,

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THN STATE OF ]'EXAS,

APPELI,EE

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APPELLANT'S PETITION F'OII DISCRETIONARY IìEVIEW

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MICHAEL LOGAN WARE

300 Burnett StreetSuitc 160

Fort Worth, TX 76102

Telephone: 817/ 338 - 4100Telecopier: 817i 698- 0000

Texas Statc Bar Number:20864200ATTOIìNEY FOII APPIì,LLANT'
Terri Moole (on pretrial writ of habeas colpus and onappeal300 Bulnett Stl'eetSuire 160

l-ort Vy'orth, TX76102

A¡rpellee: 1-he State of Texas

Re¡rresented by: Susan Hawk, Criminal Disn"ict Attorney

Chris Plyor', Assi.stant l)istrict AÍtorney (on writ of

habeas colpus)

Brian P. Higginbotharn, Assistant District Attolney (on

appeal)

Dallas County District Attorney's Office

133 North Riverflont Boulevard

LB-19l)allas, 'fX 7 5207 -4399

Trial Judge: The l{onorable Brandon Birminghani

Presiding Judge292nd Judicial Distlict CouúDallas County, Texas

The IJonolable Lan'y Mitchell

.Tudge who plesided ovel'the Writ of lJabeas Corpus292nd Judicial DistrictDallas County, Iexas

u
STATEMENT REGARDING ORAL ARGUMENT . .

STATEMI]NT OF- I-I-IE CASI]

STATEMENTOFPROCEDURALHISTORY ........,.. 2

GROUNDSANDREASONSFORREVIEW .......3

ARGUMENT SUPPORTING GROI]NDS AND REASONS FORREVIEW .........9

PRAYERFORRELIEF ......... 20CERTIFICA"I]] OF COMPLIANCE. . ..... 2I

CERTIFICATE OF SERVICE .. .. 22

COURT OF APPEALS' OPINION (May 20,20t5). . . . . APPENDIX A

COURT OF APPEALS ORDER DENYING MOTION I.-OR REHEARING

(June 17,2015 .. . . .. APPENDIXB

ul
(

pp

) 

Ashe v. Swenson,397 U.S. 436 (1970) . . 16-17Bigonv. State,252 S.W.3d 360 (Tex.Cr.im.App.1970) ... ... 13

Blockburger v. United States, 284 U.S. 299 (1932) . . . 3,1-8,13,15,17-19

Brownv. Ohio,432 U.S. 161 (1977) . . . . 13-17

Cooper v. State,430 S.W.3d 426 (Tex.Crirn.App. 2014) . . . . . 13

Diaz v. United States,223 U.S. 442 (1912) 2,6-7,15-16

Ex ¡tarfe Amador,326 S.W.3d 202 (Tex.Crirn.App. 2010) . . . . . . . . . . 14

Ex parte Carle,369 S.V/.3d 879 (Tex.Clirn .App.2012) . . . . . 13

Ex parte Chaddock,369 S.W.3d 880 (Tex.Crirn.App. 2012) . . . . . 9,18-19

Ex Parte lIill, 2015 Tex.App.l-EXIS 5 1 32 (Tex.App.Dallas May 20,2015) . . . . 2

Graves v. State,539 S.W.2d 890 (Tex.Crirn .App. 1976) . . . . . 17

Green v. Uniled States,355 U.S. 184 (1951) . . . . . 9,11

I.ittrellv. SÍate.,271 S.W.3d 273 (Tex.Cr.in,.App.2008) ..... 13

North Carr¡linav. Pearce,3gs U.S.711 (1969) 10,16 17Price v. State,434 S.V/.3d 601 (Tex.Cr.irn .App.2014) . . . . . . l3
Codes and Articles

U.S.Constitution,FifthAmendment .. "....9

TexasRules ofAppellatePlocedureRule66.3(a),(b), &(c). .. .. .. . 4-8

TexasPenalCode$1.07(46)...,. ........16

DoubleJeopaldy:UnravelingaGordianKnot(2013) ....... 17
STATEMENT OF THE CASE

Appellant and his co-defendant wele each indicted for the aggravated lobbely

of Ryarr Lusk, which was alleged to have occurred on ol' about March 18, 2012. Theindictrnent, filed April 25,2012, alleged that Appellant had shot Ryan Lusk with a

firearm causing serious bodily injury, during the coul'se of comlnitting theft of

property.

Ayear later, on April 4,2013, Appellant, on the advice of his then counsel,

waived a jury and pled guilty to the coult. On May 17 ,2013 and June 21, 2013, the

trial court heard punishment evidence. On June 21,2013, the tlial cou¡t found

Appellant guilty of agglavated robbery as alleged, which included shooting Ryan

l-usk with a fireann, causing him selious bodily injury. The trial cour1 assessed asentence of 45 years in plison. Judgment was entered June 24, 2013.

On Novernber 19, 2013,, five months after Appellant was convicted and

sentenced, Ryan Lusk died, allegedly due, at least in sorne part, to the gunshot wound

sustained on ol about March 18, 2012. Appellant was then indicted (filed Decernber
Appellant filed a pre

tlial writ of habeas corpus alleging that a successive

pt'osecution, oonviction, and punishrnent for the grealer ol'lense ofcapital murder a1ler

having been ah'eady finally convicted ofand sentenced for the lesser'-included offenseofagglavated lobbery, would violate the doublejeopardy protections guatanteed by

the United States and Texas Constitutions. The trial court agreed and by court order.

dated Decelnber 29,2014, barred fulther prosecution under the capital rnurder.

indictnrent fi led Decen.rber 30, 2013.

The State appealed to the Dallas Court of Appeals.

