Opinéon filed January 319 2613

 

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N0. 11-11~00037-CR

CAROL JOHNENE MORRIS, Appellant
V.

STATE OF TEXAS, Appellee

 

On Appeal from the 4415f District Court
Midland County, Texas

Triai Court Cause No. CR37161

MEMORANDUM OPINION
The jury convicteci Carol Johnene Ivhinriss appellant of the offense of theft in the amount
of SLSOQ or more but less than $203000, Upon ﬁnding enhancement aliegaﬁons to be true, the
jury assessed her punishment at conﬁnement in the Institutional Division of the Texas
Department of Criminal Justice for a term of twenty years and a ﬁne of $103000. We reverse and
render jud gment vacating appeiiant’s conviction on double jeopardy grounds based upon a

previous conviction for the same offense.

Background Facts

The indictment alleged that, on or about October S, 2009, appellant unlawfully acquired
and exercised control over us. currency of the value of $1,500 or more but less than $20,000
from Manuel Valdez by deception Without his effective consent with the intent to deprive him of
the property. Trial commenced on the offense alleged in the indictment on November 3, 2010.
The evidence offered at trial showed that appellant offered to sell the real property located at 501
South Tyler in Midland to Valdez for a total purchase price of $l2,000. Valdez paid her $6,000
down on October 5, 2009, pursuant to a contract they executed for the sale of 501 South T yler.
The State also offered evidence that appellant had previously conveyed two vacant lots to Valdez
on September 28, 2009, for a total purchase price of $3,000 that Valdez paid her on that date.

An attorney at a title company subsequently informed Valdez that appellant was unable
to convey the properties to him because she only owned a partial interest of approximately
16.67% in the properties. Valdez sent a demand letter to appellant dated October 15, 2009,
demanding the return, within ten days, of the $9,000 that he had paid her for the three properties.
Valdez testified that appellant never returned that money.

Prior to trial, appellant filed a pretrial application for writ of habeas corpus alleging that
her prosecution for the charged offense was barred for double jeopardy purposes as a result of
her previous conviction in trial court cause no. CR36894 for the same offense. Appellant
presented her application to the trial court for consideration at a pretrial hearing conducted on
October 26, 20l0. The trial court subsequently denied appellant’s application, and the case
proceeded to trial.

Double Jeopardy

Appearing pro so both at trial and on appeal, appellant raises the issue of double jeopardy
in her point of error. We disagree with appellant’s contention that the trial court erred in denying
her pretrial application because her previous conviction was not final for double jeopardy
purposes at the time she presented the application. However, we conclude that appellant’s
subsequent conviction in the underlying trial in this case can no longer stand alter the previous
conviction became final.

T he Fifth Amendment’s Double Jeopardy Clause, enforceable against the states through
the Fourteenth Amendment, provides that no person shall “be subject for the same offence to be

twice put in jeopardy of life or limb.” U.S. CONST, amends. V, XIV; see Ex parte Chaddock,

369 SW3d 880, 882w83 (Tex. Crim. App. 2012); Wotan v. State, 326 S.W.3d 189, 192 (Tex.
Crim. App. 2010). It protects an accused against the following: (1} a second prosecution for the
same offense after acquittal; (2) a second prosecution for the same offense after conviction; and
(3) multiple punishments for the same offense. Brown: v. Ohio, 432 US. 161, 165 (1977);
Char/Mock, 369 SW3d at SSE-83; Weinn, 326 SW3d at 192.

This case now involves an allegation of a second prosecution for the same offense after
conviction. We are knowledgeable of the facts and circumstances occurring in appellant’s
previous conviction in trial court cause no. CR36894 because we issued an opinion in the case on
February 9, 2012, in Morris v. State, No. ll—lO*00249~CR, 2012 WL 424923 (Tex. Appm
Eastiand February 9, 2012, pet. rei’d) (mem. op, not designated for publication).

We previously reviewed the trial court’s order denying appellant’s application for writ of
habeas corpus on double jeopardy grounds in Morris 12. State, No. ll~lO—00332~CR, 2011 WL
1818059 (Tex. App.——~Eastland May 12, 2011, pet. ret’d) (mem. op, not designated for
publication). Appellant appealed the trial court’s order referenced in our Cause No. 11-10»
00332-CR prior to her conviction on the underlying offense in trial court cause no. CR37161 (the
present case). Based upon the limited record before us in our Cause No. 11-10-00332—CR, we
concluded that the conviction in trial court cause no. CR36894 was not for the same offense as
the one charged in trial court cause no. CR37l6l because the indictments in each of the two trial
court proceedings charged appellant with different offenses. Morris, 20ll WL 1818059, at * l.

