Robert John Gallemore v. State ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-481-CR
ROBERT JOHN GALLEMORE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 271ST DISTRICT COURT OF W ISE COUNTY
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OPINION
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I. Introduction
W e must decide in this appeal whether double jeopardy bars retrial of a
defendant when, following the defendant’s guilty plea, the trial court granted a
mistrial and dismissed the case because of an alleged jurisdictional defect in the
indictment. W e hold that, under the circumstances presented by this case, the
answer is “no.” Accordingly, we affirm the trial court’s judgment.
II. Background
A grand jury originally indicted Appellant Robert John Gallemore for felony
driving while intoxicated 1 on December 14, 2005, and Appellant entered an open
plea of guilty in the 271st District Court of W ise County, Texas, on March 24, 2006.
The trial court accepted Appellant’s plea, found him guilty, and set a hearing to
consider punishment.
At the April 27, 2006 sentencing hearing, both sides presented evidence and
closed, but before the trial court sentenced Appellant, his attorney told the judge he
had “some argument” and proceeded to contend that the State had failed to plead
and prove a felony offense. Appellant’s counsel pointed out that one of the offenses
alleged as a prior offense in the indictment was actually a subsequent offense.
Thus, Appellant’s attorney argued that the indictment alleged only a misdemeanor
offense,2 that Appellant pleaded guilty only to a misdemeanor offense, and that the
trial court did not have jurisdiction over the case. However, Appellant did not request
dismissal and instead asked only that he be subject to the lesser punishment range
for misdemeanor DW I with a maximum punishment of one year’s imprisonment. The
1
 See Tex. Penal Code Ann. § 49.04(a) (Vernon 2003); id. § 49.09(b)
(Vernon Supp. 2009).
2
 Driving while intoxicated under penal code section 49.04 is a class B
misdemeanor. Tex. Penal Code Ann. § 49.04(a). However, a DW I is a class A
misdemeanor if the State proves at trial that the defendant had one prior DW I
conviction and is a third-degree felony if the State proves at trial that the defendant
had two prior DW I convictions. Id. § 49.09(a), (b)(2).
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trial court ordered the parties to brief the issue, and on May 4, 2006, the trial court
sent a letter to the parties that stated, in relevant part, “the Court is of the opinion
that it is without jurisdiction, declares a mistrial, and finds that dismissal for lack of
jurisdiction would be in order.” The trial court signed an order on May 30, 2007,
formally declaring a mistrial and dismissing the case for lack of jurisdiction.
In the meantime, on May 26, 2006, the State reindicted Appellant for the
instant DW I and alleged prior DW I convictions dated November 8, 2000, and
February 9, 1998, to enhance the DW I to a third-degree felony. The new indictment
also contained a habitual offender paragraph that alleged prior convictions for a third
DW I and a robbery. Appellant filed a “Special Plea of Former Jeopardy” in the
reindicted case, which the trial court denied on June 27, 2007.
On April 2, 2008, Appellant filed a “Petition for W rit of Habeas Corpus Double
Jeopardy” in which he alleged that prosecution under the reindicted case was
barred. Specifically, Appellant alleged that (1) jeopardy had attached in the former
proceeding because Appellant had already entered his guilty plea and (2) there was
no manifest necessity for declaring a mistrial. The trial court denied the requested
relief on April 30, 2008. Appellant appealed the denial of his petition for habeas
corpus to this court, and this court affirmed the trial court’s order. See Ex parte
Gallemore, No. 02-08-00154-CR, 2008 WL 2780667, at *2 (Tex. App.—Fort W orth
July 17, 2008, orig. proceeding) (mem. op., not designated for publication) (holding
jeopardy did not bar second proceeding when district court did not have jurisdiction
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over first proceeding). On November 5, 2008, Appellant again entered an open
plea of guilty to felony DW I. The trial court found Appellant guilty, found the
enhancement paragraphs to be true, and sentenced Appellant to twenty-five years’
imprisonment. This appeal followed.
III. Analysis
Appellant argues in two points that the trial court erred by declaring a mistrial
in the first proceeding because there was no manifest necessity to declare a mistrial
and that double jeopardy bars the second proceeding. Each point concerns the
271st District Court’s jurisdiction, or lack of jurisdiction, over the first proceeding.
A. Law of the Case
As a preliminary matter, we note that Appellant’s arguments in this appeal are
very similar to those from his prior appeal of the denial of his writ of habeas corpus.
“Under the law of the case doctrine, an appellate court’s resolution of a question of
law in a previous appeal of the same case will govern the disposition of the same
issue when raised in a subsequent appeal.” Zavala v. State, 956 S.W .2d 715, 718
(Tex. App.—Corpus Christi 1997, no pet.); see also Ware v. State, 736 S.W .2d 700,
701 (Tex. Crim. App. 1987) (“[W ]hen the facts and legal issues in a case on appeal
are virtually identical with those in a previous appeal in which the legal issues were
resolved[,] then logic and reason dictate that the appeals be viewed as the same
case.”). However, the reconsideration or further consideration of an issue on a
second appeal is a matter of discretion. See Ex parte Granger, 850 S.W .2d 513,
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516 (Tex. Crim. App. 1993); Peden v. State, 917 S.W .2d 941, 956 (Tex. App.—Fort
W orth 1996, pet. ref’d). In this case, although we reach the same conclusion we
reached when we affirmed the denial of Appellant’s petition for writ of habeas
corpus, we exercise our discretion to further consider Appellant’s arguments
because they present important questions of Texas law.