STATDMENT OF PROCEDURAL HISTORY

In a published opinion, handed down on May 20,2015, the coult of appeals

leversedtlretrial court, ExParteHill,20l5 Tex.App.LEXlS 5132(Tex.App.Dallas

May 20,2015). 1'he Coult of Appeals held that Appellant could be prosecuted,

convicted, and punished fol the greater offense ofcapital murder, even after.havingbeeu convicted of and sentenced for, the lesser,included offense of aggravated

lobbely, because of a purpolted exception to double jeopaldy plotection cleated by

the United States Suprerne Coult in Diaz v. United States,223 U.S. 442 (1912). The
Appellant

s tirnely Motion fol Rchearing was denied on June 17 , 2015. This

petition was then filed with the Clerk of the Coult of Clirninal Appeals within thirty(30) days aftel such lhnal luling, to wit on July 17,2015.

GROUNDS FOIì REVIEW

GROUND FOR REVIEW NO. 1

THE COURT OF APPEALS ERRED IN HOLDING THAT THE DOUBLE

JEOPARDY CLAUSE OF THE UNITED STATES CONSTITUTIONPERMITS THE STATE TO CONVICI'A Dì]FENDANT OF BOTH A

I-ESSER INCLUDED AND A GREATER OÞ-FENSE IN SUCCESSIVE

PROSECUTIONS, REGARDLES S OF LEGISLATIVE INTENT.

REASONS FOR REVIEV/

In holding that the double jeopardy clause of the United States Constitution

per'rnits the state to convict a defendant ofboth a lesser included and a greatel offensein successive prosecutior.rs, even when there is no legislative intent to pennit it, the

coult of appeals made a decision that conflicts with the applicable decisions of the

Couft of Climinal Appeals, the United States Supleme Court, and othel courts of

appeal on the same issue. In the altelnative, the coult ofappeals decided an irnportant

question of'state and federal law that has not been, but should be settled by the Courl
PERMITS TI

IE STATE TO IMPOSE MULTIPLE PUNISHMENTS ON A

DEFENDANT FOR BOTH A LESSER,INCLUDED AND A GREATER

OIììENSE IN SUCCËSSIVts PIìOSECUTIONS, RÌ]GARDLESS OF

I-EGISLATìVE INTtrNT.

REASONS FORREVIEW

In holding that the double jeopardy clause of the United States Constitution

permits the state to irnpose rnultiple punishrnents on a defendant for both a lesserincluded and greater offense in successive prosecutions, even when thel'e is nolegislative intent to perrnit it, the court of appeals made a decision that conflicts with

the applicable decisions ofthe Courl of Criminal Appeals, the United States SupremeCourt, and other courts of appeal on the same issue. ln the alternative, the court of

appeals decided an irnpodant question of state and l"edelal law that has not been, but

should be settled by the Courl of Criminal Appeals. See, Iìule 66.3(a),(b), &. (c),

T.R.A.P.GROUND F'OIì RIìVInW NO.3

.TI]E COURT OF APPEALS ERIìED IN HOLDING TI IA'1' CI]ARGING ANDTRYING A DI]FENDANT I]OR THB OIìIENSE OI.- CAPITAL MURD]]Iì,

AFTER TI]E DEFHNDAN]' IIAS ALREADY BEI]N FINALI-Y CONVICT'Ëì) AND SENTENCED FOIì THE LESSI]R INCLUD]]D
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defendant has already been finally convicted and sentenced for the lesser included

offense (aggravated robbely) ofthat same alleged "capital r.nuLdeL", does not violate

the doublejeopaldy plovision ofthe United States Constitution, the court ofappeals

made a decision that conflicts with the applicable decisions of the Coul't of Crirninal

Appeals, the United States Supreme Court, and othel' coults of appeal on the sameissue. ln the alternative, the court ofappeals decided an irnportant question of state

and fedel'al law that has not been, but should be settled by the Court of Criminal

Appeals. See, Rule 66.3(a),(b), & (c), T.R.A.P.GROUND FOR RDVIEW NO. 4

THE COURT OF APPEALS ERRED IN HOLDING THAT

PUNISHING/SENTENCING A DEFENDANT Þ-OR CAPITAL MURDER

AFTER THE Dì]FENDANT IJAS ALREADY BEEN FINALLYCONVICTED AND SENTENCED FOR THE LESSER INCLUDED

OFFENSE (AGGRAVAIED ROBBERY) O}'TI]AT SAME ALLEGED ..CAPITAL MIJRDER'" DOES NOT VIOLATETHE DOUBLE JEOPARDY

PROVISION OF TIIE UNITED SI'ATES CONSTITIJTION.

IìEAS ON S ìlOR IììrVlEV/

In holding that punishing/sentencing a defendant fol capital murdel'after the
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Appeals, the United States Suprerne Court, and other cour.ts of appeal on the sameissue. In the altemative, the coult of appeals deoided an important question of state

and federal law that has not been, but should be settled by the Courl of Crirninal

Appeals. See, Rule 66.3(a),(b), & (c), T.R.A.P.GROUND FOR REVIEW NO. 5

]-I-IE COURT OF APPEAI,S ERRED IN HOLDING 'IHA'T' DIAZ V. L]NITED

STATES,223 U.5.442 (19t2), rS GOOD LAW AND CREATED A CARTEBLANCIIE EXCEPTION TO THE DOUBLE JEOPARDY PROTECTIONOTHEIì.WISE PROVIDED BY THE UNITED STATES CONSTITUTION.

REASONS FORREVIEW

In holding thatDiaz v. United States,223 U.S. 442 (1912), is still good law and

creating a cal'te blanche exception to the double jeopar.dy protection otherwise

provided by the United States Constitution, the coult ofappeals made a decision thatconflicts with the applicable decisions of the Court of Criminal Appeals, the United

States Supreme Couft, and other courts of appeal on the same issue. ln the alternative,

the court ofappeals decided an irlporlant question of state and fedel'al law that has
THE COURT OF APPEALS ERRED IN Ì.IOLDING THAT ANY

EXCEPTION TO DOTJBLE JEOPARDY PROTECTION CIìEA'|ED BY

D|AZ V. UNITED STATES,223 U.S. 442 (1912), APPLIES TO THU CASEAT-BAR.

