Hill, Ex Parte Anthony

PD-0915-15 PD-0915-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 7/17/2015 5:16:18 PM Accepted 7/22/2015 3:48:12 PM IN TI]E ABEL ACOSTA CLERK COURT OF CIIIMINAI- APPEAI,S OF TEXAS

ANTI.IONY IÌILL, $ APPELI,ANT s s V" s No. s s THN STATE OF ]'EXAS, s APPELI,EE $

sss

APPELLANT'S PETITION F'OII DISCRETIONARY IìEVIEW

$s$

MICHAEL LOGAN WARE 300 Burnett Street Suitc 160 Fort Worth, TX 76102 July 22, 2015 Telephone: 817/ 338 - 4100 Telecopier: 817i 698- 0000 Texas Statc Bar Number:20864200

ATTOIìNEY FOII APPIì,LLANT'

IDIINTITIES OF PAIITIIìS AND COUNSEL Appellant: Anthony lJill

lì.e¡rrcsented by: Michael Logan Ware (on pletlial wlit of habeas cor.pus and on appeal) Terri Moole (on pretrial writ of habeas colpus and on appeal 300 Bulnett Stl'eet Suire 160 l-ort Vy'orth, TX76102

A¡rpellee: 1-he State of Texas Re¡rresented by: Susan Hawk, Criminal Disn"ict Attorney

Chris Plyor', Assi.stant l)istrict AÍtorney (on writ of habeas colpus)

Brian P. Higginbotharn, Assistant District Attolney (on appeal)

Dallas County District Attorney's Office 133 North Riverflont Boulevard LB-19 l)allas, 'fX 7 5207 -4399

Trial Judge: The l{onorable Brandon Birminghani Presiding Judge 292nd Judicial Distlict Couú Dallas County, Texas

The IJonolable Lan'y Mitchell .Tudge who plesided ovel'the Writ of lJabeas Corpus 292nd Judicial District Dallas County, Iexas

u

TAI}LE OF CONTENTS PAGE

lNDllXOFAUlllORlTllìS.. .... iv

STATEMENT REGARDING ORAL ARGUMENT . .

STATEMI]NT OF- I-I-IE CASI]

STATEMENTOFPROCEDURALHISTORY ........,.. 2

GROUNDSANDREASONSFORREVIEW .......3 ARGUMENT SUPPORTING GROI]NDS AND REASONS FORREVIEW .........9 PRAYERFORRELIEF ......... 20

CERTIFICA"I]] OF COMPLIANCE. . ..... 2I

CERTIFICATE OF SERVICE .. .. 22

COURT OF APPEALS' OPINION (May 20,20t5). ... . APPENDIX A

COURT OF APPEALS ORDER DENYING MOTION I.-OR REHEARING (June 17,2015.. . . .. APPENDIXB

ul

INÐEX OIéUT:IIAßIT]ES Cases Abneyv. UnitedStates,43 1U.S.651 (1977) ....... 11 Aekins v. Srate, 447 S.W.3d 270 (Tex.Cr.im .App. 2014) .... . 10 Ashe v. Swenson,397 U.S. 436 (1970) . . 16-17 Bigonv. State,252 S.W.3d 360 (Tex.Cr.im.App.1970) ... ... 13 Blockburger v. United States, 284 U.S. 299 (1932) .. . 3,1-8,13,15,17-19 Brownv. Ohio,432 U.S. 161 (1977) . .. . 13-17 Cooper v. State,430 S.W.3d 426 (Tex.Crirn.App. 2014) .... . 13 Diaz v. United States,223 U.S. 442 (1912) 2,6-7,15-16 Ex ¡tarfe Amador,326 S.W.3d 202 (Tex.Crirn.App. 2010) ......... . 14 Ex parte Carle,369 S.V/.3d 879 (Tex.Clirn .App.2012) .... . 13 Ex parte Chaddock,369 S.W.3d 880 (Tex.Crirn.App. 2012) . . . . . 9,18-19 Ex Parte lIill, 2015 Tex.App.l-EXIS 5 1 32 (Tex.App.Dallas May 20,2015) ... . 2 Graves v. State,539 S.W.2d 890 (Tex.Crirn .App. 1976) .... . 17 Green v. Uniled States,355 U.S. 184 (1951) .... . 9,11 I.ittrellv. SÍate.,271 S.W.3d 273 (Tex.Cr.in,.App.2008) ..... 13 North Carr¡linav. Pearce,3gs U.S.711 (1969) 10,16 17 Price v. State,434 S.V/.3d 601 (Tex.Cr.irn .App.2014) ..... . l3 Shelby v. State, 448 S.W.3d (Tex.Clim.App. 2014) ........ . 13

Tibbsv.Florida,457U.S.31(1982) .......9 I4thalenv.UniledStates,,294U.S.299,304(1932) . ........ 14

Codes and Articles

U.S.Constitution,FifthAmendment .. "....9 TexasRules ofAppellatePlocedureRule66.3(a),(b), &(c). .. .. .. . 4-8

TexasPenalCode$1.07(46)...,. ........16 DoubleJeopaldy:UnravelingaGordianKnot(2013) ....... 17

STATEMENT IìEGARDING OR 'l-his case involves cor.nplex issues ol'làct and law.'ì'he undersigned counsel believes

this Court's understanding of the relevant factual and legal issues could be substanlially enhanced by oral argurnent. Appellant requests oral argument

STATEMENT OF THE CASE

Appellant and his co-defendant wele each indicted for the aggravated lobbely of Ryarr Lusk, which was alleged to have occurred on ol' about March 18, 2012. The indictrnent, filed April 25,2012, alleged that Appellant had shot Ryan Lusk with a firearm causing serious bodily injury, during the coul'se of comlnitting theft of property.

Ayear later, on April 4,2013, Appellant, on the advice of his then counsel, waived a jury and pled guilty to the coult. On May 17 ,2013 and June 21, 2013, the trial court heard punishment evidence. On June 21,2013, the tlial cou¡t found Appellant guilty of agglavated robbery as alleged, which included shooting Ryan l-usk with a fireann, causing him selious bodily injury. The trial cour1 assessed a sentence of 45 years in plison. Judgment was entered June 24, 2013.

On Novernber 19, 2013,, five months after Appellant was convicted and sentenced, Ryan Lusk died, allegedly due, at least in sorne part, to the gunshot wound sustained on ol about March 18, 2012. Appellant was then indicted (filed Decernber 30, 2013) for tlre capital lnul'der of lìyar.r Lusk, "by shooting thc deceased with a fit'eat'rn, and the defendant was theli and there in the course o1'committirrg. . . r'obbely of said deceased."

Appellant filed a pre-tlial writ of habeas corpus alleging that a successive pt'osecution, oonviction, and punishrnent for the grealer ol'lense ofcapital murder a1ler having been ah'eady finally convicted ofand sentenced for the lesser'-included offense ofagglavated lobbery, would violate the doublejeopardy protections guatanteed by the United States and Texas Constitutions. The trial court agreed and by court order. dated Decelnber 29,2014, barred fulther prosecution under the capital rnurder. indictnrent fi led Decen.rber 30, 2013.

