holding that the Blockburger doctrine applies when the State attempts to prosecute an individual for two distinct statutory provisions, not when the State seeks to prosecute an individual for multiple violations of a single statute
How later courts described this case
- holding that the Blockburger doctrine applies when the State attempts to prosecute an individual for two distinct statutory provisions, not when the State seeks to prosecute an individual for multiple violations of a single statute
- noting that the Supreme Court had made it clear that an interlocutory appeal of a double jeopardy claim “is not only a proper but a preferred remedy,” because the right against twice being placed in jeopardy would be “significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence”
- stating that in the context of involuntary manslaughter the allowable unit of prosecution is determined by the death of each victim
- holding that defendant while driving intoxicated and killing two women had committed two offenses of involuntary manslaughter
Written by the judges who cited it.
The opinion
ONION, Presiding Judge,
dissenting.
These proceedings involve the improper use of a pre-trial application for writ of habeas corpus, Ex parte Robinson, 641 S.W.2d 552 (Tex.Cr.App.1982), notwithstanding. The writ of habeas corpus cannot be used as a substitute for an appeal from a conviction, much less an interlocutory appeal, as in effect the case at bar is, though dressed in the cloak of a habeas corpus appeal.
Robinson, a panel opinion of this Court, in which a motion for leave to file a motion for rehearing was never filed, has not yet been fully reviewed by this Court en banc. Robinson was wrongly decided. Its analysis was not in-depth and its reasoning was flawed. To permit an appeal from a pretrial order in a habeas corpus proceedings to be used as an office for an interlocutory or piecemeal appeal against which there is a firm policy and a strong body of law, can only cause delays and disruptions attendant upon such “appeal” which are inimical to the effective and fair administration of justice in criminal cases. The fact that a “double jeopardy” issue is involved does not wave a magic wand and change things or reality. The pre-trial habeas application was filed on September 2, 1983, and the matter, over three years later, is still in the appellate courts. The offense charged has never been tried. Who first said “Justice delayed is justice denied”?
It is time for this Court to stand back and take a long look at the panel opinion in Robinson.
The Right of Appeal
There is no federal constitutional right to state appellate review of state criminal convictions. McKane v. Durston, 153 U.S. 684 , 14 S.Ct. 913 , 38 L.Ed. 867 (1894); Griffin v. Illinois, 351 U.S. 12 , 76 S.Ct. 585 , 100 L.Ed. 891 (1956); Estelle v. Dorrough, 420 U.S. 534 , 95 S.Ct. 1173 , 43 L.Ed.2d 377 (1975), reh. den. 421 U.S. 921 , 95 S.Ct. 1589 , 43 L.Ed.2d 790 , and on remand, 512 F.2d 1061 (5th Cir.1975); Jones v. State, 630 S.W.2d 353 (Tex.Cr.App.1982). The United States Supreme Court has never held that states are constitutionally required to provide a right to appellate review. Griffin v. Illinois, supra; Miracle v. Estelle, 592 F.2d 1269 (5th Cir.1979).
It is, of course, a fundamental principle of due process and equal protection that once avenues of appellate review are established, they must be kept free of unreasoned distinctions that can only impede open and equal access to the courts. Griffin v. Illinois, supra; Douglas v. California, 372 U.S. 353 , 83 S.Ct. 814 , 9 L.Ed.2d 811 (1963); Lane v. Brown, 372 U.S. 477 , 83 S.Ct. 768 , 9 L.Ed.2d 892 (1963); Rinaldi v. Yeager, 384 U.S. 305 , 86 S.Ct. 1497 , 16 L.Ed.2d 577 (1966); North Carolina v. Pearce, 395 U.S. 711 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969); Miracle v. Estelle, supra.
The Texas Constitution does not refer directly to the right of a defendant to appeal a criminal conviction. 1 It does provide that the appellate jurisdiction of the Court of Criminal Appeals and the Courts of Appeals is subject to such exceptions and such regulations as provided in the Constitution or as prescribed by law. See Article I, §§ 5 and 6, Tex.Const.; 21 Tex.Jur.3rd, Crim.Law, § 1606, p. 403.