The record before us in this appeal from trial court cause number CR37161 reveals that
the trial court had an additional ground for denying appellant’s double jeopardy claim prior to
trial. The record from the pretrial hearing shows that the previous conviction in trial court
cauese no. CR36894 was on appeal at the time of the hearing. A conviction is not final for
double jeopardy purposes while it is pending on appeal. Ex parte Gutierrez, 987 S.W.2d 227,
230~3l (Tex. App.~»~Austin 1999, pet. ref’d). Accordingly, we remain correct in our previous
determination that the trial court did not err in denying appellant’s double jeopardy claim prior to
trial.

In this appeal, the State asserts that appellant’s double jeopardy claim must continue to
fail because appellant did not make a sufficient record of “the substance of the previous trial.”
However, the State concludes its argument on appellant’s double jeopardy claim with the

following statement: “Having argued that double jeopardy is not an issue because Appellant did

not make a record, the State feels the need to advance to the court in candor that there may be an
issue of double jeopardy in another proceeding where the record can be expanded.”
Additionally, the State supported this statement by citing four cases.

A cursory review of the citation information for our opinion afﬁrming appellant’s
previous conviction reveals that the Texas Court of Criminal Appeals has refused appellant’s
petition for discretionary review2 and we have issued mandate in the case. Accordingly,
appellant’s previous conviction is now ﬁnal for double jeopardy purposes. The State‘s candid
statement concerning a potential double jeopardy problem, coupled with our knowledge of the
previous conviction’s finality, raises a significant concern to this court pertaining to appellant’s
double jeopardy claim.

Citing Garza v. State. 622 S.W.2d 85, 8990 (Tex Crim. App. 1981), the State contends
that an appellate court cannot look to another appellate record to supply a deﬁciency in the proof
of another case under consideration on appeal. See also Gutierrez, 987 SW2d at 230. We agree
with the State’s contention in principle. However, the holdings in Garza and Gutierrez are
distinguishable because. in addition to reviewing an appellate record from the previous
conviction, we have issued a detailed, written opinion afﬁrming appellant’s previous conviction.
Among other things, we evaluated the sufﬁciency of the evidence in our opinion and upheld
appellant’s previous conviction after extensively addressing the evidence in our previous
opinion. Under the unique facts of this appeal. we conclude that it is permissible for this court to
consider the contents of our previous opinion in resolving appellant‘s double jeopardy claim.

The cases cited by the State stand for the proposition that, when an indictment permits the
State to obtain only one conviction. a defendant is not placed in jeopardy for more than one
criminal not unless the State offers multiple instances of conduct in support of the indictment.
Erparre Goodoreod, 967 S.W.2d 859. 861 (Tex. Crim. App. 1998). “If evidence of more than
one offense is admitted and a conviction for either could be had under the indictment. and neither
the State nor the court elects. a plea of former conviction is good upon a prosecution based upon
one of said offenses. it being uncertain for which one the conviction was had.” Walker v. State,
473 SWin 499, 500 (Tex. Crim. App. 1971).

The State charged appellant in the previous conviction with one instance of theft

occurring on or about September 28? 2009.E Our opinion afﬁnning the previous conviction

'A copy of the indictment from the previous conviction is included in the appellate record in this appeal.

4

shows that the State presented evidence of two instances of conduct constituting the charged
offense of theft, one Occurring with the sale of the vacant lots on September 28. 2009, and the
other occurring with, the real property located at Sill South Tyler on October S. 2009. Our
previous opinion shows further that the State did not make an election of which instance upon
which it reiied to obtain the previous conviction. The absence of an election is evidenced by the
fact that we addressed both instances in reviewing the sufficiency of the evidence supporting
appellant’s previous conviction. Morris, 2012 WL 424923, at *2~4. Accordingly, appellant was
placed in jeopardy for both criminal acts in the previous trial. Furthermore, her claim of double
jeopardy for both offenses is now mature aﬁer she exhausted the appeal of her previous
conviction. Appellant’s ﬁrst point of error is sustained. We need not address her other points
because our resolution of her ﬁrst point is dispositive of this appeal.
This Court ’5 Ruling

The judgment of the trial court is reversed. We render judgment vacating appellant’s

conviction in trial court cause no. CR37l6l. See Ball 12. United States, 470 US. 856. 864 (1985)

(The appropriate remedy for a double jeopardy Violation is to vacate one of the convictions).

PER CURIAM

January 31, 2013
Do not publish. See TEX. R. APP. P. 47.203).

Panel consists of: Wright, C.J.,
McCall, l. and Willson, J.

