






Donald Rogers v. State of Texas















IN THE
TENTH COURT OF APPEALS
 

No. 10-99-110-CR

     DONALD ROGERS,
                                                                         Appellant
     v.

     THE STATE OF TEXAS,
                                                                         Appellee
 

From the 278th District Court
Madison County, Texas
Trial Court # 9895
                                                                                                                
                                                                                                         
O P I N I O N
                                                                                                                

      While in prison, Donald Rogers was charged with striking a correctional officer in the face
with his fist.  A prison disciplinary hearing was held, and Rogers was found guilty of violating
prison rules and regulations.  He was assessed 15 days in solitary confinement, permanent loss of
283 days of good conduct time, and loss of other privileges.  After the disciplinary proceeding,
Rogers was indicted and prosecuted in Madison County, Texas, for assault of a public servant. 
A jury convicted Rogers and sentenced him to two years in prison.  In three points of error,
Rogers complains that his conviction violates the double jeopardy provisions of both the U.S.
Constitution and the Texas Constitution and that limitation of defense’s voir dire denied him
effective assistance of counsel.  We affirm the decision of the trial court.
DOUBLE JEOPARDY
       In issues one and two, Rogers contends that because he was disciplined while in prison, the
criminal prosecution in district court was barred by the double jeopardy clauses of the United
States Constitution and the Texas Constitution.  We disagree.
      Both the federal and state constitutions contain double jeopardy clauses, which protect against
a second prosecution for the same offense and multiple punishments for the same offense.  The
Fifth Amendment to the United States Constitution provides that no person shall “be subject for
the same offense to be twice put in jeopardy of life or limb.”  U.S. Const. amend. V.  Similarly,
the Texas Constitution provides that “[n]o person, for the same offense, shall be twice put in
jeopardy of life or liberty. . .”  Tex. Const. art. I, § XIV.  In the past, both federal and state
courts have consistently held that prison disciplinary punishment does not invoke the protection
of either constitution.  See United States v. Williamson, 469 F.2d 88, 89 (5th Cir. 1972); McKinney
v. State, 491 S.W.2d 404, 407-08 (Tex. Crim. App. 1973); Whitten v. State, 711 S.W.2d 661,
664 (Tex. App.—Tyler 1985, no pet.); Smith v. State, 827 S.W.2d 71, 72 (Tex. App.—Houston
[1st Dist.] 1992, no pet.).  This court has long held that double jeopardy does not apply to such
discipline as solitary confinement of prisoners and loss of good time credit.  Feltrin v. State, 627
S.W.2d 813, 814 (Tex. App.—Waco 1982, no pet.).  In Guerrero, we held that neither the federal
nor the state constitutional prohibition against double jeopardy precludes a state from trying an
inmate when he has already been “punished” for the same conduct in prison administrative
proceedings.  Guerrero v. State, 893 S.W.2d 260, 261 (Tex. App.—Waco 1995, no pet.).
      Rogers suggests that the Hudson decision should change our view of prison disciplinary
sanctions.  See Hudson v. U.S., 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997).  The
Hudson court affirmed that monetary penalties and occupational debarment sanctions imposed by
the Office of the Comptroller of Currency did not bar a subsequent criminal trial for the same
conduct because those administrative sanctions were not criminal penalties.  Stressing that double
jeopardy protects only against multiple criminal punishments for the same offense, the court listed
several factors for determining if an apparent civil sanction is actually a criminal penalty in nature,
including whether: (1) the sanction involves an affirmative disability or restraint; (2) it has
historically been regarded as a punishment; (3) it comes into play only on a finding of scienter;
(4) its operation will promote the traditional aims of punishment–retribution and deterrence; (5)
the behavior to which it applies is already a crime; (6) an alternative purpose to which it may
rationally be connected is assignable for it; and (7) it appears excessive in relation to the
alternative purpose assigned.  Id. at 99-100.  Rogers suggests that we apply this test to his case
to determine that his prison sanctions were in reality criminal penalties that triggered double
jeopardy protections.  Few courts have addressed the Hudson case in the context of prison
discipline.  No Fifth Circuit or Texas court has actually applied this test to grant protection under
either double jeopardy clause.  There are, however, two relevant cases from courts in Texas.
      In Turner v. Johnson, the court found that prison disciplinary proceedings were not criminal
prosecutions that would raise double jeopardy issues.  See Turner v. Johnson, 46 F. Supp. 2d 655
(S.D. Tex. 1999).  In this case, a prisoner was repeatedly disciplined for continuing to distribute
documents calling for a work stoppage.  Each incident resulted in loss of good conduct time.  The
court rejected the prisoner’s claim that he had received multiple punishments for the same offense
in violation of the double jeopardy provisions.  In its analysis of the issue, the court quoted
Hudson: “[Double Jeopardy] Clause protects only against the imposition of multiple criminal
punishments for the same offense.”  Id. at 666.  Without discussing or applying the Hudson test,
the court then stated:
It is well settled that prison disciplinary proceedings do not constitute criminal
prosecutions.  Hence, they do not implicate the Double Jeopardy Clause, as its
applicability is limited to proceedings that are “essentially criminal” in nature.  Prison
disciplinary proceedings and criminal prosecutions have differing goals.  “The prison
disciplinary process determines whether the defendant had violated the conditions of his
incarceration and is designed to maintain institutional security and order.”  In contrast,
“[a] criminal prosecution is designed to punish the defendant for a violation of the
criminal laws.”  While prison disciplinary sanctions may have punitive aspects, they are
primarily remedial in nature.  “Punitive interests and remedial interests . . . are nowhere
so tightly intertwined as in the prison setting, where the government’s remedial interest
is to maintain order and to prevent violent altercations among a population of criminals.”
(citations omitted).

