#### EX PARTE Jorge Alberto PEREZ

NO. 01-17-00196-CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued October 19, 2017

*878Tristan LeGrande, LEFRANDE LAW, 1445 North Loop West, Suite 760, Houston, TX 770008, for Appellant.

John F. Healey, Jr., District Attorney— Fort Bend County, John J. Harrity, III, Assistant District Attorney, Fort Bend County, 301 Jackson Street, Room 101, Richmond, TX 77469, for State.

Panel consists of Chief Justice Radack and Justices Keyes and Massengale.

OPINION

Michael Massengale, Justice

Appellant Jorge Alberto Perez appeals from the trial court’s denial of his pretrial application for a writ of habeas corpus. In the trial court, Perez has been charged with misapplication of fiduciary property or property of a financial institution of the value of $1,500 or more but less than $20,000. In a prior proceeding involving the same property, the State sought to prosecute Perez on a different charge of theft of property of the value of $1,500 or more but less than $20,000. Perez’s habe-as-corpus application argued that the State’s prosecution of him for misapplication of fiduciary property unconstitutionally places him in double jeopardy because it *879subjects him to a risk of multiple punishments.

The State was barred from prosecuting Perez on the prior theft charge. He therefore is not at risk of multiple punishments arising from the separate prosecutions, and the sole issue in this appeal has become moot. Accordingly, we dismiss the appeal.

Background

A grand jury indicted Jorge Alberto Perez for the offense of theft of property of a value over $1,500 but less than $20,000.1 The State proceeded to trial and a jury was empaneled. The trial court then recessed the trial to allow for a competency examination of Perez. The court recalled the jury, but only five of the original twelve jurors returned. As a result, the trial court declared a mistrial.2

The State then sought to retry Perez for theft. He filed an application for a pretrial writ of habeas corpus, claiming that his retrial for theft was barred by double jeopardy. The trial court denied the application and Perez appealed.3 The Fourteenth Court of Appeals reversed the trial court’s order. It remanded the case with instructions to enter an order discharging the prosecution against Perez, barring any further prosecution against him for the same offense.4

Before the denial of Perez’s habeas application in the theft case, a grand jury returned a different indictment, which charged him with the distinct offense of misapplication of fiduciary property or property of a financial institution of the value of $1,500 or more but less than $20,000.5 Perez filed a pretrial application for a writ of habeas corpus. He argued that the prosecution for misapplication of fiduciary property was barred by double jeopardy because it arose out of the same conduct as the prosecution against him for theft, subjecting him to multiple punishments. The trial court denied the application. Perez appealed.6

Analysis

Perez challenges the trial court’s denial of his application for a pretrial writ of habeas corpus. In the trial court, and now on appeal, his argument has been that the State’s prosecution of him for misapplication of fiduciary property violates the Double Jeopardy Clause of the U.S. Constitution because it arises out of the same conduct as his prior prosecution for theft. In the trial court his argument was that this prosecution violates a federal constitutional prohibition against multiple punishments for the same offense. Perez’s application for a writ of habeas corpus was expressly based on the *multiple-punishments*theory of double jeopardy, and it did not offer a legal analysis or argument that a writ should issue because multiple *prosecutions*were barred under the circumstances.7

The Double Jeopardy Clause, which has been applied to the states as “a fundamental ideal in our constitutional *880heritage,”8 states that- no person shall be “subject for the same offence to be twice put in- jeopardy of life or limb.”9 Courts have recognized three types of double-jeopardy claims: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense.10 “A multiple-punishments violation can arise either in the context of lesser-induded offenses, when the same conduct is punished under a greater and a lesser-included offense, and when the same conduct is punished under two distinct statutes although the Legislature only provided for the conduct to be punished once.”11 In his pretrial habeas-corpus application, Perez argued that latter has occurred in this case.12

While this appeal was pending, the original theft case against Perez was remanded to the trial court with instructions to enter an order “barring prosecution” for the theft offense.13 Therefore Perez was not punished, and he will not be punished, for the offense of theft based on the underlying events.

