Foster v. State

TEAGUE, Judge,

concurring and dissenting.

I concur in the majority’s holding that the appellant’s indictment for the offense of possession of cocaine was and is fundamentally defective, and cannot be used to sustain the judgment of conviction in this cause. Crowl v. State, 611 S.W.2d 59 (Tex.Cr.App.1981).

However, I find I must dissent to the disposition made of appellant’s contention that the evidence was insufficient.

Prior to June 14, 1978, when Burks v. United States, 437 U.S. 1 , 98 S.Ct. 2141 , 57 L.Ed.2d 1 (1978); and Greene v. Massey, 437 U.S. 19 , 98 S.Ct. 2151 , 57 L.Ed.2d 15 (1978), were decided and became the Constitutional law of the land, if a person in Texas was validly convicted and appealed his cause to this Court, and this Court ruled that the evidence was insufficient to sustain the judgment of conviction, the very maximum relief an appellant could ever receive from this Court was to have the cause reversed and remanded to the trial court for a new trial.

In Colunga v. State, 481 S.W.2d 866 (Tex.Cr.App.1972) (On Motions for Rehearing), this Court, speaking through now Judge Tom Davis, in reply to Colunga’s contention that because this Court had originally ruled that the evidence was insufficient to sustain the judgment of conviction, and in response to his argument, “this court should now ‘undertake to do what the trial court failed to do,’ i.e., grant his motion for a directed verdict of acquittal, stated:

This contention, however, is against established precedent and statutory requirement. Article 44.25, V.A.C.C.P., expressly provides that, ‘The Court of Criminal Appeals may reverse the judgment in a criminal action, as well upon the law as upon the facts. A cause reversed because the verdict is contrary to the evidence shall be remanded for new trial’ (emphasis added). In addition, this Court has held in numerous cases that the proper disposition, upon a finding that the evidence is insufficient to corroborate the testimony of an accomplice witness, is to reverse and remand that cause for a new trial. See Noble v. State, 100 Tex.Cr.R. 404 , 273 S.W. 251 ; Franklin v. State, 62 Tex.Cr.R. 433 , 138 S.W. 112 ; Durham v. State, 106 Tex.Cr.R. 85 , 290 S.W. 1092 ; Morris v. State, 135 Tex.Cr.R. 384 , 120 S.W.2d 592 ; Donley v. State, 167 Tex. Cr.R. 427, 320 S.W.2d 847 .

*712 Appellant also contends that a retrial of this cause would place him in double jeopardy as he was entitled to an acquittal at the conclusion of the State’s evidence. This question is not before us; however compare Dupree v. State, 56 Tex.Cr.R. 562 , 120 S.W. 871 (1909); Andrews v. State, Tex.Cr.App., 436 S.W.2d 546 ; Whitehead v. State, 162 Tex.Cr.R. 507 , 286 S.W.2d 947 . Id. at 869-70.

In Andrews v. State, 436 S.W.2d 546 (Tex.Cr.App.1969), where the defendant had received a reversal and new trial, see 407 S.W.2d 507 (Tex.Cr.App.), but he was thereafter reindicted, tried and convicted for the same offense, this Court approved of the reindictment and trial, and stated:

The reversal awarded appellant a new, trial, and he could then be tried on the new indictment. The law against double jeopardy is not offended in the present conviction. Whitehead v. State, 162 Tex.Cr.R. 507 , 286 S.W.2d 947 .

Id. at 548 .

Burks and Greene, supra, which were handed down subsequent to Colunga and Andrews, supra, held that a verdict of acquittal must be entered whenever an appellate court has found the evidence legally insufficient to sustain the verdict. 1 By its holdings, the Supreme Court thereby equated an acquittal by an appellate court with an acquittal at trial.

It had long been held, however, by both this Court and the Supreme Court, that a verdict of acquittal is a bar to retrial for the acquitted offense, even when the indictment charging the offense was fundamentally defective. Ball v. United States, 163 U.S. 662 , 16 S.Ct. 1192 , 41 L.Ed. 300 (1896); Mixon v. State, 34 S.W. 290 (1896). For more recent cases of the Supreme Court on this point, see Crist v. Bretz, 437 U.S. 28 , 98 S.Ct. 2156 , 57 L.Ed.2d 24 (1978); Lee v. United States, 432 U.S. 23 , 97 S.Ct. 2141 , 53 L.Ed.2d 80 (1977); Finch v. United States, 433 U.S. 676 , 97 S.Ct. 2909 , 53 L.Ed.2d 1048 (1977); and Illinois v. Sommerville, 410 U.S. 458 , 93 S.Ct. 1066 , 35 L.Ed.2d 425 (1973). Cf. Duncan v. Tennessee, 405 U.S. 127 , 92 S.Ct. 785 , 31 L.Ed.2d 86 (1972).

In Thompson v. State, 527 S.W.2d 888 (Tex.Cr.App.1975), this Court distinguished Mixon, supra. The Thompson Court acknowledged, however, that: “The Mixon case is still the law today, applied to its own facts, where the jurisdiction of the court is properly invoked and an actual trial on the merits takes place and the jury reaches a verdict based on the evidence presented.”