Id.
      The court went on to add that prison discipline does not constitute punishment for double
jeopardy purposes even when the discipline delays release from prison by depriving a prisoner of
good time credits.  Id. at 667.  Thus, the court did not depart from the pre-Hudson view that
prison discipline is not punishment for double jeopardy purposes.
      The Glinski court did not apply the Hudson rule.  See Glinski v. State, 986 S.W.2d 79 (Tex.
App.—Houston [1st Dist..] 1999, no pet. h.).  Glinski was serving a life sentence when he
escaped.  After his apprehension, he was assessed demotion in classification, loss of commissary
privileges and loss of his good time (almost 26 years) at a prison disciplinary hearing.  He was
later convicted by the Walker County District Court for the offense of escape and sentenced to 18
years in prison.  Glinski appealed, complaining that his conviction was barred by double jeopardy. 
The Houston court acknowledged the Hudson decision by quoting: “A person is protected  by the
double jeopardy clause of the Fifth amendment from multiple prosecutions and multiple
punishments for the same offense.”  Id. at 80.  However, in its analysis of the issue of double
jeopardy, the court turned to the Hernandez decision for guidance.  See Ex parte Hernandez, 953
S.W.2d 275, 280 (Tex. Crim. App. 1997).  To determine whether a conviction following a prison
disciplinary sanction would trigger the double jeopardy clause, the Hernandez court considered
whether disciplinary detention was “so grossly unrelated to . . . remedial goals [of maintaining
order and discipline in the prison] as to constitute ‘punishment.’”  Id. at 285.  The court concluded
that a 15-day lock down, in which the defendant was locked up for 23 hours a day (and shackled
for the remaining hour) and was denied access to newspapers, telephones, visits, and special
programs offered by the detention center, did not constitute punishment under the Fifth
Amendment.  Using this same reasoning, the Glinski court held that the prisoner’s loss of good
time credit did not trigger the protection of double jeopardy under either the United States or the
Texas Constitution.  Glinski, 986 S.W.2d at 81.
      Regardless of Hudson, these courts have continued to hold that prison disciplinary sanctions
do not trigger double jeopardy protections.  Like the Turner and Glinski courts, we find that the
Hudson test is not appropriate for prison disciplinary sanctions.  It is well-established that
sanctions assessed by a prison do not preclude the state from prosecuting a prisoner for the same
conduct.  We therefore find that Rogers’s conviction does not violate the double jeopardy
provisions of either the federal or state constitution.  Accordingly, we overrule his first and second
issues.
 
