Ex Parte Sorola v. State

TEAGUE, Judge.

We granted the petition for discretionary review that was filed on behalf of Joe Sorola, henceforth appellant, in order to consider appellant’s contention that the San Antonio Court of Appeals, see Sorola v. State, 737 S.W.2d 118 (Tex.App.-4th 1987), erred in not sustaining his claim that because of the Double Jeopardy Clauses of the Federal and State Constitutions, in the event of retrial and reconviction for capital murder, his punishment should be automatically fixed at life imprisonment.¹

This Court’s records reflect that in 1982 appellant was convicted by a jury of committing the offense of capital murder, i.e., he committed the offense of murder in the course of committing or attempting to commit the offense of robbery. See V.T.C.A. Penal Code § 19.03(a)(2).² Acting pursuant to Art. 35.25, V.A.C.C.P.,³ the District Attorney notified the trial judge and appellant that he would not seek the death penalty. The jury was selected as though the case was going to be a non-death penalty case. The jury found appellant guilty of capital murder, after which the trial judge, and not the jury, assessed appellant’s punishment at life imprisonment. The trial judge acted pursuant to his and the attorneys’ interpretation of Art. 35.25, supra. The trial judge never, however, either expressly or implicitly, answered either of the mandatory special issues, see Art. 37.071, V.A.C.C.P., in the negative, nor did he make any finding, either expressly or implicitly, that was favorable to appellant. He simply assessed appellant’s punishment at life imprisonment, believing that that was the only punishment available.

Appellant thereafter appealed his capital murder conviction and life sentence to the San Antonio Court of Appeals, which sustained his contention that the trial judge erred in discharging the jury and assessing his punishment at life imprisonment. See Sorola v. State, 674 S.W.2d 809 (Tex.App.4th 1984).

The court of appeals rejected the State’s argument that because the State was not seeking to have appellant’s punishment assessed at death, and had expressly waived it pursuant to Art. 35.25, supra, the trial judge was authorized to assess appellant’s punishment at life imprisonment. In rejecting the State’s argument, the court of appeals relied upon this Court’s decision of Batten v. State, 533 S.W.2d 788 (Tex.Cr.App.1976), which we find, although not directly on point, contains language therein that supports the holding of the court of appeals that in a capital murder prosecution the State cannot waive trial by jury or the death penalty, and the defendant cannot waive trial by jury on punishment if convicted of capital murder.

Thereafter, this Court granted the State’s petition for discretionary review, after which it affirmed the judgment of the court of appeals. See Sorola v. State, 693 S.W.2d 417 (Tex.Cr.App.1985).

After this Court affirmed the judgment of the court of appeals, pursuant to Ex parte Robinson, supra, appellant filed an application for the writ of habeas corpus asserting therein that under the Double Jeopardy Clauses of the Federal and State Constitutions, in the event he is again found guilty of capital murder, his punishment should be automatically fixed at life imprisonment. The trial judge denied his application.

Appellant again appealed to the San Antonio Court of Appeals, which this time affirmed the trial court’s decision to deny him any relief. See Sorola v. State, 737 S.W.2d 118 (Tex.App.-4th 1987).

In affirming the trial court’s decision, the court of appeals treated the error that the trial judge had committed at appellant’s first trial, by erroneously discharging the jury and assessing appellant’s punishment at life imprisonment, as “trial error”, and held that “Generally, double jeopardy does not attach when a case is reversed because of trial error. Franklin v. State, 693 S.W.2d 420 (Tex.Cr.App.1985), cert. denied, 475 U.S. 1031, 106 S.Ct. 1238, 89 L.Ed.2d 346 (1986) and Ex parte Duran, 581 S.W.2d 683 (Tex.Cr.App.1979).” (119). The court of appeals went on to further hold: “Nor is this a case where the special issues of TEX.CODE CRIM.PROC.ANN. art. 37.071 (Vernon 1987) were decided in any factual manner. The trial court merely bypassed art. 37.071 and imposed a life sentence. This action does not constitute an implied finding against the imposition of the death penalty. A complete retrial because of the trial error that occurred does not subject appellant to double jeopardy.” (119). The court of appeals finally held that there was no evidence of prosecutorial vindictiveness on the part of the District Attorney in his efforts to reprosecute appellant for capital murder and, if convicted by the jury, have the jury, if possible, answer the special issues that would be submitted to it pursuant to Art. 37.071, V.A.C. C.P.

We will affirm the judgment of the court of appeals.

