Tag

Double Jeopardy Archives | Fort Worth Criminal Defense, Personal Injury, and Family Law

Apr 20
0
Dismissal Acquittal Double Jeopardy

Dismissal or Acquittal? The Difference Matters

By | Double Jeopardy, DWI

DWI Charge Did Not Include a Year in the Allegation

Dismissal Acquittal Double JeopardyLouis Jarvis, Jr. and his wife Jennifer Jones were charged with driving while intoxicated arising out of separate but related incidents on the same evening. Both pled no contest to the charges against them. But before they were found guilty, it was discovered that neither complaint against Jarvis or Jones alleged a year that the offense was committed. The trial court granted their motions to acquit. The State appealed.

The trial court stated, “The date of an offense is a key element of the offense which must be pled and proved. There is no question that it was not pled in this case nor was any trial amendment requested to amend the Information to amend the pleadings. It is my belief that the law is very clear in this case, that the State accepted its burden of proof and failed to meet it.”

The State filed a motion for a rehearing in the two cases and argued that “acquittals could not be entered because jeopardy had not attached, the trial court had never accepted the no-contest pleas and found the defendants guilty, and effectively dismissing with prejudice the prosecutions was improper.” The trial court denied the motions for rehearing. The State appealed.

10th Court of Appeals Holds that the Acquittals were Actually Dismissals

The Tenth Court of Appeals then reviewed the appeal. The Tenth Court of Appeals disagreed that the State had accepted a burden of proof. The Court held that the State is not required to introduce any evidence to support a plea to a misdemeanor and that the trial court has not authority to weigh the sufficiency of the evidence in a guilty plea to a misdemeanor case. The Court found that the Trial Court’s problem was with the State’s charging instruments, not with the State’s evidence. The Appellate Court concluded that this was not an acquittal but was a dismissal with prejudice without the State’s consent.

This might sound like the same outcome, but it is in fact very different. A dismissal, usually occurring before trial begins, means that a case can be tried again so long as the statute of limitations has not expired. Whereas, an acquittal means that a trial was held (and jeopardy attached) and now the defendant cannot be tried again for this matter. Though these seem like subtle nuances, the difference between an acquittal and a dismissal can have huge implications on the defendant.

Double Jeopardy Does Not Bar Further Prosecution

The Tenth Court of Appeals went on to determine whether Jeopardy attached in Jarvis’s case. The Court determined, “even if jeopardy attached, because, as we have held, the trial court granted a defense motion to dismiss the prosecution on a legal basis unrelated to guilt or innocence and ‘without ultimately addressing the issue of guilt or innocence, there is no double jeopardy impediment to the State’s appeal.’” In essence, because the cases concluded with a DISMISSAL and not an ACQUITTAL, the defendants can now be retried under a new information that alleges the proper date.

For more information, read the court’s full opinion in State v. Jarvis.

Mar 28
2
OJ Simpson Knife Double Jeopardy

Double Jeopardy, OJ Simpson and the New Knife

By | Double Jeopardy

OJ Simpson Knife Double JeopardyMany of you have heard of the new development in the OJ Simpson case, the discovery of a knife that was found on Simpson’s property sometime around 2002 or 2003 (interesting that this is coming to light during the airing of the OJ Simpson TV drama on FX). A construction worker, who gave the knife to a former LAPD officer that was working as a security officer, reportedly uncovered the knife on or around Simpson’s property. For reasons that are unclear, the knife was just recently turned over to LAPD in early March. This is big news because the knife used in the murders of OJ’s wife, Nicole Simpson and her friend, Ron Goldman, was never found and Simpson was ultimately acquitted in 1995 for their murders. So what does this discovery mean for OJ Simpson and the murder charges that of which he was acquitted back in 1995? LAPD is testing the knife for DNA and hair, and it has been unofficially reported that no DNA exists, but if they find something, what can they do?

Can Simpson be retried for the murder of his wife and her friend?

No, he cannot be retried. Jeopardy has attached and Simpson is protected from being retried on the same offense after being acquitted. The 5th Amendment of the United State’s Constitution provides that no person shall be “subject for the same offense to be twice put in jeopardy of life or limb.” In other words, a person shall not be put on trial for the same offense after receiving a not guilty verdict. This is commonly known as the protection again Double Jeopardy. Further, the Doctrine of Res Judicata (claims preclusion) bars relitigation of a claim that has been validly and finally adjudicated.