The State appealed to the Dallas Court of Appeals.

STATDMENT OF PROCEDURAL HISTORY

In a published opinion, handed down on May 20,2015, the coult of appeals leversedtlretrial court, ExParteHill,20l5 Tex.App.LEXlS 5132(Tex.App.Dallas May 20,2015). 1'he Coult of Appeals held that Appellant could be prosecuted, convicted, and punished fol the greater offense ofcapital murder, even after.having beeu convicted of and sentenced for, the lesser,included offense of aggravated lobbely, because of a purpolted exception to double jeopaldy plotection cleated by the United States Suprerne Coult in Diaz v. United States,223 U.S. 442 (1912). The Cor-rft of Alrpeals held that neìther Blockburger v. United States,284 U.S. 299 ( I932) nor legislative intent was eitl.rer controlling or even l.rad any real application to this case.

Appellant's tirnely Motion fol Rchearing was denied on June 17 , 2015. This petition was then filed with the Clerk of the Coult of Clirninal Appeals within thirty (30) days aftel such lhnal luling, to wit on July 17,2015.

GROUNDS FOIì REVIEW

GROUND FOR REVIEW NO. 1

THE COURT OF APPEALS ERRED IN HOLDING THAT THE DOUBLE JEOPARDY CLAUSE OF THE UNITED STATES CONSTITUTION PERMITS THE STATE TO CONVICI'A Dì]FENDANT OF BOTH A I-ESSER INCLUDED AND A GREATER OÞ-FENSE IN SUCCESSIVE PROSECUTIONS, REGARDLES S OF LEGISLATIVE INTENT.

REASONS FOR REVIEV/

In holding that the double jeopardy clause of the United States Constitution per'rnits the state to convict a defendant ofboth a lesser included and a greatel offense in successive prosecutior.rs, even when there is no legislative intent to pennit it, the coult of appeals made a decision that conflicts with the applicable decisions of the Couft of Climinal Appeals, the United States Supleme Court, and othel courts of appeal on the same issue. In the altelnative, the coult ofappeals decided an irnportant question of'state and federal law that has not been, but should be settled by the Courl o1' Climinal Appeals. $_eç, Iìule 66. 3 (a),(b), & (c), T.R.A.P.

GROUND FOR REVIEW NO.2

TIIE COUIìT Oþ' APPEAI-S ERRED IN HOLDING '|HAT THE DOUBLE JEOPARDY CLAUSE OF TIJE UNITED STATES CONSTITUTION PERMITS TI-IE STATE TO IMPOSE MULTIPLE PUNISHMENTS ON A DEFENDANT FOR BOTH A LESSER,INCLUDED AND A GREATER OIììENSE IN SUCCËSSIVts PIìOSECUTIONS, RÌ]GARDLESS OF I-EGISLATìVE INTtrNT.

REASONS FORREVIEW

In holding that the double jeopardy clause of the United States Constitution permits the state to irnpose rnultiple punishrnents on a defendant for both a lesser-included and greater offense in successive prosecutions, even when thel'e is no legislative intent to perrnit it, the court of appeals made a decision that conflicts with the applicable decisions ofthe Courl of Criminal Appeals, the United States Supreme Court, and other courts of appeal on the same issue. ln the alternative, the court of appeals decided an irnpodant question of state and l"edelal law that has not been, but should be settled by the Courl of Criminal Appeals. See, Iìule 66.3(a),(b), &. (c),

T.R.A.P.

GROUND F'OIì RIìVInW NO.3 .TI]E COURT OF APPEALS ERIìED IN HOLDING TI IA'1' CI]ARGING AND TRYING A DI]FENDANT I]OR THB OIìIENSE OI.- CAPITAL MURD]]Iì, AFTER TI]E DEFHNDAN]' IIAS ALREADY BEI]N FINALI-Y CONVICT'Ëì) AND SENTENCED FOIì THE LESSI]R INCLUD]]D

oFtìllNSE (AGGRAVA'IED ROBBÌ]RY) OF TIIAT SAMII ALLIIGED ..CAPITAI- MT]RDER'" DOI]S NOl'VIOI-ATE TI-IE DOUI]LE J]]OPARDY PROVISION OF TI-IE TJNITED S]]AI'ËS CONSI]TU'TION.

REASONS I]OR REVIEV/

In holding that charging and trying a defendant for capital mulder., after.the defendant has already been finally convicted and sentenced for the lesser included offense (aggravated robbely) ofthat same alleged "capital r.nuLdeL", does not violate the doublejeopaldy plovision ofthe United States Constitution, the court ofappeals made a decision that conflicts with the applicable decisions of the Coul't of Crirninal Appeals, the United States Supreme Court, and othel' coults of appeal on the same issue. ln the alternative, the court ofappeals decided an irnportant question of state and fedel'al law that has not been, but should be settled by the Court of Criminal Appeals. See, Rule 66.3(a),(b), & (c), T.R.A.P.

GROUND FOR RDVIEW NO. 4

THE COURT OF APPEALS ERRED IN HOLDING THAT PUNISHING/SENTENCING A DEFENDANT Þ-OR CAPITAL MURDER AFTER THE Dì]FENDANT IJAS ALREADY BEEN FINALLY CONVICTED AND SENTENCED FOR THE LESSER INCLUDED OFFENSE (AGGRAVAIED ROBBERY) O}'TI]AT SAME ALLEGED ..CAPITAL MIJRDER'" DOES NOT VIOLATETHE DOUBLE JEOPARDY PROVISION OF TIIE UNITED SI'ATES CONSTITIJTION.

IìEAS ON S ìlOR IììrVlEV/

In holding that punishing/sentencing a defendant fol capital murdel'after the delèndant has ah'eady been linally cclnvicted and sentenced fol'the lessel includecl offense (aggravated robber'y) of that same alleged "capital ruur.der", does not violate the double jeopardy plovision of the United States Constitution, the cour.t of appeals made a decision that conflicts with the applicable decisions of the Coud of Crirninal Appeals, the United States Suprerne Court, and other cour.ts of appeal on the same issue. In the altemative, the coult of appeals deoided an important question of state and federal law that has not been, but should be settled by the Courl of Crirninal Appeals. See, Rule 66.3(a),(b), & (c), T.R.A.P.

GROUND FOR REVIEW NO. 5

]-I-IE COURT OF APPEAI,S ERRED IN HOLDING 'IHA'T' DIAZ V. L]NITED STATES,223 U.5.442 (19t2), rS GOOD LAW AND CREATED A CARTE BLANCIIE EXCEPTION TO THE DOUBLE JEOPARDY PROTECTION OTHEIì.WISE PROVIDED BY THE UNITED STATES CONSTITUTION.

