Petition — Texas v. Mixon

* Eupreme Court, UE]

FILED ‘i

79-608 OCT 12 1979 |

IN THE ‘

Co ICHARN AODAK JR, CLERR

SUPREME COURT OF THE UNITED

OCTOBER TERM, 1979

* * *

THE STATE OF TEXAS,

Petitioner

V.

DONALD GENE MIXON

AND

WELDON C. DIXON,

Respondents

— * *& *

PETITION FOR A WRIT OF CERTIORARI TO

THE TEXAS COURT OF CRIMINAL APPEALS

* * &*

MARK WHITE ROLAND SAUL

Attorney General of Texas Criminal District Attorney

Deaf Smith County, Texas 79045

JOHN W. FAINTER, JR.

First Assistant JERRY SPENCER DAVIS

District Attorney

TED L. HARTLEY Hunt County, Texas 75401

Executive Assistant

W. BARTON BOLING

Assistant Attorney General

DOUGLAS M. BECKER

Assistant Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 475-3281

INDEX

Cra a codes hecinlidaeseiainanniniaanoniobasianwies 1

Ua i ccetaanlsmnenmninamnbeusaaninienes 1

er I I iia cscainesnnannasianebonesarnecoubiiacssinece 2

STATUTORY PROVISIONS INVOLVED .........ccccceeccsseecsesseeeees 2

STATEMENT OF THE CASES. .n.........scccccccccosscccscscccsccccsscesscessee 2

REASONS FOR GRANTING THE PETITION ..................00008 3

SR ear aha cee Nii hickss sss ace etndsamsetebeiaeeeunakitniansniees 4

I. The Texas Court of Criminal Appeals Incorrectly

Held Fully Retroactive This Court’s Holdings In

Burks v. United States and Greene v. Massey ..........00.00000 4

II. The Retroactivity Of Burk and Greene Is A

Question Of National Importance ..............cccssccssseessesesceeees 9

A. Unless These Cases Are Held To Be Prospective,

The Number of Prisoners Who May Receive

Drastic Relief -- Outright Release -- Is

Substantial, Even Though All Are Now

Imprisoned As A Result Of An Otherwise

Constitutionally Impregnable Conviction .................. 9

B. This Case Presents A Significant

Opportunity To Diminish The Unfair

Impact Of This Court’s Decision In

Ny iii aia cs ccvtieninsietinbabalboenondacncnnentens 10

nn a cee bal uabiaianaapiiummibiuatl 11

-ii-

TABLE OF AUTHORITIES

Cases Page

Abney v. United States, 431 U.S. 615 (1977) .......cccssseecesseesssesees 6

Ae o. Seema, BHT UB. GD CIID issn cstassscavensnnsavcnacssenssiscesonses 6

Benton v. Maryland, 395 U.S. 784 (1969) ...........cccccccsscssssssssseeesees 9

Blackburn v. Cross, 510 F.2d 1014 (5th Cir. 1975) oe eeeeeeee 6

Breas & Soma: 4RE UG. CIS COTE) oniescsesicescscisesssccessssessessnstesousinss 6

Burks v. United States, __U.S.__, 98 S.Ct. 2141 (1978) . passim

Desist v. United States, 394 U.S. 244 (1969) .......ssscscsesseesseneeseenss 5

Ex parte Dixon, 583 S.W.2d 793 re oky , Soa MTU Metsinkicgas 1

Dixon v. State, 541 S.W.2d 437 (Tex.Crira.App. 1976) ............... 3

Greene v. Massey, __U.S.__, 98 S.Ct. 2151 (1978) ........... passim

Hankerson v. North Carolina, __U.S.__, 97 S.Ct. 2839 (1977) 8

Holt v. Black, 550 F.2d 1061 (6th Cir.) cert. denied, 432 U.S.

pai ahla saircacssitettie taseccsa canna ni anceabhdivoececahintencenstbscanageicetcaspaite 6

Ivan v. City of New York, 407 U.S. 203 (1972) wn. ceeeescsseseeees 8

Jackson v. Justices of Superior Court of Mass., 549 F.2d

215 (1st Cir.), cert. denied, 480 U.S. 975 (1977) ..........ccccccceeseees 6

Jackson v. Virginia, __U.S.__, 99 S.Ct. 2781 (1979) ... 3, 10, 11

Johnson v. State, 571 S.W.2d 4 (Tex.Crim.App. 1978) ............ 7,9

Linkletter v. Walker, 381 U.S. 618 (1965) .............cccccsssssscosccsccccees 5