Because OJ Simpson was acquitted for the murder of his wife and her friend, this means that he is protected by the Constitution from Double Jeopardy and cannot be taken to trial for their murders again even if new “evidence” is discovered. This answer would not change even if DNA evidence came back showing a link to one of the victims. Further, under the Doctrine of Res Judicata, since there was a valid and final judgment in regards to the guilt of Simpson in these murders, the State of California is barred from reopening Simpson’s case.

Is there any way around Double Jeopardy?

The only way around double jeopardy is to be federally indicted for some other offense arising from the same events. The state and federal authorities are separate sovereigns. Here, it would not be a Double Jeopardy violation for Simpson to receive a federal indictment for violation of the victims’ civil rights, but it would be incredibly unlikely.

Takeaway: If you have already been found not guilty for an criminal charge, the 5th Amendment and Doctrine of Res Judicata protect you from being brought to trial on that same charge.

Jul 18
0
Fort Worth Double Jeopardy DWI

Intoxication Assault, Felony DWI, and Double Jeopardy

By | DWI

DWI Caselaw Update | Fort Worth Criminal Defense Lawyers

Fort Worth Double Jeopardy DWIThe Fifth Amendment protection against double jeopardy is often viewed as a guarantee against having to stand trial for an offense if an individual has already been found not guilty in a previous trial. It also applies to situations where a defendant is charged with more than one offense: Is it double jeopardy if a defendant receives multiple punishments for the same transaction for multiple offenses?

Yousef Benson was convicted of two offenses as a result of a 2010 traffic accident that seriously injured another individual–intoxication assault and felony DWI.  The offense of intoxication assault occurs when a person “by accident or mistake . . . while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another.”  Felony DWI occurs when a person “is intoxicated while operating a motor vehicle in a public place” and the person has been previously been convicted of two DWI offenses.

The appellant argued that the two offenses should be considered the same offense, which would prevent the imposition of multiple punishments. The state argued that the offenses were separate and that multiple punishment was allowed. The principle point of contention was whether the previous conviction requirement for felony DWI is an element of the offense or is a punishment enhancement.

The Court of Criminal Appeals performed an “elements” analysis. The elements analysis looks at the specific elements of each crime. If each crime has the same elements, then a court presumes that the offenses are the same for purposes of double jeopardy. Conversely, if two offenses have different elements, the presumption is that the two offenses are separate. In either case, the presumption can be rebutted by showing that the legislature clearly intended the opposite result.

In Benson, the CCA focused on felony DWI’s requirement of two previous convictions. In some cases, such requirements are viewed as creating a separate offense; in other cases, they are considered an enhancement of the level or the punishment for the offense. As Benson acknowledged, the CCA had already held in earlier cases that the required prior convictions for felony DWI constitute an element of the offense, calling them “specific attendant circumstances” that help define the offense. In other words, intoxication assault and felony DWI are presumed to be separate offenses, and a defendant can receive a sentence for each offense.

The CCA then turned to the question of whether there was evidence to rebut the presumption: Did the legislature intend for the two offenses to be treated as one? The court acknowledged that the two offenses are in the same chapter of the criminal code, a factor that supports the same-offense position. But the court looked at the language of the statute and concluded that if the legislature had intended the two offenses to be the same, they would have structured the statutory language differently.

The court also looked at the name of the offenses, pointing out that both offenses have some form of the word “intoxicate” in their names, although used as a modifier in each name rather than as a noun. The court concluded that this factor slightly favored the same-offense position.

The court noted that the two offenses have the same punishment ranges. Although this factor can favor either position, the court concluded that it slightly favored treating the same-offense view.

The court looked at the focus of the offenses and found intoxication assault to be a result-oriented offense (causing serious bodily injury) and felony DWI to be a conduct-oriented (driving while intoxicated) or circumstances-oriented (two prior convictions) offense. Unlike intoxication assault, felony DWI does not even require a victim. This analysis favored treating the offenses as separate.

Finally, the court considered the history of the two offenses and concluded that the various revisions of the criminal code supported the position that the two offenses are separate.