REASONS FORREVIEW

In holding thatDiaz v. United States,223 U.S. 442 (1912), is still good law and creating a cal'te blanche exception to the double jeopar.dy protection otherwise provided by the United States Constitution, the coult ofappeals made a decision that conflicts with the applicable decisions of the Court of Criminal Appeals, the United States Supreme Couft, and other courts of appeal on the same issue. ln the alternative, the court ofappeals decided an irlporlant question of state and fedel'al law that has not been, but should be settled by the Coult of Cliruinal ,Appeals. See, ltule 66.3(a),(b), & (c), T.R.A.P. GROUND IIOIì IIEVIDW NO. 6

THE COURT OF APPEALS ERRED IN Ì.IOLDING THAT ANY EXCEPTION TO DOTJBLE JEOPARDY PROTECTION CIìEA'|ED BY D|AZ V. UNITED STATES,223 U.S. 442 (1912), APPLIES TO THU CASE- AT-BAR.

REASONS FOR REVIEW

ln holding that any exception to double jeopat'dy protection cl'eated by Diaz v. United States,,223 U.S. 442 (1912), applies to the case-at-bar', the court of appeals tnade a decision that conflicts with the applicable decisions of the Court of Clirninal Appeals, the United States Suprerne Court, and other courts of appeal on the same issue. In the altelnative, the coult of appeals decided an important question of state and federal law that has not been, but should be settled by the Courl of Criminal Appeals. See, Rule 66.3(a),(b), & (c), T.R.A.P.

GROUND FOR REVTEW NO. 7

THE COT]]I]' OF APPEALS ERRED IN HOI-DING THAT ]-HE *BLOCKBU]IG¿,¿ì", SAME OFFENSE TEST, DOES NOT APPLY TO SIJCCESSIVE PIìOStsCUTIONS, DOUBLE JEOPARDY ANALYSIS ìN THE CASE-AT-BAR.

Iì]]AS ONS IìOR R]]VII]W

In holding that the "Blockburger, sarne offense test, does not apply to

successive prosecutions, double jeopardy analysis in the case-at-bar, thc cor-u't of appeals urade a decision that conflicts with the applicable decisions of the coufi of

crirninal Appeals, the united States Supleme court, and other courts of appeal or.r tl, e

saure issue. In the alternative, the courl ofappeals decided an irnportant question of state and federal law that has not been, but should be settled by the Court of Crirninal

Appeals. See, Rule 6ó.3(a),(b), & (c), T.R.A.P. GIìOUND FOR REVIEW NO. 8

TIIE COURT OF APPEALS ERRED IN HOLDING THAT 'fHE "BLOCKBURGER'1 SAME OFFENSE TEST, DOES NOT APPLY TO MULTIPLE PUNISIIMENT, DOUBLE JEOPARDY ANALYSIS IN TIIì] CASE-AT-BAR.

REASONS FOR REVIEW

In holding thafthe "Blockburger" , same offense test, does not apply to multiple punishrnent, doublejeopaldy, analysis in the case-at-bar, the court ofappeals rnade a decision that conflicts with the applicable decisions of the coul't of climinal Appeals, the United States Supreme Court, and othel.cour.ts of appeal on the salne issue. In the altelnative, the court ofappeals decided an irnpottant question of state and fedelal law tl.rat has not been, but should be settled by the coult of climinal Appeals. See, Rule 66.3(a),(b), & (c), T.R.A.P. ARGUMENT SUPPOIìTING GIì.OUNDS ÄND IìEASONS FOIì REVIEW 1-8

The double jeopardy clause of the lifth amendment to the Ullited States Constitutior.r, protects the individual against the abusive governrnent "evils attendanl

upon successive prosecutions, namely the 'embarrassment, expense, and ordeal' of t'epetitive trials, 'compelling fthe accused] to live in a continuing state of anxiety and

insecurity' and creating 'a risk of conviction through sheel governrnent pe1'severance."' Ex parte Chaddock, 369 S.V/.3d 880, 886 (Tex.Crirn.App. 2012)(quoting,Greenv. United States,355 U.S. 184 (1957),Tibbs v. Florida,45l u.s. 31 (1e82)).

The government's plosecutorial powel and discretion to charge a citizen with a crirninal offense is ahnost unlimited. The government is, likewise virlually unaccountable for its chalging decisions. Although a grand jury indicted Appellant, at the time the capital tnurdeL case was plesented to the grand jury, Appellant had "resolved" his case through a plea ofguilty and had begun serving his forty-f,rve year. sentence for aggravated robbely. Appellant had no reason to know that the case was again being presented to the gland jury, this time as a capital rnulder', which canies the possibility of tl're death penalty, and had no reason to know he still needed counsel. Appe llant was the¡efole not l'epresented by counsel when the grand jury met with the plosecutor and voted to indict fol capital mul'der. Any algurnent that l'epresentatiorl by counsel would probably not have made a dil'l'elence would be, to sonlc extent, an acknowledgment of the govemrnent's virlually unlirnited power and discretion to charge (in this case capital ururder', the most selious existent offense under Texas law), and what little mitigating effect the grand july really has on that power and discletion.

Likewise, the government has vast resources to pursue convictions, once they have charged a citizen. The governrnent is generally ready and willing to expend vast l'esources in pursuit of convictions and sevele sentences in "big cases", such as a capital murder case. Of coul'se, once the state obtains a conviction in a capital murder' case, the only possible punishments are death or life without the possibility ofparole. In this case, either punishrnent would necessarily be cumulative of the 45 years agglavated tirne Appellant began serving in2013.

h"t North Carolina v. Pearce,,395 U.S. 7ll (1969), the Supreme Court stated that the guarantee against double jeopaldy consists of three separate constitutional protections:

first, it plotects againsl a second prosecution fol the same offense after acquittal; second, it protects against a second prosecution for the same offense aftel' colrviction; and tliird, it protects against rnultiple punishments fol' the same offense.

Aekins v. State,447 S.W.3d 270,274 ('l'ex.Criur.App. 2014xcitine, Pearce af 717).

The case-at-bal' involves both impeltnissible successive plosecution, and irnpennissible multiple punisl.urent issues.

ln Abney v. United States, 431 U.S. 65 I (1977), the Supr.eme Court emphasized:

the Double Jeopardy Clause protects an individual against more than being subjected to double punishments. It is a gualantee against being twice put to trial on the sarne offense [d. at pp. ó60-661]. . . the guarantee against double jeopaldy assures an individual that, arnong other things, he will not be forced, with certain exceptions, to endule the pelsonal strain, public embarrassrnent, and expense of a criminal tl.ial tnore than once for the same offense. lt thus protects interests wholly untelated to the plopriety of any subsequenl conviction. Mr'. Justice Black aptly desclibed the purpose ofthe clause:

"The underlying idea, one deeply inglain ingtained in at least the Anglo-Arnelicân system of julisprudence, is that the state with all its resources and power should not be allowed to make repeated attempts to convict ar.r individual fol an alleged offense, theleby subjecting hirn to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he rnay be found guilty." Green v. Uníted States,335 U.S. 184, 187-188.

Id. at 661-662.

The doublejeopardy clauses in the United States and Texas Constitutions ale, leal istically, the oniy checks on the govelnrnent's power to both cr.irninally charge and to pul'sue criminal convictions and punishnrcnts against its citizens once they ar-e chalged. In its opinion below, the Court of Appeals purports to seize on yet another

il

"exception" to a citizen's doublejeopaldy lights and lieleby ernpower the governnlent even furtlier ir.r its charging decisions.

