# Ex Parte Herron

> Court of Criminal Appeals of Texas · May 23, 1990 · 790 S.W.2d 623

URL: https://www.frixlaw.com/law-library/cases/9857646

## Case

- **Full name:** Ex Parte William HERRON, Jr.
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** May 23, 1990
- **Citations:** 790 S.W.2d 623; 1990 Tex. Crim. App. LEXIS 87; 1990 WL 67495
- **Precedential status:** Published
- **Opinion:** Dissent by Clinton
- **Judges:** Clinton, Teague, Campbell, Miller, Onion, Davis, White, McCormick, Duncan
- **Cited by:** 156 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9857646

## How later opinions describe it (automated extraction)

- holding convictions for aggravated kidnapping and aggravated robbery in single trial did not violate double jeopardy provisions even though same evidentiary facts were used to support both convictions, because legislature intended to impose multiple punishments for conduct tha…

## Opinion text

CLINTON, Judge,
dissenting.
The majority correctly frames the issue in this cause, viz:
“... The issue then is whether the Fifth Amendment guarantee against double jeopardy bars punishment for both offenses when prosecution for those offenses is had in a single trial.”
At 625. 1 The answer, it says, is “in Missouri v. Hunter, 459 U.S. 359 , 103 S.Ct. 673 , 74 L.Ed.2d 535 (1983).” Ibid. Presumably it means the answer lies in two conclusional excerpts selected from the Hunter opinion, reproduced in its own opinion at page 5; however, such selectivity only papers over treatment by federal courts of implications of the Double Jeopardy Clause in context of a single trial involving simultaneous prosecutions for alleged violations of more than one statutory provision. The problem is more complicated *627 than indicated by the majority. As the present Chief Justice has characterized it, “[T]he decisional law in the area is a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator.” Albemaz v. United States, 450 U.S. 333, at 343 , 101 S.Ct. 1137, at 1145 , 67 L.Ed.2d 275 (1981). Let us then set sail through the gulfweed. 2
First we come to Whalen v. United States, 445 U.S. 684 , 100 S.Ct. 1432 , 63 L.Ed.2d 715 (1980); convictions obtained in the Superior Court of the District Columbia are for rape and killing the same victim in perpetration of rape; Whalen was sentenced to consecutive terms of imprisonment for twenty years to life for first degree murder and to fifteen years to life for rape. Id., at 686 , 100 S.Ct., at 1434 . Because the Supreme Court reviewed a decision of the District of Columbia Court of Appeals affirming the convictions and sentences without according “the customary deference [to its] construction of local federal legislation,” disposition of the case turned on its own determination of the issue, viz:
"... In the present case, therefore, if Congress has not authorized cumulative punishments for rape and for an intentional killing committed in the course of rape, contrary to what the Court of Appeals believed, the petitioner has been impermissibly sentenced. The disposi-tive question, therefore, is whether Congress did so provide.”
Id., at 688-689 , 100 S.Ct., at 1436 . The Supreme Court would conclude that the Court of Appeals was indeed mistaken, and “because that error denied the petitioner his constitutional right to be deprived of liberty as punishment for criminal conduct only to the extent authorized by Congress,” it reversed the judgment below. Id., at 690 , 100 S.Ct., at 1437 .
The Supreme Court began its analysis by examining the two penal statutes involved, noting that “rape and the killing of a person in the course of rape in the District of Columbia are separate statutory offenses for which punishments are separately provided. Neither statute, however, indicates whether the Congress authorized consecutive sentences where both statutes have been offended in single episode. Moreover, the legislative history of those specific penal provisions sheds no light on that question.” So it turned to a general sentencing statute, providing for optional cumulative sentencing in terms set out in the margin. 3
*628 The Supreme Court pointed out that the statutory clause “requires proof of a fact which the other does not” “refers, of course, to a rule of statutory construction stated by this Court in Blockburger v. United States, [supra], and consistently relied on ever since to determine whether Congress has in a given situation provided that two statutory offenses may be punished cumulatively.” Id., at 691, 100 S.Ct., at 1437 .
While today the majority is content to say, “Although reference was made to Blockburger, the Supreme Court determined that as a matter of statutory construction, in that case, a trial court could not cumulate the rape and murder sentences,” slip opinion at 6, the fact of the matter is the Whalen opinion goes on to explain Blockburger, to explore legislative history of § 23-112, to find that history “clearly confirms that Congress intended the federal courts to adhere strictly to the Blockburger test when construing the penal provisions of the District of Columbia Code.” Id., 691-692, 100 S.Ct., at 1437-1438 , and to conclude:
“We think the only correct way to read § 23-112, in light of its history and evident purpose, is to read it as embodying the Blockburger rule for construing the penal provisions of the District of Columbia Code. Accordingly, where two statutory offenses are not the same under the Blockburger test, the sentences imposed ‘shall, unless the court expressly provides otherwise, run consecutively.’ And where the offenses are the same under that test, cumulative sentences are not permitted, unless elsewhere specially authorized by Congress.”
Id., at 693, 100 S.Ct., at 1438 . Therefore, the Supreme Court proceeded to apply the Blockburger rule, viz:
“... Congress did not authorize consecutive sentences for rape and for a killing committed in the course of the rape, since it is plainly not the case that ‘each provision requires a proof of fact which the other does not.’ A conviction for killing in the course of a rape cannot be had without proving all the elements of the offense of rape, [citations omitted].”
Id., at 693-694 , 100 S.Ct., at 1439 . Justice White concurred separately and aligned himself with concurring Justice Blackmun and dissenting Justice Rehnquist on the proposition that the question of statutory construction does not implicate the Double Jeopardy Clause, Id., at 696 , 100 S.Ct., at 1440 . Justice Rehnquist developed at some length what turned out to be a sort of harbinger of the opinion he wrote for the Supreme Court in Albernaz v. United States, 450 U.S. 333 , 101 S.Ct. 1137 , 67 L.Ed.2d 275 (1981). 4
Moving on to Albernaz , the first contention was that Congress did not intend to authorize cumulative punishments for violation of two provisions under which convictions were had; writing for the Court, Justice Rehnquist found the answer “in application of the rule announced by this court in Blockburger v. United States ... and most recently applied last Term in Whalen v. United States which he proceeded to apply. Id., 450 U.S. at 337 - *629 339, 101 S.Ct., at 1141-1142 . Later, he wrote that Blockburger is “a ‘rule of statutory construction,’ [serving] as a means of discerning congressional purpose,” but believed that the rule should not control over “a clear indication of contrary legislative intent;” however, nothing in legislative history “discloses an intent contrary to the presumption which should be accorded to these statutes after application of the Blockburger test.” Id., at 340, 101 S.Ct. at 1143 . Having thus adhered to Blockbur-ger, Justice Rehnquist next rejected application of the rule of lenity, at 342-343, 101 S.Ct., at 1144 , and concluded with comments about the Double Jeopardy Clause to which the majority no doubt refers, at 344, 101 S.Ct. at 1145 . Note 3, however, explains that those comments are made in a context of finding that the punishments at issue are not for the “same offense,” viz:
“Petitioners’ contention that a single conspiracy [under the statutory provisions] constitutes the ‘same offense’ for double jeopardy purposes is wrong. We noted in Brown v. Ohio, that the established test for determining whether two offenses are the ‘same offense’ is the rule set forth in Blockburger — the same one on which we relied in determining congressional intent. [Violations of those provisions] clearly meet the Blockbur-ger standard. [A] single transaction can give rise to distinct offenses under separate statutes without violating the Double Jeopardy Clause, [citations omitted].”
Leaving Albemaz , we return to Missouri v. Hunter, supra, where the majority believes it found the answer.
The statutes considered in Missouri v. Hunter, supra, are, as the majority characterizes them, “separate” in the sense each was enacted temporally and placed spatially from the other. However, one is dependent on the other, and that the legislature especially so provided is the sole basis for the conclusion reached by the Supreme Court.
The “separate” offenses in question proscribed by different statutes are robbery by means of a dangerous or deadly weapon and “armed criminal action.”
Under one statute, when robbery is committed by means of a dangerous or deadly weapon, it is punishable by a minimum of five years confinement.
Under the other statute, when any felony is committed by, with, or through use, assistance or aid of a dangerous or deadly weapon, the perpetrator is “also guilty of the crime of armed criminal action,” punishable by not less than three years. Further, this statute provides:
"... The punishment imposed pursuant to this subsection shall be in addition to any punishment provided by law for the [underlying] crime [committed with a dangerous or deadly weapon.] ****’’