Ex parte Mixon, 583 S.W.2d (Tex.Crim.App. 1979) ..............s00 1

Mixon v. State, 507 S.W.2d 238 (Tex.Crim.App. 1974) ............... 2

Robinsor v. Neil, 409 U.S. 505 (1978) ............ccccesscessssereeees 5, 6, 7

Stovall v. Denno, 388 U.S. 298 (1967) ..........sserccrsssssesceccccsserreesee 5

United States v. Rumpf, 576 F.2d 818 (10th Cir. 1976),

cnet, Gentes, AS Bag DO BIA, BBR GIG) svccssscscersccsssassacesnes 6

Waller v. Florida, 397 U.S. 387 (1970) ........c.rccccsrscrcsccsssessescees 5, 6

-ili-

STATUTES

BRISA ARIS RS ya acd es ge ACN ale 2

ITO Ct rn 2,7

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

* * *

THE STATE OF TEXAS

Petitioner

V.

DONALD GENE MIXON

AND

WELDON C. DIXON,

Respondents

* * *

PETITION FOR A WRIT OF CERTIORARI TO

THE TEXAS COURT OF CRIMINAL APPEALS

* * **

The Petitioner State of Texas respectfully prays thata

writ of certiorari issue to review the judgments of the

Texas Court of Criminal Appeals entered in these

proceedings! on July 18, 1979.

OPINIONS BELOW

The opinions of the Texas Court of Criminal Appeals

are Ex parte Mixon, 583 S.W.2d 378 (Tex.Crim.App.

1979) (en banc) and Ex parte Dixon, 583 S.W.2d 793

(Tex.Crim.App. 1979) (en banc). These opinions appear

in the Appendix hereto as “A” and “B” respectively.

JURISDICTION

The judgment of the Texas Court of Criminal Appeals

in Ex parte Mixon was entered on February 28, 1979. A

1The parties are listed together in one caption pursuant to Rule

23(5), Rules of the Supreme Court of the United States.

-2-

timely filed motion for rehearing was denied on July 18,

1979.

The judgment of the Texas Court of Criminal Appeals

in Ex parte Dixon was entered on July 18, 1979.

This petition for writ of certiorari was filed within

ninety days after final judgment in each of these cases.

This Court’s jurisdiction is invoked under 28 U.S.C.

§1257(38).

QUESTION PRESENTED

Whether this Court’s decisions in Burks v. United

States, U.S.__, 98 S.Ct. 2141 (1978), and Greene v.

Massey, __U.S.__, 98 S.Ct. 2151 (1978), that the

Double Jeopardy Clause of the Constitution bars retrial

and conviction following an initial appellate reversal for

insufficient evidence, should be applied retroactively?

STATUTORY PROVISIONS INVOLVED

Article 44.25, V.A.C.C.P.

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 a new

trial.

STATEMENT OF THE CASES

Respondent Donald Gene Mixon was convicted in

Deaf Smith County, Texas, in 1972 for theft of grain

over fifty dollars. On appeal, the Texas Court of

Criminal Appeals held that the evidence was

insufficient to support the conviction and, in compliance

with Article 44.25, V.A.C.C.P., remanded the cause for

a new trial, Mixon v. State, 507 S.W.2d 238

(Tex.Crim.App. 1974). In August, 1974, respondent was

retried for the same offense, convicted, and received a

-3-

sentence of seven years. On appeal, the judgment was

affirmed in an unpublished per curiam opinion. Mixon

v. State, No. 50, 175 (Tex.Crim.App., Sept. 17, 1975). See

Table, 527 S.W.2d 316. Subsequently, respondent filed

a petition for writ of habeas corpus in the state

convicting court which recommended the granting of

relief on the basis of this Court’s holdings in Burks and

Greene. On February 28, 1979, the Texas Court of

Criminal Appeals en banc granted habeas corpus relief

on the same basis. The State timely filed a motion for

rehearing which was overruled by the court en banc

with a dissent on July 18, 1979. This petition for writ of

certiorari followed.

