IN THE COURT OF CRIMINAL APPEALS
OF TEXAS


NOS. 1220-01 through 1229-01

 

EX PARTE BRENDA SUE BAILEY ET AL., Appellants

v.


THE STATE OF TEXAS



ON APPELLANTS' PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTEENTH COURT OF APPEALS
HARRIS COUNTY

Meyers, J., delivered the opinion of the Court in which Keller, P.J., Price, Hervey, and Holcomb, J.J., joined. Keasler, J., filed a dissenting opinion in which Johnson, J., joined. Womack and Cochran, J.J., not participating.

O P I N I O N



Appellants were charged with engaging in organized criminal activity resulting in a theft from the City of Houston. Tex. Pen. Code Ann. 71.02 (Vernon Supp. 2002). During trial, at the close of the State's evidence, appellants moved for an acquittal. (1) Appellants' motions were granted. The State subsequently secured a second set of indictments charging appellants with the offense of engaging in organized criminal activity resulting in a theft from Rick Collins. Appellants filed pre-trial applications for writs of habeas corpus on the ground that the second set of indictments violated the prohibition against double jeopardy. The trial court denied the requested relief. The Court of Appeals affirmed. Bailey v. State, 44 S.W.3d 690 ( Tex. App. - Houston [14th Dist.] 2001). (2) We granted appellants' petitions for discretionary review to determine whether a subsequent prosecution on the second set of indictments is jeopardy barred. We will affirm.

I.

Appellants were employed by C & C Services, a construction company, to work as flagmen on several projects for which C & C Services had been hired by the City of Houston to complete. It was alleged that appellants were involved in a scheme of falsifying their time sheets. Appellants were indicted for engaging in organized criminal activity with theft as the underlying offense. (3)

The City of Houston was named as the complainant.

A bench trial on the first set of indictments commenced on April 3, 2000. At trial, the State called Rick Collins, the owner of C & C Services, to testify. Collins explained that he would receive daily reports containing the names and the amount of time that each flagman worked. He issued paychecks based on these daily reports and was eventually reimbursed by the City of Houston.

Sharon Messa, a senior assistant attorney for the City of Houston was also called to testify by the State. She explained the differences among the contracts that existed between the City of Houston and C & C Services for the projects that were being worked on during the time period of the alleged offenses. C & C Services would first pay the flagmen and then later be reimbursed by the City of Houston in accordance with the terms of the contract. On cross-examination, Messa testified that she was not aware of any conditions in the contracts that would require the city to monitor checks written by C & C Services to the flagmen. In addition, she explained that under the terms of the City's contracts, if a subcontractor came to the City and said that he was not paid by the contractor, then aside from providing the subcontractor the name of the general contractor and bonding company, it could not provide any relief to the subcontractor. Claude Hill, the director of the Operations Division within the City of Houston's Controller's Office, also testified that he would be unable to provide relief to a subcontractor who was not paid by the contractor.

At the end of the State's evidence, appellants filed motions requesting an acquittal. On April 7, 2000, the trial court granted appellants' motions and ordered acquittals with the following comments:

After having reviewed the arguments of counsel and reading the brief, so that you all know for any curiosity, as I am listening to you all as the trial progresses, I make notes as to what I need to hear to satisfy the State's case. The second item was - - well, first, was money misappropriated? I was able to answer that yes. The second item is, so whose money, the City's or the contractor's? Bad as it pains me to do it, I have to grant the motions based on the law. Each defendant is acquitted.



On April 13, 2000, appellants were indicted for engaging in organized criminal activity with theft as the underlying offense. However, instead of naming the City of Houston as the complainant, the State listed Rick Collins. Appellants subsequently filed special pleas of double jeopardy and applications for writs of habeas corpus in the trial court. The trial court conducted a hearing on applicants' motions. The State contended that not only was it alleging a different victim, but a different set of property as well since the money paid by the City of Houston to Rick Collins was different from the money paid by Rick Collins to the flagmen. Appellants argued that since the new prosecution would involve the same set of facts and the same witnesses, with the only difference being the name of the victim, the State should be barred from proceeding on the new charges against appellants. The trial court denied relief.