As can be seen, the Legislature can make such exceptions and regulations regarding the appellate jurisdiction of the Court of Criminal Appeals and the Court of Appeals as it desires. See and cf. Armes v. State, *48 573 S.W.2d 7 (Tex.Cr.App.1978); Ex parte Spring, 586 S.W.2d 482 (Tex.Cr.App.1978); Ex parte Firmin, 60 Tex.Cr.R. 222 , 131 S.W. 1116 (Tex.Cr.App.1910).
Thus, generally speaking, “Appeals are within the control of the Legislature, and an appeal is a privilege, dependent on statute.” 21 Tex.Jur.3rd, Crim.Law, § 106, p. 403; Powell v. State, 99 Tex.Cr.R. 276 , 269 S.W. 443 (1925). The only right of a defendant to appeal in a criminal case is a statutory right. See generally Article 44.-02, V.A.C.C.P.; Ex parte Bennett, 211 S.W. 934 (Tex.Cr.App.1919); Powell v. State, supra; Ex parte Minor, 115 Tex. Cr.R. 634, 27 S.W.2d 805 (1930); Ex parte McKenzie, 115 Tex.Cr.R. 315 , 29 S.W.2d 771 (1930); Savage v. State, 155 Tex.Cr.R. 576 , 237 S.W.2d 315 (1951); Ex parte ..Paprskar, 573 S.W.2d 525 (Tex.Cr.App.1978); Ex parte Spring, 586 S.W.2d 482 (Tex.Cr.App.1978).
“In the exercise of its powers, the Legislature may impose proper restrictions on the right of appeal, prescribe regulations in regard to appellate jurisdiction, and promulgate rules to be observed in prosecuting an appeal.” 21 Tex.Jur.3rd, Crim.Law, § 1606, p. 404; De Silva v. State, 98 Tex.Cr.R. 499 , 267 S.W. 271 (1925).
It has been said that in absence of constitutional inhibition, the Legislature may prescribe the cases in which parties shall be entitled to bring a cause for review, prescribe courts to which causes shall be brought, and impose such restrictions as the Legislature may see fit, even when federal rights or questions are involved. Millican v. State, 145 Tex.Cr.R. 195 , 167 S.W.2d 188 (1943). 2
Appeals are normally limited to a person convicted of offenses and those denied release under writ of habeas corpus. De Silva v. State, 98 Tex.Cr.R. 499 , 267 S.W. 271 (1924). It has been said that without a sentence or a final judgment of conviction in a criminal case, the Court of Criminal Appeals is without jurisdiction to entertain an appeal. Bratt v. State, 422 S.W.2d 453 (Tex.Cr.App.1968); Thompkins v. State, 87 Tex.Cr.R. 502 , 222 S.W. 1103 (1920); Cor-nutt v. State, 117 Tex.Cr.R. 160 , 38 S.W.2d 91 (1931); Article V, § 5, Vernon’s Anno. Tex.Const., Note 6, and cases there cited; Article 44.02, V.A.C.C.P., note 30. Generally the Court of Criminal Appeals will not review, before trial, conviction and an appeal, any ruling of the trial court. Ex parte Conner, 439 S.W.2d 350 (Tex.Cr. App.1969); Ex parte Fertitta, 167 Tex. Cr.R. 483, 320 S.W.2d 839 (1959). Interlocutory appeals are not permitted. Scott v. State, 158 Tex.Cr.R. 69 , 253 S.W.2d 275 (1953); Ex parte Jones, 449 S.W.2d 59 (Tex.Cr.App.1970); Williams v. State, 464 5.W.2d 842 (Tex.Cr.App.1971).
Habeas Corpus Cannot Be Used as a Substitute for an Appeal
It is also well established that a writ of habeas corpus cannot be used as a substitute for an appeal or to serve the office of an appeal. Article 11.01, V.A.C.C.P., notes 6, 15; Ex parte Hendrix, 64 Tex.Cr.R. 452 , 142 S.W. 570 (Tex.Cr.App.1912); Ex parte Beamer, 116 Tex. 39 , 285 S.W. 255 (1926); Ex parte Ricketts, 148 Tex.Cr.R. 569 , 189 S.W.2d 872 (1945); Ex parte Meadows, 149 Tex.Cr.R. 86 , 191 S.W.2d 731 (1946); Ex parte Napier, 157 Tex.Cr.R. 73 , 246 S.W.2d 878 (1952); Ex parte Dunn, 261 S.W.2d 715 (Tex.Cr.App.1953); Mixon v. State, 365 S.W.2d 364 (Tex.Cr.App.1963).