In the case-at-bar', Appellant was convicted and sentenced to 45 years iu pr.isou for agglavated robbery. The indictment was filed on Aplil 25,2012 and r.eads, in perlinent parl, as lollows:

On or about the 18'r'day of March A.D. 2Ol2 . .. intentionally and knowingly, while in the course of comrnitting theft of pl'opelty . . . cause selious bodily injuly to another Ryan Lusk . . . by shooting Cornplair.rant withafir'earm...

Appellant was convicted and sentenced on June 21, 2013.

On November 19,2013, Ryan Lusk died, allegedly due, at least in part, to the gunshot would he had sustained twenty rnonths earlier on March 18,2012.1

In an indictrnent filed on Decernber 3 0, 20 1 3, Appellant who had begun serving his forly-five year sentence and who had no legal counsel and no reason to believe he needed furthel legal counsel, was indicted fol capital rnurder, in pertinent pal-t, as follows:

On or about the 18tr'day of Malch A .D.,2012. . . intentionally cause the death of Ryan Lusk . . . by shooting the deceased with a firearrn, and the defendant was then and thele in the course of comruitting . . . robbery of said deceased.

¡11 is worth noting that the statutory definition ol'"serious bodily injury" includes, "bodily irrjury . . .1hat causes death. . ." T.P.C. g 1.07(46).

The State concedes that undel a long line of lJnited States Suprerre Coult and Texas Court o1'Climinal Âppeals cases, tl.rat the State is atternpting to couvict and punish Appellee in a subsequent prosecution fol the salne offense (capital n.rulder'), aftel convicting and punishing him fol the lesser-included offense of agglavated robbery. In fact, undel any analysis, one offense (aggravated lobber'y) is the lesset' included of and, therefore, fol double jeopardy purposes, the sarne offunse as, the other'(capital rnulder). See. e.g.. ßlockburger v. United States,284 U.S. 299 (1932); Brown v. Ohio,432U.5.161 (1977); Bigon v. State,252 S.W.3d 360 (Tex.Cr.im. App. 2008);Cooperv. State,430 S.W.3d 426 (Tex.Crim.App. 2014); Littrel.l.v. State,271 S.W.3d 273 (Tex.Crirn.App. 2008); Shelby v. State,448 S.W.3d ('l'ex.Crim.App. 2014); Ex Parte Carle,369 S.W.3d 879 (Tex.Crirn.App.2012).

The t'ial court, the court of appeals, and even the State aglee with Appellant that the offense for which Appellant was convicted and sentenced is a lesser included offense ofthe new, alleged capital muldel'and thatthey are the "same offenses" under a"Blockburger" analysis. All appeal to also agree that there is no legislative intent to punish both statutory offenses when, as here, they arise flom the sarne transaction. See, Price v. SÍate,434 S.W.3d 601 (Tex.Clirn.App.20l4). In fact, i1 would seern patently absul'd to irlrpose both a death sentence and a telln of yeals, to run cousecutive to the death sentence, all fol'the identical conduct.

l3

l-ikewise, the court of appeals acknowledged as follows:

When two o1'fenses arise undel different statutes, the two offenses are consideled the saure offense fol purposes of applying tl.re double jeopardy prohibition if all the statutory elelnents are included within the statutoly elements of the other offense. Se e þl4talen v. Uníted States,294 U.5.299,304 (1932). Thus the state nlay not convict a defendant for an offense when the defendant has been convicted already of a lesser- included offense arising fi'om the same event. Brown,432lJ.S. al 161, Ex parte Amador,326 S.W.3d 202,204 (Tex.Crirn.App. 2010).

Slip Op. Below at 3.

The Coult below and the State both concede that this case rneets the Blockburger test. Id.

The courl ofappeals, however, then disrnissed the long standing"Blockburger" rule and analysis as a mere "general ploposition" and one which has absolutely no relevance or applicability to the case-at-bar'. "In all of IIill's autholities fincluding Blockburger], however, the greater and lesser offenses were colnpleted and available as potential charges at the tirne of defendant's tlial." Slip Op. below at 4.

While that rnuch is technically true, neither did any of the cases r'elied on by Appellant "Hill", including Blockburger, oither explicitly ol irnplicitly, lirnit their' (sornetimes extensive) analysis ol application of the fifth amendment's double jeopaldy clause to exclude the situation in the case-at-bar, as the coult of appeals seelned to imply.

ln deternrining tl.re ir.rapp li cab ìlity of Blockburger,the courtbelow relied allnosl exclusively on Diqz v. United Slates,223 U.S. 442 (1912), a case (out of the Philippine lslands) decided twenty years before Bl.ockbzzrger. Cases since Blockburger have acknowledged the theoretical possibility of an exception cl'eated by Diaz that survives Blockburger."Anexception rnay exist whele the State is unable toproceedonthernoreseriouschargeattheoutset..."Brownv.Ohi.o,432U.S.16l , I69&n.7(1977).

In Diaz, the defendant was tried and convicted in a Justice of the Peace Coult, in {he Philippines for assault and battely. He was lined. The cornplainant died a sholt time later as a result of the injulies suffered in the assault and the defendant was charged in a l.righer court with homicide. He pled jeopardy and lost. In upholding the denial ofhis doublejeopardy plea, the United States Suprerne Court stated:

... undel'the Philippine law, thejustice ofthe peace, although possessed ofjurisdiction to try the accused fol assault and battery, was without julisdiction to try hirn for lT omicide; and, ofcoulse, thejeopardy incident to the trial before the justice did not extend to an offense beyond his julisdiction. All that could be claimed fol that jeopaldy was that it proteoted the accused from being again plosecuted fol the assault and battery, and therefore required tl.rat the lattel be not tl'eated as included, as a lesse¡ offense, in the chalge of hotnicide, as otherwise rnight have been done witli Phii. Comp. Stat. $3284.

Diaz at 449.

In othel wol'ds, unlike the case-at-bar,ln Diaz, the first court of conviction (a

I5 Justice of the Peace Coult), had r.ro julisdiction over'homicide cases, "and, of course, the.jeopaldy ir.rcident to the trial before tl.re.justice diil not extend to an offense beyond his julisdiction." Id. That leasonir.rg has no application to the case-at-bar wl.rere the same couú has jurisdiction over both offenses and Diaz is distinguisl.rable for that reason-

The Diaz opinion does state that "[t]he death of the injuled person was the principal elernent of the homicide, but was no part of the assault and battely. At the tilre ofthe trial fol the latter the death had not ensued, and not until it did ensue was the honricide comrnitted." Diaz at 251 .