REASONS FOR REVIEW

ln holding that any exception to double jeopat'dy protection cl'eated by Diaz v.

United States,,223 U.S. 442 (1912), applies to the case-at-bar', the court of appeals

tnade a decision that conflicts with the applicable decisions of the Court of Clirninal

Appeals, the United States Suprerne Court, and other courts of appeal on the same

issue. In the altelnative, the coult of appeals decided an important question of state

and federal law that has not been, but should be settled by the Courl of Criminal

Appeals. See, Rule 66.3(a),(b), & (c), T.R.A.P.GROUND FOR REVTEW NO. 7

THE COT]]I]' OF APPEALS ERRED IN HOI-DING THAT ]-HE *BLOCKBU]IG¿,¿ì", SAME OFFENSE TEST, DOES NOT APPLY TOSIJCCESSIVE PIìOStsCUTIONS, DOUBLE JEOPARDY ANALYSIS ìN

THE CASE-AT-BAR.

Iì]]AS ONS IìOR R]]VII]W

In holding that the "Blockburger, sarne offense test, does not apply to
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state and federal law that has not been, but should be settled by the Court of Crirninal

Appeals. See, Rule 6ó.3(a),(b), & (c), T.R.A.P.GIìOUND FOR REVIEW NO. 8

TIIE COURT OF APPEALS ERRED IN HOLDING THAT 'fHE

"BLOCKBURGER'1 SAME OFFENSE TEST, DOES NOT APPLY TO

MULTIPLE PUNISIIMENT, DOUBLE JEOPARDY ANALYSIS IN TIIì]CASE-AT-BAR.

REASONS FOR REVIEW

In holding thafthe "Blockburger" , same offense test, does not apply to multiple

punishrnent, doublejeopaldy, analysis in the case-at-bar, the court ofappeals rnade

a decision that conflicts with the applicable decisions of the coul't of climinal

Appeals, the United States Supreme Court, and othel.cour.ts of appeal on the salneissue. In the altelnative, the court ofappeals decided an irnpottant question of state

and fedelal law tl.rat has not been, but should be settled by the coult of climinal

Appeals. See, Rule 66.3(a),(b), & (c), T.R.A.P.
upon successive prosecutions, namely the 

embarrassment, expense, and ordeal

 of

t'epetitive trials, 'compelling fthe accused] to live in a continuing state of anxiety and

insecurity' and creating 'a risk of conviction through sheel governrnent

pe1'severance."' Ex parte Chaddock, 369 S.V/.3d 880, 886 (Tex.Crirn.App.

2012)(quoting,Greenv. United States,355 U.S. 184 (1957),Tibbs v. Florida,45l

u.s. 31 (1e82)).

The government's plosecutorial powel and discretion to charge a citizen with

a crirninal offense is ahnost unlimited. The government is, likewise virlually

unaccountable for its chalging decisions. Although a grand jury indicted Appellant,

at the time the capital tnurdeL case was plesented to the grand jury, Appellant had

"resolved" his case through a plea ofguilty and had begun serving his forty-f,rve year.

sentence for aggravated robbely. Appellant had no reason to know that the case was

again being presented to the gland jury, this time as a capital rnulder', which canies

the possibility of tl're death penalty, and had no reason to know he still needed

counsel. Appe llant was the¡efole not l'epresented by counsel when the grand jury met

with the plosecutor and voted to indict fol capital mul'der. Any algurnent that
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power and discletion.

Likewise, the government has vast resources to pursue convictions, once they

have charged a citizen. The governrnent is generally ready and willing to expend vast

l'esources in pursuit of convictions and sevele sentences in "big cases", such as a

capital murder case. Of coul'se, once the state obtains a conviction in a capital murder'

case, the only possible punishments are death or life without the possibility ofparole.

In this case, either punishrnent would necessarily be cumulative of the 45 years

agglavated tirne Appellant began serving in2013.

h"t North Carolina v. Pearce,,395 U.S. 7ll (1969), the Supreme Court stated

that the guarantee against double jeopaldy consists of three separate constitutional

protections:

first, it plotects againsl a second prosecution fol the same offense after

acquittal; second, it protects against a second prosecution for the same

offense aftel' colrviction; and tliird, it protects against rnultiple

punishments fol' the same offense.

Aekins v. State,447 S.W.3d 270,274 ('l'ex.Criur.App. 2014xcitine, Pearce af 717).
emphasized:

the Double Jeopardy Clause protects an individual against more than

being subjected to double punishments. It is a gualantee against being

twice put to trial on the sarne offense [d. at pp. ó60-661]. . . theguarantee against double jeopaldy assures an individual that, arnongother things, he will not be forced, with certain exceptions, to endule the

pelsonal strain, public embarrassrnent, and expense of a criminal tl.ialtnore than once for the same offense. lt thus protects interests whollyuntelated to the plopriety of any subsequenl conviction. Mr'. Justice

Black aptly desclibed the purpose ofthe clause:

"The underlying idea, one deeply inglain ingtained in at least the

Anglo-Arnelicân system of julisprudence, is that the state with all itsresources and power should not be allowed to make repeated attempts

to convict ar.r individual fol an alleged offense, theleby subjecting hirn

to embarrassment, expense and ordeal and compelling him to live in acontinuing state of anxiety and insecurity, as well as enhancing the

possibility that even though innocent he rnay be found guilty." Green v.

Uníted States,335 U.S. 184, 187-188.

Id. at 661-662.

