                       PD-0915-15                                      PD-0915-15
                                                     COURT OF CRIMINAL APPEALS
                                                                      AUSTIN, TEXAS
                                                     Transmitted 7/17/2015 5:16:18 PM
                                                       Accepted 7/22/2015 3:48:12 PM
                              IN TI]E                                  ABEL ACOSTA
                                                                               CLERK
               COURT OF CIIIMINAI- APPEAI,S OF TEXAS


ANTI.IONY IÌILL,                  $
     APPELI,ANT                   s
                                  s
V"                                s       No.
                                  s
                                  s
THN STATE OF ]'EXAS,              s
    APPELI,EE                     $




                               sss

           APPELLANT'S PETITION F'OII DISCRETIONARY IìEVIEW


                              $s$


                              MICHAEL LOGAN WARE
                              300 Burnett Street
                              Suitc 160
                              Fort Worth, TX 76102
     July 22, 2015            Telephone: 817/ 338 - 4100
                              Telecopier: 817i 698- 0000
                              Texas Statc Bar Number:20864200


                              ATTOIìNEY FOII APPIì,LLANT'
                         IDIINTITIES OF PAIITIIìS AND COUNSEL
 Appellant:             Anthony lJill

lì.e¡rrcsented   by:    Michael Logan Ware (on pletlial wlit of habeas cor.pus
                       and on appeal)
                       Terri Moole (on pretrial writ of habeas colpus and on
                       appeal
                       300 Bulnett Stl'eet
                       Suire 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-19
                       l)allas, 'fX 7 5207 -4399

Trial   Judge:         The l{onorable Brandon Birminghani
                       Presiding Judge
                       292nd Judicial Distlict Couú
                       Dallas County, Texas

                       The IJonolable Lan'y Mitchell
                       .Tudge who plesided ovel'the Writ of lJabeas Corpus
                       292nd Judicial District
                       Dallas County, Iexas


                                        u
                                  TAI}LE OF CONTENTS
                                                                        PAGE

lNDllXOFAUlllORlTllìS..                                               ....    iv

STATEMENT REGARDING ORAL ARGUMENT . .

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

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


GROUNDSANDREASONSFORREVIEW                                         .......3
ARGUMENT SUPPORTING GROI]NDS AND REASONS
 FORREVIEW                                                      .........9
PRAYERFORRELIEF                                                .........      20


CERTIFICA"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
                               INÐEX OIéUT:IIAßIT]ES

 Cases

 Abneyv. UnitedStates,43 1U.S.651             (1977)                               .......             11


 Aekins v. Srate, 447 S.W.3d 270 (Tex.Cr.im .App.          2014)                      ....     .       10

 Ashe v. Swenson,397 U.S. 436      (1970)                                             .   .   16-17

 Bigonv. 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 17

Price v. State,434 S.V/.3d 601 (Tex.Cr.irn         .App.2014)                       .....     .    l3
Shelby v. State, 448 S.W.3d (Tex.Clim.App.   2014)          ........     .   13


Tibbsv.Florida,457U.S.31(1982)                                 .......9
I4thalenv.UniledStates,,294U.S.299,304(1932)    .           ........         14


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 IìEGARDING OR
         'l-his case involves cor.nplex issues ol'làct and law.'ì'he undersigned counsel believes


 this Court's understanding of the relevant factual and legal issues could be substanlially

 enhanced by oral argurnent. Appellant requests oral argument

                              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. The

indictrnent, 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              a


sentence 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
 30, 2013) for tlre capital lnul'der of lìyar.r Lusk, "by shooting thc deceased with         a


 fit'eat'rn, and the defendant was theli and there in the course o1'committirrg. . . r'obbely

 of said deceased."

       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 offense

 ofagglavated 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.having

beeu 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
 Cor-rft of Alrpeals held that neìther   Blockburger v. United States,284 U.S. 299 ( I932)

 nor legislative intent was eitl.rer controlling or even l.rad any real application to this

 case.


         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 CONSTITUTION
         PERMITS 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 offense

in 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
o1'   Climinal Appeals.   $_eç,   Iìule   66.   3   (a),(b),   & (c), T.R.A.P.

