Booker Thomas Bonner, Jr. v. State

Opinion issued July 28, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00611-CR

BOOKER THOMAS BONNER, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court of Law

Austin County, Texas

Trial Court Cause No. 02CR23017

MEMORANDUM OPINION

A jury convicted appellant, Booker T. Bonner, Jr., of criminal mischief.

Thereafter, the trial court granted Bonner’s request for a new trial. Before the second

trial, Bonner petitioned for a writ of habeas corpus, contending that the Double

Jeopardy Clause barred the State from re-prosecuting him. The trial court denied the

petition. We hold that Bonner fails to establish that the trial court’s basis for granting

him a new trial was the State’s failure to present legally sufficient evidence, and thus

the trial court did not err in denying his application for a writ of habeas corpus. We

therefore affirm. Facts

The State charged Bonner with criminal mischief, a class A misdemeanor,

alleging that he tampered with water lines owned by Ervan Hatton. The complaint

stated:

[O]n or about JULY 24, 2002 , in Austin County, Texas, BOOKER

THOMAS BONNER, JR. did then and there intentionally or

knowingly tamper with tangible property, to-wit: WATER LINES ,

without the effective consent of E. HATTON , the owner of said

property, and did then and there intentionally or knowingly cause, in

whole or in part, impairment or interruption of public water supply, by

blocking the City of Wallis Public Works Department from installing

public water lines onto E. Hatton’s property.

(Emphasis in original). In June 2003, a jury found Bonner guilty as charged.

Bonner moved for a new trial, alleging that the jury’s verdict was “contrary to

the law and the evidence.” After conducting a hearing, the trial court granted

Bonner’s motion, without stating its reasoning.

Bonner then moved for entry of verdict of acquittal, contending that the trial

court had granted him a new trial on the basis of insufficient evidence, and thus the

Double Jeopardy Clause precluded a second trial. Bonner also filed a “Special Plea

of Double Jeopardy,” on the same basis. The trial court denied these motions, stating:

“the Court does not grant an acquittal and this case will be retried.”

Bonner also applied for a writ of habeas corpus, again claiming that the trial

court had granted him a new trial on the basis of legally insufficient evidence, and

thus any further prosecution would violate the Double Jeopardy Clause of the Fifth

Amendment to the United States Constitution. On March 24, 2004, the trial court

signed an order denying the application. Bonner appeals the trial court’s denial of his

application for writ of habeas corpus.

Discussion A. Standard of Review

In a habeas corpus proceeding, the applicant has the burden to prove his claims

by a preponderance of the evidence. Ex parte Peterson , 117 S.W.3d 804, 818 (Tex.

Crim. App. 2003) (per curiam). In reviewing the trial court’s ruling on an application

for writ of habeas corpus, we view the facts in the light most favorable to the ruling.

Id . at 819. The trial court’s ruling should not be overturned absent a clear abuse of

discretion. Id .; see also Ex parte Shutter , 868 S.W.2d 383, 387 (Tex. App.—Houston

[1st Dist.] 1993, pet. ref’d). We afford almost total deference to the trial court’s

determination of historical facts that are supported by the record. Peterson , 117

S.W.3d at 819 .

B. Double Jeopardy

It is a defendant’s burden to establish a double jeopardy violation. Anderson

v. State , 635 S.W.2d 722, 725 (Tex. Crim. App. 1982). The Double Jeopardy Clause,

applicable to the states through the Fourteenth Amendment, protects a defendant

against a second prosecution for the same offense after acquittal or conviction. Bailey

v. State , 87 S.W.3d 122, 126 (Tex. Crim. App. 2002) (citing Brown v. Ohio , 432 U.S.

161, 164 , 97 S. Ct. 2221 (1977) and North Carolina v. Pearce , 395 U.S. 711, 717 , 89

S. Ct. 2072 (1969)).

Jeopardy usually does not attach when a trial court grants a new trial at the

defendant’s request. Castleberry v. State , 646 S.W.2d 599, 601 (Tex. App.—Houston

[1st Dist.] 1983), overruled on other grounds at 704 S.W.2d 21 ; see also Martin v.

