State v. Lara

¶1OPINION

¶2The State appeals from the trial court’s order granting appellee’s “Motion To Dismiss On Double Jeopardy Grounds” whose prayer requested a dismissal of “this action.” See Tex.Code CRIM.PROC.Ann. art. 44.01(a)(1), (4) (Vernon Supp.1996).

¶3The State’s sole point of error contends that the trial court erred in granting the motion because the prior civil forfeiture of property lawsuit2 which ended in a judgment favorable to the State did not constitute punishment for the purposes of double jeopardy.

¶4Background

¶5On December 8, 1993, appellee was indicted in Cause No. CR-2454-93-D in the District Court of Hidalgo County charging ap-pellee in two paragraphs of count one with the actual and constructive transfer (delivery) to Ruben Espinosa of more than five but less than fifty pounds of marihuana on or about September 8, 1993. The second count charged appellee with the possession of marihuana on or about September 8, 1993 “on which no tax had been paid as required by Chapter 159 of the Texas Tax Code.” The latter offense was a separate and distinct offense from the offense charged in the first counts. See Ex parte Kopecky, 821 S.W.2d 957, 960 (Tex.Crim.App.1992); State v. Perez, 906 S.W.2d 558, 560-61 (Tex.App.—San Antonio 1995, pet. granted).

¶6On January 27, 1994, appellee was arraigned, entered a plea of guilty to both counts of the indictment, and requested trial by jury. On August 8, 1994, appellant filed his “Motion To Dismiss On Double Jeopardy Grounds” in the 206th District Court. The handwritten motion was not verified nor did it specify the federal or state constitutional or statutory provision on which it relied to sustain its double jeopardy claim. It simply alleged that appellee had been deprived of his property, a 1986 Chevrolet van and $1,063, by a judgment in the 275th District Court; that he felt that he had already been punished and that a subsequent trial based on the same facts would constitute double jeopardy; and that he objected to being punished again. The motion contained no identity of offenses or reference to the “same offense.” No prior pleadings or judgments were attached. The motion concluded with a prayer that requested a dismissal of “this action.”

¶7After a brief hearing, the trial court granted appellee’s motion upon the basis of Fant v. State, 881 S.W.2d 830 (Tex.App.—Houston [14th Dist.] 1994, pet. granted) (holding in effect that forfeiture of property under the Texas Forfeiture Statute (Chapter 59 of the Texas Code of Criminal Procedure) must be characterized as punitive for double jeopardy purposes). Thus, the trial court in the instant case held that an earlier forfeiture of certain property barred prosecution of an indictment charging two distinct and separate offenses on the basis of double jeopardy. The prosecution was terminated at that point.

¶8Current Double Jeopardy Controversy

¶9Rejecting the argument that a penalty assessed in a civil proceeding may not give rise to double jeopardy, the United States Supreme Court in United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989) held that civil sanctions may be punitive for double jeopardy purposes. The Court concluded that a criminal conviction can violate a defendant’s double jeopardy protection against multiple punishments if the civil penalty imposed is so extreme that it subjects the offender to a sanction overwhelmingly disproportionate to the damage caused. Ex parte Rogers, 804 S.W.2d 945, 949 (Tex.App.Dallas, 1990). In the wake of Halpercame Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) and Montana Dept. of Revenue v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, *201128 L.Ed.2d 767 (1994). Austinheld that the federal forfeiture statute did not serve solely a remedial purpose and that forfeiture under the civil statute constituted punishment to which the Eighth Amendment’s excessive fines clause applied. The Court noted that forfeiture has historically been considered punishment. In Kurth Ranch, the Court held that a defendant convicted and punished for a criminal offense may not have a nonremedial civil penalty (tax assessment) imposed against him for the same offense in a separate proceeding. Here, the Halperdisproportionality analysis was not applicable. A murky area of the law has now arisen. See Ex parte Tomlinson, 886 S.W.2d 644, 546 (Tex.App.—Austin 1994, no pet.). The federal courts are at odds. Compare United States v. Ursery, 59 F.3d 568 (6th Cir.1995), cert. granted (holding that the civil forfeiture was “punishment” for double jeopardy purposes and that both proceedings involved the “same offense”) and United States v. $405,089.23 In U.S. Currency, 83 F.3d 1210 (9th Cir.1994), cert. granted (holding civil forfeiture is “punishment” barred by double jeopardy following criminal convictions) with United States v. Tilley, 18 F.3d 295 (5th Cir.1994) (holding forfeiture of drug proceeds is remedial and does not bar a subsequent prosecution for sale of drugs). Texas courts are also divided. The Halperdisproportionality analysis has been frequently applied to determine whether a civil forfeiture constitutes “punishment” for double jeopardy purposes. See, e.g., Ex parte Camara, 893 S.W.2d 553, 555 (Tex.App.—Corpus Christi 1994, no pet.); Johnson v. State, 882 S.W.2d 17 (Tex.App.—Houston [1st Dist.] 1994, pet. granted); Walker v. State, 828 S.W.2d 485 (Tex.App.—Dallas 1992, pet. ref'd.). Fant, upon which the trial court in the instant case relied, determined that forfeiture under the Texas Forfeiture Statute amounts to “pun-