The doublejeopardy clauses in the United States and Texas Constitutions ale,

leal istically, the oniy checks on the govelnrnent's power to both cr.irninally charge and

to pul'sue criminal convictions and punishnrcnts against its citizens once they ar-e

chalged. In its opinion below, the Court of Appeals purports to seize on yet another

il
for agglavated robbery. The indictment was filed on Aplil 25,2012 and r.eads, in

perlinent parl, as lollows:

On or about the 18'r'day of March A.D. 2Ol2 . .. intentionally and

knowingly, while in the course of comrnitting theft of pl'opelty . . . cause

selious bodily injuly to another Ryan Lusk . . . by shooting Cornplair.rant

withafir'earm...

Appellant was convicted and sentenced on June 21, 2013.

On November 19,2013, Ryan Lusk died, allegedly due, at least in part, to the

gunshot would he had sustained twenty rnonths earlier on March 18,2012.1

In an indictrnent filed on Decernber 3 0, 20 1 3, Appellant who had begun serving

his forly-five year sentence and who had no legal counsel and no reason to believe heneeded furthel legal counsel, was indicted fol capital rnurder, in pertinent pal-t, asfollows:

On or about the 18tr'day of Malch A .D.,2012. . . intentionally cause thedeath of Ryan Lusk . . . by shooting the deceased with a firearrn, and the

defendant was then and thele in the course of comruitting . . . robbery ofsaid deceased.

¡11 is worth noting that the statutory definition ol'"serious bodily injury" includes, "bodily

irrjury . . .1hat causes death. . ." T.P.C. g 1.07(46).

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robbery. In fact, undel any analysis, one offense (aggravated lobber'y) is the lesset'included of and, therefore, fol double jeopardy purposes, the sarne offunse as, the

other'(capital rnulder). See. e.g.. ßlockburger v. United States,284 U.S. 299 (1932);

Brown v. Ohio,432U.5.161 (1977); Bigon v. State,252 S.W.3d 360 (Tex.Cr.im. App.

2008);Cooperv. State,430 S.W.3d 426 (Tex.Crim.App. 2014); Littrel.l.v. State,271

S.W.3d 273 (Tex.Crirn.App. 2008); Shelby v. State,448 S.W.3d ('l'ex.Crim.App.

2014); Ex Parte Carle,369 S.W.3d 879 (Tex.Crirn.App.2012).

The t'ial court, the court of appeals, and even the State aglee with Appellant

that the offense for which Appellant was convicted and sentenced is a lesser includedoffense ofthe new, alleged capital muldel'and thatthey are the "same offenses" under

a"Blockburger" analysis. All appeal to also agree that there is no legislative intent

to punish both statutory offenses when, as here, they arise flom the sarne transaction.

See, Price v. SÍate,434 S.W.3d 601 (Tex.Clirn.App.20l4). In fact, i1 would seern

patently absul'd to irlrpose both a death sentence and a telln of yeals, to runcousecutive to the death sentence, all fol'the identical conduct.

l3
U.5.299,304 (

)

Thus the state nlay not convict a defendant for an

offense when the defendant has been convicted already of a lesserincluded offense arising fi'om the same event. Brown,432lJ.S. al 161,

Ex parte Amador,326 S.W.3d 202,204 (Tex.Crirn.App. 2010).

Slip Op. Below at 3.

The Coult below and the State both concede that this case rneets the

Blockburger test. Id.

The courl ofappeals, however, then disrnissed the long standing"Blockburger"

rule and analysis as a mere "general ploposition" and one which has absolutely no

relevance or applicability to the case-at-bar'. "In all of IIill's autholities fincluding

Blockburger], however, the greater and lesser offenses were colnpleted and availableas potential charges at the tirne of defendant's tlial." Slip Op. below at 4.

While that rnuch is technically true, neither did any of the cases r'elied on by

Appellant "Hill", including Blockburger, oither explicitly ol irnplicitly, lirnit their'(sornetimes extensive) analysis ol application of the fifth amendment's double

jeopaldy clause to exclude the situation in the case-at-bar, as the coult of appeals

seelned to imply.
Blockburger have acknowledged the theoretical possibility of an exception cl

eated

by Diaz that survives Blockburger."Anexception rnay exist whele the State is unable

toproceedonthernoreseriouschargeattheoutset..."Brownv.Ohi.o,432U.S.16l ,

I69&n.7(1977).

In Diaz, the defendant was tried and convicted in a Justice of the Peace Coult,

in {he Philippines for assault and battely. He was lined. The cornplainant died a sholt

time later as a result of the injulies suffered in the assault and the defendant wascharged in a l.righer court with homicide. He pled jeopardy and lost. In upholding the

denial ofhis doublejeopardy plea, the United States Suprerne Court stated:

. . . undel'the Philippine law, thejustice ofthe peace, although possessed

ofjurisdiction to try the accused fol assault and battery, was without

julisdiction to try hirn for lT omicide; and, ofcoulse, thejeopardy incident

to the trial before the justice did not extend to an offense beyond his

julisdiction. All that could be claimed fol that jeopaldy was that it

proteoted the accused from being again plosecuted fol the assault and

battery, and therefore required tl.rat the lattel be not tl'eated as included,

as a lesse¡ offense, in the chalge of hotnicide, as otherwise rnight havebeen done witli Phii. Comp. Stat. $3284.

Diaz at 449.

In othel wol'ds, unlike the case-at-bar,ln Diaz, the first court of conviction (a

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same couú has j

over both offenses and Diaz is distinguisl.rable for that

reasonThe Diaz opinion does state that "[t]he death of the injuled person was the

principal elernent of the homicide, but was no part of the assault and battely. At thetilre ofthe trial fol the latter the death had not ensued, and not until it did ensue was

the honricide comrnitted." Diaz at 251 .

