Opinion
No. 05-10-00686-CR
Opinion issued June 17, 2011. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 382nd Judicial District Court, Rockwall County, Texas, Trial Court Cause No. 2-09-501.
Before Justices MURPHY, FILLMORE, and MYERS.
OPINION
Appellant, Anthony Jenkins, pleaded guilty to the offense of fraudulent use or possession of identifying information, and was sentenced to twenty years in prison. In only one issue, he argues that the trial court erred by denying his plea of double jeopardy. We affirm.
Background and Procedural History
On June 8, 2009, appellant rented a welder, saw, and trailer from Dal-Tex Rental and Sales using the name of Charles L. Kately. Appellant presented himself to Georgia Kellogg, an employee of Dal-Tex Rental and Sales, as Charles Kately. Appellant presented a driver's license that contained Kately's name and identifying information, paid the rental fee, and signed Kately's name on the rental agreement. Appellant, however, did not return the equipment, which was worth approximately $5000. Kately later testified at appellant's plea hearing that he was a "retired federal officer with the Department of Justice, Federal Bureau of Prisons." He noted that he had lost his wallet some time in January of 2009, and that he first became aware that someone was using his driver's license when he started receiving demand letters from equipment rental companies. On September 25, 2009, appellant was indicted in Dallas County for the state jail felony offense of intentionally and knowingly making a false and misleading written statement to Georgia Kellogg to obtain property. See Tex. Penal Code Ann. § 32.32 (West Supp. 2011). The indictment also contained two enhancement paragraphs that alleged appellant was convicted in 2001 of robbery and in 1995 of burglary of a habitation. Appellant pleaded guilty to the Dallas offense on January 25, 2010, and was sentenced to 300 days in the county jail. On October 21, 2009, before he pleaded guilty to the Dallas case, appellant was indicted in Rockwall County for fraudulently using or possessing the identifying information of Charles L. Kately. See Tex. Penal Code Ann. § 32.51 (West Supp. 2011). The indictment's enhancement paragraphs alleged the same 2001 robbery conviction that was used to enhance the Dallas County offense, and a 1994 conviction for burglary of habitation. Appellant filed a special plea of double jeopardy, which was denied by the trial court. Appellant entered an open plea of guilty to the offense and pleaded true to the enhancement paragraphs on June 1, 2010. He was sentenced by the court to twenty years in prison.Discussion
Appellant argues that the trial court erred by denying his plea of double jeopardy because his conviction in Dallas County barred the Rockwall County charge, and he could not be prosecuted for both offenses. Appellant bases his double jeopardy argument on both the Fifth Amendment of the United States Constitution and Article I, section 14 of the Texas Constitution. The Fifth Amendment's double jeopardy protection applies to the states through the Fourteenth Amendment. See Benton v. Maryland, 395 U.S. 784, 794 (1969). Appellant acknowledges that the United States and Texas constitutions provide substantially identical double jeopardy protection. See Ex parte Mitchell, 977 S.W.2d 575, 580 (Tex. Crim. App. 1997). Turning to appellant's Fifth Amendment claim, the Double Jeopardy Clause protects against three different circumstances: a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. Bigon v. State, 252 S.W.3d 360, 369 (Tex. Crim. App. 2008). Appellant invokes the second and third circumstances, both of which require a determination of whether his two convictions were, insofar as double jeopardy is concerned, for the same offense. When the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not. Blockburger v. United States, 284 U.S. 299, 304 (1932); Ex parte McWilliams, 634 S.W.2d 815, 824 (Tex. Crim. App. 1980) ("The Blockburger test is satisfied if each statutory offense requires the proof of a fact that the other does not."). To determine whether two crimes are the same for double jeopardy purposes, we focus on the elements alleged in the charging instruments. Bigon, 252 S.W.3d at 370. The general rule is that greater-included and lesser-included offenses are the same for double jeopardy purposes. Parrish v. State, 869 S.W.2d 352, 354 (Tex. Crim. App. 1994); McCrary v. State, 327 S.W.3d 165, 173 (Tex. App.-Texarkana 2010, no pet.). To determine whether an offense is a lesser-included offense of another offense, we begin by .comparing the elements of the greater offense, as the State pled it in the indictment, with the elements in the statute that defines the lesser offense. . Hall v. State, 225 S.W.3d 524, 525 (Tex. Crim. App. 2007). The elements of the offenses, as they are pleaded in the indictment, are also compared to decide whether multiple punishments violate the Double Jeopardy Clause. Id. at 532-33. Section 32.32 of the penal code governs false statements to obtain property or credit in the provision of certain services. Under section 32.32, a person commits an offense if he intentionally or knowingly makes a materially false or misleading written statement to obtain property or credit, including a mortgage loan. Tex. Penal Code Ann. § 32.32(b). Section 32.51 prohibits the fraudulent use or possession of identifying information. Under that provision, a person commits the offense of fraudulent use or possession of identifying information only if he, with the intent to harm or