 
VOIR DIRE
      In his third issue, Rogers contends that he was denied effective assistance of counsel during
jury selection because the court limited the duration of his counsel’s voir dire examination.  The
State’s voir dire lasted about 35 minutes.  After Rogers’s counsel had questioned members of the
venire for about an hour, the trial court gave her a 5-minute warning.  Finally, the court advised
counsel that her time had expired.  The court then excused the venire panel from the courtroom
so the parties could assert their challenges for cause and exercise their peremptory challenges.  At
this time, Rogers’s counsel objected to the curtailing of voir dire and told the court that additional
questions were necessary for intelligent selection of members of the jury.  Specifically, she wanted
to ask whether:
•any of the panelists considered himself a skeptic;
•anyone would have to hear from the defendant to find him not guilty;
•anyone would require the defendant to testify to believe that he acted in self defense;
•anyone had been a victim of crime; 
•anyone wanted to serve on a jury and why-or why not.

Counsel asserted that each question should be asked of each veniremember.
Applicable Law
      The trial court’s broad discretionary power to control the conduct of the voir dire examination
is well-established.  McCarter v. State, 837 S.W.2d 117, 120 (Tex. Crim. App. 1990).  This
discretion includes the ability to place reasonable limitations on the voir dire “for various reasons,
among them to curb the prolixity of what can be the lengthiest part of a criminal proceeding.” 
Guerra v. State, 771 S.W.2d 453, 467 (Tex. Crim. App. 1988). We review a court’s decision
to limit voir dire questioning according to an abuse-of-discretion standard.  McCarter, 837 S.W.2d
at 120.  Specifically, in reviewing a contention that the trial court abused its discretion in
terminating voir dire during collective questioning of the venire, we must examine: (1) whether
counsel attempted to prolong voir dire; and (2) whether the court prohibited proper questions.  De
la Rosa v. State, 414 S.W.2d 668, 671 (Tex. Crim. App. 1967).  If the court terminates voir dire
during questioning of individual panelists, then we also consider whether counsel was precluded
from examining jurors who served on the jury.  Ratliff v. State, 690 S.W.2d 597, 599 (Tex. Crim.
App. 1985).
Application of Law to Facts
      The first issue is whether counsel attempted to prolong the voir dire.  As we recently noted:
To decide whether counsel attempted to prolong the voir dire, we review the record to
see if the questions counsel posed were ‘irrelevant, immaterial or unnecessarily
repetitious.’  As a part of this analysis, we examine whether counsel appropriately
budgeted the time allotted for voir dire.  (Cites omitted.).

Tamez v. State, 27 S.W.3d 668, 672 (Tex. App.—Waco 2000, no pet. h.).
      In this case, it appears that counsel did attempt to prolong the voir dire.  Counsel took almost
twice as much time as the State did.  Some of the questions asked were neither relevant nor
material.  For example, counsel asked one member of the panel whether she or her husband won
when they had an argument.  Also, counsel used much of her time in discussing unrelated concepts
such as burden of proof in a termination of parental rights case.  She discussed her advice to her
father about avoiding jury duty.  She engaged in a prolonged argument with panel members about
whether she was trying to put words into their mouths.  At one point, the court warned: “Stay
away from philosophy and ask your questions, please.”  Counsel has a duty to budget her time
appropriately for voir dire.  Whitaker v. State, 653 S.W.2d 781, 781 (Tex. Crim. App. 1983). 
Had counsel done that, she could have completed her questioning of the panel.  Because we find
that counsel did prolong voir dire, we do not need to address the other prongs of the abuse-of-discretion standard.  See Tamez v. State, 27 S.W.3d 668 (Tex. App.—Waco 2000, no pet. h.). 
Thus, we find that the court did not abuse its discretion by limiting voir dire questioning. 
Accordingly, we overrule Rogers’s third issue.
CONCLUSION
      Having overruled all issues, we affirm the trial court’s judgment.
 
                                                                         TOM GRAY
                                                                         Justice

Before Chief Justice Davis,
      Justice Vance, and
      Justice Gray
Affirmed
Opinion delivered and filed April 11, 2001
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