      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-18-00050-CR



                                   The State of Texas, Appellant

                                                 v.

                                   Matthew Freeman, Appellee


  FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 391ST JUDICIAL DISTRICT
   NO. D-15-0520-SA, THE HONORABLE MARTIN (BROCK) JONES, JUDGE PRESIDING



                              MEMORANDUM OPINION


                After this Court reversed Matthew Freeman’s judgment of conviction for family

violence assault by impeding the normal breathing or circulation of the blood and remanded the case

for further proceedings, see Freeman v. State, 525 S.W.3d 755 (Tex. App.—Austin 2017, pet. ref’d),

Freeman filed a pretrial application for writ of habeas corpus asserting that the double-jeopardy

clauses of the United States Constitution and the Texas Constitution barred retrial. The trial court

granted habeas relief, ordered Freeman acquitted, and ordered his immediate release from custody.

The State appeals the trial court’s order granting habeas relief. For the reasons set out below, we

reverse the trial court’s order.


                                         BACKGROUND

                Freeman was charged by indictment with family violence assault by impeding the

normal breathing or circulation of the blood, a third degree felony. See Tex. Penal Code
§ 22.01(a)(1), (b)(2)(B). The indictment also contained an enhancement paragraph alleging a prior

felony conviction for felony DWI, which enhanced the punishment range to that of a second degree.

See id. § 12.42(a). Freeman waived a jury and proceeded with a trial before the court. He pled guilty

to the lesser-included offense of family violence assault causing bodily injury, a Class A

misdemeanor, see id. § 22.01(a), and pled true to the allegation in the enhancement paragraph. At

the conclusion of the bench trial, the trial court found Freeman guilty of the greater offense of family

violence assault by impeding the normal breathing or circulation of the blood as alleged in the

indictment and assessed his punishment at 15 years’ imprisonment.

                Freeman appealed his conviction to this Court. In a single point of error, he asserted

that the trial court violated his constitutional rights by finding him guilty by the clearer weight and

degree of credible testimony rather than by beyond a reasonable doubt.1 This Court concluded that

Freeman “met his burden of showing that the trial court applied the incorrect standard” regarding

the State’s burden of proof and further concluded that the error of applying the incorrect standard

was structural error not subject to a harm analysis. Freeman, 525 S.W.3d at 758–59. We reversed

the trial court’s judgment of conviction and “remanded for further proceedings consistent with [the

Court’s] opinion.” Id. at 759.

                After remand, Freeman filed a pretrial application for writ of habeas corpus, asserting

that he was entitled to a judgment of acquittal because he “ha[d] been tried by the court and the court


       1
           In finding appellant guilty of the charged offense, the trial judge said,

       The Court finds by the clearer greater weight and degree of credible testimony that
       the Defendant is guilty of the offense of assault by impeding the breath or circulation,
       as alleged in Paragraph 1 of the indictment.

                                                   2
failed to find [him] guilty beyond a reasonable doubt.”2 Freeman maintained that because his trial

ended without the judge finding him guilty beyond a reasonable doubt, he had been “functionally

acquitted” of the offense. He argued, therefore, that, given his prior acquittal, double-jeopardy

protections barred retrial.

                The trial court conducted a hearing on the application at which a copy of this Court’s

opinion and mandate were admitted. Freeman argued that this Court’s opinion, “while [it] didn’t

directly say it’s an acquittal,” recognized that the trial court failed to make a finding of guilt beyond

a reasonable doubt. He further argued, as he did in his habeas application, that this failure

constituted a “functional acquittal.” At the conclusion of the hearing, the trial court orally granted

Freeman’s application for writ of habeas corpus and, “[i]n accordance with the opinion of the Court

of Appeals and the mandate issued by that Court directing this Court to enter a judgment consistent

with its opinion,” “enter[ed] a judgment of acquittal.”3 The trial court’s subsequent written order

“grant[ed] the relief requested” and ordered that “the defendant is hereby acquitted of the Offense

alleged in the indictment.”




        2
          Freeman filed his first habeas application after the Court of Criminal Appeals refused the
State’s petition for discretionary review of this Court’s opinion but before this Court’s mandate
issued on November 7, 2017. The trial court conducted a hearing on the application, after which the
court denied the application and reinstated Freeman’s bond. After the issuance of the mandate
from this Court, Freeman filed a subsequent habeas application on January 4, 2018. Also on
January 4, 2018, several hours later, Freeman filed yet another application, which added a special
plea of double jeopardy pursuant to article 27.05 of the Code of Criminal Procedure. The trial
court’s order granting this last application is the subject of this appeal.
        3
         We note that, in our opinion, this Court did not direct the trial court to “enter a judgment”
consistent with our opinion. Rather, we remanded the case “for further proceedings” consistent with
our opinion.

                                                   3
               The State appeals the trial court’s order, see Tex. Code Crim. Proc. art. 44.01(a)(1)

(providing that State may appeal from order dismissing indictment), (a)(4) (providing that State may

appeal from order sustaining claim of former jeopardy), arguing that the trial court’s grant of habeas

relief and entry of a judgment of acquittal was an abuse of discretion.