Again, the case-at-bar is distinguishable in that Appellee was convicted of

inter.rtionally and knowingly causing the victim "seLious bodily injuly" by shooting

hirn with a firearm during a robbery. Under Texas law, the statutoly definition of

"selious bodily injuly" includes "bodily injury . . . that causes death . . ." T.P.C.

$1.07(46)(emphasis supplied). Therefore, unlike Díaz, and unlike any case

rel'erencing Diaz with approval, the Appellee has ah'eady been convicted of and

punished for causing "sel'ious bodily injuly", which includes a bodil), injury "thatcauses dcath." 'l'he facl that lhc victirn has rrow died, allegedly t'ont tltat bodily in july

adds nothir.rg to the elements for which Appellee has been ah'eady convicted andpunished when he was convicted and punished fol causing "serious bodily ir¡ury".

t6
rnost cited as establishing double jeopa

dy ju

sp

ude

ce and legal analysis, for

exarnple, Rlockburger v. United States,284 U.S. 299 (1932); North Carolina v.

Pearce,395 U.S. 711 (1969);Ashev. Swenson.,397 U.S. a36Q970);Brownv. Ohio,432 U.S. 161 (1977), all were decided well after Diaz and Diaz has never beenscrutinized under the tests and standards established by these cases fol violations of

double.jeopaldy. Although Di.azhas never been explessly overluled and some cases

rnake l'efelence to it in dicta, no Supreme Court case relies on it in reaching a

decision. Even a lecent arlicle on the Texas District & County Attot'neys Association

website questions whethel the Dí.az is good law. "l)oes this case survive the

Blockburger test?" It resolves this question with a less than resounding endolsement,

"[i]t hasn't been expressly overruled . . . You may want to keep Diaz handy." Stride,

"Double Jeopardy: Unlaveling a Gol'dian Knot" (2013). w,.rvw.tdcaa.com.

The Coul't below also lelied heavily on Graves v. State, 539 S.V/.2d 890

(Tex.Clirn.App. 1976), whicli cites Diaz in allowing a second plosecution for

iuvoluntary manslaughter aftel his conviction for driving while intoxicated. 'lhat case

is likewise distinguishable because as Judges Odom and Douglas point out in their

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distinguishable.

Oddly, in its decision below, the couú of appeals seeured to both acknowledge

the possibility that rnultiple punishments under these circumstances would violatedoublejeopaldy and, yet, remain seemingly unconcerned about that constitutional

violation. "Moreover', even if the cornplainant had died immediately and Hill was

chalged and convicted of both offenses at the same tirne in violation of his double

jeopaldy rights, the proper resolution in such cases is to vacate the conviction and

punishrnent fol the lesser-included offense and leave intacl the conviction and

punishrnent for the gleater offense." Slip Op. Below at pp. 7-8 (citation ornitted).

First, the plotection the double jeopardy clause provides against successive

prosecutions is at least as bload and as strong as the protection it provides against

rTrultiple punishments. "Multiple punishments that result fi'orn a single prosecution

do not subject a defendant to the evils attendant upon successive prosecutions." -Ex

parte Chaddoclc,369 S.W.3d 886 (Tex.Crirn.App. 2012). Ilow could it, ther.r, be a

violation of double jeopardy to punish for both offenses if tried together., but not if

tt'ied successively? Pafliculally when successive tlials were not the choice of the

18
ancl sentence fol the agglavated robbel'y once Appellant is convicted ancl either

sentenced to death ol Iilb rvithout the possibility of parole on the capital murder.,

would not be availabÌe here, and would be utter.ly meaningless at that point, even ifit wele available.

Finally, the absuld and abjeotly unfàir results the rule announced by the cour"t

below could lead to are unlin,ited. Þ-or exanrple, there is no statute o1l limitations on

capital murder. A deatli that occul'r'ed years, even decades aftel a <lefendant had been

convicted ofa fir'st degree assaultive felony and involving the identicaÌ conduct for

which the defendant had already served decades in plison, could be r.epr.osecutecl as

a rnurder oI. capital murder. Any sentence pul'suant to a l-ìew oonviotion would star.t

over. Likewise, under the rule announced by the coult below, a defendant could ser.ve

decades fol an attempted ururder and then get a stacked life senterìce for.rnurder.if the

injuled pal'ty latel'died. clearly, if the governrnent could be trusted not to abuse its

almost uniil¡ited powel to charge, thele would be no need for the clouble jeoparcly

clause.

It is true that with all of its powel to charge, the govelnrnent still cannot char.ge

I9
repetitive tlials, 'compelling [the accused] to live in a continuing state ofanxiety and

insecurity' and creating a lisk ofconviction thlough sheel' governlllent preservance.',,

Expartechaddock,369s.v/.3d atsS6,supra.Inlesolvingthisissuebydiscountingthe seminal double jeopardy case, Blockburger, and ploviding the gover.nment even

rnore charging power at the expense of an irnpo|tant constitution light, the court of

appeals reached the wrong decision. The trialjudge got i1 right.

PIIAYER FOII RELIEF

The two offenses are the sane for jeopar.dy pul-poses. Both successive

prosecutions and rnultiple punishments are prohibited. The trial court's ruling shouldbe afhlmed and the court of appeals opinion should be reversed.

z0
Telephone: (817) 338-4100Telecopier: (817) 698-0000Wa reúd¡uikew¡re.!e¡¡_,çq¡u

2t t,,¡". / .'¡-, ,, , ',/ MICIIAEL L-õÃÑTARE_

State Bar No. 20864200

ATTORNEY FOR APPELLANICERTIFICATII OF COMPLIANCE

The undersigned certifies this petition complies with Texas Rules of

Appellate Procedure 9.40X3).