After the retrial of the theft charge was barred, this court notified Perez that his appeal apparently had become moot because he no longer could be subject to multiple punishments for the theft and misapplication of fiduciary property offenses.14 In response, Perez introduced a new argument-that his appeal is not moot because the Double Jeopardy Clause also protects defendants against a second prosecution for the same offense after acquittal.15

“Pretrial habeas, followed by an interlocutory appeal, is an extraordinary remedy,”16 which is “reserved ‘for situations in which the protection of the applicant’s substantive rights or the conservation of judicial resources would be better served by interlocutory review.’ ”17 Perez did not argue-in his pretrial habeas-corpus application that.the State’s prosecution of him for misapplication of fiduciary property would constitute a second prosecution after acquittal.

In reviewing an order denying habeas relief, an intermediate court of appeals only reviews issues that were properly raised in the habeas petition and addressed by the trial court.18 Requiring Perez to raise his multiple-prose*881cutions claim for the first time in the trial court serves legitimate state interests. The trial court and the prosecution should have an opportunity to remove the basis for the objection,19 and it is an inappropriate waste of scarce resources for this court to unnecessarily address issues • raised for the first time in an interlocutory appeal, when the issue still can be raised and addressed for the first time by the trial court.20 Accordingly, because Perez did not present to the trial court his argument that the State’s prosecution of him for misapplication of fiduciary property would be an impermissible second prosecution after acquittal, .he may not raise the argument for the first time on appeal from a pretrial habeas-corpus application that was based on a different argument, and it'is no basis'for reversing the trial court’s order at this stage of proceedings.21

Perez is no longer subject to punishment in the State’s previous prosecution of him for theft. As a result, he will not be subject to multiple punishments for the same offense if. the State prosecutes him for -misapplication of fiduciary property,22*882and his argument that he will be subject to multiple punishments for the same offense has become moot.23

Conclusion

We dismiss the appeal.

Justice Keyes, dissenting.

1

. Tex. Penal Code § 31.03(a).

2

. *Ex parte Perez,*525 S.W.3d 325, 328-31 (Tex. App.—Houston [14th Dist.] 2017, no pet.).

3

. *See id.*at 332-33.

4

. *Id.*at 324.

5

. Tex Penal Code § 32.45.

6

. *See*Tex. App. P. 31 (appeals in criminal habe-as-cotpus proceedings).

7

. CR 12 ("Multiple punishments cannot be imposed for the same conduct, under two distinct statutes, where the Legislature only intended for the conduct to be punished once."); CR 13 (“[T]he intent of the legislature with regard to theft and misapplication of fiduciary duty indicates a Defendant should not be punished under both provisions in the circumstances those charges were filed against the Defendant.”).

8

. *Benton*v. *Maryland,*395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969).

9

. U.S. Const. amend. V.

10

. *See, e,g., Illinois*v. *Vitale,*447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228 (1980); *Garfias*v. *State,*424 S.W.3d 54, 58 (Tex. Crim. App. 2014).

11

. *Garfias,*424 S.W.3d at 58.

12

. CR 13-15 (analysis of legislative intent to permit multiple punishments under the penal statutes at issue in this appeal, applying the factors identified in *Ervin v. State,*991 S.W.2d 804, 814 (Tex. Crim. App. 1999)).

13

. *See Perez,*525 S.W.3d at 342.

14

. *Cf.*Tex. R. App. P. 42.3(a) (procedure for notice to parties prior to involuntary dismissal 'of civil cases based on apparent want of jurisdiction).

15

. *See Garfias,*424 S.W.3d at 58.

16

. *Ex parte Perry,*483 S.W.3d 884, 895 (Tex. Crim. App. 2016) (citing *Ex parte Ellis,*309 S.W.3d 71, 79 (Tex. Crim. App. 2010)).

17

. *Id.*(quoting *Ex parte Weise,*55 S.W.3d 617, 620 (Tex. Crim. App. 2001)).

18

. *See Ex parte Bolivar,*386 S.W.3d 338, 345 (Tex. App.—Corpus Christi 2012, no pet.); *Ex parte Tucker,*977 S.W.2d 713, 715 (Tex. App.—Fort Worth 1998 ("An order denying habeas relief on the merits is appealable only with regard to those matters properly raised by the ... habeas ... -petition and addressed by the trial court.”), *pet. dism’d,*3 S.W.3d 576 (Tex. Crim. App. 1999)).

