Opinion
NO. 14-15-00625-CR
12-08-2016
JOSEPH SMITH, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 228th District Court Harris County, Texas
Trial Court Cause No. 1397699
MEMORANDUM OPINION
Appellant Joseph Smith appeals his conviction for first-degree murder. In a separate case, a jury found appellant guilty of aggravated robbery. During the punishment phase of the aggravated-robbery case, the State presented evidence that appellant also had committed a capital murder. The range of punishment in the aggravated-robbery case was not less than five years' confinement nor more than ninety-nine years' confinement or life, with the possibility of recommending community supervision if punishment were assessed at ten years' confinement or less. The jury in the aggravated-robbery case assessed appellant's punishment at confinement for life. In the trial court in today's case, appellant was charged by indictment with capital murder. After appellant was sentenced in the aggravated-robbery case, he pled "guilty" to a reduced charge of first-degree murder in the case under review and was sentenced to thirty years' confinement, in accordance with the prosecutor's recommended sentence. Appellant received permission from the trial court to appeal the issue of whether the charge of capital murder placed appellant in double jeopardy after the issue of the capital murder was presented to the jury during the punishment phase of the aggravated-robbery trial.
Appellant asserts that he already was assessed a punishment of life's confinement "for the murder that is the subject of this appeal" because the jury was allowed to consider the offense during the punishment phase of the aggravated-robbery case. Thus, he argues, his prosecution for murder violates his right to freedom from being placed in double jeopardy.
The Double Jeopardy Clause of the United States Constitution provides "nor shall any person be subject for the same offenses to be twice put in jeopardy of life or limb." U.S. Const. amend. V, cl. 2. The Double Jeopardy Clause of the Texas Constitution provides that "[n]o 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." Tex. Const. art. I, § 14.
The Double Jeopardy Clause of the United States Constitution embodies three protections: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense. Ex parte Broxton, 888 S.W.2d 23, 25 (Tex. Crim. App. 1994). Appellant argues that he already has been punished for the offense of murder because there is "no question" based on the record that the jury in the aggravated-robbery case found appellant committed the offense of capital murder beyond a reasonable doubt and assessed its punishment based on appellant's commission of that offense.
The Court of Criminal Appeals has noted that "[n]umerous courts have held that the consideration of unadjudicated offenses at the punishment phase in noncapital cases does not constitute punishment for those offenses and therefore the subsequent prosecution of those offenses does not violate double jeopardy."Id. at 26. The high court has explained that the underlying rationale for this holding stems from the need of the sentencer to have information about the individual defendant, including the defendant's criminal background and unadjudicated offenses, to make the sentence fit the offender. See id. at 27.
In Ex parte Broxton, the Court of Criminal Appeals held that consideration of extraneous unadjudicated offenses did not constitute punishment for those offenses and therefore trial for an unadjudicated offense the jury considered during the punishment phase of a prior prosecution did not constitute double jeopardy under either the United States Constitution or the Texas Constitution. See Ex parte Broxton, 888 S.W.2d at 25-26.
Appellant concedes that the Court of Criminal Appeals has held that considering an extraneous offense during the punishment phase does not constitute punishment for that offense, but appellant argues that the United States Supreme Court held in Bullington v. Missouri that double jeopardy applies in capital-sentencing cases that have the "hallmarks" of a trial on guilt and innocence. See 451 U.S. 430, 439, 101 S.Ct. 1852, 1858, 68 L.Ed.2d 270 (1981). But, the Court of Criminal Appeals has concluded that it is bound by the United States Supreme Court's conclusion that "Bullington's rationale is confined to the unique circumstances of capital sentencing" and does not apply in a noncapital-sentencing context. See State v. Wooldridge, 237 S.W.3d 714, 718 (Tex. Crim. App. 2007) (quoting Monge v. California, 524 U.S. 721, 734, 118 S.Ct. 2246, 2253, 141 L.Ed.2d 615 (1998)).
Any consideration by the jury of the unadjudicated offense of capital murder during appellant's aggravated-robbery trial does not bar trial on the capital murder or first-degree murder charge.See Wooldridge, 237 S.W.3d at 718-19. We overrule appellant's issue and affirm the trial court's judgment.
Appellant moves this court to take judicial notice of the record in Joseph Smith v. State, No. 14-15-00502-CR, because it is a related proceeding involving the same parties pending in this court. The State argues that taking judicial notice of the record in Cause No. 14-15-00502-CR would be inappropriate. We need not determine whether we should take judicial notice of the record in Cause No. 14-15-00502-CR in this case because any consideration of the unadjudicated extraneous offense by the jury in Cause No. 14-15-00502-CR does not bar appellant's trial for murder in this case. --------
/s/ Kem Thompson Frost
Chief Justice Panel consists of Chief Justice Frost and Justices Christopher and McCally.
Do Not Publish — TEX. R. APP. P. 47.2(b).