Again, the case-at-bar is distinguishable in that Appellee was convicted of inter.rtionally and knowingly causing the victim "seLious bodily injuly" by shooting hirn with a firearm during a robbery. Under Texas law, the statutoly definition of "selious bodily injuly" includes "bodily injury . . . that causes death . . ." T.P.C. $1.07(46)(emphasis supplied). Therefore, unlike Díaz, and unlike any case rel'erencing Diaz with approval, the Appellee has ah'eady been convicted of and punished for causing "sel'ious bodily injuly", which includes a bodil), injury "that causes dcath." 'l'he facl that lhc victirn has rrow died, allegedly t'ont tltat bodily in july adds nothir.rg to the elements for which Appellee has been ah'eady convicted and punished when he was convicted and punished fol causing "serious bodily ir¡ury".

t6 A subsequerrt plosecutiol-r would be a violation eveu undel the reas oning of Diaz, and tlre leasoning of any case citing Diaz with apploval.

F'inally, it is not cleal whether Diaz is even still good law. The cases that ale rnost cited as establishing double jeopaldy julispludence and legal analysis, for' exarnple, Rlockburger v. United States,284 U.S. 299 (1932); North Carolina v. Pearce,395 U.S. 711 (1969);Ashev. Swenson.,397 U.S. a36Q970);Brownv. Ohio, 432 U.S. 161 (1977), all were decided well after Diaz and Diaz has never been scrutinized under the tests and standards established by these cases fol violations of double.jeopaldy. Although Di.azhas never been explessly overluled and some cases rnake l'efelence to it in dicta, no Supreme Court case relies on it in reaching a decision. Even a lecent arlicle on the Texas District & County Attot'neys Association website questions whethel the Dí.az is good law. "l)oes this case survive the Blockburger test?" It resolves this question with a less than resounding endolsement, "[i]t hasn't been expressly overruled . . . You may want to keep Diaz handy." Stride, "Double Jeopardy: Unlaveling a Gol'dian Knot" (2013). w,.rvw.tdcaa.com.

The Coul't below also lelied heavily on Graves v. State, 539 S.V/.2d 890 (Tex.Clirn.App. 1976), whicli cites Diaz in allowing a second plosecution for iuvoluntary manslaughter aftel his conviction for driving while intoxicated. 'lhat case is likewise distinguishable because as Judges Odom and Douglas point out in their

1l

concurl'it'tg opinions, unlike the case-at-bar, driving rvhile intoxicated is not a lesser included offense of involuntary manslaughter and the defendant's doublejeopardy argument does not lneet the lllockburger lesl ld. Graves is, therefole, clearly distinguishable.

Oddly, in its decision below, the couú of appeals seeured to both acknowledge the possibility that rnultiple punishments under these circumstances would violate doublejeopaldy and, yet, remain seemingly unconcerned about that constitutional violation. "Moreover', even if the cornplainant had died immediately and Hill was chalged and convicted of both offenses at the same tirne in violation of his double jeopaldy rights, the proper resolution in such cases is to vacate the conviction and punishrnent fol the lesser-included offense and leave intacl the conviction and punishrnent for the gleater offense." Slip Op. Below at pp. 7-8 (citation ornitted).

First, the plotection the double jeopardy clause provides against successive prosecutions is at least as bload and as strong as the protection it provides against rTrultiple punishments. "Multiple punishments that result fi'orn a single prosecution do not subject a defendant to the evils attendant upon successive prosecutions." -Ex parte Chaddoclc,369 S.W.3d 886 (Tex.Crirn.App. 2012). Ilow could it, ther.r, be a

violation of double jeopardy to punish for both offenses if tried together., but not if tt'ied successively? Pafliculally when successive tlials were not the choice of the

delèndant. 01'course, both successive ploseoutions ancl rnultiple punishments are at play in the case-at-bar'.

Second, the remedy inragined by lfie courl ofappeals ofvacating the conviction ancl sentence fol the agglavated robbel'y once Appellant is convicted ancl either sentenced to death ol Iilb rvithout the possibility of parole on the capital murder.,

would not be availabÌe here, and would be utter.ly meaningless at that point, even if it wele available.

Finally, the absuld and abjeotly unfàir results the rule announced by the cour"t below could lead to are unlin,ited. Þ-or exanrple, there is no statute o1l limitations on capital murder. A deatli that occul'r'ed years, even decades aftel a <lefendant had been convicted ofa fir'st degree assaultive felony and involving the identicaÌ conduct for which the defendant had already served decades in plison, could be r.epr.osecutecl as a rnurder oI. capital murder. Any sentence pul'suant to a l-ìew oonviotion would star.t over. Likewise, under the rule announced by the coult below, a defendant could ser.ve decades fol an attempted ururder and then get a stacked life senterìce for.rnurder.if the injuled pal'ty latel'died. clearly, if the governrnent could be trusted not to abuse its almost uniil¡ited powel to charge, thele would be no need for the clouble jeoparcly clause.

It is true that with all of its powel to charge, the govelnrnent still cannot char.ge

I9 a cilizeD with an offense that does not yet exist, that is simply r.eality. It is also true, however, that â citizen has the constitutional light, once cor.rvicteci and, in this case, halshly sentenced, to be free of the abusive govelnment "evils attendant upon successive plosecutions, narnely the 'embanasstnent, expense, and orcleal, of repetitive tlials, 'compelling [the accused] to live in a continuing state ofanxiety and insecurity' and creating a lisk ofconviction thlough sheel' governlllent preservance.',, Expartechaddock,369s.v/.3d atsS6,supra.Inlesolvingthisissuebydiscounting the seminal double jeopardy case, Blockburger, and ploviding the gover.nment even

rnore charging power at the expense of an irnpo|tant constitution light, the court of appeals reached the wrong decision. The trialjudge got i1 right.

PIIAYER FOII RELIEF

The two offenses are the sane for jeopar.dy pul-poses. Both successive prosecutions and rnultiple punishments are prohibited. The trial court's ruling should be afhlmed and the court of appeals opinion should be reversed.

z0

LAW OFFICES OF MICI{AEL LOGAN WARE 300 Bun.rett Street Suite 160 Fort Wor1h, Texas 16102 Telephone: (817) 338-4100 Telecopier: (817) 698-0000 Wa reúd¡uikew¡re.!e¡¡_,çq¡u

2t t,,¡". / .'¡-, ,, , ',/ MICIIAEL L-õÃÑTARE_ State Bar No. 20864200

ATTORNEY FOR APPELLANI-

CERTIFICATII OF COMPLIANCE

The undersigned certifies this petition complies with Texas Rules of Appellate Procedure 9.40X3).

