).
The t'ial court, the court of appeals, and even the State aglee with Appellant
that the offense for which Appellant was convicted and sentenced is a lesser included
offense ofthe new, alleged capital muldel'and thatthey are the "same offenses" under
a"Blockburger" analysis. All appeal to also agree that there is no legislative intent
to punish both statutory offenses when, as here, they arise flom the sarne transaction.
See, Price v. SÍate,434 S.W.3d 601 (Tex.Clirn.App.20l4). In fact, i1 would seern
patently absul'd to irlrpose both a death sentence and a telln of yeals, to run
cousecutive to the death sentence, all fol'the identical conduct.
l3
l-ikewise, the court of appeals acknowledged as follows:
When two o1'fenses arise undel different statutes, the two offenses
are consideled the saure offense fol purposes of applying tl.re double
jeopardy prohibition if all the statutory elelnents are included within the
statutoly elements of the other offense. Se e þl4talen v. Uníted States,294
U.5.299,304 (1932). Thus the state nlay not convict a defendant for an
offense when the defendant has been convicted already of a lesser-
included offense arising fi'om the same event. Brown,432lJ.S. al 161,
Ex parte Amador,326 S.W.3d 202,204 (Tex.Crirn.App. 2010).
Slip Op. Below at 3.
The Coult below and the State both concede that this case rneets the
Blockburger test. Id.
The courl ofappeals, however, then disrnissed the long standing"Blockburger"
rule and analysis as a mere "general ploposition" and one which has absolutely no
relevance or applicability to the case-at-bar'. "In all of IIill's autholities fincluding
Blockburger], however, the greater and lesser offenses were colnpleted and available
as potential charges at the tirne of defendant's tlial." Slip Op. below at 4.
While that rnuch is technically true, neither did any of the cases r'elied on by
Appellant "Hill", including Blockburger, oither explicitly ol irnplicitly, lirnit their'
(sornetimes extensive) analysis ol application of the fifth amendment's double
jeopaldy clause to exclude the situation in the case-at-bar, as the coult of appeals
seelned to imply.
ln deternrining tl.re ir.rapp li cab ìlity of Blockburger,the courtbelow relied allnosl
exclusively on Diqz v. United Slates,223 U.S. 442 (1912), a case (out of the
Philippine lslands) decided twenty years before Bl.ockbzzrger. Cases since
Blockburger have acknowledged the theoretical possibility of an exception cl'eated
by Diaz that survives Blockburger."Anexception rnay exist whele the State is unable
toproceedonthernoreseriouschargeattheoutset..."Brownv.Ohi.o,432U.S.16l ,
I69&n.7(1977).
In Diaz, the defendant was tried and convicted in a Justice of the Peace Coult,
in {he Philippines for assault and battely. He was lined. The cornplainant died a sholt
time later as a result of the injulies suffered in the assault and the defendant was
charged in a l.righer court with homicide. He pled jeopardy and lost. In upholding the
denial ofhis doublejeopardy plea, the United States Suprerne Court stated:
... undel'the Philippine law, thejustice ofthe peace, although possessed
ofjurisdiction to try the accused fol assault and battery, was without
julisdiction to try hirn for lT omicide; and, ofcoulse, thejeopardy incident
to the trial before the justice did not extend to an offense beyond his
julisdiction. All that could be claimed fol that jeopaldy was that it
proteoted the accused from being again plosecuted fol the assault and
battery, and therefore required tl.rat the lattel be not tl'eated as included,
as a lesse¡ offense, in the chalge of hotnicide, as otherwise rnight have
been done witli Phii. Comp. Stat. $3284.
Diaz at 449.
In othel wol'ds, unlike the case-at-bar,ln Diaz, the first court of conviction (a
I5
Justice of the Peace Coult), had r.ro julisdiction over'homicide cases, "and, of course,
the.jeopaldy ir.rcident to the trial before tl.re.justice diil not extend to an offense beyond
his julisdiction." Id. That leasonir.rg has no application to the case-at-bar wl.rere the
same couú has jurisdiction over both offenses and Diaz is distinguisl.rable for that
reason-
The Diaz opinion does state that "[t]he death of the injuled person was the
principal elernent of the homicide, but was no part of the assault and battely. At the
tilre ofthe trial fol the latter the death had not ensued, and not until it did ensue was
the honricide comrnitted." Diaz at 251 .