In its final analysis, the court recognized some factors supported Benson’s argument (same offense). However, the court considered the factors supporting the state’s position (separate offenses) as “more substantial.” In the court’s view, the evidence did not support the view that the legislature intended one punishment. Therefore, separate punishment for each offense was not a violation of Benson’s right to protection from double jeopardy.

Jan 16
0
Fort Worth Double Jeopardy DWI

Is That Your Final Answer? Double Jeopardy and Partial Verdicts

By | Double Jeopardy

Fort Worth Double Jeopardy DWIUnited States Supreme Court case highlight: Blueford v. Arkansas

The case dealt with the double jeopardy clause and whether it applies to partial or informal verdicts.

In Blueford, the defendant was being tried for capital murder.  The trial judge instructed the jury that if it did not find the defendant guilty of capital murder, it should consider the lesser included offense of first degree murder.  The court further instructed that if the jury did not find the defendant guilty of first degree murder, it should consider manslaughter…and so on and so forth.  After several hours of deliberations, the jury reported that it could not reach a unanimous verdict.  The judge inquired into how the voting was going and the jury reported that it had decided that the defendant was not guilty of capital murder or first degree murder, but that it could not agree on manslaughter.  The judge instructed the jury to go back and keep trying, but they were unable to break the impasse.  Accordingly, the trial judge declared a mistrial.

During the retrial for the same offense, the defendant objected on double jeopardy grounds to the charge of capital murder, arguing that the jury’s informal verdict that he was not guilty of capital or first degree murder precluded him being retried for that same charge at a later trial.  The trial court disagreed, as did the appellate courts.

In a 6-3 opinion (Majority: Roberts, Scalia, Kennedy, Thomas, Breyer, Alito), the Supreme Court held that :

The Double Jeopardy Clause does not bar retrying Blueford on charges of capital murder and first-degree murder.  The jury did not acquit Blueford of capital or first-degree murder.  Blueford contends that the foreperson’s report that the jury was unanimous against guilt on the murder offenses represented a resolution of some or all of the elements of those offenses in his favor.   But the report was not a final resolution of anything.  When the foreperson told the court how the jury had voted on each offense, the jury’s deliberations had not yet concluded.  The jurors in fact went back to the jury room to deliberate further, and nothing in the court’s instructions prohibited them from reconsidering their votes on capital and first-degree murder as deliberations continued.  The foreperson’s report prior to the end of deliberations therefore lacked the finality necessary to amount to an acquittal on those offenses.  That same lack of finality undermines Blueford’s reliance on Green v. United States, 355 U. S. 184, and Price v. Georgia, 398 U. S. 323.  In both of those cases, the verdict of the jury was a final decision; here, the report of the foreperson was not.

This holding appears to be consistent with Texas law, in that a jury foreperson must sign a verdict form and the court must accept the verdict, before it is given any legal significance.

Justices Sotomayer dissented (joined by Ginsberg and Kagan), and would hold that partial verdicts should be required before a mistrial is granted on the grounds of a deadlock.

Jun 27
1
Res Judicata Doan

No More Bites of the Apple: Probation Revocation and Res Judicata

By | Double Jeopardy

Res Judicata DoanA community supervision (probation) revocation hearing is distinct from a criminal trial, but are its issues and procedures similar enough to a criminal trial to bind parties in future criminal trials?

That was the question presented the Texas Court of Criminal Appeals in Ex Parte Doan.  Doan was serving community supervision in Brazos County when he was alleged to have committed theft in Travis County.  The Brazos County DA moved to revoke Doan’s community supervision but was unable to obtain sufficient proof.  As a result, the court denied the motion to revoke.  When the Travis County DA later charged Doan with misdemeanor theft, Doan filed a pretrial application for writ of habeas corpus “seeking to bar any further prosecution of the theft offense under the doctrine of issue preclusion.”

The issue in this case is whether the doctrine of res judicata applies to bar a prosecution for a criminal offense in one county after a prosecutor in another county unsuccessfully attempted to revoke the defendant’s community supervision on the ground that he committed the same offense.

In a 6-3 opinion authored by Judge Womack, the CCA noted that probation revocation hearings were often tagged as “administrative” in nature, but wrongly so.

