Ex Parte Herron ( 1990 )

OPINION ON STATE’S MOTION FOR REHEARING

McCORMICK, Presiding Judge.

This is a post-conviction application for writ of habeas corpus before this Court pursuant to Article 11.07, Y.A.C.C.P.

Applicant, William Herron, Jr., was indicted for aggravated kidnapping. That indictment, in pertinent part, provides that:

“[Applicant] ... on or about December 23, 1983 ... intentionally and knowingly restrain ERMA JEAN TUMER, hereafter styled the Complainant, by using and threatening to use deadly force with intent to prevent the liberation of the Complainant, and with intent to facilitate commission of the felony of Robbery.”

Applicant was separately indicted for aggravated robbery. That indictment alleges that:

“[Applicant] ... on or about December 23, 1983, ... while in the course of committing theft of property owned by ERMA JEAN TUMER, hereafter styled the Complainant, and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place the Complainant in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely, a firearm.”

Prosecution on the two indictments was had in a single trial before the same jury. The jury convicted applicant for both crimes. The trial court assessed a sentence of twenty years’ confinement for the aggravated kidnapping case and a sentence of seventy-five years’ confinement for the aggravated robbery case. The sentences were to run concurrently.

Applicant asserts that the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution bars conviction and punishment for both the aggravated kidnapping and aggravated robbery offenses. He asserts that conviction and punishment under one of the two indictments would be proper, but not under both. He seeks to have this Court set aside one of those convictions. We will deny relief.

The Fifth Amendment provides in relevant part: “fNJor shall any person be subject to the same offense to be twice put in jeopardy of life or limb.” This Double Jeopardy Clause serves three primary purposes:

“(1) It protects against a second prosecution for the same offense after acquittal;

“(2) It protects against a second prosecution for the same offense after conviction; and

“(3) And it protects against multiple punishments for the same offense.”

North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-665 (1969) (footnotes omitted). Applicant has not been subjected to multiple prosecutions — he was tried in a single trial before the same jury.

The Double Jeopardy Clause is cast expressly in terms of being “twice put in jeopardy,” and the Supreme Court of The United States has consistently interpreted that clause “ ‘to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.’ ” Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) quoting Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). The Supreme Court has said that where successive prosecutions are at stake the guarantee of not being twice placed in jeopardy serves “a constitutional policy of finality for the defendant’s benefit.” United States v. Jom, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543, 553 (1971) (plurality opinion). This policy protects the accused from attempts to relitigate the facts underlying a prior acquittal, e.g., Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), and from attempts to secure additional punishment after a prior conviction and sentence. See Green, 355 U.S. at 187-188, 78 S.Ct. at 223-224, 2 L.Ed.2d at 204. Because applicant was subjected to only one trial, his right to be free from multiple trials for the same offense and the police considerations of Ashe and Green are not implicated. Only the third aspect of Pearce, that of multiple punishments, is involved in this case.

The seminal case in the area of multiple punishments is Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). There, the Supreme Court held that consecutive sentences under two different sections of the federal narcotics law were permissible even though there was only one sale of narcotics since “[e]ach of the offenses created requires proof of a different element.” 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309. The rule established in Blockburger was that “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 which the other does not.”

Applicant was charged and convicted of aggravated kidnapping; in that indictment there is an allegation that the kidnapping occurred “with intent to facilitate the commission of the felony of Robbery.” It may be that the evidentiary facts relied upon to prove the robbery, alleged in the aggravated kidnapping indictment, are the same as those relied upon to convict applicant of the aggravated robbery.¹ For purposes of this opinion we assume that the State in proving the robbery allegations made in the aggravated kidnapping indictment relied upon the same evidentiary facts as those relied upon to prove the aggravated robbery case such that the aggravated kidnapping case enveloped the aggravated robbery case. See Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); May v. State, 726 S.W.2d 573 (Tex.Cr.App.1987). The issue then is whether the Fifth Amendment guarantee against double jeopardy bars punishment for both offenses when prosecution on those offenses is had in a single trial. We find our answer in Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983).

In Hunter, the defendant was charged and convicted in a single trial of armed criminal action and first degree robbery. He was assessed a separate sentence for each offense pursuant to two Missouri statutes which provided a certain punishment for any person who committed a felony through the use of a deadly weapon (“armed criminal action”) and a separate Missouri statute which provided a certain punishment for any person who committed a robbery by means of a deadly weapon. The Missouri Court of Appeals reversed the defendant’s conviction for the armed criminal action finding that the Double Jeopardy Clause “prohibits imposing punishment for both armed criminal action and for the underlying felony.” The Supreme Court of the United States reversed.