Respondent Weldon C. Dixon was originally

convicted in Hunt County, Texas, for aggravated

robbery. On appeal, the conviction was reversed and

remanded for insufficient evidence. Dixon v. State, 541

S.W.2d 437 (Tex.Crim.App. 1976). Respondent was

retried and convicted for the same offense, receiving a

sentence of sixteen years. Later he filed a state petition

for writ of habeas corpus that was ultimately granted by

the Texas Court of Criminal Appeals on July 18, 1979, on

the basis of this Court’s holdings in Burks and Greene.

This petition for writ of certiorari followed.

REASONS FOR GRANTING THE PETITION

1. THE TEXAS COURT OF CRIMINAL

APPEALS INCORRECTLY HELD FULLY

RETROACTIVE THIS COURT’S DECISIONS

IN BURKS V. UNITED STATES AND

GREENE V. MASSEY.

2. THE RETROACTIVITY OF BURKS AND

GREENE IS A QUESTION OF NATIONAL

IMPORTANCE.

A. Unless These Cases Are Held To Be Prospec-

tive, The Number of Prisoners Who May

ol

Receive Drastic Relief -- Outright Release --

is Substantial Even Though All Are Now

Imprisoned as a Result of an Otherwise

Constitutionally Impregnable Conviction.

B. This Case Presents a Significant Opportunity

to Diminish the Unfair Impact of this Court S

Recent Decision in Jackson v. Virginia.

ARGUMENT

I. THE TEXAS COURT OF CRIMINAL

APPEALS INCORRECTLY HELD FULLY

RETROACTIVE THIS COURT’S HOLDINGS

IN BURKS V. UNITED STATES AND

GREENE V. MASSEY.

In Burks v. United States, __U.S.__, 98 S.Ct. 2141

(1978), and Greene v. Massey, —U5.—.. 98 S.Ct. 2151

(1978), this Court overruled a long line of its own

authorities in order to hold that the Double Jeopardy

Clause of the United States Constitution bars retrial ofa

criminal defendant who has obtained an appellate

reversal of his conviction because of insufficiency of the

evidence. The Court reasoned that if the evidence were

legally insufficient at trial, then theoretically the case

should never have been submitted to the jury at all, but

instead any defendant who at the close of the State’s

evidence moved for an instructed acquittal would have

been entitled to one.

For this reason, the Court held that all defendants are

entitled to the double jeopardy benefits of the State S

failure to present sufficient evidence at its initial

opportunity. The Court, however, failed to rule

explicitly whether its holdings would apply

retroactively so as to invalidate the convictions of all

defendants who had already been retried and

reconvicted in criminal proceedings supported by

sufficient evidence and free of any other constitutional

is.

infirmity.?

The criteria for determining retroactivity of double

jeopardy decisions were set out in Robinson v. Neil, 409

U.S. 505 (1973). At issue there was the retroactivity of

the double jeopardy holding in Waller v. Florida, 397

U.S. 387 (1970).

The Supreme Court noted that the analysis embodied

in Linkletter v. Walker, 381 U.S. 618 (1965), which is

based upon protecting “the very integrity of the fact-

finding process,” id. at 689, is “not appropriate” in the

context of double jeopardy decisions, Robinson v. Neil at

509. The Court continued to emphasize, however, the

“element of reliance embodied in the Linkletter analysis

Thus, the Court, cautioning against the view that its

rule of decision “is an ironclad one that will invariably

result in the easy classification of cases in one category

2It is worth noting that there are numerous reasons why the State

during a second prosecution might adduce constitutionally suffi-

cient evidence after failing todo so during the first. Of minor impor-

tance is the possibility that the passage of time might produce addi-

tional evidence of guilt. More significantly, the State often possesses

inculpatory and even damning evidence that it chooses not to intro-

duce because it may be held inadmissible on appeal. The evidence

may be a fruit of asearch that the State fears will ultimately be held

improper, or of a confession that might on appeal be held coerced.

The evidence may be of arguable but less than certain admissiblity

for many other reasons that may cause the prosecution to seek a con-

viction without it.