1. This Petition contains 4,098 words prepared using Vy'ordPerfect and

lelying on WordPerfect for the word count.
brian

hi@rg and Lisa McMinn, State Plosecuting

Attorney, P.O. llox 1304ó, Capitol Station, Austin, TX 78701

'',/ / -'t I / y'.../t ¿.. í,y:

MICHAEL T-OGAN V/ARE
APPENDIX A

Court of Appeals Opinion dated May 20,2015)
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ñww,t-xcouÌI s.co\,/51.ll L:oA, A Spx

Michael WaleAttomey at Law300 Burnett Street

Suite 160

Ft Worth, TX76102-3428

+ DELIVERED VIA E-MAIL {.

Telri l{arnmond Mool'eTerri Moole300 Buniett Street, Suite 160

lì't Worth, 'îX 76102-3428 * DELIVEIìED VIA E-MAìL +

May 20,2015

Susan Hawk

Dallas County Distlict Attomeylì'r'ank Crowley Courts Building

133 N. Riverfront BIvd., LB l9

Dallas, TX 75207

+ DELIVEIìED VIA E-MAIL +

Brian lJigginbothan.r

Assistanl District Atto[rey

lìr'ank Crcwley Courts Building

133 N. lndustrial Blvd., LBl9

Dallas, l'X 7 5207 -4399

* DELIVERI]D VIA E-MAIL +

Rll: CourtofAppealsNurnber: 05-l5-00053-CIì

Trial Courl Case Nuurbcr: WX l4-90030

Slyle: The State ofTexas

Anthony Ilill

Please find attached the opinion that issued in tlie above cause toclay

lìespectfully,

/s/ Ltsa Matz, Clei'k of the Coult

cc: Eìr'andon Iìiuringharn (DELI\4IRED VIA E-MAìL)

F-elicia Pitle (DìiLJVEIìED VIA E-MAIL)

The llonolable Maly L. Murphy Q)ELIVËlìllD VtA ìì-MAIL)
In l-hc

(ûrrt¡rt üf AFpr¡¡IÍ

^ãfiffh Ðixtrirt rrf @ux¿¡¿r cf B¡¡llfis

No. 05-15-00053-Clì

EX IAIITE ANl]IONY HÌLL

On A¡rpcal fronr thc 292nd Judicial District Court

Dallas County, Texas

ï'rial Court Causc No. WXl4-90030

OPINION

Before Justices Francis, l.ang-Miers, and Whilehill

Opinion by Justice Irrancis

Anthony I'lill pleaded guilty to shooting a rnan during a robbery and was sentcnced to

folty-five years in prison. Months later, the complainanl died, allegedly fronr cornplications ol'

the gì.lnshot wotì¡id he receivcd du|ing tlie agglavated robbery. 'l'helealìer, the Slate indictecl Iìill

fol capital nrurder.

Ilill filed an application for rvrit ol'habeas corpus in which he asserted, anrong othel.

tlrings, violations of the double.jeopardy pr.otections al'iorded b¡, fhe tJnited States and l-exas

colìstitutions.' Specifically, he algued his subscquent plosecution for capital lnurder was barr.eci

by his provious oonviction fol aggravated lobbcly. Aftcr a healing, the llial courl agreed ancl

barred the prosecution.
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For reasôns set oUt below, \\,e agr.ec with

the Sfate. We teve¡se the lrial court's order and reurand for fuúher procccdings consistent withthis opinion.

An applicant seeking habeas corpus relief must prove his or her clailn by a prepondelance

01- thc cvidence. Knidtt v. Slore, 206 S.W.3d 657, 664 (Tex. Clim. App. 2006); Ex parte Scott,

I90 S.W.3d 672,673 (Tex. Crirn. App. 2006) (per culiarn). In reviewing the lrial court's order

glanling habeas corpus relief, we view the facts in the Iight tnost f¿vorable to the tl'ial court'sIuling, and rve will uphold the trial court's ruliug absent an abuse ofdìscretion. See Kniatl,206

S.W.3d at 664. We afford ah'nosl total defelence to the tlial coult's delennination of the

hislorical facls that the record supports. See Dx parte Peterson, ll7 S.W.3d 804, 819 (Tex.

Crinr. App. 2003) (per atiant), overruled on other grounds by list parte Lewis,2l9 S.W.3d 335

(Tex. Crim. App.2007). We likewise defer to the lrial court's application of the larv to the factsif the resolution ofthe ultimalc question lurns on an evahration ofcredibility and derneanol'. S¿¿

id. llthc resoh¡tion ofthe ultimate questiorì turns on an applicalion oflegal standards, we revicw

the deter'¡n inatioll de novo. S¿¿ i¿./.

The ìr'ifth Amendmcnt's Double Jeopaldy CIause plotects an accused against a second

prosecufiott for the satnc offense afler acquiltal, a second plosecution for the same offense aftel.

conviclion, and being sub ject to nrultiple punishments I'or'the sarne offense. U.S. CoNs'1. arrendY;Ilrov,nv. Ohio,432 U.S. ló1, 165 (1977); Littrell v. State,271 S.W.3d 273,2?5 ('l'cx. Cr.inr.

App.2008). l-he Fifth ,A,llcndrìlenl is made applicable ltr the stafes through the Due Process

ClaLrse of thc lìoull.cc¡rth Amendrncnt. llenton y. lt4atyland,395 U.S. 784, 787 (1969). I'he

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t statutes, t

e t

o ollenscs aro considercd the

same oflènse for pulposes of applying the double .ieopardy prohibition if all of thc slatutoÐ,

elements of one offense are included within the statutory clements ol'thc other offense. S¿¿

I4/halen v. United States,445 U.S. 684, 693 94 (1980); Ilktckburger v. Uniled States,284 tJ.S.

299, 304 (1932). Thus, thc Statc rl'ìay not convict a defendant for an offense when tlre defe¡rdant

has been convictod already ofa lesser-included offense arising fi'orn the sarìle event. Ilrotun,432

U.S. at 161; Dx parle Antador,326 S.W.3d 202,204 (Tex. Crinr. App. 201 0).

