### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-18-00050- CR

The State of Texas, App ellant

v. Matt hew Fre em an, App ellee

F ROM TH E DISTRI CT COURT O F TO M GREEN CO UNTY, 391 ST JUDICI AL DISTRICT NO. D-1 5-0 520- SA, TH E H ONO RAB LE MARTI N (B ROCK ) J ONES , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

After this Court reve rse d M at t h ew Fr eema n’s judgme nt of conviction for family violence assault by impeding the normal breathing or circ ulation of the blood and rema nded the case for further proce eding s, see Freem an v. State , 525 S.W .3d 755 (Tex. App.—Austin 2017, pet. ref ’d), Fr eema n filed a pretria l application for writ of habea s corpus asser ting that t h e double-jeopa rdy clause s of the United States Consti tution and the Texas Constitution bar red retria l. The trial court g rante d habea s relief

, order ed Fr eema

n acquitted, and order ed his immediate rele ase from custody

. The S tate appeals t he trial court’s order gr an t i n g h ab ea s relief

. For the reasons set out below, we

reve rse the tr ial court’s or der.

BACK GR OUND

Fr eema n was char g ed by indict m en t wi th family violence assault by impeding the normal b re at h i n g o r circ ulation of the blood, a third degree felony

. See Tex. Penal Code§ 22.01(a) (1), (b)( 2)(B ). The indictment also contained an enhanc ement para g raph alleg ing a prior

felony conviction for felony DWI , which enhanc ed the punishment rang e to that of a second deg ree . See id. § 12.42(a)

. Fr eema n waived a jury and proce eded with a trial befor e the court. He pled g uilty t o t h e lesser- included offe nse of family violence assault causing bodily injury , a C l as s A misdemeanor, see id. § 22.01(a) , and pled true to the alleg ation in the enhanc ement para g raph. At the conclusion of the bench trial, the trial court found Fr eema n g uilty of the g reater offe nse of family violence ass au l t b y i m peding the normal breathing or circ ulation of the blood as alleg ed in the indictment and assesse d his punishment at 15 y ear s’ imprisonment.

Fr eema n appea led his conviction to this Court. I n a single point of err or, he asser ted that the trial court violated his constitutional rig hts by finding him guilty by the clea rer weig ht a

nd deg ree of cre dible testimony rathe r than by beyond a rea sonable doubt. This Court conclude d that 1 Fr eema n “met his burden of showing that the t rial court applied t h e i n co rre ct s tandar d” reg arding the S tate’s burden o f p ro o f and further conclude d that the error of applying the incorre ct s tandar d

was structura l err or not subject to a harm analy sis. Freem an , 525 S.W .3d at 758–59. We reve rsed the trial court’s judgme nt of conviction and “re manded for further proce eding s consistent with [t he Court’s] opi nion.” Id. at 759.

After rema

nd, Fr eema

n filed a pretria l application for writ of habea s corpus, asser ting that he was entitled to a judgme nt of acquittal beca use he “ha[d] been tried by the court and the court

I n finding appellant guilty of the c harg ed off

ense, the trial judg e said, 1 The Court finds by

the clea rer g reater we ight a

nd deg ree of cr edible testimony that the Def endant is g uilty of the offe nse of assault by impeding the breath or circ ulation, as alleg ed in Para g raph 1 of the indictment.

2failed to f

ind [him] g uilty beyond a rea sonable doubt.” Fr eema n maintained that beca

use his tria l 2 ended without the j udg e finding hi m g uilty beyond a reasonable dou b t , h e h ad been “func tionally acquitted” of the offe nse. He argued, there fore , that, given his prior acquittal, double-jeopa rdy protec tions barre d retria l.

The trial court conducte d a hear ing on the application at which a copy of this Court’s opinion and mandate were admitt ed. Fr eeman argued that this Court’s opinion, “while [ it] didn’t direc tly say it’s an acquittal,” rec og nized that the trial court failed to make a finding of guilt beyond

a re as o nable doubt. He further argued, as he did in his habea s application, that this fai l u re constituted a “func tional acquittal.” At the conclusion of the hear ing, the trial court orally g rante d Fr eema n’s application for writ of habea s corpus and, “[i] n acc ordanc e with the opinion of the Court of Appea ls and the mandate issued by that Court direc ting this Court to enter a judgme nt consistent with its opinion,” “ente r[ed] a judgment of acquittal.” The t ri al court’s subsequent written order 3 “g rant[ed] the relief r equeste d” and or dere d that “the defenda nt is here by

acquitted of

the Off ense alleg ed in the indictment.”