Appellants argued on appeal that double jeopardy prohibits the State from re-litigating the same offense with the same evidence of the same conduct by merely changing the identity of the owner. Relying on the facts of Smotherman v. State, 415 S.W.2d 430 (Tex. Crim. App. 1967) the Court of Appeals concluded that the State was not barred from prosecuting appellants under the second set of indictments. We granted appellants' petitions for discretionary review to determine (1)whether "federal double jeopardy principles bar a second trial for the same offense after [a defendant is] acquitted if the State changes its theory as to who owned the property allegedly stolen"; and (2) whether "Smotherman v. State, 415 S.W.2d 430 (Tex. Crim. App. 1967) [is] still good law under federal double jeopardy principles."

II.

The Double Jeopardy Clause of the Fifth Amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." This provision is applicable to the States through the Fourteenth Amendment. See Brown v. Ohio, 432 U.S. 161, 164 (1977). The Double Jeopardy Clause "protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U. S. 711, 717 (1969) (footnotes omitted). In the present case, we must determine whether re-indicting appellants for the same course of conduct while alleging a different victim constitutes a prosecution for the "same offense" for double jeopardy purposes. (4)

Appellants contend that since a separate offense is not created by merely changing the name of the complainant, prosecution under the second set of indictments is a violation of federal double jeopardy principles. Specifically, appellants argue:

A "separate offense" is not, somehow, magically created, which would warrant bypassing the protections of the Double Jeopardy Clause, by merely changing the name of the complainant in the accusatory pleading and, then once again, subjecting an individual to trial after previously being acquitted for allegedly participating in the same combination and in the profits of the same combination, pursuant to the same alleged scheme and continuing course of conduct by allegedly appropriating the same property by virtue of the defendant's same status as a public servant.



Based on the facts of appellants' case, we disagree.

Traditionally, courts in Texas have held that an acquittal because of a variance between the pleading and the proof does not bar reprosecution on a new charge alleging that version of the offense which the State's evidence proved in the first trial. 43 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure 31.233 (2d ed. 2001). See, e.g., Swindel v. State, 32 Tex. 102, 103-04 (1869) (denying habeas relief to an appellant who claimed that he would twice be put in jeopardy if prosecuted for theft of a gelding since he had been previously discharged for theft of a horse when evidence at trial adduced a theft of a gelding); Nance v. State, 17 Tex. Ct. App. 385, 389 (1885) (concluding that an acquittal under an indictment for incest charging the appellant of having carnal knowledge of one Pauline Leitz did not bar prosecution under the second indictment alleging the name of the female to be Pauline Seitz unless proof that the appellant had carnal knowledge of Pauline Seitz would have supported the allegation that appellant had carnal knowledge of Pauline Leitz); Reynolds v. State, 55 Tex. Crim. 273, 274, 124 S.W. 931 (1910) (concluding that where there is a distinct error in the name of the person assaulted as set out in the information and the appellant is acquitted of the offense, a second prosecution for an assault upon the same person charged under the correct name is permitted)." The rationale behind this rule was explained in Fulmer v. State, 731 S.W.2d 943 (Tex. Crim. App. 1987) (Clinton , J., concurring) (opinion adopted by majority).

The appellant in Fulmer was charged with indecency with a child. The indictment named "Kim Nguyet" as the victim. Proof at trial, however, established the victim's name to be "Kim Ngo" and appellant was acquitted of the offense. We held that the acquittal, which was based upon an indictment that did not correctly set out the complainant's name, did not operate as a bar to prosecution under an indictment that correctly identified the complainant. In his concurrence, Judge Clinton explained the reason behind permitting the subsequent prosecution:

Manifestly in the instant cause "Kim Nguyet" is different from "Kim Ngo." The names are neither the same nor idem sonans. Proof of one will not prove the other. That trial on the indictment resulting in an acquittal is not void or fundamentally defective is of no moment. The offenses are not the same.

Id. at 948 (Clinton, J., concurring).

The same rationale is applicable in the present case. Evidence that appellants stole money from Rick Collins would not sustain a conviction under the indictment alleging the victim to be the City of Houston. See id. at 947-48. In other words, proof of one will not prove the other. Thus, the offenses are not the same for double jeopardy purposes. See id. at 948.