GROUND FOR REVIEW NO.2

         TIIE COUIìT Oþ' APPEAI-S ERRED IN HOLDING '|HAT THE DOUBLE
         JEOPARDY CLAUSE OF TIJE UNITED STATES CONSTITUTION
         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 lesser-

included and greater offense in successive prosecutions, even when thel'e is no

legislative 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 Supreme

Court, 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 AND
        TRYING 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
       oFtìllNSE (AGGRAVA'IED ROBBÌ]RY) OF TIIAT SAMII ALLIIGED
       ..CAPITAI- MT]RDER'"
                            DOI]S NOl'VIOI-ATE TI-IE DOUI]LE J]]OPARDY
       PROVISION OF TI-IE TJNITED S]]AI'ËS CONSI]TU'TION.

REASONS I]OR REVIEV/

       In holding that charging and trying a defendant for capital mulder., after.the

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 same

issue. 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 FINALLY
      CONVICTED 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
 delèndant has ah'eady been linally cclnvicted and sentenced fol'the lessel includecl

 offense (aggravated robber'y) of that same alleged "capital ruur.der", does not violate

 the double jeopardy plovision of the United States Constitution, the cour.t of appeals

 made a decision that conflicts with the applicable decisions of the Coud of Crirninal

 Appeals, the United States Suprerne Court, and other cour.ts of appeal on the same

 issue. 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 CARTE
       BLANCIIE EXCEPTION TO THE DOUBLE JEOPARDY PROTECTION
       OTHEIì.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 that

conflicts 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
 not been, but should be settled by the Coult of Cliruinal ,Appeals. See, ltule

 66.3(a),(b), & (c), T.R.A.P.

 GROUND IIOIì IIEVIDW NO. 6

       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 CASE-
       AT-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 TO
      SIJCCESSIVE 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
 successive prosecutions, double jeopardy analysis in the case-at-bar, thc cor-u't        of
 appeals urade a decision that conflicts with the applicable decisions of the   coufi of

 crirninal Appeals, the united States Supleme court, and other courts of appeal    or.r tl, e


 saure issue. In the alternative, the courl ofappeals decided an irnportant question     of
 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 salne

issue. 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.
 ARGUMENT SUPPOIìTING GIì.OUNDS ÄND IìEASONS FOIì REVIEW 1-8

        The double jeopardy clause of the         lifth   amendment   to the Ullited   States

 Constitutior.r, protects the individual against the abusive governrnent "evils attendanl

 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
 l'epresentatiorl by counsel would probably not have made a dil'l'elence would be, to

 sonlc extent, an acknowledgment of the govemrnent's virlually unlirnited power and

 discretion to charge (in this case capital ururder', the most selious existent offense

 under Texas law), and what little mitigating effect the grand       july really   has on that

 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).
        The case-at-bal' involves both impeltnissible successive plosecution, and

 irnpennissible multiple punisl.urent issues.

        ln   Abney   v.   United States, 431 U.S.    65   I   (1977), the Supr.eme Court

 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]. . . the
       guarantee against double jeopaldy assures an individual that, arnong
       other things, he will not be forced, with certain exceptions, to endule the
       pelsonal strain, public embarrassrnent, and expense of a criminal tl.ial
       tnore than once for the same offense. lt thus protects interests wholly
       untelated 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 its
       resources 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 a
       continuing 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
 "exception" to a citizen's doublejeopaldy lights and lieleby ernpower the governnlent

 even furtlier   ir.r   its charging decisions.

          In the case-at-bar', Appellant was convicted and sentenced to 45 years iu pr.isou

 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 he

needed furthel legal counsel, was indicted              fol capital rnurder, in pertinent pal-t,      as

follows:

         On or about the 18tr'day of Malch A .D.,2012. . . intentionally cause the
         death of Ryan Lusk . . . by shooting the deceased with a firearrn, and the
         defendant was then and thele in the course of comruitting . . . robbery of
         said 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).

                                                  12
         The State concedes that undel a long line of lJnited States Suprerre Coult and

 Texas Court o1'Climinal Âppeals cases, tl.rat the State is atternpting to couvict and

 punish Appellee in a subsequent prosecution fol the salne offense (capital n.rulder'),

 aftel convicting and punishing him fol the lesser-included offense of agglavated

 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 included

offense 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 run

cousecutive to the death sentence, all fol'the identical conduct.


