Windom v. State

OPINION COHEN, Justice. A jury found appellant guilty of robbery. The trial judge found two enhancement para [268] graphs alleging prior aggravated robberies to be true and assessed punishment of life in prison. We must decide whether the court had power to try appellant for aggravated robbery after granting a new trial following appellant’s earlier conviction for the lesser included offense of robbery. Appellant was indicted for aggravated robbery, but the State reduced the charge to robbery in exchange for his plea of no contest and an agreed 40-year sentence. For reasons not shown on the record, the judge on the same day granted appellant’s motion for new trial. Two days later, appellant was tried for aggravated robbery on the same indictment. The jury found appellant not guilty of aggravated robbery, but guilty of the lesser included offense of robbery. In point of error three, appellant contends the trial court erred in submitting a jury charge on aggravated robbery. He contends the prosecution for the aggravated robbery offense was barred by the double jeopardy clauses of the Fifth Amendment to the United States Constitution and article I, section 14 of the Texas Constitution. In addition, he contends the prosecution for aggravated robbery was barred by Tex.Code Crim. P. Ann. art. 37.14 (Vernon 1981). At least three Texas courts have held that once a jury acquits a defendant of a greater offense by convicting him only of a lesser included offense, it violates the double jeopardy clause to prosecute the defendant again for the greater offense. Pope v. State, 509 S.W.2d 593, 596 (Tex.Crim.App.1974) (reversal where defendant was convicted of a purported lesser offense, a new trial was granted, and he was then prosecuted again for the greater offense); Konchar v. State, 938 S.W.2d 500, 502 (Tex.App.—Tyler 1996, pet. filed) (reversal where defendant was indicted for attempted murder, was convicted of lesser offense of aggravated assault, and was retried on same indictment, although only the aggravated assault case was submitted to jury in second trial); Stine v. State, 935 S.W.2d 443, 445 (Tex.App.—Waco 1996, no pet.) (same). These cases follow the United States Supreme Court authorities, Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970), and Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). In all of these cases, the defendants were acquitted of the greater offense by a judge’s or a jury’s finding on the merits. That differs from this ease, in which appellant obtained his acquittal for aggravated robbery as the result of a plea bargain; no judge or jury made a finding on the merits acquitting him of aggravated robbery. Both the Court of Criminal Appeals and this Court have held that this factual difference does not make a legal difference; an appellant acquitted as a result of a plea bargain is nevertheless protected from re-prosecution. Parker v. State, 626 S.W.2d 738, 740-41 (Tex.Crim.App.1981) (op. on reh’g); Boulos v. State, 775 S.W.2d 8, 10-11 (Tex.App.—Houston [1st Dist.] 1989, pet. refd). The Court of Criminal Appeals in Parker pointedly refused to hold, unlike the Beaumont Court of Appeals later in Gent, that no bar to reprosecution results when a charge is reduced as part of a plea bargain that is later set aside by the granting of a new trial. See State v. Gent, 887 S.W.2d 271, 273-74 (Tex.App.—Beaumont 1994, pet. refd) (refusing to follow Parker). We are bound by the decisions of our highest criminal court. Consequently, we decline to follow Gent and, as we did in Boulos, will continue to follow Parker. Although Parker and Boulos are consistent with Pope, Ronchar, and Stine on the effect of a judicial finding of acquittal on the merits as compared to a plea bargain for purposes of reproseeution, the two lines of cases differ in a significant aspect, one which governs the disposition of this case. Pope, Ronchar, and Stine all rely on federal or state constitutional principles of double jeopardy. Boulos, by contrast, disavows any reliance on either double jeopardy clause and instead relies exclusively on Texas statutes. Boulos, 775 S.W.2d at 9. Likewise, Parker cites no constitutional provisions and no federal cases, although it mentions the word “jeopardy” one time. Parker, 626 S.W.2d at 741. The decision in Parker was based on [269] article 37.14.1 Id. at 740. We adhere to our conclusion in Boulos that cases like this are controlled by Texas statutes. Article 37.14 provides: If a defendant, prosecuted for an offense which includes within it lesser offenses, be convicted of an offense lower than that for which he is indicted, and a new trial be granted him ... the verdict upon the first trial shall be considered an acquittal of the higher offense; but he may, upon a second trial, be convicted of the same offense of which he was before convicted, or any other inferior thereto. Tex.Code Crim. P. Ann. art. 37.14. This statute governs this case, as it did Parker and