                                    STANDARD OF REVIEW

               In reviewing a trial court’s decision on a pretrial application for writ of habeas corpus,

we review the facts in the light most favorable to the trial court’s ruling and, absent an abuse of

discretion, uphold the ruling. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006);

Ex parte Ali, 368 S.W.3d 827, 830 (Tex. App.—Austin 2012, pet. ref’d). An abuse of discretion

does not occur unless the trial court acts “arbitrarily or unreasonably” or “without reference to any

guiding rules and principles,” State v. Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016) (quoting

Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)), or unless the trial court’s

decision “falls outside the zone of reasonable disagreement,” Johnson v. State, 490 S.W.3d 895, 908

(Tex. Crim. App. 2016). In our review, we defer to the trial court’s implied factual findings that are

supported by the record. See Wheeler, 203 S.W.3d at 325–26.


                                           DISCUSSION

               The issue before the trial court at the habeas hearing was whether Freeman had been

acquitted by the trial judge and, thus, retrial for the charged offense is barred by double jeopardy.

               The Double Jeopardy Clause of the Fifth Amendment, made applicable to the states

through the Due Process Clause of the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784,



                                                   4
787 (1969), protects a defendant against being placed twice in jeopardy for the same offense.

U.S. Const. amend. V, cl. 2 (“nor shall any person be subject for the same offence to be twice put

in jeopardy of life or limb”). The clause embodies three separate guarantees—protection against

prosecution for the same offense following an acquittal, protection against prosecution for the same

offense following a conviction, and protection against multiple punishments for the same offense.

Illinois v. Vitale, 447 U.S. 410, 415 (1980); Brown v. Ohio, 432 U.S. 161, 164–65 (1977); Ex parte

Marascio, 471 S.W.3d 832, 847 (Tex. Crim. App. 2015); Ex Parte Denton, 399 S.W.3d 540, 545

(Tex. Crim. App. 2013). The Texas Constitution provides substantially identical protections. See

Tex. Const. art. I, § 14 (“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.”); see also State v. Blackshere, 344 S.W.3d 400, 406 n.8

(Tex. Crim. App. 2011); Ex parte Mitchell, 977 S.W.2d 575, 580 (Tex. Crim. App. 1997). The

double-jeopardy claim that Freeman asserted in his habeas application invokes the prohibition

against a second trial after being acquitted.

               “One of the most fundamental rules of double-jeopardy jurisprudence is that when

a trial ends in an acquittal, the defendant may not be tried again for the same offense.” Blackshere,

344 S.W.3d at 406. “For purposes of double jeopardy, an acquittal occurs in the trial court only

when the ruling of the trial court, whatever its label, actually represents a resolution in the

defendant’s favor, correct or not, of some or all of the factual elements of the offense charged.”

Benavidez v. State, 323 S.W.3d 179, 181 (Tex. Crim. App. 2010); accord State v. Moreno,

294 S.W.3d 594, 598 (Tex. Crim. App. 2009); State v. Stanley, 201 S.W.3d 754, 760 (Tex. Crim.



                                                  5
App. 2006). The Court of Criminal Appeals has observed that while no statutory provision explicitly

defines the word “acquittal,” “the context in which it appears throughout the Code of Criminal

Procedure creates a powerful inference that it means a finding of fact that the accused is not guilty

of the criminal offense with which he is charged.” Ex parte George, 913 S.W.2d 523, 527 (Tex.

Crim. App. 1995); see Evans v. Michigan, 568 U.S. 313, 318–19 (2013) (“[O]ur cases have defined

an acquittal to encompass any ruling that the prosecution’s proof is insufficient to establish criminal

liability for an offense.”).

                The trial judge’s verdict in this case does not satisfy the above consistently used

definition of acquittal. First, the trial judge’s verdict represented a resolution of the factual elements

of the charged offense against Freeman, not in his favor. Further, the judge’s recitations did not

reflect a fact finding that Freeman was not guilty. The trial judge plainly stated that he found

Freeman guilty of the charged offense. At no point did the judge suggest that Freeman had been

found not guilty or that the evidence did not support a guilty verdict. The trial judge’s verdict was

not an acquittal.

                Further, contrary to Freeman’s claim, the judge’s failure to find Freeman guilty

beyond a reasonable doubt was not a “functional acquittal.” The term “functional acquittal” has been

used by the Court of Criminal Appeals to characterize a trial court’s ruling setting aside a

determination of guilt based on the court’s subsequent finding of insufficient evidence. See, e.g.,

State v. Savage, 933 S.W.2d 497, 499 (Tex. Crim. App. 1996) (concluding that “a trial court’s JNOV

ruling after a jury determination of criminal guilt accomplishes exactly the same effect as granting

the defendant a new trial for insufficient evidence—a functional acquittal”). This characterization



                                                    6
suggests that a “functional acquittal” would have happened here if the trial judge had revisited his

guilty verdict at some later point, determined that the evidence was insufficient to prove Freeman’s

guilt beyond a reasonable doubt, and made a finding based on that determination. Or, perhaps, if the

trial judge’s recitation had indicated that he found that the evidence did not prove one or more of the

elements of the charged offense beyond a reasonable doubt. However, the trial judge here made no

finding with respect to whether Freeman was guilty beyond a reasonable doubt because he applied

the wrong standard.