Fr eema n filed his first habea s application afte r the Court of Criminal Appea ls ref used the 2 State’s petition for discretionar y revie w of this Court’ s opinion but befor e this Court’s mandate issued on November 7, 2017. The trial court conducte d a hear ing on the application, afte r which the court denied the application and reinstated Fr eema n’s bond. After the issu an ce o f t h e mandate fr o m t his Court, Fr eema n filed a subsequent habea s application on J anuar y 4, 2018. Also on J anuar y 4, 2018, sever al hours later, Fre eman filed y et another application, which added a s pecia l p lea of double jeopar dy pursuant to article 27.05 of the Code of Criminal Procedur e. T h e t ri al court’s or der g rantingthis last application is the subject of this appea l. We note that, in our opinion, this Court did not direc t the trial court to “ente r a judgme nt” 3 consistent with our opinion. Rather, we rema nded the case “for further proce eding s” consistent with our opinion. 3The State appea ls the trial court’s order , see Tex. Code Crim. Proc

. art. 44.01(a) (1)

(providing that State may appea l from order dismiss ing indictment), (a) (4) (providing that State may appea l from order sustaining claim of former jeopar dy ), arguing that the trial court’s g rant of habea s relief and entr y of a judg ment of ac quittal was an a buse of discr etion.

STANDARD OF REVIEW I n revie wing a trial court’s decision on a p r etrial application for writ of habea s corpus,

we revie w t h e fac ts in the light most favor able to the trial court’s ruling and, absent an abuse of discretion, uphold the ruling

. Ex parte W heele r , 203 S .W.3d 317, 324 (Tex. Crim. App. 2006); Ex parte Ali , 368 S.W .3d 827, 830 (Tex. App.—Austin 2012, pet. ref ’d ). An abuse of discretion does not oc cur unless the trial court acts “ar bitrarily or unrea sonably ” or “without ref ere nce to a

ny g uiding rules and principles,” State v. Hill , 499 S.W .3d 853, 865 (Tex. Crim. App. 2016) (quoting Montgomery v. State , 810 S.W .2d 372, 380 (Tex. Crim. App. 1990)), o r u n l es s t h e trial court’s decision “fa lls outside the zone of rea sonable disag ree ment,” Johnson v. State , 490 S.W .3d 895, 908 (Tex. Crim. App. 2016). I n our revie w, we defe r to the trial court’s implied fac tual finding s that are supported by

the re cord. See W

heele r , 203 S.W .3d at 325–26.

DISCUSSIO N The issue befor e the trial court at the habea s hear ing was whether Fr eema n had been acquitted by

the trial judg e and, thus, re trial for the char g ed off ense is bar

red by double jeopar dy

. The Double J eopar dy Clause of the Fifth Amendment, made applicable to the states throug h the Due Process Clause of the Four teenth Amendment, Benton v. Maryland , 395 U.S. 784,

4787 (1969), protec ts a defe ndant ag ainst being plac ed t wi ce in jeopar dy for the same offe nse.

U.S. Const. amend. V, c l. 2 (“nor sha ll any person be subject for the s ame offenc e to be twice put in jeopar dy of life or limb”). The clause embodies three separ ate g uara ntees—prote ction ag ain s t prosec ution for the same offe nse following an acquittal, protec tion ag ainst prosec ution for the same offe nse following a conviction, and prote ction ag ainst multi ple punishments for the same offe nse. Illinois v. Vitale , 447 U.S. 410, 415 (1980); Brown v. Ohio , 432 U.S. 161, 164–65 (1977); Ex parte Marascio , 471 S.W .3d 832, 847 (Tex. Crim. App. 2015); Ex Parte Denton , 399 S.W .3d 540, 545 (Tex. Crim. App. 2013). The Texas Constitution provide s substantially identical protec tions. See T ex . Const. art. I , § 14 (“N o person, for t he same offe nse, shall be twice put in jeopar dy of l ife or liberty ; nor shall a per son be ag ain put upon trial for the same off ense, a fter a verdic t of not g uilty in a court of competent jurisdiction.”); see also State v. Blackshe re , 344 S.W .3d 400, 406 n.8 (Tex. Crim. App. 2011); Ex parte Mitch el l , 9 7 7 S .W.2d 575, 580 (Tex. Crim. App. 1997). The d ouble-jeopa

rdy claim that Fr eema

n asser ted in his habea s application invokes the prohibitio n ag ainst a sec ond trial afte r beingacquitted.