Writ of habeas corpus will not be used after indictment to prevent trial on the merits. Ex parte Morrell, 135 Tex.Cr.R. 179 , 118 S.W.2d 315 (1938), and the appellate court will decline to dispose of controversy on habeas corpus which could have *49 been brought to court for review in regular channels of appeal. Ex parte Taylor, 131 Tex.Cr.R. 365 , 99 S.W.2d 310 (1937); Ex parte Meers, 129 Tex.Cr.R. 465 , 88 S.W.2d 100 (1936).
Primarily where jurisdiction of the court is appellate, and generally, where complete relief against any supposed error will be afforded by appeal from a conviction, the writ of habeas corpus is not available. Ex parte McKay, 82 Tex.Cr.R. 221 , 199 S.W. 637 (1918). Habeas corpus is an extraordinary writ and generally does not lie where relief may be had or could have been procured by resort to another remedy. Ex parte Wilcox, 128 Tex.Cr.R. 146 , 79 S.W.2d 321 (1935).
It has been held that a plea to the jurisdiction filed with an application for writ of habeas corpus should be made a part of the trial record of the case upon its merits and shall not be heard in a separate proceedings. Ex parte Rodriguez, 413 S.W.2d 919 (Tex.Cr.App.1967).
In Ex parte Jones, 449 S.W.2d 59 (Tex. Cr.App.1970), the Court of Criminal Appeals refused to review an interlocutory order denying a motion to set aside an indictment for lack of a speedy trial as the same was reviewable only on appeal after conviction, not by habeas corpus proceedings. See Williams v. State, 464 S.W.2d 842 (Tex.Cr.App.1971). See also Ex parte Fertitta, 167 Tex.Cr.R. 483 , 320 S.W.2d 839 (Tex.Cr.App.1959).
In Ex parte Conner, 439 S.W.2d 350 (Tex.Cr.App.1969), this Court refused to review by habeas corpus an interlocutory order denying pre-trial motion to suppress evidence.
Former jeopardy, acquittal or conviction cannot be availed of by habeas corpus. Article 11.01, V.A.C.C.P., note 31, and cases there cited. A defendant will not be granted a writ of habeas corpus on a plea of former jeopardy as such question is one for the trial court during the prosecution under the indictment. Ex parte Mitchum, 91 Tex.Cr.R. 62 , 237 S.W. 936 (1922); Mol-lohan v. State, 10 S.W.2d 86 (Tex.Cr.App. 1928); Ex parte Hamlin, 142 Tex.Cr.R. 185 , 152 S.W.2d 334 (1941). A claim of former conviction cannot be raised on habe-as corpus. Ex parte Sawyer, 386 S.W.2d 275 (Tex.Cr.App.1965); Ex parte Spanell, 212 S.W. 172 (Tex.Cr.App.1919), held that a defendant, acquitted of murder, and subsequently indicted, could not by habeas corpus proceedings raise the issue of autrefais acquit as the appropriate remedy was a special plea in the court in which the second indictment is pending.
Ex parte Robinson
Ex parte Robinson, 641 S.W.2d 552 (Tex. Cr.App.1982), was the case with which this discussion ensued. It was a panel opinion never reviewed by this Court en banc. It involved a pre-trial application for writ of habeas corpus in which the applicant sought to raise his double jeopardy or prior conviction claim before trial on the indictment he was attacking. The record reflects Robinson was indicted in the 140th District Court of Lubbock County for carrying a handgun on premises licensed for the sale of alcoholic beverages and for aggravated assault in a second count. The record does not reveal whether Robinson filed a plea to the jurisdiction, a plea of double jeopardy or a special plea of former conviction. He did file in the 140th District Court an application for writ of habeas corpus alleging that he had been afforded an examining trial in a justice of the peace court on the same charges, and that the Justice of the Peace had found no probable cause to bind him over to the grand jury and had discharged him. Despite the fact the Justice of the Peace was sitting as a magistrate in an examining trial only, and his court was not a court of competent jurisdiction over the trial of felonies, Robinson urged that as a result of the actions of the Justice of the Peace the State was barred from seeking an indictment on said charges by virtue of the Fifth and Fourteenth Amendments of the United States Constitution and the doctrine of collateral estoppel.