Art. 44.29(a), V.A.C.C.P., expressly provides:

Where the court of appeals or the Court of Criminal Appeals awards a new trial to the defendant on the basis of an error in the guilt or innocence stage of the trial or on the basis of errors in both the guilt or innocence stage of the trial and the punishment stage of the trial, the cause shall stand as it would have stood in case the new trial had been granted by the court below.

Art. 44.29(c), supra, provides: “This section does not apply to convictions under Section 19.03 of the Penal Code (the capital murder statute). In such cases, the cause shall stand as it would have stood in case the new trial had been granted by the court below.”

Thus, if reversible error is committed at the guilt stage of a capital murder trial, but not at the punishment stage of the trial, or if reversible error is committed at the punishment stage of a capital murder trial, but not at the guilt stage of the trial, the trial court’s judgment and sentence must be set aside and the defendant is required to be granted a trial de novo on both guilt and punishment if he is retried, subject to the statutory law of this State and the case law of the Supreme Court of the United States and of this Court, which we will later set out and discuss in this opinion.

Previously, the law of this State was clear and absolute: the most that a defendant on appeal in a criminal case could receive was a trial de novo, and the double jeopardy clauses did not prevent retrial on either guilt or punishment.

In Dupree v. State, 56 Tex.Cr.R. 559, 120 S.W. 870, 873 (1909), this Court stated the following:

In such a case [where this Court grants the defendant a trial de novo] the doctrine of former jeopardy has no application whatever, for the simple reason that there had been no final adjudication of the case.

Also see Whitehead v. State, 162 Tex.Cr.R. 507, 286 S.W.2d 947, 948 (1956) (held, “The reversal awarded appellant a new trial, and he could then be tried on the original indictment or on the new indictment. The law against double jeopardy is not offended in the present conviction. (Citations omitted.).” In dissenting opinion that Presiding Judge Onion filed in Kutner v. Russell, 658 S.W.2d 585, 591 (Tex.Cr.App.1983), he correctly pointed out the following: “In Beardsall v. State, 9 Tex.App. 262 (1880), it was held that the effect of the judgment of reversal was not merely to set aside the immediate proceedings of the court below from which the appeal was taken, but was to place the entire cause in the same position in which it was before there was any trial of it. See also Cox v. State, 7 Tex.App. 495 (1879); Hughes v. State, 68 Tex.Cr.R. 584, 152 S.W. 912 (1913).”

Thus, for many years, the law of this State was that the double jeopardy provisions of the respective Constitutions did not bar a retrial on either guilt or punishment after the defendant had succeeded on appeal in obtaining a reversal of his conviction, and this was true regardless of the reason for the reversal. “[T]he defendant was presumed in that instance to have waived any objection to being put a second time in jeopardy, and thus could be tried anew. See, for example, 1 Bish.Crim.Law (4th ed.) § 844; Sterling et al. v. State, 25 Tex.App. 716, 9 S.W. 45 (1888).” Ex parte Martin, 747 S.W.2d 789, 797 (Tex.Cr.App.1988) (Teague, J., dissenting opinion).

Today, however, as a result of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), also see Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), the Double Jeopardy Clauses of the Federal and State Constitutions can bar the State from repro-secuting the defendant if reversal occurs because the evidence is found to be insufficient. Furthermore, under the doctrine of collateral estoppel, if an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).

The distinction between double jeopardy and collateral estoppel is that “the traditional bar of double jeopardy prohibits the prosecution of the crime itself, whereas collateral estoppel in a more modest fashion simply forbids the government from relitigating certain facts in order to establish the fact of the crime.” United States v. Mock, 604 F.2d 341 (5th Cir.1979).

Because the issue that appellant presents to us to resolve only concerns the “punishment stage” of his capital murder trial, we will not concern ourselves with the applicability of either the double jeopardy clauses or the doctrine of collateral estoppel to the guilt stage of the trial.

Appellant argues in his brief that “the [previous] imposition of the life sentence by the trial [judge], even though erroneously imposed, was an implied finding of an acquittal with regard to the special issues Art. 37.071, V.A.C.C.P.” (Emphasis supplied.) (Page 5 of Appellant’s Brief on Appellant’s Petition for Discretionary Review.) For reasons that we will give, we must disagree with appellant’s argument.

There is no evidence before us that might reflect or indicate that the trial judge at appellant’s first capital murder trial, either expressly or impliedly, “acquitted” appellant of the “death penalty”, nor is there any evidence in the record that might reflect or indicate that when the trial judge assessed appellant’s punishment at life imprisonment, he, the trial judge, made a favorable finding to appellant on an issue of ultimate fact, i.e., there is no evidence that when he assessed appellant’s punishment at life imprisonment the trial judge either expressly or implicitly answered either the “deliberateness” issue or the “probability” issue, see Art. 37.071, supra, in the negative.

In Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), for the first time in its history, the Supreme Court of the United States expanded the meaning of the Federal Double Jeopardy Clause to include the sentencing stage of the trial, where the first trier of fact resolved an issue or issues of fact in favor of the defendant.

In Bullington, supra, the defendant’s first capital murder jury voted to assess his punishment at life imprisonment. The Supreme Court held that this “finding” impliedly acquitted the defendant “of whatever was necessary to impose the death sentence”, 101 S.Ct. at 1861, thus causing it to hold that the prosecution was prohibited from getting a second “bite” at the death penalty at a second trial.

This Court adopted and applied the holding that the Supreme Court made in Bullington, supra, in Cooper v. State, 631 S.W. 2d 508 (Tex.Cr.App.1982) (held, as a matter of federal constitutional law compelled by Bullington, supra, because the State failed to sufficiently prove all of the facts necessary to find an enhancement paragraph “true” at the punishment stage of the defendant’s trial, the State was barred from attempting at a new punishment hearing in that cause to prove its original enhancement allegations.) Also see Ex parte Augusta, 639 S.W.2d 481 (Tex.Cr.App.1982) (held, under either the Federal Constitution or the Texas Constitution, the State was precluded from relitigating an issue of fact at the defendant’s second trial or at the second punishment hearing in the same cause because this Court found that it had failed to properly litigate that factual issue at the first trial or at the first punishment hearing.)

In Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984), the trial judge, who under Arizona procedure was the “punisher” where the defendant had been found guilty by the jury of capital murder, conducted a punishment hearing in a cause in which the jury had found the defendant guilty of capital murder. The trial judge erroneously determined that there were no aggravating circumstances present in the defendant’s case. This, of course, although an erroneous finding, was a favorable finding to the defendant. The error actually caused the trial judge to assess the defendant’s punishment at life imprisonment rather than at death. The Arizona Supreme Court, after finding that the trial judge had erred, remanded the cause to the trial court for a new hearing on punishment. On remand, the trial judge, after conducting a new punishment hearing, assessed the defendant’s punishment at death. The Arizona Supreme Court found that under Bullington, supra, the trial judge was prohibited from assessing the defendant’s punishment at death and ordered the defendant’s sentence of death reduced to life imprisonment. The Supreme Court affirmed the decision of the Arizona Supreme Court. In doing so, the Supreme Court stated the following:

In making its findings, the trial court relied on a misconstruction of the statute defining the pecuniary gain aggravating circumstance. Reliance on an error of law, however, does not change the double jeopardy effects of a judgment that amounts to an acquittal on the merits. ‘[T]he fact that “the acquittal may result from erroneous evidentiary rulings or erroneous interpretations of governing legal principles” ... affects the accuracy of that determination, but it does not alter its essential character.’ United States v. Scott, 437 U.S. 82, 98, 98 S.Ct. 2187, 2197, 57 L.Ed.2d 65 (1978) ... Thus, this Court’s cases hold that an acquittal on the merits bars retrial even if based on legal error. 467 U.S. at 210, 104 S.Ct. at 2310. (Emphasis supplied.)

The Court went on to point out the following:

[I]n respondent’s initial capital sentencing there was only one decisionmaker and only one set of findings of fact, all favorable to respondent. The trial court ‘acquitted’ respondent of the death penal-ty_ 104 S.Ct. at 2310.