defraud another, obtained, possessed, transferred, or used an item of "identifying information" of another person without that person's consent. Tex. Penal Code Ann. § 32.51(b)(1). "Identifying information" includes an individual's name, social security number, date of birth, or government-issued identification number. Id. § 32.51(a)(1)(A). The indictment in the Dallas County case, which was based on section 32.32, alleged that appellant, on or about the 6th of June, 2009, in Dallas County,did then and there intentionally make a materially false and misleading written statement to GEORGIA KELLOGG to obtain property, to-wit: ONE (1) WELDER, ONE (1) SAW AND ONE (1) TRAILER, for HIMSELF, and the value of said property was $1,500.00 or more but less than $20,000.00.See Tex. Penal Code Ann. § 32.32(b). The amended indictment in the Rockwall County case, which was based on section 32.51, alleged that appellant
on or about the 6th day of June, 2009 and before presentment of this indictment, in the County and State aforesaid, did then and there, with intent to harm or defraud another, and without the consent of Charles Kately obtain or possess identifying information of Charles Kately, to-wit: name and date of birth, address, and government issued identification.See Tex. Penal Code Ann. § 32.51(b)(1). Appellant suggests that, as pleaded in this case, the section 32.51 Rockwall County indictment should be barred under the double jeopardy protection accorded lesser-included offenses because the Rockwall County offense required the State to prove the same or less than all the facts required to establish the section 32.32 offense in Dallas County. See Tex. Code Crim. Proc. Ann. art. 37.09 (West 2006). But even though the underlying evidence to prove the two offenses was similar, "that is not the pertinent inquiry." Rogers v. State, 305 S.W.3d 164, 170-71 (Tex. App.-Houston [1st Dist.] 2009, no pet.). Determining whether an offense is a lesser-included offense of the alleged offense is a question of law that does not depend on the evidence to be produced at trial but on the elements in the charging instruments. Id. at 171 (citing Hall, 225 S.W.3d at 535). Looking first at the Dallas County case, the gravamen of the offense was the making of a materially false or misleading statement. See Texas Penal Code Ann. § 32.32; Burke v. State, 28 S.W.3d 545, 548 (Tex. Crim. App. 2000). The State was not required to prove appellant possessed any identifying information or that the identifying information was the property of another, only that appellant made a materially false or misleading written statement to Georgia Kellogg to obtain property or credit. Section 32.51, on the other hand, as pleaded in the Rockwall County case, required the State to prove that appellant, "on or about the 6th day of June, 2009 . . . did then and there, with intent to harm or defraud another, and without the consent of Charles Kately obtain or possess identifying information of Charles Kately." See Texas Penal Code Ann. § 32.51(b)(1). As one court observed, "[t]he offense defined by penal code section 32.51 is essentially identity theft." Ford v. State, 282 S.W.3d 256, 264 (Tex. App.-Austin 2009, no pet.). The section 32.51 offense did not require the State to show that appellant made a false or misleading written statement, nor that appellant's conduct was for the purpose of obtaining property or credit. We also note that the two offenses involved different victims, which further suggests the offenses should not be regarded as the same for double jeopardy purposes. Therefore, as pleaded in this case, sections 32.32 and 32.51 of the penal code each required proof of a fact that the other did not. The Dallas and Rockwall County offenses are distinct under the Blockburger test, see 284 U.S. at 304, but Blockburger is not the only test for determining if two offenses are the same. See Bigon, 252 S.W.3d at 370. As appellant points out in his brief, offenses may be the same for double jeopardy purposes even when their elements differ under Blockburger, if there are other indicia of legislative intent to treat the offenses as the same. Ervin v. State, 991 S.W.2d 804, 810-11 (Tex. Crim. App. 1999). In Ervin, the court of criminal appeals concluded that even when two penal statutes have unique elements, and are therefore not the same under Blockburger, we must also consider other factors to determine whether the legislature intended to permit multiple punishments when the same conduct violates both statutes. Id. at 814. According to Ervin, we must consider (1) whether the offenses' provisions are contained within the same statutory section, (2) whether the offenses are phrased in the alternative, (3) whether the offenses are named similarly, (4) whether the offenses have common punishment ranges, (5) whether the offenses have a common focus (whether the "gravamen" of the offense is the same) and whether that common focus tends to indicate a single instance of conduct, (6) whether the elements that differ between the offenses can be considered the "same" under an "imputed theory of liability," which would result in the offenses being considered the same under Blockburger, and (7) whether there is legislative history containing an articulation of an intent to treat the offenses as the same or different for double jeopardy purposes. Id. The court in Ervin reasoned that manslaughter and intoxication manslaughter are the same offense for double jeopardy purposes when they involve the same victim, and imposing convictions for both violates the