                                               l3
       l-ikewise, the court of appeals acknowledged as follows:

               When two o1'fenses arise undel different statutes, the two offenses
        are consideled the saure offense fol purposes of applying tl.re double
       jeopardy prohibition if all the statutory elelnents are included within the
        statutoly elements of the other offense. Se e þl4talen v. Uníted States,294
       U.5.299,304 (1932). Thus the state nlay not convict a defendant for an
       offense when the defendant has been convicted already of a lesser-
       included 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 available

as 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.
       ln deternrining   tl.re ir.rapp li cab   ìlity of Blockburger,the courtbelow relied allnosl

 exclusively on Diqz v. United Slates,223 U.S. 442 (1912), a case (out of the

 Philippine lslands) decided twenty years before Bl.ockbzzrger. Cases since

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 was

charged 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 have
      been 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


                                                    I5
 Justice of the Peace Coult), had   r.ro   julisdiction over'homicide    cases, "and, of course,

 the.jeopaldy ir.rcident to the trial before tl.re.justice diil not extend to an offense beyond

 his julisdiction." Id. That leasonir.rg has no application to the case-at-bar wl.rere the

 same couú has jurisdiction over both offenses and Diaz is distinguisl.rable for that

reason-

       The 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 the

tilre 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 "that

causes 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 and

punished when he was convicted and punished fol causing "serious bodily ir¡ury".


                                                  t6
 A subsequerrt plosecutiol-r would be a violation eveu undel the reas oning of Diaz, and

 tlre leasoning of any case citing Diaz with apploval.

        F'inally, it is not cleal whether Diaz is even still good law. The cases that ale

 rnost cited as establishing double jeopaldy julispludence 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 been

scrutinized 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


                                               1l
 concurl'it'tg opinions, unlike the case-at-bar, driving rvhile intoxicated is not a lesser

 included offense of involuntary manslaughter and the defendant's doublejeopardy

 argument does not lneet the lllockburger lesl        ld. Graves is, therefole,    clearly

 distinguishable.

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

 the possibility that rnultiple punishments under these circumstances would violate

 doublejeopaldy 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
 delèndant. 01'course, both successive ploseoutions ancl rnultiple punishments are at

 play in the case-at-bar'.

          Second, the remedy inragined by lfie courl ofappeals ofvacating the conviction

 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              if
 it 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
 a cilizeD   with an offense that does not yet exist, that is simply r.eality. It is also true,

 however, that â citizen has the constitutional light, once cor.rvicteci and, in this case,

 halshly sentenced, to be free of the abusive govelnment "evils attendant upon

 successive plosecutions, narnely          the 'embanasstnent, expense, and orcleal, of

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.Inlesolvingthisissuebydiscounting

the 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 should

be afhlmed and the court of appeals opinion should be reversed.




                                               z0
                                      LAW OFFICES OF
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                                      State Bar No. 20864200

                                      ATTORNEY FOR APPELLANI-


                     CERTIFICATII 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.
                          CEIìTIFICATE OF SERVICE

      I heleby certify that on July 17,2015, a true copy ofthìs document has been
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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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                                                             May 20,2015

        Michael Wale                                                         Susan Hawk
        Attomey at Law                                                       Dallas County Distlict Attomey
        300 Burnett Street                                                   lì'r'ank Crowley Courts Building
        Suite 160                                                            133 N. Riverfront BIvd.,   LB l9
        Ft Worth, TX76102-3428                                              Dallas, TX 75207
        + DELIVERED VIA                                                      +
                           E-MAIL             {.
                                                                                 DELIVEIìED VIA E-MAIL         +



       Telri l{arnmond Mool'e                                               Brian lJigginbothan.r
       Terri Moole                                                          Assistanl District Atto[rey
       300 Buniett Street, Suite 160                                        lìr'ank Crcwley Courts Building
       lì't Worth, 'îX 76102-3428                                            133 N. lndustrial Blvd.,   LBl9
       * DELIVEIìED VIA E-MAìL                +
                                                                            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)
  lìcvcrscd and lìcmandcrl and Opinion Filcd l\1lay 20,,2015




                                                 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.
            l-he State appealed, oontending the triâl court's ruling is erroneous because           Ilill's   case

  lalls under a longstânding exception to the double .icopardy bar alloi,r,ing for. a               sLrbscquent

 prosecution on a lnore serious cllarge when additional làcts necessaly to suslain that charge have

 not occurred in this case, the complaiuant's death. 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 with

 this 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's

 Iuling, 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 facts

if   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. arrend

Y;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

                                                        -..).-
 'Iexas Constitution's plohibilion against double .jeopaldy provides substantially identioal

 proteclioì'r to the Doubie Jeopaldy ClaLrse of'the Uuited Stales ConslitLrtion. .ç?¿ TuX. CoNsl'. arl.

