                                  NO. 07-03-0097-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL A

                                  JANUARY 6, 2004

                         ______________________________


                       PAUL JAMES GRUDZIEN, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE


                       _________________________________

             FROM THE 287TH DISTRICT COURT OF BAILEY COUNTY;

                NO. 2159; HONORABLE GORDON H. GREEN, JUDGE

                        _______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                              MEMORANDUM OPINION


      Following his plea of nolo contendre pursuant to a plea bargain, upon a bench trial,

appellant Paul James Grudzien, was found guilty of tampering with physical evidence and

sentenced to two years confinement. The trial court granted appellant the right to appeal
issues raised in his pretrial motion to dismiss the indictment. In three points of error,

appellant challenges his conviction on double jeopardy grounds. We affirm.


         On November 6, 2002, the Bailey County Grand Jury returned a true bill of

indictment against appellant for the third degree felony offense of tampering with physical

evidence alleged to have been committed on or about October 26, 2002. Before his

conviction in this proceeding, on January 30, 2003, appellant was convicted of the class

B misdemeanor offense of possession of marihuana under two ounces alleged to have

occurred on October 26, 2002. On February 4, 2003, appellant filed an unverified motion

to dismiss the indictment contending that his misdemeanor conviction for possession of

marihuana barred his subsequent prosecution for tampering with physical evidence on the

basis of double jeopardy. Following a pretrial hearing, the trial court denied the motion,

after which appellant entered his nolo contendere plea pursuant to a plea bargain with the

State.


         By his first point of error, appellant contends the trial court erred in denying his

motion to dismiss. With point of error two, appellant maintains he “was subjected to

double jeopardy when he was convicted for tampering with evidence, the substance of

which was the concealment of the same marijuana which he had been convicted of

possessing.” Appellant claims by his final point that he was denied the protections against

double jeopardy afforded him by the federal and state constitutions and article 1.10 of the

Code of Criminal Procedure. With each point, we disagree.

                                              2
       In order to preserve a complaint for review on appeal, the action or omission alleged

as error must have been the basis of a timely request, objection, or motion specifying the

action the trial court was requested to take, or to forebear from taking, and an adverse

ruling must have been obtained. See Tex. R. App. P. 33.1(a). This rule ensures that trial

courts are provided an opportunity to correct their own mistakes at the most convenient

and appropriate time. See Hull v. State, 67 S.W.3d 215, 217 (Tex.Cr.App. 2002).

However, because appellant’s motion to dismiss the indictment was neither a verified

special plea, nor a pretrial writ of habeas corpus--the procedural vehicles by which

“successive prosecutions for the same offense” claims may be made, see Tex. Code Crim.

Proc. Ann. arts. 27.05 & 27.06 (Vernon 1989), see also State v. Lara, 924 S.W.2d 198, 201

(Tex.App.–Corpus Christi 1996, no pet.) the complaint is not preserved for review. Where,

as here, appellant’s motion to dismiss was not verified, no error is preserved for appellate

review. See Lara, 924 S.W.2d at 201; see also Casey v. State, 828 S.W.2d 214, 216

(Tex.App.–Amarillo 1992, no pet.). Although the title or preamble to a plea or motion does

not control the legal determination of whether an issue is properly raised before the trial

court, Lara, 924 S.W.2d at 202 n.4, before it could be considered as a special plea, it

should have been verified and contained the pleadings of the former prosecution, shown

the result of the former proceedings, and revealed some disposition of the case. Lara, 924

S.W.2d at 202. Moreover, the motion to dismiss does not qualify as a pretrial writ of

habeas corpus–the other appropriate method for a defendant to present a double jeopardy




                                             3
claim. Apolinar v. State, 820 S.W.2d 792, 794 (Tex.Cr.App. 1991). Thus, the trial court

did not err in denying appellant’s motion to dismiss the indictment.


         Further, the Fifth Amendment to the United States Constitution provides no person

shall “be subject for the same offense to be twice put in jeopardy of life or limb.” The

Texas Constitution states: “No person, for the same offense, shall be twice put in jeopardy

of life or liberty, nor shall a person be again put upon trial for the same offense, after a

verdict of not guilty in a court of competent jurisdiction. Tex. Const. art. I, § 14. Article

1.10 of the Code of Criminal Procedure tracks the language of the double jeopardy clause

of the state constitution. (Vernon 1977). Conceptually, the Texas and federal versions of

the double jeopardy clause are identical. Stephens v. State, 806 S.W.2d 812, 814

(Tex.Cr.App. 1990), cert. denied, 502 U.S. 929, 112 S.Ct. 350, 116 L.Ed.2d 289 (1991).

That is to say, the Texas double jeopardy clause affords no greater protection than the

federal clause. Id. at 815. The double jeopardy clause specifically protects against three

distinct abuses by state authority: (1) a second prosecution for the same offense after

acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple

punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221,

2226, 53 L.Ed.2d 187, 194 (1977); Ex parte Rhodes, 974 S.W.2d 735, 738 (Tex.Cr.App.

1998).


         To determine whether appellant’s conviction for possession of marihuana bars

further prosecution for the same offense, we utilize the “same elements” test, which

                                             4
considers whether each offense contains an element not present in the other. See

Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed.2d 306, 309

(1932). If they do, they are not considered the “same offense” for double jeopardy

purposes, and a successive prosecution is not barred. See United States v. Dixon, 509

U.S. 688, 696, 113 S.Ct. 2849, 2856, 125 L.Ed.2d 556, 568 (1993). The essential

elements relevant to a jeopardy inquiry are those of the charging instrument, not of the

penal statute itself. Parrish v. State, 869 S.W.2d 352, 354 (Tex.Cr.App. 1994); see also

State v. Perez, 947 S.W.2d 268, 272 (Tex.Cr.App. 1997).


          By his trial brief and brief herein, appellant acknowledges that “courts should look

to the elements of the offense as described in the charging instrument as well as the

statutory elements when conducting a Blockburger analysis.”            Notwithstanding that

acknowledgment, however, appellant did not provide the trial court with a copy of the

instrument used to charge him with possession of marihuana.1 Thus, appellant has failed

to preserve his double jeopardy claim. See Lara, 924 S.W.2d at 203 (holding it is the

accused’s burden to establish a double jeopardy violation); cf. Gonzales v. State, 8 S.W.3d




      1
      Appellant did provide the trial court with a certified copy of the judgment of
community supervision in the possession case; however, that document did not set out the
elements of the offense as alleged in the charging instrument.

                                               5
640, 645 (Tex.Cr.App. 2000) (appellant has burden of presenting a record showing on its

face any multiple punishments violation).2 Appellant’s three points are overruled.


       Accordingly, the judgment of the trial court is affirmed.




                                          Don H. Reavis
                                            Justice

Do not publish.




       2
        We are not persuaded the State’s stipulation at trial that “the marijuana that he is
convicted of possessing in the county court is the same marijuana that forms the basis of
the complaint in this case” establishes a double jeopardy violation on its face. The
protection against double jeopardy is inapplicable where, as here, separate and distinct
offenses occur during the same transaction. Spradling v. State, 773 S.W.2d 553, 556
(Tex.Cr.App. 1989).

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