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
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. 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.