The 140th District Court, after a hearing, denied relief, and Robinson appealed the *50 order entered in the habeas corpus proceedings. Robinson, without noting that habe-as corpus cannot be used as a substitute for appeal, much less an interlocutory appeal, plunged ahead. Ignoring a large body of law to the contrary, the panel held that the applicant could raise and appeal by habeas corpus proceedings a double jeopardy claim before trial on the indictment because the Fifth Amendment right not to be exposed to double jeopardy must be reviewable before that exposure occurs and that habeas corpus was the proper remedy.
Neither party questioned the procedure used and briefed only the double jeopardy issue. The panel found no merit to the claim that the examining trial placed Robinson in jeopardy. The panel could have easily said that, regardless of the procedure utilized, the contention was without merit, which it clearly was. Instead, the panel turns our established procedure on its head by its gratuitous holding.
The panel relied heavily upon Abney v. United States, 431 U.S. 651 , 97 S.Ct. 2034 , 52 L.Ed.2d 651 (1977). The reliance was clearly misplaced. Abney , a federal case, did not involve habeas corpus proceedings. At the outset Chief Justice Burger, writing for the Court, stated:
“We granted certiorari to determine whether a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds is a final decision within the meaning of 28 U.S.C., Sec. 1291 and thus immediately appealable.”
The Court concluded:
“We therefore hold that pretrial orders rejecting claims of former jeopardy, such as that presently before us, constitute ‘final decisions’ and thus satisfy the jurisdictional prerequisites of Sec. 1291.”
The Abney Court recognized there was no constitutional right to an appeal, and an appeal in a criminal case in the federal system is purely a creature of the statutes, and one exercising the statutory right must come within the terms of the applicable statute. The Court further acknowledged that finality of judgment has been required as a predicate for federal appellate jurisdiction and that there has been a firm congressional policy against interlocutory or “piecemeal” appeals, that the finality of judgment requirement has been particularly stringent in criminal prosecutions because of the delays and disruptions due to interlocutory appeals.
The Abney Court realized that the pretrial order denying the motion to dismiss an indictment on double jeopardy grounds lacked the traditional finality considered indispensable to appellate review, but decided such an order falls within the “small class of cases” constituting the “collateral order” exception to the federal final judgment rule announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 , 69 S.Ct. 1221 , 93 L.Ed. 1528 (1948). In so holding the Court discussed the Fifth Amendment and the nature of a double jeopardy claim; and found the pre-trial order to be a final rejection of the double jeopardy claim.
As can clearly be seen, the Abney decision dealt with federal appellate review and turned on the construction of a federal statute. It did not extend the Fifth Amendment and did not impose upon the states by constitutional mandate the same requirement as an exception to the finality of judgment rule. Abney , contrary to all other law, did not require the states to provide a system of appellate review in criminal cases, nor require that having provided one, states must as a result of the Fifth Amendment made applicable to the states by virtue of the Fourteenth Amendment, provide for interlocutory appeals or habeas corpus proceedings for double jeopardy claims as an exception to the “Cohen” rule applicable to federal cases.
The Robinson panel of this Court in relying upon Abney egregiously erred in stating:
“We are compelled to hold that there is a Fifth Amendment right not to be exposed to double jeopardy, and that it must be reviewable before that exposure occurs. The appellant has invoked the proper procedure to challenge one of the incidents of such exposure. This Court *51 has jurisdiction of the appeal. Therefore, we must consider the merits.”
Abney turned on the construction of a federal statute and did not compel this Court to apply the Fifth Amendment so as to authorize interlocutory appeals, and nothing in United, States v. Hollywood Motor Car Co., 458 U.S. 263 , 102 S.Ct. 3081 , 73 L.Ed.2d 754 (1982), cited by the panel, changed that holding. Habeas corpus, of course, was not used in Abney and was not the proper procedure to be used in substitution of an appeal.
In Spradling v. State, 634 S.W.2d 89 (Tex.App. — Beaumont 1982) (no pet.), there was an attempted interlocutory appeal from a pre-trial order denying the “Plea of Former Conviction.” There the Court of Appeals recognized that this Court has long adhered to the rule that it has jurisdiction to review the trial court’s ruling only after a conviction and did not entertain appeals from interlocutory orders, citing Ex parte Jones, 449 S.W.2d 59, 60 (Tex.Cr. App.1970), and Ex parte Conner, 439 S.W.2d 350 (Tex.Cr.App.1969).