I acknowledge the following holding in Thompson : “Since the indictment under which the appellant was first tried was fatally defective in that it alleged an impossible date, the acquittal instructed by the trial court does not bar a second prosecution on a new and valid indictment.” Nevertheless, I believe that this Court in Thompson could not foresee Burks and Greene . 2 I base this statement on the fact that the Thompson Court went to great lengths to point out that Thompson did not endure a full blown trial, before it held: “No evidence of the appellant’s guilt or innocence was presented to the jury; since the indictment alleged an impossible date, the jurisdiction of the court was not even properly *713 invoked.” The implication left by the opinion is that if Thompson had endured a completely full blown trial, after which he had obtained an acquittal, this Court would have ruled differently, for its discussion on “jurisdiction” appears almost as an afterthought in the opinion.

Applying the rationale of Burks and Greene, supra, and see also Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979), 3 to this cause, I am thoroughly convinced that we are required to review the sufficiency of the evidence whenever it is raised, even if other fundamental error is obvious, including a fundamentally defective indictment.

I believe that we should now adopt what Judge Henderson of this Court said almost 100 years ago in Mixon v. State, supra:

.. . Our constitution provides that ‘no person, for the same offense, shall be twice put in jeopardy of life or liberty; nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.' See Const. Bill of Rights, art. 1, Sec. 14. It will be noted that the first subdivision of said article provides against being put twice in jeopardy. This jeopardy, at common law, could only be upon a good and sufficient indictment. But the last subdivision of said article provides against being put upon trial again for the same offense, after a verdict of not guilty in a court of competent jurisdiction. The court trying this case unquestionably was a court of competent jurisdiction to try it (although this jurisdiction may not have been properly invoked), and it makes an acquittal for the same offense at bar to any subsequent prosecution therefor, regardless of the validity of the indictment. See Anderson v. State (Tex.App.) 7 S.W. 40 . But if there were any doubt as to the proper construction of this provision of the bill of rights, our statutes on the subject have set this matter at rest. Code Cr.Proc. art. 525, provides as follows: ‘The only spécial pleas which can be heard for a defendant, are (1) that he has been before convicted legally in a court of competent jurisdiction of the same accusation, after having been tried upon the merits for the same offense; (2) that he has been before acquitted by a jury of the accusation against him, in a court of competent jurisdiction, — whether the acquittal was regular or irregular.’ This article appears to draw a distinction between a conviction and an acquittal. The first subdivision requires that the conviction be a legal one in a court of competent jurisdiction; and the second authorizes the plea on an acquittal in a court of competent jurisdiction, whether the acquittal was regular or irregular. No one, we apprehend, would be so bold as to question that either a conviction or acquittal under a valid indictment, regular in form, would constitute a bar to further prosecution for the same offense. This was so at common law. But our constitution and statutes on the subject go further. The state furnishes and prepares all of the machinery with which to try a defendant, and our law says that when he has been once tried by a jury of his peers, and they have acquitted him, in a court of competent jurisdiction, he can never be again put upon trial for the same offense. If the prosecution has once placed a defendant upon trial, and the court is one of competent jurisdiction to try an offense of the character charged, and a jury has once rendered a verdict of not guilty as to said offense, no matter how irregular the procedure may have been, the state can never again place the defendant upon trial for that offense of which he had been acquitted. Such we understand to be the meaning of the constitution, and such the provisions of our Code of Criminal Procedure. ...

If the evidence is ruled insufficient to support appellant’s conviction, which issue can be resolved without considering the validity of the indictment, then appellant *714 should not be retried for committing the same offense for which he was convicted in this cause.

I, therefore, must dissent to the failure of this panel’s majority to answer appellant’s contention. In doing so, I do not mean to imply that the evidence is insufficient; merely, that I believe the question should be addressed by this panel.

Before the court en banc.

. Though Burks and Greene are often cited and discussed as though they are twins, Greene represents nothing more than an application of Burks . Interestingly, my research reveals that Greene has not yet been finally decided, and at the moment it is still pending on the docket of what is now the Eleventh Circuit Court located in Atlanta, Georgia. This information comes from the decisions of Greene v. Massey, 595 F.2d 221 (5th Cir. 1979), where the Fifth Circuit remanded the cause to the Supreme Court of Florida, for that Court to answer certain questions; and Greene v. Massey, 384 So.2d 24 (Sup.Ct.Fla.1980), where the Florida Supreme Court sent to the Fifth Circuit its responses to the interrogatories; as well as a telephonic communication my research assistant had on January 28, 1982, with one of the clerks of the Eleventh Circuit. The cause is, therefore, now pending on the docket of the Eleventh Circuit.

. Compare, Ex parte Colunga, 587 S.W.2d 426 (1979), where the defendant in Colunga v. State, supra, returned to this Court by way of a post-conviction writ of habeas corpus, and successfully argued that he was entitled to relief pursuant to the dictates of Burks and Greene, supra.

. Jackson held that to sustain a conviction, the evidence must be sufficient beyond a reasonable doubt, or due process of law has not been accorded the defendant.