I'he indiotrnent that formed the basis o1'the aggravated robbery conviction provides that

Ilill, while in the coulse ol'cornmitting theft, caused serious bodily injuly to the cornplainant by

shooting him with a l'irearm. l'he indiclnlent for capital muldel alleges that while in the coulse

of cornmilting or atteurpting to comrnit lobbery, Ilill caused the death of the complainant by

shooting him r.vith a firearm. The State concedes the aggravated robbery is a lesser-included

ofl'ense ofcapital nrurder as alleged in this case and thus satislìes lhe Blockl:urger tesf. Conrytare

'l'DX. PDNAT. CoDri ANN. $ 19.03(a)(2) (West Supp. 2014), u,irh TEX. PriNAr. CODU ANN. S 29.03(West 201 I ).

Because aggravated robbcry is a lesser-included offense of capital rnulder, llill contends

prosecrìting hinr for capital murder exposes him to doLrble -ieopaldy because he would be bolh

tried and punished twice. ìJill oites nurreLous authorities suppolting the general ploposition that

a defendant n.ìay not lre convicted of both greatel and lesser o1'lènses arising liom the same

cvcnt. In all ofIlill's authorifies, horvever', the greâter antl lesser olïellses were completod and

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adclitional facts neccssary to sustain that charge have not occurred or have Dot been discoveleddespite the exelcise ofdue diligence." Ilrov,t¡,432 U.S. at169 n.7.

The United States Supreme Courl reoognized this exception to the general double

jeopardy rule in Diazr llnited States,223 U.S.442 (1912). Diaz was convictecl ofassault and

battery and fined aller beating and kicking the victit¡. ld. aI 444. AîÍer Diaz's convicl.ion, the

victim died, and Diaz was tried and convicted of holnicide. Id. 'fhe case proceeded to theUnited States Suprerne Court 10 consider the application o1'the provision against doublejeopardy

contained within the Philippine Civil Government Act, which govelncd adnrinislr'ation of thc

Philippines where the case alose. Id. al 448. hi liolding thal Diaz was not subjected to dor¡trle

.jeopardy, the Supreme Court pronounced:

'l'he death of the injured person was the principal elernent o1'the homicide, butwas no pârt of the assault and battery. At the tilre ofthe trial for the latter thedeath had not ensued, and not until it did cnsLre was the holricide committed.

Then, and not before, was it possiblo 10 put thc accused in .ieopaldy for thatoffen se.

Id. at 449. Irr reaching this oonclusion, the Su¡rreme CoLrrt ciled an early Tcxas case,,Iohnsoll tt.,tt(tte, 19 'ì'ex. C1. App.453 (1885). Johnson explained the exception as fòllows:

'fhere never can be the crirne of murdel or rranslaughtel unlil the party assaultecìdies; fhese clirnes have no existeÍìce in facl or law till such death. It cannot,

therefore, be said that one is lried for the same crime when he is tl ied for assaulttlLring the Iife, and tried lòr'utrder ol nranslaughtcl alìer 1he death, ol'lhe injuledpany. 'l'he death ofthc assaultcd party creates a ncw crime.

John.son, I 9 l'cx. Ct. A1':tp. at 461 .

4
y 

try hirn for homicide. Diaz,223 u.S. at 449. IJill contends that because ths alternative

ju¡isdictional double jeopardy exception in Diaz has no application to his case, /)¿az is

d istinguishable.

In fhe ensuing cenfuly since I)ioz was decided, the united states Supreme court lias

abandoned the jurisdictional double .jeopardy cxceplion described in Diaz. see llaller t,.

Florida, 397 u.s. 387, 394-95 (1970) (overturning dual sovereignty exceplion to dor¡ble

jeopaldy and concluding petitioner could not be tried for sarne offense in both municipal court

and stâle cotrrt). The Suprettte Court, horvever', has not abancìoned the incornpletc offense ruling

of Diaz at issue in lJill's case. ,s¿¿ culberson v. lllainwrighr, 453 lt.2d 1219, )zz0-21 (5th cìr.

1972) (pu cnriant)- cert. denied,407 u.s. 913 (1972) (concluding llaller had no effect on Dr¿72

rule pelnritting subsequent prosecution after victim dies and upholding manslaughter conviction

against clailr of double jeopaldy prenrised on conviclion for assault obtained before victirn died).

As it't ctrlberson, we soe no leason not to apply Dioz and its exception 1o double.jeopardy under.the facls of ìl ill's case.

Ilill nexl contends /)laz is disfinguishablc because under'l'exas law the phlase "serious

bodily iniuly" as r¡sed in the aggravated robbe¡y statute enconìp¿ìsses itriuries that resLrll in cleath.

,S¿¿ lltx. PDNAI. CoDD ANN. { L07(46) (Wesf Supp. 2014) (defining ,,serious bodily injur.y', to

include bodily iniLtry that causes dcath). l'hus, unlike Diaz, l\ll conte¡ds he has alrea{y been

punished f'or causing the complainant's death. We disaglec. At llie tinle ofI Iill's conviction for

âggravatcd lolrbery, the cornplainanl was still alive. We caunot agrec l-lilÌ has been punished fol.

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points ôut that the cases

most cited as establishing double jeopaldy jurisprudence and legal analysis, forcxanrple, BÌockburger v. Uniter.l Starets,284 U.S. 299 (1932); North Carolino v.

Pen'ce,395 U.S. 7ll (1969); Ashe v. Sv,enson,397 U.S. a36 (970); Brown v.

Ohio,432 lJ.S. l6l (1977), all were decided well aller Diaz and Diaz never has

been scrLrtiniz"ed under the tests and standards established bv these cases f'or

violalions of double.leopardy.

