Antonio Serrana v. State ( 2006 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-04-00345-CR

ANTONIO SERRANA,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the County Court at Law No. 2

Johnson County, Texas

Trial Court No. M200301848

CONCURRING  Opinion

          The discussion of Tarvin in the majority opinion will be difficult for many readers to reconcile, creating confusion and chaos, and could be considered misleading if it is not properly explained.  State v. Tarvin, 972 S.W.2d 910 (Tex. App.—Waco 1998, pet. ref’d).  Tarvin is not a particularly good case to discuss in this opinion because the holding of Tarvin was based on a motion to suppress that was granted as distinguished from those cases in which a motion to suppress has been denied.  This distinction makes all the difference in the world.

          This distinction is probably why neither Serrana nor the State cite Tarvin in their briefs.  The analysis that applies to the facts when a motion to suppress has been granted versus when the motion has been denied is the same.  The distinction between Tarvin and the other cases is not about the facts; but rather, it is about the related standard of review of the trial court’s ruling.  Thus, the “facts” of the two cases could be identically the same, in the cold appellate record, and we could have two different results.  And based upon the applicable standard of review, both decisions could be properly affirmed.  Because we are reviewing issues on which the trial court had to evaluate credibility of the witnesses, our standard of review is an abuse of discretion.

          This confusion could easily be avoided if we simply stayed focused on the issues and addressed the parties’ arguments under the proper analysis related to motions to suppress that have been denied.  Tarvin is just not good precedent for a fact-intensive discussion on this issue.  It does not fit the analysis that is appropriate for this case.

          Notwithstanding the confusion created by the Court’s effort to compare the facts in Tarvin with the facts of this case, the majority does get to the correct result.  Accordingly, I concur in the judgment affirming the decision of the trial court to deny the motion to suppress and thus affirming the trial court’s judgment.

                                                          TOM GRAY

                                                          Chief Justice

Concurring opinion delivered and filed February 15, 2006

e jeopardy preclude his being charged with the offense because he has already been punished by the TDCJ-ID. Id.

FEDERAL CONSTITUTION

      This court has previously addressed this issue under the federal constitution and decided that its prohibition against double jeopardy does not preclude the State from trying an inmate when he has already been punished for the same conduct in administrative proceedings held by prison officials. Prysock v. State, 817 S.W.2d 784, 785 (Tex. App.—Waco 1991, pet. ref'd). We conclude that Prysock controls this issue under the federal constitution. Id.; see also Smith v. State, 827 S.W.2d 71, 72 (Tex. App.—Houston [1st Dist.] 1992, no pet.).

STATE CONSTITUTION

      We did not directly address the state-constitutional claims in Prysock. Guerrero asserts that, because a recent line of cases beginning with Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991), has found the Texas Constitution provides greater protections to Texas citizens than some corresponding provisions in the United States Constitution, we should find that section fourteen of article one of the Texas Constitution prevents him from being criminally charged with the assault.

      Several of our sister courts of appeals have ruled since Heitman that the State is not precluded by article one, section fourteen, from trying an inmate when he has already been punished for the same conduct in administrative proceedings. See, e.g., Mott v. State, 846 S.W.2d 398, 398-99 (Tex. App.—Houston [14th Dist.] 1992, no pet.); Quevedo v. State, 832 S.W.2d 422, 424 (Tex. App.—Houston [1st Dist.] 1992, pet. ref'd). In addressing double-jeopardy arguments, several courts of appeals have cited Phillips v. State, 787 S.W.2d 391, 393 n.2 (Tex. Crim. App. 1990), which states: "Conceptually, the state and federal constitutional provisions are identical." See, e.g., Ex parte Tomlinson, 886 S.W.2d 544, 546 (Tex. App.—Austin 1994, no pet. h.); Fant v. State, 881 S.W.2d 830, 831 (Tex. App.—Houston [14th Dist.] 1994, pet. granted); Gibson v. State, 875 S.W.2d 5, 7 (Tex. App.—Texarkana 1994, pet. ref'd); Heyduck v. State, 814 S.W.2d 156, 157 (Tex. App.—Houston [1st Dist.] 1991, no pet.). Thus, the Texas double jeopardy provision is interpreted as affording essentially the same type and level of protection as its federal counterpart. Gibson, 875 S.W.2d at 7. We will follow those decisions and hold that the Texas Constitution does not preclude the State from trying an inmate when he has already been punished for the same conduct in administrative proceedings held by prison officials. See Tex. Const. art. I, § 14.

      We overrule Guerrero's points of error and affirm the judgment of the trial court denying relief.

                                                                               BILL VANCE

                                                                               Justice

Before Chief Justice Thomas,

      Justice Cummings, and

      Justice Vance

Affirmed

Opinion delivered and filed February 8, 1995

Publish