19

. *See Gonzalez v. State,*8 S.W.3d 640, 645 (Tex. Crim. App. 2000); *see also Loredo v. State,*159 S.W.3d 920, 923 (Tex. Crim. App. 2004) ("Fairness to all parties requires a party to advance his complaints at a time when there is an opportunity to respond or cure them.”); *Maynard v. State,*685 S.W.2d 60, 65 (Tex. Crim. App. 1985) (noting that “the purpose of an objection [made at trial] is twofold; first, a specific objection is required to inform the trial judge of the basis of the objection and afford him or her an opportunity to rule on it; and second, a specific objection is required to afford opposing counsel an opportunity to remove the objection or supply other testimony”).

20

. *See, e.g., Young v. State,*826 S.W.2d 141, 149 (Tex. Crim. App. 1991) ("if the issue had been timely raised in the trial court, it could have been resolved there, and the parties and the public would have been spared the expense of an appeal”).

21

. *See Bolivar,*386 S.W.3d at 345. Our dissenting colleague suggests that *Garfias v. State*stands for the proposition that Perez may assert his new double-jeopardy argument for the first time on appeal. *Garfias*is easily distinguishable on procedural grounds. Perez is appealing from the denial of a pretrial habeas-corpus application, and he still has an opportunity to assert his new argument for the first time in the trial court, which, of course,’is the normal and preferred genesis for an issue that might ultimately be reviewed by. a court of appeals. *See, e.g.,*Tex. R. App. P. 33.1 (general rule for preservation of appellate complaints requires that as a prerequisite to presenting a complaint for appellate review, the record must show that it was made to the trial court by a timely request and that the trial court ruled or refused to rule on the request). In contrast, *Garfias*was an appeal from a conviction after a jury trial. *See Garfias,*424 S.W.3d at 56. So was the key authority relied upon by *Garfias (see id.*at 58 & n.16), the decision in *Gonzalez v. State, 8*S.W.3d 640 (Tex. Crim. App. 2000), The1 Court acknowledged' that—unlike the circumstances presented in *Gonzatez'*and Garfias—"a pretrial writ of habeas coipus is usually the procedural vehicle by which a defendant should raise a ‘successive prosecutions for the same offense’ double-jeopardy claim.” *Gonzalez,*8 S.W.3d at 643 n,9. The *Gonzalez*opinion further expressly acknowledged that its holding was consistent with the rules of appellate procedure, including the general requirement that issues be raised in the trial court before being raised on appeal. *Id.*at 643 n.10 (citing Tex. R. App. P. 33.1). The Court in *Gonzalez*also -noted that it "reads too much” into the relevant authorities to conclude that all multiple-punishments claims may be raised for the first time on appeal. *Id.*at 644. As discussed above, there is no reason in this case, to make an exception to the ordinary procedure requiring issues to be presented to a.trial court before being pressed in an appeal; which is supported by legitimate efficiency justifications. ■

22

. *See Henson*v. *State,*173 S.W.3d 92, 104-05 (Tex. App.—Tyler 2005, pet. ref’d) (reversing conviction for criminal-solicitation of a minor and holding that double-jeopardy claim based on -multiple punishments *882was moot because he was no longer being punished for both indecency with a child and criminal solicitation of a minor); *Burke v. State,*80 S.W.3d 82, 85-86 (Tex. App.-Fort Worth 2002, no pet.).

23

. *See Henson,*173 S.W.3d at 104-05; *Burke,*80 S.W.3d at 85-86.

Evelyn V. Keyes, Justice,

dissenting.

I respectfully dissent. Appellant Jorge Alberto Perez was charged with the offense of misapplication of fiduciary property or property of a financial institution. *See*Tex. Penal Code Ann. § 32.45 (West 2016). He appeals the trial court’s denial of a pretrial writ of habeas corpus. In his petition in this Court, Perez alleges that the State’s prosecution of him for misapplication of fiduciary property violated the Double Jeopardy Clause of the United States Constitution because it subjected him to multiple punishments for the same acts for which the State had charged him with theft in a separate proceeding.

