holding that, in order to convict defendant as party to aggravated offense, there must be sufficient evidence that defendant was criminally responsible for aggravating element
How later courts described this case
- holding that, in order to convict defendant as party to aggravated offense, there must be sufficient evidence that defendant was criminally responsible for aggravating element
- stating that, in order to convict defendant as a party to aggravated offense, State must prove that defendant was criminally responsible for aggravating element
- holding that, in order to convict defendant as party to aggravated offense, State must prove that defendant was criminally responsible for aggravating element
- indicating that when instruction includes erroneous or additional allegation to which State objected at trial, and sufficiency turns upon that erroneous instruction, would be treated as trial error
Written by the judges who cited it.
The opinion
TEAGUE, Judge,
concurring in part and dissenting in part.
I concur in the Court’s judgment for the reasons expressed by Judge Clinton in the majority opinion. However, I disagree with the proposition that we are not called upon to decide whether the appellant may be retried for the lesser offense of rape, and dissent from this Court’s failure to address the issue.
Rape is, or .may be, a lesser included offense of aggravated rape. See Art. 37.-09, V.A.C.C.P. Accordingly, the indictment in this cause, although alleging aggravated rape only, will nevertheless support a conviction for the offense of rape, if the evidence at trial raised an issue that the appellant, if guilty at all, was guilty only of the lesser included offense. See, Arts. 4.06 and 37.08, V.A.C.C.P.; Aguilar v. State, 682 S.W.2d 556 (Tex.Cr.App.1985).
Whether the double jeopardy clauses of the United States and Texas Constitutions or Art. 1.10, Y.A.C.C.P. bar retrial of the appellant for a lesser included offense following acquittal of the greater on appeal is a burning issue. See, Burks v. United States, 437 U.S. 1 , 98 S.Ct. 2141 , 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19 , 98 S.Ct. 2151 , 57 L.Ed.2d 15 (1978). But it is clear that, at least under some circumstances, these laws prohibit a retrial for the lesser included offense precisely because it is the same offense for purposes of double jeopardy. See, Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932); Brown v. Ohio, 432 U.S. 161 , 97 S.Ct. 2221 , 55 L.Ed.2d 187 (1977).
This Court has just acquitted the appellant. It follows that our mandate must proscribe his retrial for the “same offense.” Therefore, we must not seem to permit a retrial of the appellant for a lesser included offense of the crime for which we have just acquitted him if the lesser included offense is the “same offense” for purposes of double jeopardy. Moreover, it is fanciful to think that a subsequent conviction for rape would better enable this Court to resolve the double jeopardy issue. Instead, it would likely subject the appellant to serial prosecution and the attendant inconvenience which our double jeopardy laws are intended to prevent. We encourage just such a result by expressly calling the State’s attention to the matter in a written opinion.
Since we have affirmed the Court of Appeals, ordering that a judgment of acquittal be entered, I assume that no subsequent prosecution will be attempted under the same indictment. This leaves only the possibility that the State may reindict the appellant for the offense of rape, committed against the same victim, on or about the same date, in the same county, and perhaps by the same manner or means. We decline to say whether the State may do this. But we decline to do so in such a conspicuous manner that we virtually invite the prosecutor to hazard such a manuever. Perhaps we should go on to say that we will not say whether the appellant may be *343 indicted for any grade of assault or indecent exposure. But if the question is really not in this case, why say anything at all?
To write on the double jeopardy issue in the present context is not tantamount to the rendition of an advisory opinion. Because we have found the evidence insufficient to support conviction, we are obliged to order that a judgment of acquittal be entered. The parties are entitled to know what this means. If there is any question about what it means, we should answer it.
I realize that it is possible to conceptualize a new indictment as a new controversy. But it is not a new controversy if it charges the same offense. The very mention of it in this Court’s written opinion demonstrates that it is not.
I realize that, should the appellant be reindicted, he has his special plea of double jeopardy. But the plea is patently inadequate to protect his rights if he is subsequently charged, jailed, made to give an appearance bond, and hailed into a courtroom, let alone tried, convicted, jailed again, and made to give another appearance bond on appeal, while he waits for this Court to reveal the significance of his earlier acquittal.
I realize that the appellant may seek a writ of prohibition to foreclose subsequent prosecution for the same offense if he is reindicted. But the probability of success is slim; that is what special pleas of double jeopardy are for. Even if this Court were to entertain such an application for extraordinary relief, it seems pointless to subject the system to such inefficiency when the issue is part and parcel of a controversy now before us.
Perhaps it will be said that the State might not reindict the appellant at all. This is, of course, true. But we ought not to leave the prosecution without guidance, particularly when the question is clearly on our minds.
I believe that the double jeopardy laws are preventive, not merely remedial. When we perceive that our written opinions leave open the possibility of multiple prosecution or punishment and the record is sufficiently well-developed for a resolution of the issue, we should not hesitate to resolve it. Here, we know who requested a jury instruction on the lesser included offense of rape and who did not. Cf. Ortega v. State, 668 S.W.2d 701 (Tex.Cr.App.1983, opinion on original submission). We know which issues were submitted to the jury and which were not. We have evaluated the sufficiency of the evidence in light of the jury charge, just as our case law requires. Benson v. State, 661 S.W.2d 708 (Tex.Cr.App.1982). We should either evaluate the double jeopardy issue in the same light or omit mention of it altogether. I dissent to the majority’s failure to address these issues.