1. This Petition contains 4,098 words prepared using Vy'ordPerfect and lelying on WordPerfect for the word count.

CEIìTIFICATE OF SERVICE

I heleby certify that on July 17,2015, a true copy ofthìs document has been served ou lJlian P. I{igginbotharn, Assistant Distlict Attorney, 133 N. Rivelfi'ont Boulevard, LBl9, Dallas, "I'exas75207 and by email to brian'hi@rg and Lisa McMinn, State Plosecuting Attorney, P.O. llox 1304ó, Capitol Station, Austin, TX 78701

'',/ / -'t I / y'.../t ¿.. í,y: MICHAEL T-OGAN V/ARE

APPENDIX A

Court of Appeals Opinion dated May 20,2015)

l:I t] co])\' CnÌ¡l)lusl()l l_ts^ Mi\1.2 aì^t{ot-\,N NRìcjff Ct-lilìx Ol: lrrt C:OURl' (2t4t1t2-1450 luslrc¡ts rhccìcrk(al5llì.txcourls. gov D^\,rD L. lì¡lrDclts MoL¡-Y IrrÌ^Ncts G^\,t_! IlL,À¡p^ DoLlÇI.^s S. l,ANc IlusìNuss tN ¡s ìt¡/.11)lt llt-tz^ìlu J L^NGMltRs (2t4)^DM 7t2-3434 RoDDIU M. ¡'t.'-l\{onD l-^N,\ MY¡tRs ([ourt of Øppe nlø gâyÌo hunUfl (¿Slh.txcourts.gov

D^\4D ll\,^Ns I:^(istM DAvrD l-cñrs fíftf.¡ þfg¡¡¡¡¡ 0f @exûd at 4¡¡[[ns (2r4) 745 - _D t083 AD^ ßROWN CR/\t(ì SroDD?\RT 600 Co¡\rM¡R(lr SrR¡]lil. Sutlr, 200 INl¡ltNUt- llr¡-r- W¡r¡1!¡r¡r-L D^ L¡-^ s. 'l'rìx^s 75202 ñww,t-xcouÌI s.co\,/51.ll L:oA, A Spx D^vù)J. Scu¡iNcK (214\ 7 12-3400

May 20,2015

Michael Wale Susan Hawk Attomey at Law Dallas County Distlict Attomey 300 Burnett Street lì'r'ank Crowley Courts Building Suite 160 133 N. Riverfront BIvd., LB l9 Ft Worth, TX76102-3428 Dallas, TX 75207 + DELIVERED VIA + E-MAIL {. DELIVEIìED VIA E-MAIL +

Telri l{arnmond Mool'e Brian lJigginbothan.r Terri Moole Assistanl District Atto[rey 300 Buniett Street, Suite 160 lìr'ank Crcwley Courts Building lì't Worth, 'îX 76102-3428 133 N. lndustrial Blvd., LBl9 * DELIVEIìED VIA E-MAìL + Dallas, l'X 7 5207 -4399 * DELIVERI]D VIA E-MAIL +

Rll: CourtofAppealsNurnber: 05-l5-00053-CIì Trial Courl Case Nuurbcr: WX l4-90030

Slyle: The State ofTexas

Anthony Ilill Please find attached the opinion that issued in tlie above cause toclay

lìespectfully,

/s/ Ltsa Matz, Clei'k of the Coult

cc: Eìr'andon Iìiuringharn (DELI\4IRED VIA E-MAìL) F-elicia Pitle (DìiLJVEIìED VIA E-MAIL) The llonolable Maly L. Murphy Q)ELIVËlìllD VtA ìì-MAIL)

lìcvcrscd and lìcmandcrl and Opinion Filcd l\1lay 20,,2015

In l-hc (ûrrt¡rt üf AFpr¡¡IÍ ^ãfiffh Ðixtrirt rrf @ux¿¡¿r cf B¡¡llfis No. 05-15-00053-Clì

EX IAIITE ANl]IONY HÌLL

On A¡rpcal fronr thc 292nd Judicial District Court Dallas County, Texas ï'rial Court Causc No. WXl4-90030

OPINION Before Justices Francis, l.ang-Miers, and Whilehill Opinion by Justice Irrancis Anthony I'lill pleaded guilty to shooting a rnan during a robbery and was sentcnced to

folty-five years in prison. Months later, the complainanl died, allegedly fronr cornplications ol'

the gì.lnshot wotì¡id he receivcd du|ing tlie agglavated robbery. 'l'helealìer, the Slate indictecl Iìill fol capital nrurder.

Ilill filed an application for rvrit ol'habeas corpus in which he asserted, anrong othel. tlrings, violations of the double.jeopardy pr.otections al'iorded b¡, fhe tJnited States and l-exas colìstitutions.' Specifically, he algued his subscquent plosecution for capital lnurder was barr.eci by his provious oonviction fol aggravated lobbcly. Aftcr a healing, the llial courl agreed ancl barred the prosecution.

l-he State appealed, oontending the triâl court's ruling is erroneous because Ilill's case lalls under a longstânding exception to the double .icopardy bar alloi,r,ing for. a sLrbscquent prosecution on a lnore serious cllarge when additional làcts necessaly to suslain that charge have not occurred in this case, the complaiuant's death. For reasôns set oUt below, \\,e agr.ec with the Sfate. We teve¡se the lrial court's order and reurand for fuúher procccdings consistent with this opinion.

An applicant seeking habeas corpus relief must prove his or her clailn by a prepondelance 01- thc cvidence. Knidtt v. Slore, 206 S.W.3d 657, 664 (Tex. Clim. App. 2006); Ex parte Scott, I90 S.W.3d 672,673 (Tex. Crirn. App. 2006) (per culiarn). In reviewing the lrial court's order glanling habeas corpus relief, we view the facts in the Iight tnost f¿vorable to the tl'ial court's Iuling, and rve will uphold the trial court's ruliug absent an abuse ofdìscretion. See Kniatl,206 S.W.3d at 664. We afford ah'nosl total defelence to the tlial coult's delennination of the hislorical facls that the record supports. See Dx parte Peterson, ll7 S.W.3d 804, 819 (Tex. Crinr. App. 2003) (per atiant), overruled on other grounds by list parte Lewis,2l9 S.W.3d 335 (Tex. Crim. App.2007). We likewise defer to the lrial court's application of the larv to the facts if the resolution ofthe ultimalc question lurns on an evahration ofcredibility and derneanol'. S¿¿ id. llthc resoh¡tion ofthe ultimate questiorì turns on an applicalion oflegal standards, we revicw the deter'¡n inatioll de novo. S¿¿ i¿./.

The ìr'ifth Amendmcnt's Double Jeopaldy CIause plotects an accused against a second prosecufiott for the satnc offense afler acquiltal, a second plosecution for the same offense aftel. conviclion, and being sub ject to nrultiple punishments I'or'the sarne offense. U.S. CoNs'1. arrend Y;Ilrov,nv. Ohio,432 U.S. ló1, 165 (1977); Littrell v. State,271 S.W.3d 273,2?5 ('l'cx. Cr.inr. App.2008). l-he Fifth ,A,llcndrìlenl is made applicable ltr the stafes through the Due Process ClaLrse of thc lìoull.cc¡rth Amendrncnt. llenton y. lt4atyland,395 U.S. 784, 787 (1969). I'he

-..).-'Iexas Constitution's plohibilion against double .jeopaldy provides substantially identioal proteclioì'r to the Doubie Jeopaldy ClaLrse of'the Uuited Stales ConslitLrtion. .ç?¿ TuX. CoNsl'. arl. I, $ I 4 (West 2007); Ilx patr: Mitchell" 977 S.W.2d 5 7.5, 5 80 ('I'ex. Crinr. App. 1997).