The Court of Appeals in its opinion by Justice Keith correctly noted Abney turned on the construction of a federal jurisdiction statute and not upon the Constitution of the United States.
Subsequently Spradling’s motion for leave to file a writ of prohibition was denied by the Court of Criminal Appeals. Still later petition for writ of certiorari was denied by the United States Supreme Court without written opinion. Spradling v. Texas, 455 U.S. 971 , 102 S.Ct. 1482 , 71 L.Ed.2d 686 (1982). Justice Brennan joined by Justice Marshall dissented to the denial of the writ. In his written dissent Justice Brennan noted that in most applications the Texas rule barring interlocutory review raises no federal constitutional issue, and that in Abney the Court had no need to reach the constitutional question, but felt Abney had “constitutional overtones.” For these reasons Justice Brennan dissented to the denial of the writ and would have set Spradling for oral argument.
It is clear that the majority of the United States Supreme Court does not view Abney as did the panel of this Court in Robinson, which extended the Fifth Amendment into areas which the court on the Potomac has never considered that it protruded.
In most clear-cut double jeopardy situations the State is not likely to seek a second prosecution. In cases where the defendant believes he has a valid double jeopardy claim he may file a plea to the jurisdiction, a special plea of former conviction, former acquittal. See Articles 27.05, 28.01, 28.13, V.A.C.C.P. If the trial court grants his plea or motion, then school is out, for the State has no right of appeal. Article V, § 26, Tex.Const.; Article 44.01, V.A.C.C.P. It is only if the trial court determines that the plea or motion is without merit that the trial proceeds.
Giving special dispensation to pre-trial claims of double jeopardy over all other claims of violations, constitutional and statutory rights may be alluring to the person who does not think the problem through. There has long been a firm legislative policy against interlocutory or “piecemeal” appeals in criminal cases which can only disrupt and delay the trial of criminal charge, sometimes for years such as in the instant case. The rule of finality of judgment pri- or to appeal was designed to avoid just such disruptions and resulting delay. Inroads upon such a rule are inimical to the effective fair and prompt administration of criminal justice in this state.
Under Robinson a defendant may file his pre-trial plea of former jeopardy, former acquittal or conviction, etc., in the trial court where the indictment is pending. It may be based on non-meritorious or even silly grounds as in Robinson. If it is overruled by the trial court, he has no right to an interlocutory appeal therefrom, but if he desires a built-in continuance or a delay of the trial of the case, he may proceed to file an application for a writ of habeas corpus alleging the same contentions as in his overruled pre-trial motion either in the court where the indictment is pending, or as Robinson indicates, another district *52 court in the county where the offense or offenses allegedly had been committed. If relief is denied, then an appeal from the habeas corpus order is taken to a Court of Appeals. After time is consumed in preparation of the appellate record and disposition of the appeal by the Court of Appeals, then it is possible for the defendant to file a petition for discretionary review in this Court. More time is consumed before said petition is passed upon by this Court, even though the claim may be without merit or even silly. Meanwhile the trial of the criminal case has not commenced. This is a bird’s nest on the ground for some defendants, giving them complete control over the disposition of the case for awhile at least. In the instant case, as earlier noted, the time consumed has already been over three years.
I would overrule Robinson, hold the ha-beas corpus cannot be used as a substitute for an appeal, and that this Court is without jurisdiction to entertain these proceedings and dismiss the appeal.
I dissent to the majority’s failure to consider this vital issue.
TOM G. DAVIS, J., joins this opinion.
. Article I, § 11a, Tex.Const., provides for right of appeals to the Court of Criminal Appeals for review of any judgment or order denying bail under the provisions thereof. This, however, is limited to questions of bail and does not address appeals from criminal convictions.
. A few examples of restrictions on the statutory right of appeal' come to mind. Under Article 44.02, V.A.C.C.P., where a defendant has been convicted upon his plea of guilty or nolo conten-dere before the court and his punishment has been assessed in accordance with a plea bargain a defendant may not appeal unless with permission of the trial court "except on those matters which have been raised by written motion filed prior to trial." There is no appellate review of an order deferring adjudication of guilt and placing a defendant on probation. McDougal v. State, 610 S.W.2d 509 (Tex.Cr.App.1981).