Double Jeopardy Clause. Id. at 817. The court of criminal appeals ascertained that the statute defining intoxication manslaughter does not include a mental state, while the statute defining manslaughter requires a mental state of "recklessly." In determining that the two offenses were nonetheless the "same" for double jeopardy purposes, the Ervin court noted that intoxication manslaughter could still be viewed as having the element of recklessness by imputation, thus making the offenses the same under the liberalized "imputation" version of the Blockburger test. Id. at 816; see McCrary, 327 S.W.3d at 177 ("The concept of imputing elements into an offense in order to determine if the offenses are the `same offenses' for purposes of double jeopardy has not been widely explored in caselaw. In fact, Ervin is the only reported case that has positively determined this factor."). Applying the Ervin factors, appellant first argues that both offenses are located within the fraud chapter of the penal code, chapter 32. The Ervin court, in concluding that intoxication manslaughter and manslaughter were the same offense insofar as double jeopardy was concerned, noted in part that the previous location of the intoxication manslaughter offense was within the homicide chapter of the penal code, chapter 19, which included the mens rea associated with the various degrees of homicide. See id. at 816-17. But chapter 32 of the penal code is a collection of more than twenty assorted offenses such as "trademark counterfeiting," "issuance of bad checks," and "illegal recruitment of an athlete." See Tex. Penal Code Ann. §§ 32.23, 32.41, and 32.441 (West Supp. 2011). Such a wide range of criminally sanctioned conduct does not suggest a legislative intent for sections 32.32 and 32.51 to be regarded as a single offense for double jeopardy purposes. Appellant also argues the two statutes address a common focus or gravamen. Section 32.32, however, punishes the use of a false written statement to obtain property, while 32.51 punishes the possession, transfer and use of a person's identifying information. See Ford, 282 S.W.3d at 264; Burke, 28 S.W.3d at 548. Moreover, the two offenses in this case involved different victims, further suggesting the two statutes do not share a common focus and that the Legislature never intended for them to serve as a single offense. Appellant next argues that the common punishment ranges of the two offenses suggest a legislative intent to punish his conduct only once. Section 32.51 has a penalty range of a state jail felony to a first degree felony, and section 32.32 has a punishment range of a class C misdemeanor to a first degree felony. See Texas Penal Code Ann. §§ 32.51(c), 32.32(c) (West Supp. 2011). Appellant was charged in both the Dallas and Rockwall County cases, prior to enhancement under section 12.42, with state jail felonies. See id. § 12.42. The punishment enhancements in each case, however, were based on different considerations and had separate victims. Under section 32.32(c), the degree of the offense is based on the value of property of credit obtained. See id. § 32.32(c). The Dallas offense was a state jail felony because the property in question was valued at between $1500 and $20,000. Id. § 32.32(c)(4). Under section 32.51, the degree of the offense depends on the number of items of identifying information possessed, obtained, or used. Id. § 32.51(c). The Rockwall County offense was a state jail felony because appellant possessed less than five pieces of identifying information. Id. § 32.51(c)(1). Therefore, while appellant committed a state jail felony in both instances, the two offenses were based on different punishment schemes, involved different victims, and it is highly unlikely the Legislature intended all state jail felonies to constitute a single offense. Nor is it likely the Legislature intended for a defendant who violates two unrelated statutes, each with different victims and broad ranges of punishment, to receive only a single punishment merely because he committed the same degree of offense under two distinct statutes. Appellant also argues that the section 32.32 Dallas prosecution could have been brought under the "use" portion of section 32.51(b)(1). But while it is true that appellant might have been charged under section 32.51 in both the Dallas and Rockwall cases, alleging fraudulent use of identifying information in one case and fraudulent possession of that information in the other, thereby leading to the two charges being phrased in the alternative, that is not what occurred here. The Dallas prosecution was for a materially false or misleading written statement under section 32.32(b), and it did not concern an offense arising out of the fraudulent use of identifying information in violation of section 32.51(b)(1). That issue is not before us. As for the remaining Ervin factors, appellant does not argue there is any "imputed theory of liability" that would result in the two offenses, as charged here, being considered the same under Blockburger. Furthermore, neither appellant nor the State provided us with, nor have we found, any legislative history indicating whether the Legislature intended to treat the offenses as the same or different for double jeopardy purposes. After reviewing the Ervin factors, we determine the offenses as charged in this case were not the same offense for double jeopardy purposes. We conclude that appellant's double jeopardy protections were not violated, and we overrule appellant's issue. We affirm the trial court's judgment.