Reversed and Remanded and Opinion Filed May 20, 2015




                                            Court of Appeals
                                                             S      In The


                                     Fifth District of Texas at Dallas
                                                         No. 05-15-00053-CR

                                                EX PARTE ANTHONY HILL

                                 On Appeal from the 292nd Judicial District Court
                                              Dallas County, Texas
                                      Trial Court Cause No. WX14-90030

                                                              OPINION
                                  Before Justices Francis, Lang-Miers, and Whitehill
                                              Opinion by Justice Francis
           Anthony Hill pleaded guilty to shooting a man during a robbery and was sentenced to

forty-five years in prison. Months later, the complainant died, allegedly from complications of

the gunshot wound he received during the aggravated robbery. Thereafter, the State indicted Hill

for capital murder.

           Hill filed an application for writ of habeas corpus in which he asserted, among other

things, violations of the double jeopardy protections afforded by the United States and Texas

constitutions.1 Specifically, he argued his subsequent prosecution for capital murder was barred

by his previous conviction for aggravated robbery. After a hearing, the trial court agreed and

barred the prosecution.



     1
       Hill also asserted that the capital murder prosecution violated his rights to due process of law and due course of law under both the state
and federal constitutions. Hill offered no separate argument or authority for these assertions in the trial court nor does he raise them on appeal.
       The State appealed, contending the trial court’s ruling is erroneous because Hill’s case

falls under a longstanding exception to the double jeopardy bar allowing for a subsequent

prosecution on a more serious charge when additional facts necessary to sustain that charge have

not occurred—in this case, the complainant’s death. For reasons set out below, we agree with

the State. We reverse the trial court’s order and remand for further proceedings consistent with

this opinion.

       An applicant seeking habeas corpus relief must prove his or her claim by a preponderance

of the evidence. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); Ex parte Scott,

190 S.W.3d 672, 673 (Tex. Crim. App. 2006) (per curiam). In reviewing the trial court’s order

granting habeas corpus relief, we view the facts in the light most favorable to the trial court’s

ruling, and we will uphold the trial court’s ruling absent an abuse of discretion. See Kniatt, 206

S.W.3d at 664.     We afford almost total deference to the trial court=s determination of the

historical facts that the record supports. See Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.

Crim. App. 2003) (per curiam), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335

(Tex. Crim. App. 2007). We likewise defer to the trial court=s application of the law to the facts

if the resolution of the ultimate question turns on an evaluation of credibility and demeanor. See

id. If the resolution of the ultimate question turns on an application of legal standards, we review

the determination de novo. See id.

       The Fifth Amendment’s Double Jeopardy Clause protects an accused against a second

prosecution for the same offense after acquittal, a second prosecution for the same offense after

conviction, and being subject to multiple punishments for the same offense. U.S. CONST. amend

V; Brown v. Ohio, 432 U.S. 161, 165 (1977); Littrell v. State, 271 S.W.3d 273, 275 (Tex. Crim.

App. 2008). The Fifth Amendment is made applicable to the states through the Due Process

Clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 787 (1969). The

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Texas Constitution’s prohibition against double jeopardy provides substantially identical

protection to the Double Jeopardy Clause of the United States Constitution. See TEX. CONST. art.

I, § 14 (West 2007); Ex parte Mitchell, 977 S.W.2d 575, 580 (Tex. Crim. App. 1997).

        When two offenses arise under different statutes, the two offenses are considered the

same offense for purposes of applying the double jeopardy prohibition if all of the statutory

elements of one offense are included within the statutory elements of the other offense. See

Whalen v. United States, 445 U.S. 684, 693–94 (1980); Blockburger v. United States, 284 U.S.

299, 304 (1932). Thus, the State may not convict a defendant for an offense when the defendant

has been convicted already of a lesser-included offense arising from the same event. Brown, 432

U.S. at 161; Ex parte Amador, 326 S.W.3d 202, 204 (Tex. Crim. App. 2010).

       The indictment that formed the basis of the aggravated robbery conviction provides that

Hill, while in the course of committing theft, caused serious bodily injury to the complainant by

shooting him with a firearm. The indictment for capital murder alleges that while in the course

of committing or attempting to commit robbery, Hill caused the death of the complainant by

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

offense of capital murder as alleged in this case and thus satisfies the Blockburger test. Compare

TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 2014), with TEX. PENAL CODE ANN. § 29.03

(West 2011).

       Because aggravated robbery is a lesser-included offense of capital murder, Hill contends

prosecuting him for capital murder exposes him to double jeopardy because he would be both

tried and punished twice. Hill cites numerous authorities supporting the general proposition that

a defendant may not be convicted of both greater and lesser offenses arising from the same

event. In all of Hill’s authorities, however, the greater and lesser offenses were completed and




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available as potential charges at the time of the defendant’s trial. See, e.g., Littrell, 271 S.W.3d

at 274; Bigon v. State, 252 S.W.3d 360, 363 (Tex. Crim. App. 2008).