B. Applicable Law
The Double Jeopardy Clause of the United States Constitution provides that
no person shall be subjected to twice having life or limb in jeopardy for the same
offense. U.S. Const. amend. V. Generally, this clause protects against (1) a second
prosecution for the same offense after acquittal, (2) a second prosecution for the
same offense after conviction, and (3) multiple punishments for the same offense.
Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 2225 (1977); Ex parte Herron,
790 S.W .2d 623, 624 (Tex. Crim. App. 1990) (op. on reh’g).
Jeopardy attaches in a bench trial when both sides have announced ready
and the defendant has entered his plea. Ortiz v. State, 933 S.W .2d 102, 105–06
(Tex. Crim. App. 1996); State v. Torres, 805 S.W .2d 418, 420–21 (Tex. Crim. App.
1991). But a subsequent prosecution for the same offense is not jeopardy-barred
when the initial conviction was obtained in the absence of jurisdiction because such
a conviction is a nullity, and jeopardy does not attach. Hoang v. State, 872 S.W .2d
694, 697–98 (Tex. Crim. App. 1993), cert. denied, 513 U.S. 863 (1994); Nassar v.
State, 797 S.W .2d 318, 319–20 (Tex. App.—Corpus Christi 1990, pet. ref’d); see
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Houston v. State, 556 S.W .2d 345, 347 (Tex. Crim. App. 1977). Further, double
jeopardy principles do not forbid multiple trials of a single criminal charge if the first
trial resulted in a mistrial that: (1) was justified under the manifest necessity
doctrine; or (2) was requested or consented to by the defense, absent prosecutorial
misconduct which forced the mistrial. Ex parte W ashington, 168 S.W .3d 227,
235–36 (Tex. App.—Fort W orth 2005, orig. proceeding). A mistrial declared
because of a jurisdictional defect in the indictment is one example of manifest
necessity. See Illinois v. Somerville, 410 U.S. 458, 467–69, 93 S. Ct. 1066, 1072–73
(1973); McClendon v. State, 583 S.W .2d 777, 779 (Tex. Crim. App. 1979).
C. Discussion
Appellant argued at the April 27, 2006 sentencing hearing that the district
court did not have jurisdiction over the first proceeding because the indictment did
not allege a felony. On appeal, Appellant argues the district court did have
jurisdiction because the substantively defective indictment vested the district court
with jurisdiction and the district court retained jurisdiction over the lesser-included
misdemeanor offense the indictment actually alleged.
1. Jurisdiction of the 271st District Court
The Texas constitution grants exclusive, appellate, and original jurisdiction to
district courts over all cases except those cases where exclusive, appellate, or
original jurisdiction is granted to another court. Tex. Const. art. V, § 8; Tex. Gov’t
Code Ann. § 24.007 (Vernon 2004). Relevant to this case, the code of criminal
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procedure provides that district courts “have original jurisdiction in criminal cases of
the grade of felony.” Tex. Code Crim. Proc. Ann. art. 4.05 (Vernon 2005); see also
Puente v. State, 71 S.W .3d 340, 343 (Tex. Crim. App. 2002) (“A district court has
jurisdiction over felony offenses. It does not have jurisdiction over misdemeanor
charges, except those involving official misconduct.”). The code of criminal
procedure also states that county courts have “original jurisdiction of all
misdemeanors of which exclusive original jurisdiction is not given to the justice court,
and when the fine to be imposed shall exceed five hundred dollars.” Tex. Code
Crim. Proc. Ann. art. 4.07. Because there is no statute granting the 271st District
Court concurrent jurisdiction with a county court over misdemeanor cases, the 271st
District Court only has jurisdiction over felonies. Cf. Tex. Gov’t Code Ann.
§ 24.910(c) (Vernon 2004) (giving Tarrant County Criminal District Courts
“concurrent original jurisdiction with the county criminal courts over misdemeanor
cases”).
2. The district court did not have jurisdiction over the first proceeding
because the indictment did not allege a felony
Appellant first contends the district court had jurisdiction over the first
proceeding because even a substantively defective indictment vests a trial court with
jurisdiction. See, e.g., Ex parte Morris, 800 S.W .2d 225, 227 (Tex. Crim. App. 1990)
(orig. proceeding); Ex parte Gibson, 800 S.W .2d 548, 551 (Tex. Crim. App. 1990)
(orig. proceeding); Rodriguez v. State, 799 S.W .2d 301, 303 (Tex. Crim. App. 1990);
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Studer v. State, 799 S.W .2d 263, 273 (Tex. Crim. App. 1990). Although this legal
proposition is facially correct, it does not apply to this case. As the court of criminal
appeals stated in Tamez v. State,
when prior convictions are used to elevate what would otherwise be a
misdemeanor offense to the level of a felony, they must be pled in the
indictment for the trial court to gain jurisdiction. . . . [J]urisdiction vests
when the pleadings are submitted to the trial court and contain the
requisite number of previous convictions.