Appellants further contend that the Court of Appeals' reliance on Smotherman v. State was misplaced in that Smotherman was not decided on double jeopardy grounds. The appellant in Smotherman was initially charged with the offense of damage to property of another. The information named Charles Kenneth Quinn as the victim. Smotherman, 415 S.W.2d at 431. At trial, the evidence established that Clinton Fontenot, the appellant's stepfather, was in fact the owner of the automobile, and the appellant was therefore acquitted of the offense. The State subsequently filed a new information charging the appellant with damage to an automobile belonging to Clinton Fontenot. Id. at 430. Appellant filed a plea of former acquittal that was denied. Overruling the appellant's contention that his plea should have been sustained, we explained:

In the case at bar, the information alleged wilful injury on the part of appellant to an automobile belonging to Clinton Fontenot. The evidence necessary to support the information in the case at bar would not have been sufficient to sustain a conviction upon the first information.

The rule appears to be that if the name of the injured party in the two indictments or information is not the same, the plea of former acquittal is ordinarily bad on its face.



Id. at 431 (citations omitted). Although Smotherman was not decided on double jeopardy grounds, it is nevertheless based on the same rule that was announced in Fulmer and therefore is controlling.

Finally, appellants contend that under Iglehart v. State, 837 S.W.2d 122 (Tex. Crim. App. 1992) the State is precluded from initiating a prosecution under the second set of indictments. Specifically, appellants rely on a footnote in Iglehart in which we stated:

The dissent opines that our opinion will "allow successive prosecutions under every available choice." We disagree with the dissent's intimation that we have afforded the State carte blanche to engage in interminable prosecutions. Our opinion merely permits the State to successively prosecute a defendant for the discrete number of items stolen, asserting the requisite ownership in those items as permitted by law. The State is not, however, free to successively prosecute for the same conduct by merely alleging ownership in different individuals, as such prosecutions would violate the double jeopardy clause. Thus, by way of illustration, had the State prosecuted appellant for theft of the fur coat from Robert LaVaye (as possessor of the property), it could not have successively prosecuted appellant for the theft of the fur coat from Valerie LaVaye (as title owner of the property). Because this would have constituted multiple prosecutions for the same conduct under Grady v. Corbin, inter alia, it would have been jeopardy barred.



Id. at 129 n.7.

The appellant in Iglehart burglarized the home of Robert LaVaye. The items taken from the home included a pistol, a typewriter, a fur coat, and some stereo equipment. Robert was the owner of the pistol and typewriter, while his daughter, Valerie LaVaye who do not did not reside at her father's residence at the time of the theft, was the record owner of the coat and the stereo equipment. The appellant was initially charged with the misdemeanor theft of a pistol and typewriter from Robert LaVaye. Id. at 124. Three days later, the appellant was indicted for the felony theft of a fur coat and stereo equipment from Valerie LaVaye. Id. After entering a plea and being sentenced on the misdemeanor theft charge, the appellant filed an application of a writ of habeas corpus asserting that the felony theft prosecution would constitute double jeopardy. Id. at 124-25. We held that there were two "owners" and that each appropriation constituted a separate offense. Id. at 127.

Appellant's reliance on the above quoted footnote is misplaced. Iglehart was decided while Grady v. Corbin, 495 U.S. 508 (1990) was still good law. In Grady, the United States Supreme Court held that "the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted." 495 U.S. at 521. Our conclusion that the State would be prohibited from initiating successive prosecutions against the appellant was based on the "same conduct" test that was promulgated in Grady. Because Grady has since been overruled by United States v. Dixon, 509 U.S. 688 (1993), the footnote on which appellants rely is inapposite and we decline to rely on it here.

Finding no reversible error, we affirm the judgment of the Court of Appeals.

DELIVERED: October 9, 2002

PUBLISH

 

1. Appellants, all co-defendants, were tried in a single trial.

2. Appellants also filed special pleas in which they asserted a former jeopardy claim. The trial court did not grant appellants' motions and they appealed. When a defendant files a special plea, all issues of fact presented in the special plea are to be tried by the trier of fact on the trial on the merits. Ex parte Apolinar, 820 S.W.2d 792, 793 (Tex. Crim. App. 1991). Courts of appeals do not have jurisdiction over a special plea before a final judgment has been ordered. Id. at 794. Thus, the procedure for a special plea requires a defendant to be twice put to trial before the merits of his former jeopardy claim may be reached. Id. Since in the present case a final judgment has not been ordered, we do not have jurisdiction over appellants' special pleas. Accordingly, those cases are dismissed.