‘This analysis, as summarized in Stovall v. Denno, 388 U.S. 293,

297 (1967) emphasizes the purpose to be served by the new stan-

dards, the extent of reliance by lay enforcement authorities on the

old standards, and the effect on the administration of justice of a re-

troactive application of the new standards. Desist v. United States,

394 U.S. 244, 249 (1969).

-6-

or another,‘ zd. at 509, established a two-prong good

faith reliance and prejudice test. This test focuses first

on whether the State’s reliance on the prior rule was

supported by case law such that the new constitutional

decision “marked a departure from past decisions of this

[Supreme] Court.” Robinson v. Neil at 511. If so, the

State’s reliance upon earlier constitutional decisions,

both state and federal, would obviously be in good faith.

Second, the Court felt it important to examine the

nature and form of the prejudice the State would suffer

from retroactive application of the constitutional rule

and the extent of the unfairness of such prejudice,

compared to the beneficial effect upon the valid

interests of defendants in such retroactive application.

Applying this test to the facts before it, the Supreme

Court held Waller v. Florida retroactive, stating first

that “(the] decision in Waller cannot be said to have

marked a departure from past decisions of this Court.”

Robinson v. Neil at 510. The Court in effect held that the

State should have realized that municipalities and states

were. sufficiently parts of one sovereign such that

criminal prosecution by one would bar later criminal

prosecution by the other -- the essential holding of

Waller v. Florida.

4Indeed, in the four most recent double jeopardy-retroactivity

cases located by the State, two held a Supreme Court double

jeopardy decision to be retroactive, and two refused to do so. In Holt

v. Black, 550 F.2d 1061 (6th Cir.), cert. denied, 432 U.S. 910 (1977),

the Court held Breed v. Jones, 421 U.S. 519 (1975), retroactive,

whereas a contrary conclusion was reached in Jackson v. Justices of

Superior Court of Mass., 549 F.2d 215 (1st Cir.), cert. denied, 430

U.S. 975 (1977). In United States v. Rumpf, 576 F.2d 818 (10th Cir.

1976), cert. denied, __U.S.__, 99 S.Ct. 251 (1978), the decision in

Abney v. United States, 431 U.S. 651, (1977), was held to be

prospective only. Finally, in Blackburn v. Cross, 510 F.2d 1014 (5th

Cir. 1975), the Fifth Circuit afforded full retroactive status to the

collateral estoppel doctrine of Ashe v. Swenson, 397 U.S. 436 (1970).

x3

By contrast, the decisions of the Supreme Court in

Burks v. United States and Greene v. Massey marked a

significant departure from prior decisions. The Court

itself admitted, “The Court’s holdings in this area,

beginning with Bryan, can hardly be characterized as

models of consistency and clarity.” Burks v. United

States, __U.S. at __, 98 S.Ct. at 2146. The Court

further admitted, “To reach a different result [from the

Court of Appeals] will require a denarture from the

[earlier] holdings.” Jd. To settle the matter, the Court

stated:

“(Ojur past holdings do not appear consistent

with what we believe the Double Jeopardy

Clause commands. A close re-examination of

those precedents, however, presuades us that

they have not properly construed the Clause,

and accordingly, should no longer be followed.”

Id. at __, 2147. Obviously, the law in this area before

Burks and Greene -- especially insofar as whether

seeking an appeal constituted a waiver of a criminal

defendant’s double jeopardy rights -- was on balance

contrary to the newly announced constitutional rule.

Texas law for decades has mirrored federal law in this

respect. In a long and unbroken line of cases

implementing Article 44.25, V.A.C.C.P., and _ its

statutory predecessors, the Texas Court of Criminal

Appeals has held that a defendant might be retried for

the same offense following a reversal for insufficient

evidence. Thus, under Robinson v. Neil, good faith

reliance by Texas law enforcement authorities is shown.

Clearly, good faith detrimental reliance could well

have been a reality in many cases such as respondents’,

‘After Burks and Greene the Court of Criminal Appeals held

Article 44.25 unconstitutional to the extent of conflict with this

Court’s decisions. Johnson v. State, 571 S.W2d 4, 6 n2

(Tex.Crim.App. 1978).

-8-

and in two ways. First, for example, if respondents

might have been tried upon other charges following

their first convictions, but the State in good faith

believed that they might also validly be retried upon the

same charge for which a reversal of the conviction had

been obtained, good faith reliance would be shown.

Through no fault of the State, respondents could not now

be retried for any of such charges, the applicable

statutes of limitations having long ago expired.