Id., 459 U.S. at 361-362 , 103 S.Ct., at 676 .
Having construed the two statutes as defining the same crime, the Missouri Supreme Court vacated the conviction for armed criminal action on the theory that the Double Jeopardy Clause protects against multiple punishments for the “same offense.” The Supreme Court, through Chief Justice Burger, noted that because Hunter had been subjected to only one trial, he did not contend that “his right to be free from multiple trials for the same offense has been violated;” thus the Missouri court “misperceived the nature of [its] protection against multiple punishments,” viz:
“... With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.”
Id., at 366 , 103 S.Ct., at 678 . The Supreme Court accepted that the statutes defined the same crime and that the legislature intended punishment for each be cumulative, but disagreed with the jeopardy conclusion. Id., at 368 , 103 S.Ct., at 679 . The analysis done by Chief Justice Burger is succinctly stated, viz:
“.... The rule of statutory construction noted in Whalen [ 445 U.S., at 691-692 , 100 S.Ct., at 1437-1438 ] is not a constitutional rule requiring courts to negate *630 clearly expressed legislative intent. Thus far, we have utilized that rule only to limit a federal court’s power to impose convictions and punishments when the will of Congress is not clear. Here the Missouri Legislature has made its intent crystal clear.”
Id., at 368, 103 S.Ct., at 679 .
Accordingly, because the legislative intent in passing the two penal statutes was “crystal clear,” resort to the Blockburger rule was not appropriate, as the Supreme Court concluded in the second paragraph set out in the majority opinion at 5.
Thus the setting of the situation and the condition precedent to its conclusion is that “a legislature specifically authorizes cumulative punishment under two statutes’.’ proscribing “the ‘same’ conduct.” In that instance, Blockburger and jeopardy principles do not bar imposition of “cumulative punishment under such statutes in a single trial.” Id., at 369 , 103 S.Ct., at 679 .
Despite the unambiguous context in which it is made and in the face of the plain pronouncement by the Supreme Court that the issue is controlled by legislative provisions AFFIRMATIVELY authorizing cumulative punishment for violation of two particular penal statutes, along with its demand for specific legislative authorization of cumulative punishment under the very two statutes denouncing the offenses and prescribing the punishment, the majority makes no effort to find any such affirmative legislative authorization for what is being done in this cause. 5
The majority has yet to demonstrate any such clearly expressed legislative intent that permits dispensing with application of the Blockburger rule.
For the foregoing reasons, the majority is in error; it reaches conclusions that its opinion fails to justify. On the other hand, State’s Motion for Rehearing and Brief in Support Thereof, does address the Block-burger test, but only to the extent of “a superficial reading of these two statutes” to conclude that double jeopardy principles do not prohibit multiple punishments in this cause. 6
As a matter of federal law on joinder of offenses and on decisions by the Supreme Court construing the Fifth Amendment, I am convinced that the controlling question here still is whether the Legislature authorized separate punishments for these two offenses. There can be no doubt that it has not done so expressly and specifically, as in Missouri v. Hunter. Thus the answer must be found in a Blockburger analysis that the majority does not make before concluding that assessment of separate punishments for these convictions does not violate the Double Jeopardy Clause of the Fifth Amendment.
Accordingly, I respectfully dissent.
MILLER, J., joins.
. Because it arose only under the Fifth Amendment, the Court is not called on to address the issue under the Constitution and laws of Texas. Had both offenses been alleged in one indictment there could be but one conviction and punishment: Fortune v. State, 745 S.W.2d 364 (Tex.Cr.App.1988); Holcomb v. State, 745 S.W.2d 903 (Tex.Cr.App. 1988); consequences of consolidating two indictments for trial is not made an issue in this cause.
(All emphasis throughout this opinion is mine unless otherwise indicated.)
. Nearly all such cases are in a setting of federal procedures which allow joining in one charging instrument every offense now described in Fed. R.Cr.P. 8(a), but restrict a valid conviction and sentence to each distinctly separate offense. To resolve a claim that sentences were improperly imposed on two or more counts that constitute but a single offense in law, federal courts often resorted to common law rules and tests, for example, the ubiquitous "same evidence” test taken from Morey v. Commonwealth, 108 Mass. 433, 434 (1871). See, e.g., Carter v. McClaughry, 183 U.S. 365, at 394-395 , 22 S.Ct. 181, at 193 , 46 L.Ed. 236 (1902); Gavieres v. United States, 220 U.S. 338, at 342 , 31 S.Ct. 421, at 422 , 55 L.Ed. 489 (1911) (second prosecution); United States v. Daugherty, 269 U.S. 360 , 46 S.Ct. 156 , 70 L.Ed. 309 (1926); Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932).