At the time Perez filed for habeas corpus relief in this case, his appeal of the denial of a similar petition for habeas corpus relief on double jeopardy grounds in his theft case was pending in our sister court, the Fourteenth Court of Appeals. During the pendency of this appeal in this Court, the Fourteenth Court issued an opinion dismissing the theft charge and barring further prosecution of that charge. *Ex parte Perez,*525 S.W.3d 325 (Tex. App.—Houston [14th Dist.] 2017, no pet.).

After the Fourteenth Court of Appeals’ decision barring prosecution of the theft charge, this Court sent an inquiry to Perez asking whether his appeal from the trial court’s denial of habeas corpus in this case, claiming double jeopardy on the ground of multiple punishments for the same offense, was moot in light of the holding in *Ex parte Perez.*Perez responded that his appeal in this case was *not*mooted by the Fourteenth Court of Appeals’ decision because he was “being twice placed in jeopardy, by being *prosecuted*for the same offense after an acquittal.” (Emphasis added.)

The majority refuses to consider the double jeopardy issue raised in Perez’s response to its question why this appeal is not moot. It concludes that the double jeopardy issue raised by the Fourteenth Court’s ruling is not properly before this Court because Perez only pled in his underlying habeas petition that he was subject to multiple *punishments,*not multiple *prosecutions.*The majority dismisses Perez’s habeas application as moot because the original ground has disappeared.

The majority’s ruling directly contravenes the controlling Texas Court of Criminal Appeals case on point, *Garfias v. State,*424 S.W.3d 54, 57-58 (Tex. Crim. App. 2014), which requires consideration of a double jeopardy issue raised for the first time on appeal when the undisputed facts show the double-jeopardy violation on the face of the record and when following the usual procedural rules would serve no legitimate state purpose. Here, the undisputed facts and the record show that Perez does not face double jeopardy either from multiple punishments or from multiple prosecutions for the same offense. Thus, rather than serving a legitimate state purpose, the majority’s ruling invites wasteful and duplicative litigation by effectively inviting Perez to file yet another application for habeas corpus relief on newly risen *883grounds that are fully presented by the record before the Court.

I would affirm the ruling of the trial court denying Perez’s application for a writ of habeas corpus on the ground that none of the grounds for double jeopardy alleged by Perez apply.

Procedural Background

Perez was charged with theft in one case and with misapplication of fiduciary property in a second ease. He filed petitions for dismissal on double jeopardy grounds in both cases. While Perez’s appeal of the denial of his application for habeas corpus on double jeopardy grounds in the misapplication of fiduciary property case was pending in this Court, the Fourteenth Court of Appeals issued an opinion in the theft case, dismissing the charge on double jeopardy grounds different from those alleged in this Court and barring further prosecution of the theft charge. *See Ex parte Perez,*525 S.W.3d at 341-42.

The trial court in the theft case had set the case for trial and empaneled a jury. *Id.*at 327-28. It then recessed the case for a competency hearing. *Id.*Four months later, after the competency hearing, seven of the twelve jurors failed to return on the short one-day notice given by the trial court. *See id.*The trial court then declared a mistrial over Perez’s objection. *Id.*Perez filed an application for writ of habeas corpus, arguing that a retrial of the theft charge was barred on double jeopardy grounds, but the trial court denied the application. *Id.*at 331-32. The Fourteenth Court of Appeals reasoned that a “defendant is placed in jeopardy when the jury is empaneled and sworn” because “the Constitution ‘confers upon a criminal defendant a valued right to have his trial completed by a particular tribunal’ ” *Id.*at 333 (quoting *Ex parte Garza,*337 S.W.3d 903, 909 (Tex. Crim. App. 2011)). “Thus, when a trial court declares a mistrial against the defendant’s wishes,” as was the case in *Perez,*“usually further prosecution for the same offense is barred.” *Id.*The court held that “the State failed to satisfy its heavy burden of showing manifest necessity for a mistrial.” Id. at 340-41. Thus, because the State failed to show manifest necessity for a mistrial on the facts of the case, a retrial of the theft charge against Perez was barred by double jeopardy. *Id.*at 340-42.