Second, there are many reasons why there might have

been additional evidence that might have been

introduced at respondents’ trials, but that was excluded

for a variety of reasons. See footnote two, supra. The

State should not be forever deprived of this evidence

because of a strategic judgment founded upon a good

faith, but erroneous, view of the law.

It should be emphasized that these respondents do not

present issues in which doubt has been cast upon the

accuracy of the guilty verdict in their second trials. In

Ivan V. v. City of New York, 407 U.S. 203, 204 (1972)

[quoted and emphasis added in Hankerson v. North

Carolina, __U.S.__, 97 S.Ct. 2339, 2345 (1977)], the

Supreme Court stated as follows:

“Where the major purpose of new

constitutional doctrine is to overcome an aspect

of the criminal trial that substantially i impairs

its truth-finding function and so raises serious

questions about the accuracy of guilty verdicts

in past trials, the new rule has been given

complete retroactive effect. Neither good faith

reliance by state or federal authorities on prior

constitutional law or accepted practice, nor

severe impact on the administration of justice

has sufficed to require prospective application

in these circumstances.” [citations omitted]

The major purpose of double jeopardy doctrine is not

-9-

to protect the integrity of the fact-finding process;

instead, it is to preclude the State from harassment of an

individual by repeated attempts to incarcerate him.

Benton v. Maryland, 395 U.S. 784, 795-96 (1969); Green

v. United States, 355 U.S. 184, 187-88 (1957). Indeed, it is

fundamental to principles of double jeopardy that it is

preferable that a guilty man go free than be subjected to

a forbidden second prosecution.

For these reasons, a question as to the accuracy of a

guilty verdict based upon legally insufficient evidence is

a sound basis for ordering an acquittal upon direct

appeal from such a verdict, as this Court did in Burks

and Greene, and as the Texas Court of Criminal Appeals

did in Johnson v. State, 571 S.W.2d 4 (Tex.Crim.App.

1978). In the instant cases, however, any such question

has been obviated or minimized by the subsequent

retrials of respondents and the presentation of

additional evidence that is legally sufficient to sustain

their convictions. Since it is no longer possible to prevent

the second prosecution and because respondents now

stand validly convicted upon legally sufficient evidence,

Burks and Greene should be held prospective only in

their application.

II. THE RETROACTIVITY OF BURKS AND

GREENE IS A QUESTION OF NATIONAL

IMPORTANCE.

A. Unless These Cases Are Held Prospective, the

the Number of Prisoners Who May Receive

_ Drastic Relief -- Outright Release -- Is

Substantial, Even Though All Are Now

Imprisoned As A Result Of An Otherwise

Constitutionally Impregnable Conviction.

The question presented is an important one in two

ways. First, as a result of the opinion below, every Texas

prisoner convicted upon retrial following appellate re-

versal for insufficient evidence at his first trial must

-10-

be released, even though the State under applicable

statutes of limitations has lost any right to retry such a

prisoner on other or lesser included charges due to the

passage of years or even decades. The effect of this

decision upon Texas and other states simply in terms of

the number of prisoners potentially entitled to release is

so great that this Court’s attention to the matter is

warranted.

This is not a case in which the interests of only a few

prisoners have been determined, nor is it a case which

can be characterized as unique in the set of

circumstances resulting in the invalidation of a

conviction. Rather, the holding in this case requires the

release of a group of prisoners who have been found

guilty of diverse criminal acts, including the most

serious felonies, and as to which any doubt as to the

accuracy of these convictions and the factual guilt of the

convicted defendants was resolved at the second trial.

Because these convictions were pursued and obtained

routinely under a standard of criminal procedure which

had been approved by both federal and state court

decisions, including decisions of this Court, the number

of such prisoners in the Texas Department of

Corrections is large. There are surely far more, of

course, nationally.

Second, this Court should seize this opportunity to

resolve the obvious uncertainties among all the states

and the federal courts as to the scope of the applicability

of Burks and Greene. The virtual certainty of

contradictory holdings among these jurisdictions is not

an appealing one for the sound and equal administration

of justice. The Court should now resolve ail doubts and

decide whether Burks and Greene are retroactive.

B. This Case Presents A Significant

Opportunity to Diminish The Unfair Impact

Of This Court’s Decision In Jackson v.

Virginia.

th.