In Morris v. Mathews, 475 U.S. 237, 106 S.Ct. 1032, 89 L.Ed.2d 187 (1986), the Supreme Court was confronted with the situation where the defendant and another individual robbed a bank. The other individual was thereafter killed in a farmhouse where he and the defendant had sought refuge from the police. The defendant was arrested at that location. It was originally suspi-cioned that the defendant’s cohort had committed suicide. The defendant was charged with the bank robbery and thereafter pled guilty to the bank robbery, and his punishment was assessed at 25 years’ confinement in the Ohio penitentiary. It was soon determined, however, after the defendant had pled guilty and was sentenced, that his cohort had not committed suicide but in fact was murdered by the defendant. A little over two weeks after the defendant had pled guilty to the bank robbery charge he was charged with the aggravated murder of his cohort, namely, causing his cohort’s death while fleeing immediately after committing the aggravated robbery of the bank. The defendant’s pretrial double jeopardy motion was denied, after which a jury found him guilty of aggravated murder. The trial judge assessed his punishment at life imprisonment. The prosecution appears to have agreed that it had violated the Federal Double Jeopardy Clause when it prosecuted the defendant for aggravated murder of his cohort. No one, however, contested the fact that the Federal Double Jeopardy Clause would not have barred the prosecution from seeking a simple murder conviction. Subsequently, the Ohio Court of Appeals modified the defendant’s conviction and sentence, reducing the offense to murder and the sentence to 15 years to life. Ultimately, the Supreme Court of the United States approved the reductions. In doing so, it rejected the defendant’s double jeopardy claim, holding that “when a jeopardy-barred conviction for a lesser included offense [here, murder] which is not jeopardy barred, the burden shifts to the defendant to demonstrate a reasonable probability that he would not have been convicted of the non-jeopardy-barred offense [here, murder] absent the presence of the jeopardy-barred offense [here, aggravated murder] ... To prevail in a case like this, the defendant must show that, but for the improper inclusion of the jeopardy-barred charge, the result of the proceeding probably would have been different.” 106 S.Ct. at 1038. The case was remanded to the Ohio Court of Appeals for proceedings not inconsistent with what the Supreme Court had stated and held.

We find that all of the above cases are inapposite to the facts of this cause.

First, this cause does not implicate a finding of guilt for a lesser included offense of capital murder. Second, in the above cases in which the defendant was successful on his double jeopardy claim, there is a common thread, which does not exist in this cause, which is that the trier of fact or the “lawful punisher” made a favorable finding in the defendant’s favor, either expressly or implicitly, at the punishment stage of his trial. In this instance, however, the trial judge never made a favorable finding, either express or implied, that the evidence was insufficient to support an affirmative finding to either of the mandatory special issues, see Art. 37.071, supra. Furthermore, under Art. 37.071, supra, where the jury has answered the submitted special issues, the punishment is actually assessed by law and not by the trial judge. In that instance, the trial judge has no say about the matter, and has no discretion to exercise^ in the premises. Where the defendant has been found guilty of capital murder, and the jury answers the submitted special issues, the law automatically fixes the defendant’s punishment at either death or life imprisonment, depending on the jury’s answers to the submitted special issues.

Contrary to Rumsey, where the trial judge by law was the authorized “punish-er , the trial judge m this cause was not authorized by law to assess appellant’s punishment, either as he did at life imprisonment or death.

The opinions relating to Rumsey, supra, make it clear that the procedure that was used in Rumsey, supra, was not the error that the Arizona Supreme Court found had occurred; the error occurred when, in assessing the defendant’s punishment at life imprisonment, the trial judge relied on a misconstruction of the statute defining the pecuniary gain aggravating circumstance, which error caused him to make a favorable evidentiary finding to the defendant in that cause.

The jury at appellant’s first trial was the only decisionmaker authorized by law to answer the special issues that should have been, but were not submitted to it pursuant to Art. 37.071, supra.

In Sorola v. State, 693 S.W.2d 417, 418 (Tex.Cr.App.1985), this Court pointed out the following: “In [Ex Parte ] Bailey [626 S.W.2d 741 (Tex.Cr.App.1981) ], we held that the trial court lacks the authority, even with the consent of both parties, to dismiss the jury and assess a life sentence after a defendant has been found guilty of capital murder by that jury.” Thus, in this instance, the trial judge was not authorized to assess appellant’s punishment at life imprisonment. Furthermore, as we previously pointed out, he did not make any favorable findings to appellant.

Because the jury in this cause was erroneously discharged by the trial judge, it never rendered a completed verdict on punishment; thus, there was no final verdict in appellant’s first trial. See and compare Eads v. State, 598 S.W.2d 304 (Tex.Cr.App.1980) (Held, where the jury answered one special issue but failed to answer the other two submitted special issues, the verdict was incomplete and the trial judge was not authorized to discharge the jury and complete the jury’s verdict by in essence answering the unanswered special issues in the negative or assessing the defendant’s punishment at life imprisonment.)

Nor do we find that any of the exceptions that presently exist in our law are applicable to this cause.

One exception that presently exists in our law is where the defendant, who is a juvenile certified to stand trial as an adult for committing the offense of capital murder, has been found guilty by the jury of capital murder. In that instance, the only possible punishment that might be assessed is life imprisonment. Thus, it is permissible for the trial judge to discharge the jury and assess the defendant’s punishment at life imprisonment. See Allen v. State, 552 S.W.2d 843 (Tex.Cr.App.1977).