¶10ishment” for double jeopardy purposes. Fant, 881 S.W.2d at 834; see also Ex parte Ariza, 913 S.W.2d 215 (Tex.App.—Austin 1995, pet. filed).

¶11In the instant case we need not reach this issue in light of the record before this Court. We agree with the State that the trial court erred in granting appellee’s motion to dismiss but for reasons other than that urged.3

¶12No Valid Motion

¶13We find no statutory or other authority for a pretrial motion such as filed by appellee — that is to have the prosecution against him terminated without going to trial. See George E. Dix & Robert O. Dawson, Criminal Practice and Procedure, Ch. 30, B, § 30.61-30.72, Texas Practice at 124-133 (discussing authorized motions to dismiss by defendants).

¶14A defendant, of course, may file a statutory plea in order to assert a former jeopardy claim. Tex.Code Crim.Proc.Ann. art. 27.05 (Vernon 1989). He may also file an application for a pretrial writ of habeas corpus to present his Fifth Amendment claim. See Apolinar v. State, 820 S.W.2d 792, 794 (Tex.Crim.App.1991). Appellee’s motion is neither a statutory plea nor a pretrial habeas corpus application.

¶15The Statutory Plea

¶16A special plea of former jeopardy under article 27.05 must be verified. Tex.Code CRIM.ProcAnn. art. 27.06 (Vernon 1989). It has been held that the courts will not consider an unverified special plea. Lavan v. State, 363 S.W.2d 139, 141 (Tex.Crim.App.1962); Morrison v. State, 339 S.W.2d 529, 532 (Tex.Crim.App.1960). In addition, a special plea of former jeopardy should be corn-*202píete in itself and must set up facts assumed to constitute the defense including the identity of the offenses and the person so previously acquitted or convicted. The plea should contain the pleadings of the former prosecution, show the result of the former proceedings and some disposition of the ease. 22 Tex.Jur.3d, Criminal Law, § 2433 at 784-85 (1982).

¶17Appellee’s unsworn motion has been previously described. It does not meet the qualifications described above.4 Moreover, article 27.07 provides that:

[A]ll issues of fact presented by a special plea shall be tried by the trier of fact on the trial on the merits, (emphasis added).

¶18Thus, the special plea is not to be determined before trial so as to terminate the prosecution. If the trial court determines that the special plea presents a legally sufficient claim, it must be submitted to the trier of fact together with the plea of not guilty. Apolinar, 820 S.W.2d at 794. If the special plea does not present a legally sufficient former jeopardy claim, it need not be submitted to the trier of fact. Id. at 793. The statutory language of article 27.07 permits the accused to be twice put to trial before the merits of his former jeopardy claim may be reached. Id. at 794. This is the conclusion reached earlier by the Fifth Circuit Court of Appeals:

Texas law provides that a claim of former jeopardy may be raised at the inception of the prosecution under attack, but that the facts concerning the special Plea are determined in the course of the trial on the merits. See Vernon’s Ann.C.C.P. art. 27.05 & 27.07 (1966 & Supp.1981). The Plea is a mechanism for avoidance of re-conviction, not retrial. In its limited function, it falls short of the protections extended to criminal defendants by the double jeopardy clause of the fifth amendment. Baker v. Metcalfe, 633 F.2d 1198, 1200 n. 3 (5th Cir.) cert. denied 451 U.S. 974, 101 S.Ct. 2055, 68 L.Ed.2d 354 (1981), citing Abney v. United States, 431 U.S. 651, 661, 97 S.Ct. 2034, 2041, 52 L.Ed.2d 651 (1977), as applicable to the states through the fourteenth amendment, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

¶19Robinson v. Wade, 686 F.2d 298, 302 n. 3 (5th Cir.1982).