In this case…the issues and procedures were nearly identical in the Travis County (criminal) and Brazos County (revocation) proceedings. In both proceedings, prosecutors plead and sought to prove that the appellant committed the same act. Both were criminal, judicial proceedings with nearly identical procedural rules, in which the State was represented by sworn prosecutors. The Brazos County Attorney had the authority to litigate the matter to a final adjudication. The only difference between the interests of the Brazos County Attorney and the Travis County Attorney in this case is that one sought to prove theft in order to criminally punish the appellant for theft, while the other sought to prove theft in order have the appellant’s criminal punishment from a prior case altered to his detriment.

Judge Womack held that while the difference in procedures is enough to narrowly escape the “grasp of the Double Jeopardy clause,” it is not enough to avoid the application res judicata to the later criminal trial. The CCA reversed the lower court (which previously held that the two prosecuting authorities were not the same party for res judicata purposes).

May 06
0
5 Jurors in Texas

A Criminal Trial With Only Five Jurors

By | Jury Trial

Can a defendant waive his constitutional right to trial by six jurors (in County Court)?

5 Jurors in TexasThe United States Supreme Court has held that a state-law scheme that imposed a jury of fewer than six members upon a defendant, even one accused of only a misdemeanor offense, violates the Sixth Amendment right to a jury trial. Ballew v. State, 435 U.S. 223 (1978). For Texans, Article V, Section 17, of the Texas Constitution provides: “A jury in the County Court shall consist of six persons [.]” Furthermore, Section 62.301 of the Texas Government Code provides, without explicit exception, that a jury in a County Court “is composed of six persons.” Conspicuously, the similar Government Code provision (Section 62.201) requiring a 12-person jury in a District Court contains an exception that allows the parties to dispense with the full complement of jurors.

So what is the rule? Must a County Court jury have six or can it have less? The Supreme Court and the Texas Constitution and statutes call for six jurors in a misdemeanor criminal trial. But may the defendant waive this requirement? This issue was recently decided by the Texas Court of Criminal Appeals in Ex Parte Garza.

In Ex Parte Garza, the defendant was set to be tried for misdemeanor DWI when one of the six petit jurors became ill and was hospitalized. The trial court continued the case for a few days in hopes that the ailing juror would recover, but he did not. The trial court then entertained the option of granting a mistrial for manifest necessity. The defense objected to the mistrial, stating that it has the jury that it wanted to hear the case. The defense requested another continuance or, in the alternative, to proceed to trial without the ailing juror. The trial judge denied the continuance and did not address the option of proceeding with fewer than six jurors. The trial court then granted a sua sponte mistrial over the defense objection.

When the case was reset for trial, the defendant filed a pre-trial application for writ of habeas corpus, alleging that because the trial court prematurely terminated the prior proceedings without having considered a less drastic alternative, his right against double jeopardy was violated. The trial court denied relief, but the 1st District Court of Appeals (Houston) reversed. “The Court of Appeals concluded that the trial court erred not to explore the less drastic alternative of conducting the trial without the full complement of six jurors.”

The CCA now affirms the judgment of the 1st Court of Appeals. Writing for the majority, Judge Price explained:

Once a defendant shows he is being tried for the same offense after declaration of a mistrial, to which he objected, a heavy burden shifts to the State to justify the trial court’s declaration of the mistrial. The State must demonstrate a “manifest necessity” for a mistrial, which is to say a “high degree” of necessity, and the trial court’s discretion to declare a mistrial based on manifest necessity is limited to, and must be justified by, extraordinary circumstances. That discretion is abused, we have said, whenever the trial court declares a mistrial without first considering the availability of less drastic alternatives and reasonably ruling them out.

Regarding whether the trial court could have proceeded with only five jurors (as a less drastic alternative the mistrial), the CCA noted that “this Court and its predecessor, the Texas Court of Appeals, have held for more than a century that the Code of Criminal Procedure does at least implicitly permit waiver of the right to six jurors in cases tried in County Court.” Quoting the Supreme Court in Ballew:

To deny [the accused] his power to [waive his right to a six person jury] is to convert a privilege into an imperative requirement.

Imposing such a requirement on Texas defendants was not something the CCA is willing to do. Citing a long history of cases dating back to the early 1900s, the CCA noted how Texas has consistently allowed a defendant to waive his right to trial by a full complement of jurors. Therefore, the CCA held that by terminating the trial proceedings without considering whether to allow the trial to proceed with five jurors, the trial court abused its discretion. Accordingly, a new trial is jeopardy barred.