Even rvhile applying lhe Blockburger lest, the Suprenre Court continues to recognize the

double jeopardy cxception lòr incornplete or undetected crimes. 5'¿¿ lllinoi,y ¡,. I¡itale, 447 U.S.

410,420 n.8 (1980), trbrogated on other ground.s by United Staru v. Dixon,509 U.S. 688,704

(1993); Brou,n,432 U.S. at 169 n.7; Blackledge v. Perty,417 U.S. 21,29 n.7 (1974); Ashe v.

Svenson,397 U.S. 436, 453 n.7 (1970) (Brennan, J., conculring); see olso Rutledge v. United

,ftates,517 U.5.292,307 n.l7 ( 1996) (declining to "explore the consequencas" of its holding onsuccessive-prosecution st|and ofDouble Jeopardy Clause and Diaz). HtIl concedes that /)l¿z has

never beett overluled but is ilcorlect in asserting that no Suprelne Coult decision has evel leliedtrpon it in Icaclring a decision. For exarnple, the Suplcnrc Cor¡rt lelied on Diaz as an ahcrnalivc

tcason to uphold a plosecution brought against a ¡nariiuana smugglel for conducting a continuing

criminal enterpt ise even though the smuggler had been earlier convicted for a specific instance of

niariiuana in'ìportaliou that was part ofthe cÌifirinal aofivity. See Gaftett v. t]nited Skrtes,4Tl

u.s. 773, 79r-93 (198s).

ln addition to the Suprernc Court's Iirlited plonouncellents on lhc Dinz cxception, thc

exception or).ioys lo¡rgstanding supporl in'l'exas law. See (ìrat,e,y v. State,539 S.W.2d 890, 891-

92 (1'ex. Crirn, App. 1976); llill y. St(ile, 149 S.W.2d 93, 95-96 ('lex. Cr.im. App. 1941); Curri.s

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2l; Srare v. llilson, 335 P.2d 613, 615 (Ariz. 1959); Lott,e v. State,242 S.E.zd 582, 584 (Ga.

1978); People v. IJarrison, T0 N.E.2d 596,601 (lll. l9a6); State v. Ilenty,483 N.V/.zd 2,4

(lowa App. 1992); Stote v. Ifutchinson,942 A.2d 1289,1292-93 (N.l-I. 2008); Con¡ntonwealÍh ex

rel. Papyv. Marcne¡,,207 A.2d814,816 (Pa. 1965); T'urner v. Conntonwealth, 641 S-]E.2d771,774 (Ya. App.2007).

ln this case, I'lill was tried for agglavated lotrbery before one of the clemenls that

complises his capital murder offense-narnely, the dealh of the complainant-had taken place.

ìlecause the State could not have brought the capital murdcr case against Ilill a1 the time he was

tlied for agglavatcd lobbely, it is not jeopardy-bared front doing so now. S¿¿ Diaz,223 lJ.S. at

44849; Graves,539 S.W.2d at 892.

ìrinally, I-lill contends that if the State is allowed to proceed and he is convicted, he will

làce nrultiple punishments for thc same offènse, a result that may not occur unless the legislatur.e

"has cleally expressed a contrary inlenlion that the accused should bc punished for both the

glcater and lesscr-included offenses." Littrell,2T'l S.W.3d a1 276. In the case ofan individual

rvho colrrnrjts a crime that encolnpasses bolh aggravated |obbery and rnurder, thele is no such

Iegislative intent. Id. at 278.

As we have already explained, undel the Iinited and lale circu¡rsfances oJ'I{ill's case,

fhe aggravafed lobbery and capital murder offenscs IIill rvas charged with are not 1lìe same

oflense fol double.ieopardy l)urpôses. See Diaz,223 U.S. at 44849; Grn,es, 539 S.W.2d at

892. Moleover, evcn il thc oornplainanl had died immedialely and llill was charged and

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the United States Supreme Courl anci the Texas Court of Crir¡inal Appeals, we conclude the trialcoult abused its discretion ìn glanting lJill reliefon his application l'or writ ofhabeas corpus. S'ee

Diaz,223 U.S. at 448-49; Kni(ttt,206 S.W.3d at 664; Graves,539 S.W.2d at 892. We suslainthe State's issue on appeal.

We reverse the trial court's order granting l"lill's application í'or writ of habeas corpus,

and we rer¡arrd this case 1o the t'ial coLlrt for proceedings consistent with this opinion.

Publish

TEX. R. APP, P. 47

150053F.P05

/Moliy l'rancis/

MOLLY FRANCIS

JUSI]CE

8
(luurt uf Appulx

ífifth 4lixttirt rrf @trux ¡tt Ð¡tll¿tr¡

JUDGMENT

EX PARI'LJ AN]].-IONY IJII.LNo. 05- I 5-00053-Clì

On Appeal lìorr the 292nd Judicial District

Court, Dallas County, TexasTrial Court Cause No. 'ir'Xl4-90030.Opinion dclivclcd by Justicc Francis.

Juslices Lang-Mie rs and Whitebillparticipating.

Based on the Court's opinion of this date, the older ofthe tlial coult granting appellce

Anthony l{ill's application for writ of habeas corpus is RI,VtrRSDD and thc causeREMANDDD for fLrther proceedings..lrrdgrncnt cnlcled May 20, 201 5.

9
APPENDIX B

Courf of Appeals Order denying Appellee's

Motion for Rehearing dated

June 17,2015
ln'I'he

@ourt of Øtpeuts f íttÍ) Díßttíct ot @txus et Dslted

No. 05-15-00053-CR

EX PARTB, ANTI.IONY ITILL

On Appcal from thc 292nd Judicial District Court

f)allas County, Tcxas

Trial Courf Causc No. WX14-90030

ORDE]I

Appellee's Motion l'ol llehearing filed on June 4,2015 is DENIED.

MOLLY FRANCISJTJSTICE