               In support of his claim, Freeman cites to this Court’s opinion reversing his conviction.

Our opinion, however, addressed the process by which the trial judge arrived at his verdict.4 We do

not agree with Freeman’s suggestion that error in that process constitutes a functional acquittal.

Moreover, Freeman misconstrues our opinion. In our opinion, we concluded that “[b]y applying the

incorrect standard, the trial court denied Freeman his right to be convicted based on proof beyond

a reasonable doubt.” Freeman, 525 S.W.3d at 759. Freeman appears to interpret that conclusion

as indicating that we concluded that the trial court convicted Freeman on less than proof beyond a

reasonable doubt and, therefore, functionally acquitted him. That is not what we said; that is not

what we meant. We concluded that, due to error in the process of arriving at the verdict (the

application of an incorrect standard of proof), Freeman was denied the right to be convicted based

on proof beyond a reasonable doubt. The remedy for the denial of that right, then, is to provide a




       4
          At no point in the appeal of his conviction did Freeman argue, contend, or suggest that the
trial judge’s verdict was a “functional acquittal.” His sole complaint was about the erroneous
standard applied by the trial judge—that is, the error in the process that the judge employed to arrive
at his verdict.

                                                  7
new trial in which the verdict is not the result of an erred process—that is, a trial in which the correct

standard of proof is applied when determining the verdict.5 For that reason, we remanded the case

for further proceedings.

                In this case, there is little doubt from the record that the trial judge did not intend to

acquit Freeman. The trial judge terminated the prosecution based on his finding that Freeman was

guilty of the charged offense; he did not terminate the prosecution based on a finding that Freeman

was not guilty or on a finding that the State’s evidence was lacking or insufficient to convict

Freeman.6 Nothing in the trial judge’s recitation implied that he had made a finding that Freeman

was not guilty of committing the charged offense or that the evidence was insufficient. Rather, the

recitation reflects that the judge applied the wrong standard in making the finding of guilt that he did.

                Because Freeman was not acquitted or “functionally acquitted,” the double-jeopardy

protection against a second trial after an acquittal does not bar Freeman’s retrial for the charged

offense. See Lockhart v. Nelson, 488 U.S. 33, 38 (1988) (“It has long been settled, however, that the



        5
          We note that error in the jury charge—even relating to the burden of proof—results in
reversal of the judgment of conviction and remand for a new trial, not an acquittal. See Sullivan
v. Louisiana, 508 U.S. 275, 281–82 (1993) (concluding that jury-charge error that misdefined State’s
burden of proof as being less than beyond reasonable doubt constitutes structural error and
remanding case for further proceedings); Reyes v. State, 938 S.W.2d 718, 721 (Tex. Crim. App.
1996), overruled by Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000) (concluding that total
omission of reasonable-doubt instruction then required by Geesa was error that was not subject to
harmless error, reversing judgment of conviction, and remanding for new trial).
        6
          We observe that Freeman filed a motion for new trial, asserting that “[t]he verdict in this
cause is contrary to the law and the evidence,” and the trial court denied the motion. An allegation
that a verdict is against the law and the evidence raises an evidentiary sufficiency challenge. State
v. Zalman, 400 S.W.3d 590, 594 (Tex. Crim. App. 2013) (citing Bogan v. State, 180 S.W. 247, 248
(Tex. Crim. App. 1915)). Thus, in denying the motion, the trial court rejected the contention that
the evidence was insufficient to support Freeman’s conviction.

                                                    8
Double Jeopardy Clause’s general prohibition against successive prosecutions does not prevent the

government from retrying a defendant who succeeds in getting his first conviction set aside, through

direct appeal or collateral attack, because of some error in the proceedings leading to conviction.”);

accord Ex parte Davis, 957 S.W.2d 9, 12 (Tex. Crim. App. 1997) (observing that, generally, double

jeopardy does not bar retrial after reversal but noting exception when conviction reversed for

legally insufficient evidence). Consequently, we hold that the trial court abused its discretion in

concluding otherwise.


                                          CONCLUSION

               Because Freeman’s trial did not end with an acquittal and the trial judge’s verdict was

not a “functional acquittal,” retrial for the charged offense following this Court’s reversal of

Freeman’s conviction does not violate double jeopardy. Thus, the trial court abused its discretion

in granting Freeman’s application for writ of habeas corpus and entering a judgment of acquittal.

We reverse the trial court’s order granting habeas relief and ordering Freeman acquitted.



                                               __________________________________________
                                               Melissa Goodwin, Justice

Before Justices Puryear, Goodwin, and Bourland

Reversed

Filed: November 14, 2018

Do Not Publish




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