\rly'hen trvo offenses aÍise under dil'ferent statutes, the two ollenscs aro considercd the same oflènse for pulposes of applying the double .ieopardy prohibition if all of thc slatutoÐ, elements of one offense are included within the statutory clements ol'thc other offense. S¿¿ I4/halen v. United States,445 U.S. 684, 693 94 (1980); Ilktckburger v. Uniled States,284 tJ.S. 299, 304 (1932). Thus, thc Statc rl'ìay not convict a defendant for an offense when tlre defe¡rdant has been convictod already ofa lesser-included offense arising fi'orn the sarìle event. Ilrotun,432 U.S. at 161; Dx parle Antador,326 S.W.3d 202,204 (Tex. Crinr. App. 201 0).

I'he indiotrnent that formed the basis o1'the aggravated robbery conviction provides that Ilill, while in the coulse ol'cornmitting theft, caused serious bodily injuly to the cornplainant by shooting him with a l'irearm. l'he indiclnlent for capital muldel alleges that while in the coulse of cornmilting or atteurpting to comrnit lobbery, Ilill caused the death of the complainant by shooting him r.vith a firearm. The State concedes the aggravated robbery is a lesser-included ofl'ense ofcapital nrurder as alleged in this case and thus satislìes lhe Blockl:urger tesf. Conrytare

'l'DX. PDNAT. CoDri ANN. 19.03(a)(2) (West Supp. 2014), u,irh TEX. PriNAr. CODU ANN. 29.03 $ S

(West 201 I ).

Because aggravated robbcry is a lesser-included offense of capital rnulder, llill contends prosecrìting hinr for capital murder exposes him to doLrble -ieopaldy because he would be bolh tried and punished twice. ìJill oites nurreLous authorities suppolting the general ploposition that a defendant n.ìay not lre convicted of both greatel and lesser o1'lènses arising liom the same cvcnt. In all ofIlill's authorifies, horvever', the greâter antl lesser olïellses were completod and

-3,.

avaifable âs potcntial ohargcs at thc tintc olthe delcntlant's tlial. 5'¿¿, c.g., Littrell,2Tl S.W.3d at274; Bigon v. State ,252 S.W.3d 360, 363 ('l-ex. CLim. App. 2008).

The State âsserts it rnay tly llill fol capital rnurder becausc an "exception may exist where the Slatc is unablc to proceed on the urore selious charge at the outset because the

adclitional facts neccssary to sustain that charge have not occurred or have Dot been discoveled despite the exelcise ofdue diligence." Ilrov,t¡,432 U.S. at169 n.7.

The United States Supreme Courl reoognized this exception to the general double jeopardy rule in Diazr llnited States,223 U.S.442 (1912). Diaz was convictecl ofassault and battery and fined aller beating and kicking the victit¡. ld. aI 444. AîÍer Diaz's convicl.ion, the victim died, and Diaz was tried and convicted of holnicide. Id. 'fhe case proceeded to the United States Suprerne Court 10 consider the application o1'the provision against doublejeopardy contained within the Philippine Civil Government Act, which govelncd adnrinislr'ation of thc Philippines where the case alose. Id. al 448. hi liolding thal Diaz was not subjected to dor¡trle .jeopardy, the Supreme Court pronounced:

'l'he death of the injured person was the principal elernent o1'the homicide, but was no pârt of the assault and battery. At the tilre ofthe trial for the latter the death had not ensued, and not until it did cnsLre was the holricide committed. Then, and not before, was it possiblo 10 put thc accused in .ieopaldy for that offen se.

Id. at 449. Irr reaching this oonclusion, the Su¡rreme CoLrrt ciled an early Tcxas case,,Iohnsoll tt. ,tt(tte, 19 'ì'ex. C1. App.453 (1885). Johnson explained the exception as fòllows:

'fhere never can be the crirne of murdel or rranslaughtel unlil the party assaultecì dies; fhese clirnes have no existeÍìce in facl or law till such death. It cannot, therefore, be said that one is lried for the same crime when he is tl ied for assault tlLring the Iife, and tried lòr'utrder ol nranslaughtcl alìer 1he death, ol'lhe injuled pany. 'l'he death ofthc assaultcd party creates a ncw crime.

John.son, I 9 l'cx. Ct. A1':tp. at 461 .

Ilill questions whelher Diaz Icntains good iarv and conte¡rds it is distinguishable fi.o¡r his casc llill lìrsl llÕ1es tl'ttrt ìt Dinz, the Su¡rlemc CoL¡rt also îound an âltelnâtivo gr.ound I'or. concluding double.jeopa|dy prolections did not apply: Diaz was not sub.iected fo doublejeopardy because fhe justice ofthe peace court thât tlied hirn for assault and ballely had no jurisdiction to

try hirn for homicide. Diaz,223 u.S. at 449. IJill contends that because ths alternative ju¡isdictional double jeopardy exception in Diaz has no application to his case, /)¿az is

d istinguishable.

In fhe ensuing cenfuly since I)ioz was decided, the united states Supreme court lias abandoned the jurisdictional double .jeopardy cxceplion described in Diaz. see llaller t,. Florida, 397 u.s. 387, 394-95 (1970) (overturning dual sovereignty exceplion to dor¡ble jeopaldy and concluding petitioner could not be tried for sarne offense in both municipal court and stâle cotrrt). The Suprettte Court, horvever', has not abancìoned the incornpletc offense ruling of Diaz at issue in lJill's case. ,s¿¿ culberson v. lllainwrighr, 453 lt.2d 1219, )zz0-21 (5th cìr. 1972) (pu cnriant)- cert. denied,407 u.s. 913 (1972) (concluding llaller had no effect on Dr¿72 rule pelnritting subsequent prosecution after victim dies and upholding manslaughter conviction against clailr of double jeopaldy prenrised on conviclion for assault obtained before victirn died). As it't ctrlberson, we soe no leason not to apply Dioz and its exception 1o double.jeopardy under. the facls of ìl ill's case.

Ilill nexl contends /)laz is disfinguishablc because under'l'exas law the phlase "serious bodily iniuly" as r¡sed in the aggravated robbe¡y statute enconìp¿ìsses itriuries that resLrll in cleath. ,S¿¿ lltx. PDNAI. CoDD ANN. { L07(46) (Wesf Supp. 2014) (defining ,,serious bodily injur.y', to include bodily iniLtry that causes dcath). l'hus, unlike Diaz, l\ll conte¡ds he has alrea{y been

punished f'or causing the complainant's death. We disaglec. At llie tinle ofI Iill's conviction for âggravatcd lolrbery, the cornplainanl was still alive. We caunot agrec l-lilÌ has been punished fol.

-5 comlllitting capital mt¡rder ì.¡ndeÌ 1l'ìe circllrrslances, and the punishmenl asscssed fol aggravated robbery has t'lo Lclevartce to tlìe question ol'rvhether a doLrble .icopaldy exccption exists iu this case.

Irinally, lìill questions the continued validity of Diaz in light of rnore recent cases. llill points ôut that the cases

most cited as establishing double jeopaldy jurisprudence and legal analysis, for cxanrple, BÌockburger v. Uniter.l Starets,284 U.S. 299 (1932); North Carolino v. Pen'ce,395 U.S. 7ll (1969); Ashe v. Sv,enson,397 U.S. a36 (970); Brown v. Ohio,432 lJ.S. l6l (1977), all were decided well aller Diaz and Diaz never has been scrLrtiniz"ed under the tests and standards established bv these cases f'or violalions of double.leopardy.