Application of those rules and tests might sometimes be intermixed with jeopardy principles, and discussion of congressional intent pre-termitted, e.g., Ex parte Lange, 18 Wall. 163, at 168-174 , 21 L.Ed. 872, at 876-878 (1874); when congressional intent was examined and found unclear, the lenity doctrine would be applied in favor of defendant. See generally Spradling v. State, 773 S.W.2d 553 (Tex.Cr.App.1989) (Clinton, J., dissenting at 557-559.
Later, however, as in cases cited in the majority opinion at 5-7, the Supreme Court came to understand the "Blockburger rule” rested on an assumption "that Congress ordinarily does not intend to punish the same offense under two different statutes,” Whalen v. United States, 445 U.S. 684, 691-692 , 100 S.Ct. 1432, at 1437-1438 , 63 L.Ed.2d 715 (1980), so where they do "proscribe the ‘same offense,’ they are construed not to authorize cumulative punishment in the absence of a clear indication of contrary legislative intent.” Ibid.
Opinions will demonstrate that the focus shifted from common law rules and jeopardy law to exploration for clearly expressed congressional intent authorizing multiple punishment for convictions in a single trial on one indictment. Absent that kind of authority the Supreme Court utilized the Blockburger rule of statutory construction to ascertain congressional intent.
. District of Columbia Code § 23-112 reads:
"A sentence imposed on a person for conviction of an offense shall, unless the court imposing such sentence expressly provides *628 otherwise, run consecutively to any other sentence imposed on such person for conviction of an offense, whether or not the offense (1) arises out of another transaction or (2) arises out of the same transaction and requires proof of a fact which the other does not."
Id., at 691, 100 S.Ct., at 1437 (emphasis in original). Apparently this aspect of the case is what persuades the majority to say the instant cause is "unlike Whalen," at 626; see text infra.
. The majority seems to be laboring under the impression that the views expressed by Justice White were subsequently accepted by the Court, at 626, and therefore the Blockburger rule of statutory construction as "consistently relied on ever since” by the Supreme Court, and as again explicated and applied in Whalen , has lost its relevance, if not vitality, in determining legislative intent regarding permissible imposition of cumulative punishment. Having assumed early on that “the State in proving the robbery allegations, made in the aggravated kidnapping indictment, relied upon the same evidentiary facts as those relied upon to prove the aggravated robbery case such that the aggravated kidnapping case enveloped the aggravated robbery case," at 625, the majority never makes any kind of "same offense ” analysis, such as done in Whalen . In this the majority has missed the point made in the cases, including both "subsequent acceptances” to which it alludes, namely, Alber-naz v. United States, supra, and Missouri v. Hunter, supra.
. To acknowledge that the Government has "broad discretion to conduct criminal prosecutions, including its power to select the charges to be brought in a particular case,” however, is not to say that an accused "may be convicted and punished for two offenses." Ball v. United States, 470 U.S. 856, at 859-861 , 105 S.Ct. 1668, at 1670-1671 , 84 L.Ed.2d 740 (1985). Application of the Blockburger test of statutory construction and its underlying assumption may preclude "a criminal conviction, not simply the imposition of sentence,” id., at 861, 105 S.Ct., at 1671 . Thus, again, the question is one of legislative intent, ascertained after resort to germane sources such as legislative history, and where it is determined that "Congress did not intend [accused’s] conduct to be punishable under both [provisions],” the only remedy is to "vacate one of the underlying convictions.” Id., at 864, 105 S.Ct., at 1673 . See United States v. Gaddis, 424 U.S. 544, at 550 , 96 S.Ct. 1023, at 1027 , 47 ' L.Ed.2d 222 (1976).
. On the question of legislative intent, federal decisions discussed and cited throughout this opinion make clear that the inquiry may embrace investigating more than bare statutory provisions. Left open, but suggested in some contexts, among other considerations are ramifications of allegations in the charging instruments, as well as proof made in sustaining them.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9857646. Public record. Not legal advice.