Again, the case-at-bar is distinguishable in that Appellee was convicted of
inter.rtionally and knowingly causing the victim "seLious bodily injuly" by shooting
hirn with a firearm during a robbery. Under Texas law, the statutoly definition of
"selious bodily injuly" includes "bodily injury . . . that causes death . . ." T.P.C.
$1.07(46)(emphasis supplied). Therefore, unlike Díaz, and unlike any case
rel'erencing Diaz with approval, the Appellee has ah'eady been convicted of and
punished for causing "sel'ious bodily injuly", which includes a bodil), injury "that
causes dcath." 'l'he facl that lhc victirn has rrow died, allegedly t'ont tltat bodily in july
adds nothir.rg to the elements for which Appellee has been ah'eady convicted and
punished when he was convicted and punished fol causing "serious bodily ir¡ury".
t6
A subsequerrt plosecutiol-r would be a violation eveu undel the reas oning of Diaz, and
tlre leasoning of any case citing Diaz with apploval.
F'inally, it is not cleal whether Diaz is even still good law. The cases that ale
rnost cited as establishing double jeopaldy julispludence and legal analysis, for'
exarnple, Rlockburger v. United States,284 U.S. 299 (1932); North Carolina v.
Pearce,395 U.S. 711 (1969);Ashev. Swenson.,397 U.S. a36Q970);Brownv. Ohio,
432 U.S. 161 (1977), all were decided well after Diaz and Diaz has never been
scrutinized under the tests and standards established by these cases fol violations of
double.jeopaldy. Although Di.azhas never been explessly overluled and some cases
rnake l'efelence to it in dicta, no Supreme Court case relies on it in reaching a
decision. Even a lecent arlicle on the Texas District & County Attot'neys Association
website questions whethel the Dí.az is good law. "l)oes this case survive the
Blockburger test?" It resolves this question with a less than resounding endolsement,
"[i]t hasn't been expressly overruled . . . You may want to keep Diaz handy." Stride,
"Double Jeopardy: Unlaveling a Gol'dian Knot" (2013). w,.rvw.tdcaa.com.
The Coul't below also lelied heavily on Graves v. State, 539 S.V/.2d 890
(Tex.Clirn.App. 1976), whicli cites Diaz in allowing a second plosecution for
iuvoluntary manslaughter aftel his conviction for driving while intoxicated. 'lhat case
is likewise distinguishable because as Judges Odom and Douglas point out in their
1l
concurl'it'tg opinions, unlike the case-at-bar, driving rvhile intoxicated is not a lesser
included offense of involuntary manslaughter and the defendant's doublejeopardy
argument does not lneet the lllockburger lesl ld. Graves is, therefole, clearly
distinguishable.
Oddly, in its decision below, the couú of appeals seeured to both acknowledge
the possibility that rnultiple punishments under these circumstances would violate
doublejeopaldy and, yet, remain seemingly unconcerned about that constitutional
violation. "Moreover', even if the cornplainant had died immediately and Hill was
chalged and convicted of both offenses at the same tirne in violation of his double
jeopaldy rights, the proper resolution in such cases is to vacate the conviction and
punishrnent fol the lesser-included offense and leave intacl the conviction and
punishrnent for the gleater offense." Slip Op. Below at pp. 7-8 (citation ornitted).
First, the plotection the double jeopardy clause provides against successive
prosecutions is at least as bload and as strong as the protection it provides against
rTrultiple punishments. "Multiple punishments that result fi'orn a single prosecution
do not subject a defendant to the evils attendant upon successive prosecutions." -Ex
parte Chaddoclc,369 S.W.3d 886 (Tex.Crirn.App. 2012). Ilow could it, ther.r, be a
violation of double jeopardy to punish for both offenses if tried together., but not if
tt'ied successively? Pafliculally when successive tlials were not the choice of the
18
delèndant. 01'course, both successive ploseoutions ancl rnultiple punishments are at
play in the case-at-bar'.
Second, the remedy inragined by lfie courl ofappeals ofvacating the conviction
ancl sentence fol the agglavated robbel'y once Appellant is convicted ancl either
sentenced to death ol Iilb rvithout the possibility of parole on the capital murder.,
would not be availabÌe here, and would be utter.ly meaningless at that point, even if
it wele available.
Finally, the absuld and abjeotly unfàir results the rule announced by the cour"t
below could lead to are unlin,ited. Þ-or exanrple, there is no statute o1l limitations on
capital murder. A deatli that occul'r'ed years, even decades aftel a