In Jackson v. Virginia, U.S._, 99 S.Ct. 2781

(1979), this Court held that a federal habeas corpus

petitioner may challenge the sufficiency of the evidence

in his state criminal trial. The Court, as in the instant

case, gave no explicit guidance as to the retroactivity of

its holding. Such a retroactive application of Jackson

would have a profoundly adverse effect upon the

administration of justice, unless tempered by a holding

that Burks and Greene are prospective only. Petitioner’s

reasoning follows.

To hold Burks and Greene prospective only would

mean that in any case where the constitutional wrong --

i.e., failure to grant the defendant a directed verdict of

acquittal at the close of the evidence at the original trial

-- occurred prior to June 14, 1978, the date of decision in

Burks and Greene, retrial was permissible. The import

of such a holding in relation to Jackson v. Virginia

would be to allow retria! now of many habeas petitioners

who are found to have been convicted upon insufficient

evidence. Whenever the constitutional wrong as stated

above occurred in such a case prior to June 14, 1978,

such a retrial would be permissible.

The instant case, therefore, presents an excellent

opportunity for the Court to lessen the unfair impact of

an important portion of its holding in Jackson v.

Virginia.

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the decisions of the Texas Court of Criminal

Appeals.

Respectfully submitted,

MARK WHITE

Attorney General of Texas ROLAND SAUL

Criminal District Attorney

JOHN W. FAINTER, JR. Deaf Smith County, Texas 79045

First Assistant

-12-

TED L. HARTLEY

Executive Assistant JERRY SPENCER DAVIS

District Attorney

W. BARTON BOLING Hunt County, Texas 75401

Assistant Attorney General

DOUGLAS M. BECKER

Assistant Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 475-3281

APPENDIX

A-1

APPENDIX A

Ex parte Donald Gene MIXON.

No. 60318.

Court of Criminal Appeals of Texas,

En Banc.

Feb. 28, 1979.

Rehearing Denied July 18, 1979.

OPINION

CLINTON, Judge.

This is an application for writ of habeas corpus filed

pursuant to Article 11.07, V.A.C.C.P. After a November

17, 1978 hearing on the application the trial court made

and filed findings of fact and conclusions of law which,

in pertinent part, not only provide the setting for our

consideration of the application but also correctly

suggest the legal decision and relief that must follow:

“FINDINGS OF FACT”

1. Petitioner, Donald Gene Mixon, was convicted in

January of 1972 in the 69th Judicial District

Court, Deaf Smith County, Texas, in Cause No.

2190 for theft of grain over the value of $50.00,

and he appealed. The Court of Criminal Appeals

of Texas held that the evidence was insufficient to

support the conviction, therefore reversing the

judgment and remanding the cause. Mixon v.

State, Tex.Cr.App., 507 S.W.2d 238, . ..

2. In August of 1974, petitioner was tried for a

secorid time in said Cause No. 2190, was

convicted, and received a sentence of from two to

seven years in the Texas Department of

Corrections. Upon petitioner’s appeal of this

second conviction, the judgment was affirmed by

the Court of Crimirial Appeals in its Per Curiam

opinion number 50, 175, . . . . (Delivered

September 17, 1975 and unpublished)

SS ee NT

A-2

Ss * 8 8

4. As alleged by petitioner in his ‘Ground # 6’ his

first conviction in said Cause No. 2190 was

reversed and remanded upon a holding by the

Court of Criminal Appeals of Texas that there

was insufficient evidence to support the

judgment of conviction. Petitioner was then re-

tried in said Cause No. 2190, convicted, assessed a

seven year prison sentence by the jury and

sentenced to serve from two to seven years in the

Texas Department of Corrections; and he was

then unsuccessful in his appeal.

CONCLUSIONS OF LAW

In accordance with the holdings of the United States

Supreme Court in Burks vs United States [437], U.S. [1],

98 S.Ct. 2141, 57 L.Ed.2d 1, and Greene v. Massey [437],

US. [19], 98 S.Ct. 2151, 57 L.Ed.2d 15, and the Court of

Criminal Appeals of Texas in Ayers vs State,

Tex.Crim.App., 570 S.W.2d 926, the Double Jeopardy

Clause of the United States Constitution precludes a

second trial once the reviewing court has found the

evidence legally insufficient. It appears that the relief

sought by petitioner, to wit: his discharge from

confinement in the Texas Department of Corrections

under a conviction and sentence in said Cause No. 2190

should be granted.”