11 S.W .3d 198, 201 (Tex. Crim. App. 2000) (emphasis added) (citing Turner v.
State, 636 S.W .2d 189, 196 (Tex. Crim. App. 1980), and Gant v. State, 606 S.W .2d
867, 871 (Tex. Crim. App. [Panel Op.] 1980)). Here, Appellant’s first indictment
alleged only one prior DW I conviction, but two prior DW I convictions are necessary
to enhance a DW I to a third-degree felony. See Tex. Penal Code Ann. § 49.09(b).
Because the indictment did not allege the “requisite number of previous convictions,”
the indictment alleged only a misdemeanor and jurisdiction over the first proceeding
never vested in the district court. Tamez, 11 S.W .3d at 201.
Citing Ex parte Sparks, Appellant next contends the district court had
jurisdiction over the first proceeding because a district court retains jurisdiction over
a lesser-included misdemeanor when the State fails to prove the felony alleged in
the indictment. See 206 S.W .3d 680, 682 (Tex. Crim. App. 2006) (orig. proceeding).
In Sparks, the court of criminal appeals held: “The indictment in this case alleged
misdemeanor DW I, enhanced to a felony by two prior DW I convictions. This
pleading invoked the jurisdiction of the district court for the felony that was alleged,
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and that jurisdiction extended to the misdemeanor offenses that were included in the
indictment.” Id. (discussing Tex. Code Crim. Proc. Ann. art. 4.06 (Vernon 2005));
see also Jones v. State, 502 S.W .2d 771, 773–74 (Tex. Crim. App. 1973) (holding
district court did not lose jurisdiction when State proved only lesser-included
misdemeanor of indicted felony).
Sparks is distinguishable, however, because the face of Sparks’s indictment
actually alleged a felony offense over which the district court had jurisdiction (a
misdemeanor enhanced to a felony by two prior DW I convictions) whereas the face
of Appellant’s indictment alleged only a class B misdemeanor over which the district
court did not have jurisdiction (a misdemeanor enhanced by only one prior DW I
conviction). See Sparks, 206 S.W .3d at 682. 3 Here, the State could have proven
every allegation in Appellant’s indictment but would have proven only a class B
misdemeanor because the indictment alleged only one prior DW I conviction. See
Tex. Penal Code Ann. § 49.09(a), (b)(2). Thus, the face of Appellant’s indictment
did not allege a felony, and the district court never acquired jurisdiction over the first
proceeding. See Tamez, 11 S.W .3d at 201.
3. Jeopardy does not bar the second proceeding
3
 Jones is similarly distinguishable. The face of the indictment alleged a
felony offense. Jones, 502 S.W .2d at 773. Had the State proven that Jones
possessed at least four ounces of marijuana, Jones would have been guilty of a
felony. Id. Because the State proved only that Jones possessed less than four
ounces of marijuana, he was guilty only of a misdemeanor, but the trial court
retained jurisdiction because the failure was one of evidence rather than the
allegations in the indictment. Id. at 773–74.
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Jeopardy does not bar a second proceeding when the first proceeding ended
in a mistrial that was justified by a manifest necessity. Ex parte Washington, 168
S.W .3d at 235–36. And a jurisdictional defect in the indictment is one example of
manifest necessity. See Somerville, 410 U.S. at 467–69, 93 S. Ct. at 1072–73;
McClendon, 583 S.W .2d at 779. In this case, the indictment in the first proceeding
did not allege a felony, creating a jurisdictional defect. And this jurisdictional defect
in the indictment created manifest necessity. See Somerville, 410 U.S. at 467–69,
93 S. Ct. at 1072–73; McClendon, 583 S.W .2d at 779 (recognizing jurisdictional
defect in an indictment as constituting manifest necessity). Therefore, the trial court
did not err by sua sponte declaring a mistrial and dismissing the first proceeding for
lack of jurisdiction. W e overrule Appellant’s first point.
Further, it is immaterial that Appellant had pleaded guilty before the trial court
sua sponte declared a mistrial. Appellant’s guilty plea in the first proceeding was
void because the trial court did not have jurisdiction over the first proceeding. See
Ex parte McCain, 67 S.W .3d 204, 210 (Tex. Crim. App. 2002) (defining void
convictions as “those in which the trial court lacked jurisdiction over the person or
subject matter or in which the trial judge lacked qualification to act in any manner”
(emphasis added)). And “a void judgment of conviction does not bar a successive
prosecution for the same offense under State or federal principles of double
jeopardy.” Hoang, 872 S.W .2d at 698. Because the trial court lacked jurisdiction,
jeopardy did not attach. Id. W e overrule Appellant’s second point.
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IV. Conclusion
Having overruled each of Appellant’s points, we affirm the trial court’s
judgment.
ANNE GARDNER
JUSTICE
PANEL: LIVINGSTON, DAUPHINOT, and GARDNER, JJ.
PUBLISH
DELIVERED: April 15, 2010
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