       The State asserts it may try Hill for capital murder because an “exception may exist

where the State is unable to proceed on the more serious charge at the outset because the

additional facts necessary to sustain that charge have not occurred or have not been discovered

despite the exercise of due diligence.” Brown, 432 U.S. at 169 n.7.

       The United States Supreme Court recognized this exception to the general double

jeopardy rule in Diaz v. United States, 223 U.S. 442 (1912). Diaz was convicted of assault and

battery and fined after beating and kicking the victim. Id. at 444. After Diaz’s conviction, the

victim died, and Diaz was tried and convicted of homicide. Id. The case proceeded to the

United States Supreme Court to consider the application of the provision against double jeopardy

contained within the Philippine Civil Government Act, which governed administration of the

Philippines where the case arose. Id. at 448. In holding that Diaz was not subjected to double

jeopardy, the Supreme Court pronounced:

       The death of the injured person was the principal element of the homicide, but
       was no part of the assault and battery. At the time of the trial for the latter the
       death had not ensued, and not until it did ensue was the homicide committed.
       Then, and not before, was it possible to put the accused in jeopardy for that
       offense.

Id. at 449. In reaching this conclusion, the Supreme Court cited an early Texas case, Johnson v.

State, 19 Tex. Ct. App. 453 (1885). Johnson explained the exception as follows:

       There never can be the crime of murder or manslaughter until the party assaulted
       dies; these crimes have no existence in fact or law till such death. It cannot,
       therefore, be said that one is tried for the same crime when he is tried for assault
       during the life, and tried for murder or manslaughter after the death, of the injured
       party. The death of the assaulted party creates a new crime.

Johnson, 19 Tex. Ct. App. at 461.




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        Hill questions whether Diaz remains good law and contends it is distinguishable from his

case. Hill first notes that in Diaz, the Supreme Court also found an alternative ground for

concluding double jeopardy protections did not apply: Diaz was not subjected to double jeopardy

because the justice of the peace court that tried him for assault and battery had no jurisdiction to

try him for homicide.       Diaz, 223 U.S. at 449.    Hill contends that because the alternative

jurisdictional double jeopardy exception in Diaz has no application to his case, Diaz is

distinguishable.

        In the ensuing century since Diaz was decided, the United States Supreme Court has

abandoned the jurisdictional double jeopardy exception described in Diaz.           See Waller v.

Florida, 397 U.S. 387, 394–95 (1970) (overturning dual sovereignty exception to double

jeopardy and concluding petitioner could not be tried for same offense in both municipal court

and state court). The Supreme Court, however, has not abandoned the incomplete offense ruling

of Diaz at issue in Hill’s case. See Culberson v. Wainwright, 453 F.2d 1219, 1220–21 (5th Cir.

1972) (per curiam). cert. denied, 407 U.S. 913 (1972) (concluding Waller had no effect on Diaz

rule permitting subsequent prosecution after victim dies and upholding manslaughter conviction

against claim of double jeopardy premised on conviction for assault obtained before victim died).

As in Culberson, we see no reason not to apply Diaz and its exception to double jeopardy under

the facts of Hill’s case.

        Hill next contends Diaz is distinguishable because under Texas law the phrase “serious

bodily injury” as used in the aggravated robbery statute encompasses injuries that result in death.

See TEX. PENAL CODE ANN. § 1.07(46) (West Supp. 2014) (defining “serious bodily injury” to

include bodily injury that causes death). Thus, unlike Diaz, Hill contends he has already been

punished for causing the complainant’s death. We disagree. At the time of Hill’s conviction for

aggravated robbery, the complainant was still alive. We cannot agree Hill has been punished for

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committing capital murder under the circumstances, and the punishment assessed for aggravated

robbery has no relevance to the question of whether a double jeopardy exception exists in this

case.

        Finally, Hill questions the continued validity of Diaz in light of more recent cases. Hill

points out that the cases

        most cited as establishing double jeopardy jurisprudence and legal analysis, for
        example, Blockburger v. United States, 284 U.S. 299 (1932); North Carolina v.
        Pearce, 395 U.S. 711 (1969); Ashe v. Swenson, 397 U.S. 436 (1970); Brown v.
        Ohio, 432 U.S. 161 (1977), all were decided well after Diaz and Diaz never has
        been scrutinized under the tests and standards established by these cases for
        violations of double jeopardy.

        Even while applying the Blockburger test, the Supreme Court continues to recognize the

double jeopardy exception for incomplete or undetected crimes. See Illinois v. Vitale, 447 U.S.