Following the Fourteenth Court of Appeals’ decision in *Ex parte Perez,*this Court sent an inquiry to Perez asking whether his appeal in this case claiming double jeopardy because he faced multiple punishments for the same offense was moot in light of the holding in *Ex parte Perez*dismissing the theft case against him and barring further prosecution of it. Perez responded that his appeal in this case was *not*mooted by the Fourteenth Court of Appeals’ decision because, “[d]ue to the 14th Court of Appeals ‘barring’ prosecution for the same offense, an additional prosecution for Misapplication of Fiduciary Property would violate the United States Constitution, Texas Constitution, and the Texas Code of Criminal Procedure, which prohibit a Defendant being twice placed in jeopardy, by being prosecuted for the same offense after an acquittal.”

The majority refuses to consider the merits of Perez’s appeal because, it claims, Perez asserted a new double jeopardy argument on appeal in arguing that he was being prosecuted for the same offense after an acquittal rather than claiming that he was facing multiple punishments for the same offense, as he had originally argued. *See*Op. at 880-81. It opines, “Perez did not argue in his pretrial • habeas-corpus application that the State’s prosecution of him for misapplication of fiduciary property would constitute a second prosecution after acquittal. In reviewing an order denying habeas relief, an intermediate court *884of appeals only reviews issues that were properly raised in the habeas petition and addressed by the trial court.” *Id.*(citations omitted). The majority concludes, “[B]e-cause Perez did not present to the trial court, his argument that the State’s prosecution of him for misapplication of fiduciary property would be an impermissible second prosecution after acquittal, he may not raise the argument for the first time on appeal from a pretrial habeas corpus application that was based on a different argument, and it is no basis for reversing the trial court’s order at this stage of proceedings.” Op. at 881 (citations omitted).

I would address both grounds and would dismiss this appeal on its merits.

Analysis Under *Garfías*

The Double Jeopardy Clause states that “[n]o person shall .... be subject for the same offence to be twice put in jeopardy of life ■ or limb.” U.S. Const. amend. V. In *Garfias,*the defendant, who was charged and convicted in the same proceeding of aggravated robbery by threat and aggravated assault causing bodily injury, “failed to raise his double jeopardy claim to the trial court.” 424 S.W.3d at 56-57. Instead, he raised his complaint that the multiple convictions violated the double jeopardy clause for the first time on appeal. *Id.*at 57. The Court of Criminal Appeals opined that “such a claim-may be raised for the first time on appeal when (1) the undisputed facts show the double-jeopardy violation is clearly apparent from the face of the record, and (2) enforcement of the usual rules of procedural default serves no legitimate state interest.” *Id.*at 58. The court stated, “We must therefore first determine whether the undisputed facts show that a double jeopardy violation is clearly apparent in this case.” *Id.*

The *Garfias*court noted, “There are three types of double jeopardy claims: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.” *Id.*The court further stated that “[a] multiple-punishments violation can arise either in the context of lesser-included offenses, where the same conduct is punished under a greater and a lesser-included offense, and when the same conduct is punished under two distinct statutes where the Legislature only intended for the conduct to be punished once.” *Id.*The court ultimately concluded that the undisputed facts in *Garfias*showed that no double-jeopardy principles were violated, and, “[bjecause double-jeopardy principles were not violated in this case, ’ no double-jeopardy violation is clearly apparent from the face of the record.” *Id.*at 64. It therefore decided that it did “not need to reach the State’s claim that the facts of this case involve two discrete events of criminal conduct.” *Id.*

Here, the majority correctly cites *Gar-fias*as the, controlling Court of Criminal Appeals authority for deciding this case. Op. at 880. But it does not follow it. Instead of determining whether double jeopardy bars Perez’s prosecution for the offense of misapplication of fiduciary property under both of the prongs set out in *Garfias*that are alleged by Perez on the undisputed face of the record, the majority opines that it cannot even consider whether prosecution is barred in this case because Perez faces multiple prosecutions for a crime of which he was acquitted in *Ex parte Perez.*Instead it summarily dismisses as moot Perez’s appeal of the trial court’s denial of his application for writ of habeas corpus on the ground that Perez no longer faces multiple punishments, as he alleged in his original application.