¶20Apolinarcited Robinsonwith approval and further held that there is no statutory provision which grants the courts of appeals jurisdiction over a special plea of double jeopardy before a final judgment has been entered. Apolinar, 820 S.W.2d at 794.

¶21Even if appellee could transform his unsworn “motion to dismiss” into a special plea of former jeopardy, the trial court was without authority to make a pretrial determination to terminate the prosecution, and this court would have no jurisdiction over a special plea before a final judgment in a criminal case has been entered. Apolinar, 820 S.W.2d at 794.

¶22Pretrial Habeas Corpus

¶23Appellee was not, however, without a remedy to prevent having to run the gauntlet a second time if double jeopardy was involved. Appellee was entitled to file an application for the issuance of a pretrial writ of habeas corpus to the effect that a trial on the merits of an indictment would subject him to double jeopardy. This is an appropriate method for a defendant to present a Fifth Amendment claim. Apolinar, 820 S.W.2d at 794; Stephens v. State, 806 S.W.2d 812, 814 (Tex.Crim.App.1990), cert. denied, 502 U.S. 929, 112 S.Ct. 350, 116 L.Ed.2d 289 (1991); Ex parte Rathmell, 717 S.W.2d 33, 34 (Tex.Crim.App.1986); Ex parte Robinson, 641 S.W.2d 552, 555 (Tex.Crim.App.1982); Ex parte Carter, 849 S.W.2d 410, 413 (Tex.App.—San Antonio 1993, pet. ref'd).

¶24Justice Dorsey speaking for this Court in Ex parte Walker, 813 S.W.2d 570*203(Tex.App.—Corpus Christi 1991, pet. ref'd), explained that the use of a pretrial writ of habeas corpus is the only way to protect a defendant’s Fifth Amendment right against twice being put to trial. Id. at 571. Justice Dorsey also noted that a special plea cannot be construed to be a pretrial writ of habeas corpus, citing Apolinar, 820 S.W.2d at 793-94.

¶25The issuance of a writ is the necessary first step for the trial court to conduct a habeas corpus hearing on the relief sought. Ex parte Noe, 646 S.W.2d 230, 231 (Tex.Crim.App.1983). There is nothing in the instant record to show that the trial court issued a writ of habeas corpus. See Tex. Code CRIM.Proc.Ann. art. 11.01, et. seq. (Vernon 1977 & Supp.1996). The trial court’s action on a habeas corpus matter is appealable only after the trial court issued the writ and then rules on the merits of the issue. If the defendant is denied relief, he may appeal. See, e.g., Ex parte Moorehouse, 614 S.W.2d 450, 451 (Tex.Crim.App.1981); Carter, 849 S.W.2d at 413; Walker, 813 S.W.2d at 571. If relief is granted, the State may appeal. Tex.Code Crim.Proc.Ann. art. 44.01(a)(1), (4) (Vernon Supp.1996); see also State v. Romero, 907 S.W.2d 858 (Tex.App.—Houston [1st Dist.] 1995, pet. filed); State v. DeSantio, 899 S.W.2d 787 (Tex.App.—El Paso 1995, no pet.).

¶26We find no writ of habeas corpus in the instant ease and conclude that the trial court did not issue such writ.5 The trial court’s ruling went to appellee’s “motion to dismiss” for which there is no specific statutory provision. The “motion” was not a special plea of former jeopardy and if it was, this Court would have no jurisdiction. And the unsworn motion was not a pretrial application for a writ of habeas corpus; no writ was issued. The trial court erred in granting appellee’s motion. The trial court’s action terminated the prosecution and the State clearly had the right to appeal. Tex.Code Crim.Proc.Ann. art. 44.01(a)(1), (4) (Vernon Supp.1996).

¶27The judgment and order of the trial court is reversed and the cause is remanded to the trial court. In the event the issue of double jeopardy is properly raised, it is an accused’s burden to establish a double jeopardy violation, Anderson v. State, 635 S.W.2d 722, 725 (Tex.Crim.App.1982), and to show that he is entitled to the relief he seeks. Hoang v. State, 810 S.W.2d 6, 8 (Tex.App.—Dallas 1991), aff'd., 872 S.W.2d 694 (Tex.Crim.App.1993), cert. denied, — U.S. —, 115 S.Ct. 177, 130 L.Ed.2d 112 (1994). This necessarily includes an identity of the offenses and person. Tomlinson, 886 S.W.2d at 547.