Opinion filed October 13, 2016




                                       In The


        Eleventh Court of Appeals
                                    __________

                                 No. 11-14-00256-CR
                                     __________

                TERRY ANTHONY VALENTI, Appellant
                                        V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 385th District Court
                            Midland County, Texas
                        Trial Court Cause No. CR40880


               MEMORANDUM OPINION ON
            STATE’S MOTION FOR REHEARING
      The State has filed a motion for rehearing disagreeing with our conclusion
that Appellant’s double jeopardy rights were violated. The State poses this question
in the motion for rehearing: “Was Appellant tried and acquitted for the same offense
when no proof was offered at the first trial?” The State cites Ex parte Goodbread
for the proposition that “[d]ouble jeopardy only bars offenses for which proof was
offered at trial.” 967 S.W.2d 859, 861 (Tex. Crim. App. 1998). Based upon this
premise, the State essentially contends that jeopardy did not attach to anything with
respect to the first jury trial because no evidence was offered prior to the case being
dismissed on the State’s motion. For the reasons set forth herein, we respectfully
disagree with the State.
       We note at the outset that the Court of Criminal Appeals did in fact state in
Goodbread that “Double Jeopardy bars only offenses for which proof was offered at
trial.” Id. However, the circumstances in Goodbread are very different from the
facts in this case. Goodbread involved a defendant that was alleged to have
committed the same offense (“certain acts of unlawful sexual conduct”) on multiple
occasions (at least thirteen). Id. at 860. Additionally, the first proceeding resulted
in a completed trial. Id. Under these circumstances, the court was tasked with
determining what offense was tried in the defendant’s initial trial in order to
determine if double jeopardy attached to any subsequent criminal proceedings. Id.
at 860–61. As noted by the court, “[f]or Double Jeopardy purposes, ‘[t]he same
offense means the identical criminal act, not the same offense by name.’” Id. at 860
(alteration in original) (quoting Luna v. State,1 493 S.W.2d 854, 855 (Tex. Crim.
App. 1973)). The court held that, “[w]hen an indictment permits the State to obtain
only one conviction, a defendant is not placed in jeopardy for more than one criminal
act unless the State offers multiple instances of conduct in support of the
indictment.” Id. at 861. While the initial indictment in Goodbread only alleged one
offense, the proof offered at trial expanded the number of offenses affected by
double jeopardy because the State offered evidence of two instances of alleged
conduct during the trial. Id.


       1
         Luna involved a defendant that sold heroin on two separate occasions to the same undercover
officer approximately three months apart. 493 S.W.2d at 854–55.

                                                 2
      The facts in this case are readily distinguishable from those in Goodbread.
There is no allegation that Appellant committed an alleged forgery on more than one
occasion. In this regard, the trial court’s order overruling Appellant’s special plea
of double jeopardy provides that “[t]he writing in both cases is the same Power of
Attorney for Transfer of Ownership to a Motor Vehicle” and that “[i]t’s clear that
the Defendant is being tried in both cases for passing the same Power of Attorney.”
The court in Goodbread appeared to address this situation when it stated: “In Luna,
we held that, when one cannot determine from the State’s pleadings whether the
offenses prosecuted are the same, the court must look to the proof offered at trial.”
Id. at 860 (emphasis added). In this case, one can determine from the State’s
pleadings that the offenses being prosecuted are the same. Under the holding in
Parker v. State, 985 S.W.2d 460, 464 (Tex. Crim. App. 1999), Appellant was tried
in the second trial for the same offense for which he was indicted in the first trial.
      Our jurisprudence establishes that jeopardy attaches in a jury trial when the
jury is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 38 (1978); see Duran v.
State, 492 S.W.3d 741, 745 (Tex. Crim. App. 2016); Pierson v. State, 426 S.W.3d
763, 769 (Tex. Crim. App. 2014). In Crist, the Supreme Court analyzed why
jeopardy attaches at this “precise point” in a jury trial—“[t]he reason for holding that
jeopardy attaches when the jury is empaneled and sworn lies in the need to protect
the interest of an accused in retaining a chosen jury.” 437 U.S. at 35 (noting the
defendant’s “valued right to have his trial completed by a particular tribunal”)
(quoting Wade v. Hunter, 336 U.S. 684, 689 (1949)). To hold that jeopardy does
not attach to anything if evidence is not offered in a jury trial after the jury is
empaneled and sworn would be contrary to the well-established law regarding the




                                           3
point in a jury trial when jeopardy attaches.2 Accordingly, we deny the State’s
motion for rehearing.


                                                                   JOHN M. BAILEY
                                                                   JUSTICE


October 13, 2016
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




        2
           In his concurring opinion in Goodbread, Judge Meyers posed the following question: “[I]f we
have to look to the proof at trial to determine what is jeopardy barred, then to what has jeopardy ‘attached’
before proof is offered? After all, we know jeopardy attaches in a jury trial the moment the jury is
empaneled and sworn. Is the majority suggesting jeopardy does not attach until proof is offered? Certainly
not . . . .” 967 S.W.2d at 861–62 (Meyers, J., concurring opinion) (citations omitted). He continued by
opining that jeopardy attaches to the indictment when the jury is empaneled and sworn but that, if evidence
is subsequently presented at trial, it may narrow or, as in the case of Goodbread, broaden the offenses to
which jeopardy attaches. Id. at 862.

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