The-majority justifies its decision not to address the issue of whether Perez is sub*885ject to double jeopardy on a multiple prosecutions theory as serving a legitimate state interest. Op. at 880-81. I disagree. I believe its decision to prolong litigation and invite further proceedings, when the correct application of the law is clear from the undisputed facts in the record and controlling authority serves only to increase delay in the resolution of Perez’s double jeopardy claim and to waste judicial and legal, resources. The State can have no legitimate interest in returning this case to the trial court to enable Perez to present to the trial court a purely legal issue— which wé review de novo—on a record fully before this Court, which permits our resolving it now.

I would determine whether Perez faces double jeopardy either on a multiple punishments theory or on a multiple prosecution theory on the undisputed facts and the record in this case. Finding no violation of the Double Jeopardy Clause, I would affirm the trial court’s order, denying Perez’s application for habeas corpus.

I agree with the majority that, after *Ex parte Perez,*Perez will not receive multiple punishments for the same offense, as required to sustain a claim of double jeopardy under the third prong in *Garfias.*Op. at 880 (citing *Ex parte Perez,*525 S.W.3d at 341-42); *see Garfias,*424 S.W.3d at 58 (listing “multiple punishments for the same offense” as third type of double jeopardy claim).

However, I disagree with the majority’s refusal to address Perez’s argument “that his appeal is not moot because the Double Jeopardy Clause also protects defendants against a second prosecution for the same offense after acquittal,” an argument made by Perez in response to this Court’s own inquiry into whether the Fourteenth Court’s decision dismissing the theft charge against him and barring prosecution of it mooted his habeas petition in this Court. Op. at 880-81 (citing *Garfias,*424 S.W.3d at 58).

Perez asserts that the charge of misapplication of fiduciary property against him should be dismissed because he has already been acquitted of a crime whose characteristics are so close to this offense that prosecution for this offense would constitute double jeopardy, satisfying the first ground for claiming double jeopardy under *Garfias. See*424 S.W.3d at 58 (listing as first type of double jeopardy claim “a second prosecution for the same offense after acquittal”). But this is not the case, as the record shows. Perez’s prosecution for theft was barred because it constituted' multiple prosecutions for the offense of theft, due to the trial court’s improperly declaring a mistrial after the jury was empaneled and sworn. *See Ex parte Perez,*525 S.W.3d at 340-42.

Perez has failed to demonstrate that the offenses of theft and misapplication of fiduciary property constitute the “same” offense for double jeopardy purposes. *See Talamantez v. State,*790 S.W.2d 33, 37 (Tex. App.—San Antonio 1990, pet. ref'd) (stating that it is “readily apparent” that theft statute and misapplication of fiduciary property statute are “aimed at different classes of persons,” noting that “[a]ny person may commit theft” but “[o]nly one in a position of trust may commit misapplication of fiduciary property”); *see also Rhinehardt v. State,*No. 08-01-00335-CR, 2003 WL 21674198, at *9-10 (Tex. App.—El Paso July 17, 2003, no pet.) (mem. op., not designated for publication) (concluding that defendant failed to show..th$t legislature intended for theft and misapplication of fiduciary property offenses to be treated as same for double-jeopardy purposes). Thus, the Fourteenth Court of. Appeals’ ruling barring prosecution of the theft suit removes the possibility of, Perez’s being twice prosecuted for the same crime and *886clears the way for his prosecution for the offense of misapplication of fiduciary property or property of a financial institution.

I would hold that Perez has not shown, and cannot show, that the charge against him of misapplication of fiduciary property is barred as a second prosecution for the same crime after acquittal. Nor has he shown that any of the other bases for finding double jeopardy apply in this case.

Conclusion

For the foregoing reasons, I dissent from the majority’s dismissal of this case as moot. I would deny Perez’s application for writ of habeas corpus on the merits, as it is clear from the face of the record that no double-jeopardy principles were violated in this case.