Takeaway: Consistent with Texas jurisprudence for the last 120 years, a defendant may waive his right to trial by six jurors in a County Court and proceed with less than the full amount.

Presiding Judge Keller and Judge Cochran dissented without opinion.

Dec 22
1

Civil Penalties and Double Jeopardy

By | Double Jeopardy

This issue was recently addressed by the 13th District Court of Appeals in State v. Almendarez.

The 5th Amendment to the United States Constitution provides, in relevant part, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”  Many times there are civil and criminal penalties for certain actions, such as the administrative suspension of one’s driver’s license in addition to a subsequent prosecution for DWI.  Do civil penalties violate the double jeopardy clause?

As a general rule, the 5th Amendment’s prohibition on double jeopardy does not bar remedial civil proceedings based on the same offense as a prior criminal prosecution, or vice versa.  State v. Solar, 906 S.W.2d 142 (Tex. App. – Fort Worth 1995, pet. ref’d).  The U.S. Supreme Court provided, “whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction.”  Hudson v. U.S., 522 U.S. 93 (1997).  However, even if intended by Congress to be civil in nature, the double jeopardy clause may be triggered if the “statutory scheme is so punitive either in purpose or effect as to transform what was clearly intended as a civil remedy into a criminal penalty.”  Rodriguez v. State, 93 S.W.3d 60 (Tex. Crim. App. 2002).

In order to evaluate whether the effects of the statute are criminally punitive, courts generally look to the non-dispositive factors set forth by the Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), and restated by the Court in Hudson.  Termed the “Hudson factors,” courts should consider:

  1. whether the sanction involves an affirmative disability or restraint;
  2. whether it has historically been regarded as a punishment;
  3. whether it comes into play only on a finding of
    scienter;
  4. whether its operation will promote the traditional aims of punishment-retribution and deterrence;
  5. whether the behavior to which it applies is already a crime;
  6. whether an alternative purpose to which it may rationally be connected is assignable for it; and
  7. whether it appears excessive in relation to the alternative purpose assigned.
Hudson at 99-100.  Moreover (as if a 7-factor test weren’t enough), the Court further provided, “these factors must be considered in relation to the statute on its face, and only the clearest proof will suffice to override legislative intent and transform was has been denominated a civil remedy into a criminal penalty.”  Id at 100.
As you can see, whether a civil penalty precludes later criminal prosecution depends on the particular facts of the case.  The following examples from Texas caselaw help illustrate how this issue has played out in Texas courts:
  • Termination of a person’s rights to a horse and order to reimburse State for expense incurred in seizing horse did not constitute punishment and does not bar a subsequent criminal prosecution for animal cruelty and neglect.
    State v. Almendarez, ___ S.W.3d ___ (Tex.App. – Corpus Christie 2009).
  • Trial for termination of parental rights is a civil proceeding with a remedial result – protecting abused and neglected children – and does not trigger jeopardy bar to subsequent criminal prosecution for aggravated sexual assault of a child.
    Malone v. State, 864 S.W.2d 156 (Tex.App. – Fort Worth 1993, no pet.).
  • An administrative license suspension did not constitute punishment and therefore did not implicate the protections against double jeopardy in regard to a subsequent DWI prosecution.
    Ex parte Tharp, 935 S.W.2d 157 (Tex. Crim. App. 1996).
  • Texas’ civil asset-forfeiture scheme did not constitute punishment and therefore did not implicate the protections against double jeopardy in regard to a subsequent prosecution for the offense underlying the asset forfeiture.
    Fant v. State, 931 S.W.2d 299 (Tex. Crim. App. 1996).
  • Disciplinary actions brought against an attorney did not constitute criminal punishment to bar subsequent criminal proceedings.
    Capps v. State, 265 S.W.3d 44 (Tex.App. – Houston [1st Dist.] 2008, pet. ref’d).
  • Cancellation of defendant’s alcoholic beverage license because he lied on the application did not constitute punishment and therefore did not bar his subsequent prosecution for making false statements on the application.
    Ex parte Sheridan, 974 S.W.2d 129 (Tex.App. – San Antonio 1998, pet. ref’d).
TAKEAWAY:  Good luck establishing a double jeopardy challenge to a later prosecution for conduct which was the subject to a civil penalty.  According to the bulk of caselaw, it seems to be quite a steep road.