Spradley , 341 F.2d 89, 89 (5th Cir. 1965). An exception to this rule exists for a new

trial granted due to legal insufficiency of the evidence—should the evidence at the

original trial be determined, as a matter of law, to be insufficient to sustain the

conviction. Castleberry , 646 S.W.2d at 601 ; see also Hudson v. Louisiana , 450 U.S.

40 , 43–45 101 S. Ct. 970 , 972–73 (1981) (trial judge finding that State failed, as a

matter of law, to prove its case bars retrial on same charges).

In contrast, if a new trial is granted for factual insufficiency of the evidence,

rather than legal insufficiency of the evidence, jeopardy does not attach. Castleberry ,

646 S.W.2d at 601 ; see also Tibbs v. Florida , 457 U.S. 31 , 42–43, 102 S. Ct. 2211 ,

2218–19 (1982) (reversal because judge concludes guilty verdict is against weight of

evidence “unlike a reversal based on insufficient evidence, does not mean that

acquittal was the only proper verdict”). A reversal of the verdict based on the weight

of the evidence “simply affords the defendant a second opportunity to seek a

favorable judgment.” Tibbs , 457 U.S. at 42–43, 102 S. Ct. at 2218–19.

Here, the determination of whether jeopardy attaches to Bonner’s first trial thus

depends on the basis for the trial court’s granting of the new trial. If the trial court

granted Bonner’s motion because it found the evidence of guilt to be legally

insufficient, such a finding requires an acquittal. See Hudson , 450 U.S. at 43–45,

101 S. Ct. at 972–73. If the trial court granted Bonner’s motion because it found

evidence to be factually insufficient—or for some other reason—then there is no bar

to retrial. See Tibbs , 457 U.S. at 42–43, 102 S. Ct. at 2218–19.

C. Basis for Bonner’s New Trial

Bonner’s motion for a new trial states that he should be granted a new trial:

[b]ecause the verdict is contrary to the law and the evidence, that by the

terms of the pleading in this cause the State was required to show

ownership by E. Hatton of “water pipes” tampered by Defendant, and

there was no such evidence offered or proved.

During the hearing on his motion, Bonner argued that the basis for his requested relief

was “the State’s failure to prove an element of ownership interest in the pipes

tampered with by Mr. Bonner.” The State responded that Hatton was in possession

of the property and that it had proved ownership through a community property

interest—by proving that Hatton’s wife had an ownership interest in the property.

Here, the issue is whether the trial court’s granting of a motion that asserts that

“the verdict is contrary to the law and the evidence” is tantamount to a determination

of legal insufficiency. This court disposed of a similar double jeopardy claim in

Castleberry , 646 S.W.2d 599 . The defendant in that case moved for a new trial on

the sole basis that the judgment was contrary to the law and the evidence. Id . at 601.

The trial court granted the motion. The defendant similarly argued that the granting

of a new trial on the basis that the judgment was “contrary to the law and evidence”

constituted a finding of legal insufficiency of the evidence and, thus, that he had been

subjected to double jeopardy. Id . We held that the general wording in the

defendant’s allegations and in the trial court’s order was not enough to conclude that

the trial court found the evidence to be legally insufficient—to hold otherwise would

“set an undesirable precedent in approving ambiguity and vagueness in pleadings.”

Id .

Here, not only does the order not state that the motion for a new trial was

granted on the basis of legally insufficient evidence, but the trial court previously had

rejected Bonner’s motion for directed verdict on the same basis. Thus, it is not

apparent from the record that the trial court granted the motion for new trial based

upon legal—rather than factual—sufficiency, the latter affording a new trial rather

than an acquittal. Viewing the facts in the light most favorable to the ruling and

deferring to the trial court’s determination of historical facts that are supported by the

record, we hold that the trial court did not err in finding that Bonner failed to prove

that its order granting his motion for a new trial was based on legal insufficiency;

Bonner therefore fails to establish that he was subject to double jeopardy. Conclusion

We hold the trial court did not abuse its discretion in denying Bonner’s

application for writ of habeas corpus. We therefore affirm.

Jane Bland

Justice

Panel consists of Justices Nuchia, Keyes, and Bland.

Do not publish. Tex. R. App. P. 47.2 (b).