410, 420 n.8 (1980), abrogated on other grounds by United States v. Dixon, 509 U.S. 688, 704

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

Swenson, 397 U.S. 436, 453 n.7 (1970) (Brennan, J., concurring); see also Rutledge v. United

States, 517 U.S. 292, 307 n.17 (1996) (declining to “explore the consequences” of its holding on

successive-prosecution strand of Double Jeopardy Clause and Diaz). Hill concedes that Diaz has

never been overruled but is incorrect in asserting that no Supreme Court decision has ever relied

upon it in reaching a decision. For example, the Supreme Court relied on Diaz as an alternative

reason to uphold a prosecution brought against a marijuana smuggler for conducting a continuing

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

marijuana importation that was part of the criminal activity. See Garrett v. United States, 471

U.S. 773, 791–93 (1985).

        In addition to the Supreme Court’s limited pronouncements on the Diaz exception, the

exception enjoys longstanding support in Texas law. See Graves v. State, 539 S.W.2d 890, 891–

92 (Tex. Crim. App. 1976); Hill v. State, 149 S.W.2d 93, 95–96 (Tex. Crim. App. 1941); Curtis
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v. State, 22 Tex. Ct. App. 227, 236–37, 3 S.W. 86, 87–88 (1886); Johnson, 19 Tex. Ct. App. at

461. Likewise, the exception appears well-established in the double jeopardy jurisprudence of

the lower federal courts and the states. See, e.g., Whittlesey v. Conroy, 301 F.3d 213, 219 (4th

Cir. 2002); Mitchell v. Cody, 783 F.2d 669, 671 (6th Cir. 1986); Culberson, 453 F.2d at 1220–

21; State v. Wilson, 335 P.2d 613, 615 (Ariz. 1959); Lowe v. State, 242 S.E.2d 582, 584 (Ga.

1978); People v. Harrison, 70 N.E.2d 596, 601 (Ill. 1946); State v. Henry, 483 N.W.2d 2, 4

(Iowa App. 1992); State v. Hutchinson, 942 A.2d 1289, 1292–93 (N.H. 2008); Commonwealth ex

rel. Papy v. Maroney, 207 A.2d 814, 816 (Pa. 1965); Turner v. Commonwealth, 641 S.E.2d 771,

774 (Va. App. 2007).

        In this case, Hill was tried for aggravated robbery before one of the elements that

comprises his capital murder offense—namely, the death of the complainant—had taken place.

Because the State could not have brought the capital murder case against Hill at the time he was

tried for aggravated robbery, it is not jeopardy-barred from doing so now. See Diaz, 223 U.S. at

448–49; Graves, 539 S.W.2d at 892.

        Finally, Hill contends that if the State is allowed to proceed and he is convicted, he will

face multiple punishments for the same offense, a result that may not occur unless the legislature

“has clearly expressed a contrary intention that the accused should be punished for both the

greater and lesser-included offenses.” Littrell, 271 S.W.3d at 276. In the case of an individual

who commits a crime that encompasses both aggravated robbery and murder, there is no such

legislative intent. Id. at 278.

        As we have already explained, under the limited and rare circumstances of Hill’s case,

the aggravated robbery and capital murder offenses Hill was charged with are not the same

offense for double jeopardy purposes. See Diaz, 223 U.S. at 448–49; Graves, 539 S.W.2d at

892.   Moreover, even if the complainant had died immediately and Hill was charged and

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convicted of both offenses at the same time in violation of his double jeopardy rights, the proper

resolution in such cases is to vacate the conviction and punishment for the lesser-included

offense and leave intact the conviction and punishment for the greater offense. Id. at 279.

       Because the trial court’s determination in this case conflicts with binding precedent from

the United States Supreme Court and the Texas Court of Criminal Appeals, we conclude the trial

court abused its discretion in granting Hill relief on his application for writ of habeas corpus. See

Diaz, 223 U.S. at 448–49; Kniatt, 206 S.W.3d at 664; Graves, 539 S.W.2d at 892. We sustain

the State’s issue on appeal.

       We reverse the trial court’s order granting Hill’s application for writ of habeas corpus,

and we remand this case to the trial court for proceedings consistent with this opinion.




Publish                                               /Molly Francis/
TEX. R. APP. P. 47                                    MOLLY FRANCIS
150053F.P05                                           JUSTICE




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                                         S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

EX PARTE ANTHONY HILL                                On Appeal from the 292nd Judicial District
                                                     Court, Dallas County, Texas
No. 05-15-00053-CR                                   Trial Court Cause No. WX14-90030.
                                                     Opinion delivered by Justice Francis.
                                                     Justices Lang-Miers and Whitehill
                                                     participating.

      Based on the Court’s opinion of this date, the order of the trial court granting appellee
Anthony Hill’s application for writ of habeas corpus is REVERSED and the cause
REMANDED for further proceedings.


Judgment entered May 20, 2015.




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