The habeas court is absolutely correct and the relator

is entitled to relief—if the rule of Burks and Greene,

supra, is to be applied retroactively. We hold that it is.!

Accordingly, relator is granted the relief hereinafter

ordered.

'The Double Jeopardy Clause was held “fundamental to the

American scheme of justice” and applicable to the states by Benton

v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

This Court has recognized and followed the principle that

retroactive effect is given to decisions which implement “the

fundamental notions of fairness embodied within the concept of due

ee ee

A-3

It is ordered that the judgment of conviction in Cause

No. 2190 in the District Court of Deaf Smith County,

Texas, 222nd Judicial District is set aside and is

reformed to show an acquittal and relator is discharged

from confinement in the Texas Department of

Corrections under the sentence in said Cause No. 2190.

OPINION ON STATE’S MOTION FOR

LEAVE TO FILE MOTION FOR

REHEARING

DOUGLAS, Judge, dissenting.

I dissent for the reasons stated in the dissenting

opinion in Ex parte Reynolds, —— kf

(Tex.Cr.App. 1979).

- process,” as in, e. g., Ex Parte Halford, 536 S.W.2d 230

(Tex.Crim.App. 1976). Clearly that principle is broad enough to in-

clude the “fundamental nature of the guarantee against double

jeopardy,” Benton v. Maryland, supra, 395 U.S. at 795, 89 S.Ct. at

2063.

Moreover, as explicated in Burks, supra, early failure to

distinguish between reversals due to trial error and those resulting

from evidentiary insufficiency “has contributed substantially to the

present state of conceptual confusion existing in this area of the

law.” Pointing out that an appellate reversal for insufficiency of

evidence means that the case for the prosecution was so lacking that

it'sheuld not have ever been submitted to the jury and that absolute

finality is accorded a verdict of acquittal, so that “it is difficult to

conceive how society has any greater interest in retrying a

defendant when, on review, it [has been] decided as a matter of law

that the jury could not properly have returned the verdict of guilty,”

the Supreme Court thought it mattered not in this context that a

defendant had sought a new trial as one of his remedies for, “It

cannot be meaningfully said that a person ‘waives’ his right to a

judgment of acquittal by moving for a new trial.” Given this

rationale for the Burks conclusion, it “so raises serious questions

about the accuracy of guilty verdicts in past trials,” Ivan V. v. New

York, 407 U.S. 208, 204, 92 S.Ct. 1951, 1952, 832 L.Ed.2d 659 (1972)

that retroactive effect follows; see also Hankerson v. North

Carolina, 482 U.S. 238, 97 S.Ct. 2839, 2344 (1977) holding

retroactive the rule in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct.

1881, 44 L.Ed.2d 508 (1975).

A-4

APPENDIX B

Ex parte Weldon C. DIXON.

No. 62089.

Court of Criminal Appeals of Texas,

En Banc.

July 18, 1979.

OPINION

DOUGLAS, Judge.

Dixon was convicted for the offense of aggravated

robbery. His punishment was assessed at 16 years. He

contends that he is entitled to relief because the first

trial of his case resulted in a reversal because the

evidence was held to be insufficient to support the

conviction and he was convicted in the present case for

the same offense. We agree.

In Dixon v. State, 541 S.W.2d 437 (Tex.Cr.App. 1976),

the conviction was reversed because of insufficient

evidence. He now attacks the second conviction because

of the recent rulings of the Supreme Court of the United

States in Burks v. United States, 487 U.S. 1, 98 S.Ct.

2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 4387 U.S. 19,

98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), which held that a

second trial is prohibited once a reviewing court

determines that there was insufficient evidence to

support the verdict.

Since those decisions were handed down, this Court

has held the Burks and Greene cases to be retroactive.

See Ex parte Mixon, 583 S.W.2d 378 (1979), and Ex

parte Reynolds, __ S.W.2d __ (No. 60647, June 20,

1979).

In view of these holdings, the relief sought should be

granted and this is tantamount to an acquittal.

A-5

The relief sought is granted and Dixon is ordered

released from custody from his conviction in cause no.

2270 in the District Court of Hunt County.