The Supreme Court accepted the Missouri court’s interpretation that the two offenses in question defined the same crime under Blockburger and its progeny. Hunter, 459 U.S. at 368, 103 S.Ct. at 679, 74 L.Ed.2d at 543. The Supreme Court, however, rejected the Missouri court’s con-elusion that the Double Jeopardy Clause had been violated. The Court wrote:

“[Sjimply because two criminal statutes may be construed to proscribe the same conduct under the Blockburger test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes....

“Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the ‘same’ conduct under Blockburger, a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.” 459 U.S. at 368-369, 103 S.Ct. at 679, 74 L.Ed.2d at 543-544 (emphasis added).

Therefore, the Double Jeopardy Clause, though a barrier to legislative attempts to authorize retrial after an acquittal or conviction, simply does not intrude on prerogatives in fashioning the statutory framework that will govern a court’s sentencing decisions. Its purpose in the punishment phase of the trial “ ‘is limited to assuring that the [sentencing] court does not exceed its legislative authorization by imposing multiple punishments for the same offense.’ ” Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 1145, 67 L.Ed.2d 275, 285 (1981) quoting Brown, 432 U.S. at 165, 97 S.Ct. at 2225, 53 L.Ed.2d at 194. When reviewing a defendant’s claim that the sentences he received in a single criminal trial violate the Double Jeopardy Clause, therefore, “the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to impose.” Albernaz, 450 U.S. at 344, 101 S.Ct. at 1145, 67 L.Ed.2d at 285.²

Thus, the case at bar is unlike Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). There the Supreme Court was asked to address whether D.C. Code, Section 23-112 (1973) permitted cu-mulated sentences against one convicted of rape and murder in the course of rape when the rape offense was enveloped by the murder offense. Section 23-112 provided that, “[a] sentence imposed on a person for conviction of an offense shall ... run consecutively to any other sentence imposed on such person for conviction of an offense, whether or not the offense (1) arises out of another transaction, or (2) arises out of the same transaction and requires proof of a fact which the other does not.” (Emphasis added). The Supreme Court found that the “emphasized language prevented a trial court from cu-mulating sentences for two offenses arising out of the same criminal transaction unless each offense requires proof of a fact which the other does not.” Although reference was made to Blockburger, the Supreme Court determined that as a matter of statutory construction, in that case, a trial court could not cumulate the rape and murder sentences. Whalen, 445 U.S. at 695, 100 S.Ct. at 1439, 63 L.Ed.2d at 725-726. In a concurring opinion, Justice White observed that “the question is one of statutory construction and does not implicate the Double Jeopardy Clause.” 445 U.S. at 696, 100 S.Ct. at 1440, 63 L.Ed.2d at 726 (concurring opinion per White, J.). The Justice went further to explain that “[h]ad congress authorized cumulative punishments, as the District of Columbia Court of Appeals held in this case, imposition of such sentences would not violate the Constitution.” 445 U.S. at 696, 100 S.Ct. at 1440, 63 L.Ed.2d at 726. See also Albernaz, 450 U.S. at 344, 101 S.Ct. at 1145, 67 L.Ed.2d at 285.

Therefore, we conclude that the trial court, in assessing punishments for both the aggravated kidnapping offense and the aggravated robbery offense, did not violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.

The State’s motion for rehearing is granted. The relief for which applicant prays is denied.³

CAMPBELL, J., concurs in the result.

1 . Neither the State nor applicant has furnished this Court with a statement of facts. Applicant in his application has outlined only those facts he deems dispositive of the issues. The State has responded with a general denial of all facts asserted in the application that are not supported by the record. We find it unnecessary to address any disagreement between the parties; regardless of whether the evidentiary facts are the same in each offense as to the robbery allegations, our opinion would be the same.

2 . Whether the Texas Legislature intended multiple convictions and sentences in this case is not before the Court. We therefore do not address the issues of whether the Legislature so intended and, if not, whether this may be raised by way of collateral attack. See Ex parte Crispen, 777 S.W.2d 103 (Tex.Cr.App.1989) (plurality opinion). See also Ex parte Truong, 770 S.W.2d 810 (Tex.Cr.App.1989).

3 . Applicant also raises claims concerning the introduction of extraneous offense evidence at his trial and concerning ineffective assistance of counsel based upon counsel’s failure to object to the extraneous offense testimony and to raise double jeopardy claims. We note simply that the issue regarding the extraneous offense testimony was decided adversely to applicant on original appeal when the Court of Appeals addressed applicant’s claims on the merits, and applicant's attorney is not faulted for asserting a meritless double jeopardy claim.