“One of t he mos t fundame ntal rules of double-jeopa rdy jurisprudenc e is that when

a trial ends in an acquittal, the defe ndant may not be tried ag ain for the same offe nse.” Blackshe re , 344 S.W .3d at 406. “F or purposes of double jeopar dy , an acquittal occur s in the t ri al court only when the ruling of the trial court, whatever i t s l ab el , actua lly repr esents a resolution in the defe ndant’ s favor , corr ect or not, of some or all of the fac tual elements of the offe nse char g ed.” Benav idez v. State , 323 S.W .3d 179, 181 (Tex. Crim. App. 2010); accord State v. Moreno , 294 S.W .3d 594, 598 (Tex. Crim. App. 2009); State v. Stanl ey , 201 S.W .3d 754, 760 (Tex. Crim.

5App. 2006). The Court of Criminal Appea ls has observe d that while no statutory provision expli citly

d efines the word “ac quittal,” “the context in which it appea rs throug hout the Code o f C ri m i n al Procedur e cre ates a power ful infere nce that it mea ns a finding of fac t that the acc used is not g uilty

o f t h e criminal offe nse with which he is char g ed.” Ex parte George , 913 S.W .2d 523, 5 2 7 (T ex . Crim. App. 1995); see Evans v. Michigan , 568 U.S. 313, 318–19 (2013) (“[O]ur case s have define d

an acquittal to encompa ss any ruling that the prosec ution’s proof is insufficient to establish criminal liability for a n offe nse.”)

. The trial judge ’s verdic t i n this case does not satisfy the above consistently used definition of acquittal. First, the trial judge ’s verdic t repr esente d a resolution of the fac tual elements of th e ch ar ged offe nse against Fr eema n, not in his favor

. Fur

ther, the judge ’s rec itations did not ref lect a fac t finding t h at Fr ee m an was not g uilty

. The trial judge plainly stated that he found Fr eema n g uilty of the char g ed offe nse. At no point d i d the judge sug g est that Fr eema n had been found not g

uilty or that the evidenc e did not support a guilty verdic t. The trial judge ’s verdic t w as not an ac quittal.

Fur ther, contra

ry to Fr eema

n’s cl ai m , the judge ’s failure to find Fr eema n g uilty beyond a rea sonable doubt was not a “func tional acquittal.” The term “func tional acquittal” has been used by the Court of Criminal Appea ls to char acte rize a trial court’s ru l ing setting aside a deter mination of guilt based on the court’s subsequent fi n d i n g o f i nsufficie nt evidenc e. See, e.g. , State v. Savage , 933 S.W .2d 497, 499 (Tex. Crim. App. 1996) (conc luding that “a trial court’s JNOV ruling afte r a jury deter

mination of criminal g uilt acc omplishes exactly the same eff ect as g ranting the defe ndant a new trial for insufficient evidenc e—a functional acquittal”)

. This char acte rization

6sug g ests that a “f unctional ac quittal” would have happene d here if the trial judg e had r evisited his g uilty verdic t at some later point, deter mined that the evidenc e was insufficient to prove Fr eema n’s g uilt beyond a rea sonable doubt, and made a finding based on that deter mination. Or, perha

ps, if the trial judge ’s rec itation had indicated that he found that the evidenc e did not prove one or more of the elements of the char g ed offe nse beyond a rea sonable doubt. Howeve r, the trial judge here made no finding with r espec t to whether Fr eema n was g uilty beyond a rea sonable doubt beca use he applied the wrongstandard.

I n support of his c laim , F r e e ma n c it es to this Court’s opinion reve rsing his conviction. Our opinion, howeve r, addre ssed the proce ss by which the trial judge arr ived at his verdic t. We do 4
not ag ree with Fr eema

n’s sug g estion that error in that proce ss constitutes a functional acquittal. Moreove r, Fr eema

n misconstrues our opinion. I n our opinion, we conclude d that “[b] y apply ing the incorre ct standar d, the trial cour t denied Free man hi s rig ht to be convicted based on proof be y ond

a re as o n ab le doubt .” Freem an , 525 S.W .3d at 759. Fr eema n appea rs t o interpre t that conclusion

as indicating that we conclude d that the trial cour t convicted F ree man on less than proof beyond a

re as o n ab l e doubt and, there fore , functionally acquitted him. That is not what we said; that is n o t what we m ea n t

. We conclude d that, due to err or in the proce ss of arr iving at the verdic t (the application of an incorre ct standard of proof) , Fr eema n was denied the rig ht to be convicted ba sed

on proof bey o n d a rea sonable doubt. The remedy for the denial of that rig ht, then, i s to provide a

At no point in the appea l of his conviction did Fr eema n argue, contend, or sug g est that the 4 trial judge ’s verdic t was a “func tional acqu i t t al

. ” Hi s sole complaint was about the err oneous standard applied by the trial judge —that is, the err or in the proce ss that the judge employ ed to arr ive at his verdict. 7new trial in which the verdic t is not the result of an err ed proce ss—that is, a trial in which the corr ect

standard of proof is applied when deter mining the verdic t. For that rea son, we rema nded the case 5 for f urther pr ocee dings.