 I, $ I 4 (West 2007); Ilx patr: Mitchell" 977 S.W.2d 5 7.5, 5 80 ('I'ex. Crinr. App. 1997).

            \rly'hen   trvo offenses aÍise under dil'ferent statutes, the two 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. 29.03
                        $                                                           S

(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




                                                     -3,.
 avaifable âs potcntial ohargcs at thc tintc                    olthe delcntlant's tlial.   5'¿¿, c.g.,   Littrell,2Tl   S.W.3d

 at274; Bigon v. State ,252 S.W.3d 360, 363 ('l-ex. CLim. App. 2008).

        The State âsserts                 it   rnay      tly llill fol capital rnurder becausc an "exception may exist
 where the Slatc is unablc to proceed on the urore selious charge at the outset because the

 adclitional facts neccssary to sustain that charge have not occurred or have Dot been discoveled

 despite 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 the

 United 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, but
        was no pârt of the assault and battery. At the tilre ofthe trial for the latter the
        death 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 that
        offen 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 assaultecì
       dies; 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 assault
       tlLring the Iife, and tried lòr'utrder ol nranslaughtcl alìer 1he death, ol'lhe injuled
       pany. 'l'he death ofthc assaultcd party creates a ncw crime.

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




                                                                    4
               Ilill   questions whelher Diaz Icntains good iarv and conte¡rds it is distinguishable fi.o¡r his

  casc llill lìrsl llÕ1es tl'ttrt ìt Dinz, the               Su¡rlemc CoL¡rt also îound an âltelnâtivo gr.ound        I'or.


  concluding double.jeopa|dy prolections did not apply: Diaz was not sub.iected fo doublejeopardy

  because fhe justice             ofthe   peace court thât    tlied hirn for assault and ballely had no jurisdiction to

  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.


                                                                -5
 comlllitting capital mt¡rder ì.¡ndeÌ 1l'ìe circllrrslances, and the punishmenl asscssed fol aggravated

 robbery has t'lo Lclevartce to tlìe question ol'rvhether a doLrble .icopaldy exccption exists iu this

 case.

          Irinally,   lìill   questions the continued validity of Diaz in light of rnore recent cases.           llill
 points ôut that the cases

          most cited as establishing double jeopaldy jurisprudence and legal analysis, for
          cxanrple, 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 on

successive-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 lelied

trpon 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

                                                         -6-
 v. Sta(e.22 'l-ex. Cf. App. 227, 236,37, 3 S.W.86,87-88 (1886); Joltnson.                      l9   T'ex. Cr. App. at

 461. l-ikovise, the exccpt.ion apirears well-cstablished in the dou ble jcopaldy .juris¡rr.udence ol

 the lower fedsral couús and thc slates. See, e.g.,llhittlese¡, v. (-r¡nroy,30l I:.3d 213,219 (4tlt

 Cir.2002); MitchelÌ v. Cod)t,783 lt.2d 669,671 (6th Cir. 1986); Culberson,453 lt.2d at 1220,

 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

                                                      --7
 convicted ol'both offenses at the salt'ìe tirne in violation o1'his double_jeopaldy lights, the pr.opcr.

resolution itt sL¡ch cases is to vacate lhc conviction and puuishnlelìt fol the lesse¡-included

offertse and leavc inlact the conviclion and punishrnent lòr the greater offense. Id. at279-

          Ilecause the trial coull's determination in this case conflicts rvith binding plecederrt from

the United States Supreme Courl anci the Texas Court of Crir¡inal Appeals, we conclude the trial

coult 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 suslain

the 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                                                   /Moliy l'rancis/
TEX. R. APP, P. 47                                        MOLLY FRANCIS
150053F.P05                                               JUSI]CE




                                                      8
                                 (luurt uf Appulx
                         ífifth 4lixttirt rrf @trux ¡tt Ð¡tll¿tr¡
                                        JUDGMENT

EX PARI'LJ AN]].-IONY IJII.L                        On Appeal   lìorr   the 292nd Judicial District
                                                    Court, Dallas County, Texas
No. 05- I 5-00053-Clì                               Trial Court Cause No. 'ir'Xl4-90030.
                                                    Opinion dclivclcd by Justicc Francis.
                                                    Juslices Lang-Mie rs and Whitebill
                                                    participating.

      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 cause
REMANDDD 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
Ordcr cnfcrcd 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 FRANCIS
                                                       JTJSTICE