Boulos. Appellant was prosecuted for aggravated robbery, an offense which includes within it lesser offenses. He was convicted of the lower offense and was granted a new trial. Thus, the verdict upon the first “trial” shall be considered an acquittal for the higher offense of aggravated robbery. There is no question that a guilty plea constitutes a “trial” within the meaning of article 37.14, as Parker was a case in which the defendant pled guilty to robbery after being indicted for aggravated robbery and was then allowed to withdraw his plea and have a new trial. Parker, 626 S.W.2d at 739. The legal basis on which Parker, Boulos, and this ease turn is important in fashioning our appellate disposition. Because this case is governed by Texas statutes and cases, we need not decide whether the double jeopardy clause was violated, see Price v. Georgia, 398 U.S. at 323, 90 S.Ct. at 1757, or if it was, whether appellant must show prejudice, see Morris v. Mathews, 475 U.S. 237, 245-47, 106 S.Ct. 1032, 1037-38, 89 L.Ed.2d 187 (1986), or whether by moving for a new trial, appellant breached his plea agreement. See Ricketts v. Adamson, 483 U.S. 1, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987). The State argues that appellant waived this error by failing to object to the jury charge. We disagree. In Boulos, we held that the “exemption” language of article 1.11 indicates that the trial court lacked power to adjudicate and that when a court lacks power to adjudicate, its judgment can be set aside even without a trial objection, even after a guilty plea, and even upon a collateral attack.2 Boulos, 775 S.W.2d at 10 (citing Ex parte McAfee, 761 S.W.2d 771, 772 (Tex.Crim.App.1988)). Consequently, we hold that appellant did not waive this error by not objecting to the jury charge. By pleading not guilty and bringing a direct appeal, appellant did more than the defendant in McAf-ee. He did almost as much as the defendant in Boulos. See Boulos 775 S.W.2d at 9, nn. 1. 10. And the defendant in Parker both pled guilty and apparently made no trial complaint. Parker, 626 S.W.2d at 738.3 [270] We hold, based on Parker and Boulos, that appellant was entitled not to be tried on an indictment alleging the same aggravated robbery for which he had been acquitted. He may be retried for robbery, but only upon a new or amended indictment. See Stell v. State, 662 S.W.2d 96, 101 (Tex.App.—Houston [1st Dist.] 1983), pet. dism’d, as improvidently granted, 770 S.W.2d 570 (Tex.Crim.App.1984). Point of error three is sustained. Therefore, other points of error need not be reached. The judgment is reversed, and the prosecution for aggravated robbery is dismissed. TAFT, J., concurs. Footnotes [1] Reliance on article 37.14 also distinguishes Parker, Boulos, and this case from Sorola v. State, 769 S.W.2d 920 (Tex.Crim.App.1989). In Sorola, the State waived the death penalty at the first trial, at which Sorola was convicted of capital murder and sentenced to life in prison. Id. at 922. He appealed, and that judgment was reversed. Id. at 922-23. He then brought a pretrial writ of habeas corpus to bar the State from seeking the death penalty at the next trial. Id. at 923. The court held that the State could pursue the death penalty at the next trial. Id. at 927. The court stressed three important facts as justifying its decision, none of which are present in this case: (1) there was no finding of guilt for a lesser included offense of capital murder; (2) the trier of fact did not make an express or implied finding in the defendant’s favor at the punishment stage; and (3) the trial court had no authority to discharge the jury at the punishment stage and assume its function by assessing punishment. Id. at 926-27. In this case, by contrast: (1) there was a finding of guilt to a lesser included offense of aggravated robbery; (2) under article 37.14, the judge did make an implied finding in appellant’s favor; and (3) the judge had authority to assess the punishment he assessed. The lengthy Sorola opinion does not mention article 37.14, on which Parker and Bou-los rely, and on which we rely in this case. [2] Article 1.11 provides: "An acquittal of the defendant exempts him from a second trial or a second prosecution for the same offense, however irregular the proceedings may have been.” TexCode Crim. P. Ann. art. 1.11 (Vernon 1981). [3] One court has held that double jeopardy does not apply where a defendant, indicted for a jeopardy-barred offense, is convicted in a trial before the judge, rather than a jury, of a lesser included offense that is not barred by double jeopardy. Gooden v. State, 828 S.W.2d 337, 339 (Tex.App.—Eastland 1992, pet. ref’d). No authority is cited for this proposition in Gooden. Vie note that the defendant in Parker waived a jury and was found guilty by the judge, but he was stiff allowed to invoke the statutory bar of article 37.14. Parker, [270] 626 S.W.2d at 739. Thus, the authority of Goo-den on this point of law is questionable.