I n this case , there is littl e doubt from the rec ord that the trial judge did not intend to acquit Fr eema

n. The trial judge terminated the prosec ution based on his finding that Fr eema n was g uilty of the char g ed offe nse; he did not terminate the prosec ution based on a finding that Fr eema n

was not g ui l t y o r on a finding that the State’s evidenc e was lacking or insufficient to convict Fr eema n. Nothing in the tr ial judge ’s re citation implied that he had made a findingthat Fr eema n 6

was not g uilty of committing the char g ed offe nse or that the evidenc e was insufficient. Rather, the

rec itation ref

lects that the judge applied the wrong standard in making the finding of g uilt that he did. Be cause Fr eema

n was not acquitted or “func tionally acquitted,” the double-jeopa rdy protec tion ag ainst a second trial afte r an acquittal does not bar Fr eema n’s retria l fo r t h e charg ed offe nse. See Lockhart v. Nelson , 488 U.S. 33, 38 (1988) (“I t has long been settled, howeve r, that the

We note that err or in the jury char g e—even re l ating to the burden of proof—r esults in 5 reve rsal of the judgme nt of conviction and re m an d for a new trial, not an acquittal. See Sullivan v. Louisi ana , 508 U.S. 275, 281–82 (1993) (conc luding that jury -cha rg e err or that misdefined State’s burden of proof as being less than beyond rea sonable doubt constitutes structura l err or and rema nding case for further proce eding s); Rey es v. State , 938 S.W .2d 718, 721 (Tex. C ri m . Ap p. 1996), overruled by Paulson v. State , 28 S.W .3d 570 (Tex. Crim. App. 2000) (conc luding that total omission of rea sonable-doubt instruction then r equire d by Gee sa was e rror

that was not subject to harmless e rror , reve rsing judgme nt of conviction, and r emandingfor ne w trial). We obse rve that Fr eema

n filed a motion for new trial, asser ting that “[t] he verdic t in this 6 cause is contra

ry to the law and the evidenc e,” and the trial court denied the motion. An alleg ation that a verdic t is ag ainst the law and the evidenc e raises an evidentiar y sufficie ncy challeng e. State v. Zalman , 400 S.W .3d 590, 594 (Tex. Crim. App. 2013) (citing Bogan v. State , 180 S.W

. 247, 248 (Tex

. Crim. App. 1915)). Thus, in denying the motion, the t rial court reje cted the contention t hat the evidenc e wa s insufficient to support Fr eema n’s conviction. 8Double J eopar dy Clause’s g ener al prohibition ag ainst succe ssive prosec utions does not preve nt the

g overnme nt from retry

ing a defe ndant who succe eds in g etting his first conviction set aside, throug h direc t appea l or collater al attack, beca use of some err or in the proce eding s leading to conviction.”) ; accord Ex parte Davis , 957 S.W .2d 9, 12 (Tex. Crim. App. 1997) (obser ving that, g ener ally , double jeopar dy does not bar retria l afte r reve rs al b u t noting exception when conviction reve rsed for leg ally insufficient evide n ce ). C o nsequently , we hold that the trial court abused its discretion in concludingotherwise.

CONCLUSION

Be cause Fr eema

n’s trial did not end with an acquittal and the trial judge ’s verdic t was not a “func tional acquittal,” retria l fo r t h e char g ed offe nse following this Court’s reve rsal of Fr eema n’s conviction does not violate doubl e jeopa rdy . Thus, the trial cour

t abused its discretion in g ranting Fr eema

n’s application for writ of habea s corpus and enter ing a judgme nt o f ac q u i t tal. We reve rse the tr ial court’s or der grantinghabea s relief and orde ringFr eema

n acquitted.

__________________________________________ Melissa Goodwin, Jus tice Be fore J ustices Pury ear , Goodwin, and B ourland Reverse d Filed: Nove mber 14, 2018 Do Not Publish

9