A second exception that exists in our law is where the defendant is on trial for capital murder and the jury finds him guilty of a lesser included offense, such as criminally negligent homicide. In that instance, the jury may be discharged by consent of the parties, and the trial judge may then assess the defendant’s punishment within the range of punishment for that offense. See Hicks v. State, 664 S.W.2d 329 (Tex.Cr.App.1984).

Statutory law provides that if this Court finds the evidence insufficient to support an affirmative answer to any submitted special issue, and the prosecuting attorney, within 15 days after the date on which the opinion of this Court is handed down, files a motion requesting that the sentence be reformed to life imprisonment, this Court shall reform the judgment to show that the defendant’s punishment is life imprisonment. See Art. 44.251, V.A.C.C.P.

Statutory law also provides that if the jury is unable to answer any of the submitted special issues, the trial judge is authorized in that instance to discharge the jury and assess the defendant’s punishment at life imprisonment. Art. 37.071(e), supra.

Therefore, because the trial judge was not authorized to assess appellant’s punishment at life imprisonment, and also because the trial judge, in assessing appellant’s punishment at life imprisonment, did not make any favorable findings to appellant, we overrule appellant’s contention that “the imposition of the life sentence by the trial [judge], even though erroneously imposed, was an implied finding of an acquittal with regard to the special issues under Art. 37.071, V.A.C.C.P.”

We also overrule appellant’s contention, as we understand it, that the District Attorney is guilty of prosecutorial vindictiveness, not because he, the District Attorney, insists on reprosecuting appellant for capital murder, but because the District Attorney, in the event the second jury finds appellant guilty of capital murder, will insist that the second jury answer the special issues that will be submitted to it.

As previously pointed out, appellant’s conviction for capital murder and his life sentence were set aside because the District Attorney, appellant’s own attorney, and the trial judge all erroneously interpreted the law to permit the jury being discharged and the trial judge to assess appellant’s punishment at life imprisonment.

It appears to us that what appellant is actually seeking is for this Court to order the District Attorney and the trial judge at the retrial, if any, to repeat the error that caused appellant’s conviction for capital murder and life sentence to be set aside in his first appeal, which reversal occurred, not at the insistence of the trial judge or the District Attorney, but because appellant appealed his conviction and life sentence and raised that issue on appeal. We decline appellant’s invitation.

We point out that neither this Court nor the court of appeals made any favorable evidentiary findings to appellant that would cause a bar to exist either to his retrial on guilt or to the submission of the special issues pursuant to Art. 37.071, supra, at the punishment stage of the trial in the event that the jury on retrial finds the appellant guilty of capital murder.

Given the circumstances of this cause, we find no prosecutorial vindictiveness. We also find that it would be ludicrous for us to hold that when a defendant gets a trial de novo, which he himself sought on appeal, and the prosecuting attorney thereafter seeks to reprosecute him for the crime for which he was convicted by a jury, and to have him punished pursuant to and in accordance with our law, and our law does not provide any bar to either event occurring, such constitutes prosecutorial misconduct.

The judgment of the court of appeals is affirmed.

MILLER and DUNCAN, JJ., concur in the result.

1 . This cause commenced when appellant filed his pretrial application for the writ of habeas corpus in the trial court pursuant to Ex parte Robinson, 641 S.W.2d 552 (Tex.Cr.App.1982) (held, a defendant may raise and appeal pretrial a double jeopardy claim).

2 . Appellant does not assert that the State may not retry him for capital murder. As we understand his contention, it is that in the event of retrial and reconviction for capital murder, his punishment should be automatically fixed at life imprisonment.

3 . Art. 35.25, supra, provides: "In non-capital cases and in capital cases in which the State’s attorney has announced that he will not qualify the jury for or seek the death penalty, the party desiring to challenge any juror peremptorily shall strike the name of such juror from the list furnished him by the clerk.” Also see Art. 1.14, V.A.C.C.P., prior to amendment, that required the State, in the event it was going to seek the death penalty, to file written notice to this effect, and Smith v. State, 455 S.W.2d 748, 752-753 (Tex.Cr.App.1970), which held that under the then statute, "when the State has failed to give the prescribed written notice as required by Article 1.14, supra, that it will seek the death penalty, or has withdrawn such notice, already given, and announces ready and goes to trial before a jury, such action is tantamount to making it known to the court that the State will not qualify the jury on, or seek the death penalty. ...” Also see Clardy v. State, 436 S.W.2d 535 (Tex.Cr.App.1969); and Elliott v. State, 412 S.W. 2d 320 (Tex.Cr.App.1967). The Legislature subsequently deleted this requirement from Art. 1.14, supra.