Ex Parte Queen

¶1OPINION ON APPELLANTS PETITION FOR DISCRETIONARY REVIEW

¶2This is a pre-trial application for writ of habeas corpus seeking to bar a retrial on double jeopardy grounds after the trial court has granted appellant’s motion for new trial on a ground other than insufficient evidence. The trial court denied the pre-trial writ of habeas corpus. The First Court of Appeals affirmed with the Chief Justice concurring. Ex parte Queen, 833 S.W.2d 207 (Tex.App.—Houston [1st Dist.] 1992). We granted appellant’s petition for discretionary review to determine whether a defendant waives the right to challenge the sufficiency of the evidence via a pre-trial writ of habeas corpus when the defendant’s motion for new trial is granted based on trial error. We will affirm.

¶3The following facts are quoted from the Court of Appeals’ opinion:

Appellant was charged by indictment with burglary of a habitation. After his plea of not guilty, a jury found appellant guilty, found two enhancement allegations in the indictment to be true, and assessed his punishment at 40 years’ confinement in the Texas Department of Criminal Justice, Institutional Division.

Appellant filed a motion for new trial, asserting that his conviction should be set aside due to ineffective assistance of counsel, an erroneous jury charge, newly discovered evidence, and a verdict contrary to the law and evidence. The motion for new trial was heard, recessed, and finally overruled by operation of law. In 1990, appellant appealed to [the First Court of Appeals], which abated the appeal1 and ordered the trial court to consider a second motion for new trial. After a hearing, the trial court apparently granted a new trial; however, the record contains neither a statement of facts from the hearing on the motion for new trial nor an order granting a new trial.[2]

Prior to retrial, appellant filed an application for a writ of habeas corpus, claiming that double jeopardy considerations barred any retrial since his original conviction was not supported by sufficient evidence. This appeal follows the trial court’s denial of [the] writ.

¶4Ex parte Queen, 833 S.W.2d at 208.

¶5On appeal to the First Court of Appeals, appellant argued that double jeopardy *754barred a second trial because “the evidence at [his] first trial was insufficient to establish that he entered the complainant’s habitation.” The Court of Appeals declined to reach the merits of appellant’s claim. Instead, the court, relying upon Lofton v. State, 111 S.W.2d 96, 97 (Tex.Crim.App.1989), held that double jeopardy does not bar a new trial when the defendant’s motion for new trial is granted on grounds other than insufficient evidence. Ex parte Queen, 833 S.W.2d at 208. In a concurring opinion, the Chief Justice noted that the majority correctly followed Lofton, but that she believed this Court should “reevaluate” its holding in Lof-ton because it produces unjust results. Id.833 S.W.2d at 209. Appellant also urges us to reconsider Lofton. It is to that task that we now turn.

¶6In Lofton, the trial court granted a motion for new trial on unspecified grounds. Thereafter, Lofton filed a pre-trial application for writ of habeas corpus asserting that double jeopardy barred a retrial because the evidence at his first trial was insufficient and he was entitled to have the issue of sufficiency finally determined. Lofton, 777 S.W.2d at 96-97. This Court noted that the federal and state constitutions protect against “a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction and against multiple punishments for the same offense.” Lofton, 777 S.W.2d at 97 (citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969)). But, because Lofton had not been acquitted, convicted, or punished, this Court, unanimously, held that double jeopardy did not bar a retrial:

The principal reason [Lofton] is not entitled to relief is that under the facts of this case he is not being threatened with exposure to “double” jeopardy. Although it attached in the first trial, jeopardy was not terminated by an acquittal or conviction. After hearing, the trial judge did not order an acquittal for insufficient evidence; rather, the court set aside the verdict and vacated its judgment by granting a new trial on [Lofton’s motion], thereby restoring the case “to its position before the former trial.” Tex.R.App.P. 32. Therefore, as with a new trial after a mistrial, initial jeopardy continues.

¶7Lofton, 777 S.W.2d at 97 (emphasis added) (citing Richardson v. United States, 468 U.S. 317, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984); Ex parte McAfee, 761 S.W.2d 771, 772-73 (Tex.Crim.App.1988)).

¶8Appellant contends that our reliance in Loftonupon Richardsonand Ex parte McAfee was misplaced because we erroneously equated the post-verdict grant of a defendant’s motion for new trial with a new trial occasioned by a mistrial due to the jury’s inability to render a verdict. In Richardson, the United States Supreme Court held that under the Fifth Amendment, a trial court’s declaration of a mistrial due to the jury’s inability to agree on a verdict was not an event that terminated jeopardy; therefore, double jeopardy did not bar a retrial “regardless of the sufficiency of the evidence at [the] first trial.” Richardson, 468 U.S. at 326, 104 S.Ct. at 3086. In Ex parte McAfee this Court followed the Richardsonholding.

¶9In Lofton, this Court recognized that in Richardsonand Ex parte McAfee the juries were unable to agree on a verdict which resulted in a mistrial and a new trial, but concluded that those cases were sufficiently analogous to the grant of a defendant’s motion for new trial after the jury rendered a verdict because “as with a new trial after a mistrial, initial jeopardy continues.” Lofton, 777 S.W.2d at 97. “[T]he protection of the Double Jeopardy Clause by its terms, applies only if there has been some event, such as an acquittal, which terminates the original jeopardy.” Richardson, 468 U.S. at 325, 104 S.Ct. at 3086 (citations omitted). Thus, before a defendant can be “twice put in jeopardy,” as contemplated by the Fifth Amendment, the original jeopardy must have terminated. “Absent a final judgment, [a defendant] remains under the initial jeopardy. Therefore, a retrial for the same offense is not double jeopardy.” Ex parte McAfee, 761 S.W.2d at 773 (emphasis in original) (footnote omitted). Consequently, as pointed out in Lofton, when a defendant’s motion for a new trial is granted based upon trial error, the initial jeopardy has not terminated, and dou*755ble jeopardy does not bar a retrial regardless of the sufficiency of the evidence at the former trial.

¶10Appellant states, as did the concurring opinion in the court below,3 that Loftonaffords appellant “no avenue to challenge the sufficiency of the evidence at the first trial.” However, as the State correctly points out, appellant had two choices — he could have requested a new trial or he could have appealed his conviction directly to the Court of Appeals. Had appellant chosen the latter, he could have obtained full appellate review of any number of issues, including, but certainly not limited to, ineffective assistance and sufficiency. Because appellant chose the former, he cannot now complain that the trial court granted his motion for new trial for the wrong reason.

¶11Appellant cites several federal cases in support of his position. See United States v. Wood, 950 F.2d 638, 642 (10th Cir.1991); United States v. Szado, 912 F.2d 390, 391-93 (9th Cir.1990); United States v. Anderson, 896 F.2d 1076, 1077-78 (7th Cir.1990); Vogel v. Pennsylvania, 790 F.2d 368, 376 (3d Cir.1986). It is questionable whether those cases actually support appellant’s position; regardless, several federal cases have specifically held to the contrary based upon Richardson. See Evans v. Court of Common Pleas, Del. County, Pa., 959 F.2d 1227, 1236-37 (3d Cir.1992); United States v. Miller, 952 F.2d 866, 871-74 (5th Cir.1992); United States v. Porter, 807 F.2d 21, 23-24 (1st Cir.1986).

¶12Thus, under the Fifth Amendment to the United States Constitution, a motion for new trial must be granted on insufficiency of the evidence before questions of jeopardy and sufficiency can be reviewed on appeal via a pre-trial writ of habeas corpus.4Lofton. We see no reason to overrule our holding in Lofton.

¶13The judgment of the Court of Appeals is AFFIRMED.