3. Appellants were charged as follows:



BRENDA SUE BAILEY, hereafter styled the Defendant, heretofore on or about and between APRIL 28, 1995 and JANUARY 11, 1996, did then and there unlawfully, with intent to establish, maintain and participate in a combination and in the profits of a combination, said combination consisting of Ralph F. Schnur, Charles Francis Coleman, John Allen Babin, Brenda Sue Bailey, and James Arnold Schnur, while a public servant, namely, an employee of Brazos County, commit the offense of theft, in that she did, pursuant to one scheme and continuing course of conduct, unlawfully appropriate property, by acquiring and otherwise exercising control over property, namely, money, owned by the City of Houston, hereafter called the Complainant, and the total value of the property appropriated was fifteen hundred dollars or more but less than twenty thousand dollars, with intent to deprive the Complainant of the property, and the property came into the Defendant's care, custody and control by virtue of the Defendant's status as a public servant.



JOHN ALLEN BABIN, hereafter styled the Defendant, heretofore on or about [and] between OCTOBER 25, 1993, AND DECEMBER 21, 1996, did then and there unlawfully, with intent to establish, maintain and participate in the combination and in the profits of a combination, said combination consisting of Ralph F. Schnur, Charles Francis Coleman, John Allen Babin, Brenda Sue Bailey, and James Arnold Schnur, commit the offense of theft, in that he did, pursuant to one scheme and continuing course of conduct, unlawfully appropriate property, by acquiring and otherwise exercising control over property, namely, money, owned by the City of Houston, hereafter called the Complainant, and the total value of the property appropriated was twenty thousand dollars or more but less than one hundred thousand dollars, with intent to deprive the Complainant of the property.



JAMES ARNOLD SCHNUR, hereafter styled the Defendant, heretofore on or about and between OCTOBER 25, 1993, AND SEPTEMBER 29, 1995, did then and there unlawfully, with intent to establish, maintain and participate in the combination and in the profits of a combination, said combination consisting of Ralph F. Schnur, Charles Francis Coleman, John Allen Babin, Brenda Sue Bailey, and James Arnold Schnur, while a public servant, namely, an employee of Harris County, commit the offense of theft, in that he did, pursuant to one scheme and continuing course of conduct, unlawfully appropriate property, by acquiring and otherwise exercising control over property, namely, money, owned by the City of Houston, hereafter called the Complainant, and the total value of the property appropriated was seven hundred fifty dollars or more but less than twenty thousand dollars, with intent to deprive the Complainant of the property, and the property came into the Defendant's care, custody, and control by virtue of the Defendant's status as a public servant.



RALPH F. SCHNUR, hereafter styled the Defendant, heretofore on or about and between APRIL 19, 1995, and DECEMBER 21, 1996, did then and there unlawfully, with intent to establish, maintain and participate in a combination and in the profits of a combination, said combination consisting of Ralph F. Schnur, Charles Francis Coleman, John Allen Babin, Brenda Sue Bailey, and James Arnold Schnur, while a public servant, namely, and employee of the City of Houston, commit the offense of theft, in that he did, pursuant to once scheme and continuing course of conduct, unlawfully appropriate property, by acquiring and otherwise exercising control over property, namely, money owned by the City of Houston, hereafter called the Complainant, and the total value of the property appropriated was fifteen hundred dollars or more but less than twenty thousand dollars, with intent to deprive the Complainant of the property, and the property came into the Defendant's care, custody, and control by virtue of the Defendant's status as a public servant.



CHARLES FRANCIS COLEMAN, hereafter styled the Defendant, heretofore on or about and between OCTOBER 25, 1993, and DECEMBER 21, 1996, did then and there unlawfully, with intent to establish, maintain and participate in a combination and in the profits of a combination, said combination consisting of Ralph F. Schnur, Charles Francis Coleman, John Allen Babin, Brenda Sue Bailey, and James Arnold Schnur, commit the offense of theft, in that he did, pursuant to one scheme and continuing course of conduct, unlawfully appropriate property, by acquiring and otherwise exercising control over property, namely, money, owned by the City of Houston, hereafter called the Complainant, and the total value of the property appropriated was twenty thousand dollars or more but less than one hundred thousand dollars, with intent to deprive Complainant of the property.



4. Although appellants were charged with engaging in organized criminal activity, the focus of this appeal is on the underlying offense, the theft.