Even rvhile applying lhe Blockburger lest, the Suprenre Court continues to recognize the double jeopardy cxception lòr incornplete or undetected crimes. 5'¿¿ lllinoi,y ¡,. I¡itale, 447 U.S. 410,420 n.8 (1980), trbrogated on other ground.s by United Staru v. Dixon,509 U.S. 688,704 (1993); Brou,n,432 U.S. at 169 n.7; Blackledge v. Perty,417 U.S. 21,29 n.7 (1974); Ashe v. Svenson,397 U.S. 436, 453 n.7 (1970) (Brennan, J., conculring); see olso Rutledge v. United ,ftates,517 U.5.292,307 n.l7 ( 1996) (declining to "explore the consequencas" of its holding on successive-prosecution st|and ofDouble Jeopardy Clause and Diaz). HtIl concedes that /)l¿z has never beett overluled but is ilcorlect in asserting that no Suprelne Coult decision has evel lelied trpon it in Icaclring a decision. For exarnple, the Suplcnrc Cor¡rt lelied on Diaz as an ahcrnalivc tcason to uphold a plosecution brought against a ¡nariiuana smugglel for conducting a continuing criminal enterpt ise even though the smuggler had been earlier convicted for a specific instance of niariiuana in'ìportaliou that was part ofthe cÌifirinal aofivity. See Gaftett v. t]nited Skrtes,4Tl u.s. 773, 79r-93 (198s).

ln addition to the Suprernc Court's Iirlited plonouncellents on lhc Dinz cxception, thc exception or).ioys lo¡rgstanding supporl in'l'exas law. See (ìrat,e,y v. State,539 S.W.2d 890, 891-92 (1'ex. Crirn, App. 1976); llill y. St(ile, 149 S.W.2d 93, 95-96 ('lex. Cr.im. App. 1941); Curri.s

-6-v. Sta(e.22 'l-ex. Cf. App. 227, 236,37, 3 S.W.86,87-88 (1886); Joltnson. l9 T'ex. Cr. App. at 461. l-ikovise, the exccpt.ion apirears well-cstablished in the dou ble jcopaldy .juris¡rr.udence ol the lower fedsral couús and thc slates. See, e.g.,llhittlese¡, v. (-r¡nroy,30l I:.3d 213,219 (4tlt Cir.2002); MitchelÌ v. Cod)t,783 lt.2d 669,671 (6th Cir. 1986); Culberson,453 lt.2d at 1220, 2l; Srare v. llilson, 335 P.2d 613, 615 (Ariz. 1959); Lott,e v. State,242 S.E.zd 582, 584 (Ga. 1978); People v. IJarrison, T0 N.E.2d 596,601 (lll. l9a6); State v. Ilenty,483 N.V/.zd 2,4 (lowa App. 1992); Stote v. Ifutchinson,942 A.2d 1289,1292-93 (N.l-I. 2008); Con¡ntonwealÍh ex rel. Papyv. Marcne¡,,207 A.2d814,816 (Pa. 1965); T'urner v. Conntonwealth, 641 S-]E.2d771, 774 (Ya. App.2007).

ln this case, I'lill was tried for agglavated lotrbery before one of the clemenls that complises his capital murder offense-narnely, the dealh of the complainant-had taken place. ìlecause the State could not have brought the capital murdcr case against Ilill a1 the time he was tlied for agglavatcd lobbely, it is not jeopardy-bared front doing so now. S¿¿ Diaz,223 lJ.S. at 44849; Graves,539 S.W.2d at 892.

ìrinally, I-lill contends that if the State is allowed to proceed and he is convicted, he will làce nrultiple punishments for thc same offènse, a result that may not occur unless the legislatur.e "has cleally expressed a contrary inlenlion that the accused should bc punished for both the glcater and lesscr-included offenses." Littrell,2T'l S.W.3d a1 276. In the case ofan individual rvho colrrnrjts a crime that encolnpasses bolh aggravated |obbery and rnurder, thele is no such Iegislative intent. Id. at 278.

As we have already explained, undel the Iinited and lale circu¡rsfances oJ'I{ill's case, fhe aggravafed lobbery and capital murder offenscs IIill rvas charged with are not 1lìe same oflense fol double.ieopardy l)urpôses. See Diaz,223 U.S. at 44849; Grn,es, 539 S.W.2d at 892. Moleover, evcn il thc oornplainanl had died immedialely and llill was charged and

--7

convicted ol'both offenses at the salt'ìe tirne in violation o1'his double_jeopaldy lights, the pr.opcr. resolution itt sL¡ch cases is to vacate lhc conviction and puuishnlelìt fol the lesse¡-included offertse and leavc inlact the conviclion and punishrnent lòr the greater offense. Id. at279-

Ilecause the trial coull's determination in this case conflicts rvith binding plecederrt from the United States Supreme Courl anci the Texas Court of Crir¡inal Appeals, we conclude the trial coult abused its discretion ìn glanting lJill reliefon his application l'or writ ofhabeas corpus. S'ee Diaz,223 U.S. at 448-49; Kni(ttt,206 S.W.3d at 664; Graves,539 S.W.2d at 892. We suslain the State's issue on appeal.

We reverse the trial court's order granting l"lill's application í'or writ of habeas corpus, and we rer¡arrd this case 1o the t'ial coLlrt for proceedings consistent with this opinion.

Publish /Moliy l'rancis/ TEX. R. APP, P. 47 MOLLY FRANCIS 150053F.P05 JUSI]CE

(luurt uf Appulx ífifth 4lixttirt rrf @trux ¡tt Сtll¿tr¡ JUDGMENT

EX PARI'LJ AN]].-IONY IJII.L On Appeal lìorr the 292nd Judicial District Court, Dallas County, Texas No. 05- I 5-00053-Clì Trial Court Cause No. 'ir'Xl4-90030. Opinion dclivclcd by Justicc Francis. Juslices Lang-Mie rs and Whitebill participating.

Based on the Court's opinion of this date, the older ofthe tlial coult granting appellce Anthony l{ill's application for writ of habeas corpus is RI,VtrRSDD and thc cause REMANDDD for fLrther proceedings.

.lrrdgrncnt cnlcled May 20, 201 5.

APPENDIX B

Courf of Appeals Order denying Appellee's Motion for Rehearing dated June 17,2015

Ordcr cnfcrcd June 17,2015

ln'I'he @ourt of Øtpeuts f íttÍ) Díßttíct ot @txus et Dslted

No. 05-15-00053-CR

EX PARTB, ANTI.IONY ITILL

On Appcal from thc 292nd Judicial District Court f)allas County, Tcxas Trial Courf Causc No. WX14-90030

ORDE]I Appellee's Motion l'ol llehearing filed on June 4,2015 is DENIED.

MOLLY FRANCIS JTJSTICE