Opinion
NO. 01-17-00196-CR
10-19-2017
EX PARTE JORGE ALBERTO PEREZ
On Appeal from the 434th District Court Fort Bend County, Texas
Trial Court Case No. 16-DCR-073216
OPINION
Appellant Jorge Alberto Perez appeals from the trial court's denial of his pretrial application for a writ of habeas corpus. In the trial court, Perez has been charged with misapplication of fiduciary property or property of a financial institution of the value of $1,500 or more but less than $20,000. In a prior proceeding involving the same property, the State sought to prosecute Perez on a different charge of theft of property of the value of $1,500 or more but less than $20,000. Perez's habeas-corpus application argued that the State's prosecution of him for misapplication of fiduciary property unconstitutionally places him in double jeopardy because it subjects him to a risk of multiple punishments.
The State was barred from prosecuting Perez on the prior theft charge. He therefore is not at risk of multiple punishments arising from the separate prosecutions, and the sole issue in this appeal has become moot. Accordingly, we dismiss the appeal.
Background
A grand jury indicted Jorge Alberto Perez for the offense of theft of property of a value over $1,500 but less than $20,000. The State proceeded to trial and a jury was empaneled. The trial court then recessed the trial to allow for a competency examination of Perez. The court recalled the jury, but only five of the original twelve jurors returned. As a result, the trial court declared a mistrial.
Ex parte Perez, 525 S.W.3d 325, 328-31 (Tex. App.—Houston [14th Dist.] 2017, no pet.).
The State then sought to retry Perez for theft. He filed an application for a pretrial writ of habeas corpus, claiming that his retrial for theft was barred by double jeopardy. The trial court denied the application and Perez appealed. The Fourteenth Court of Appeals reversed the trial court's order. It remanded the case with instructions to enter an order discharging the prosecution against Perez, barring any further prosecution against him for the same offense.
See id. at 332-33.
Id. at 324.
Before the denial of Perez's habeas application in the theft case, a grand jury returned a different indictment, which charged him with the distinct offense of misapplication of fiduciary property or property of a financial institution of the value of $1,500 or more but less than $20,000. Perez filed a pretrial application for a writ of habeas corpus. He argued that the prosecution for misapplication of fiduciary property was barred by double jeopardy because it arose out of the same conduct as the prosecution against him for theft, subjecting him to multiple punishments. The trial court denied the application. Perez appealed.
See TEX. APP. P. 31 (appeals in criminal habeas-corpus proceedings).
Analysis
Perez challenges the trial court's denial of his application for a pretrial writ of habeas corpus. In the trial court, and now on appeal, his argument has been that the State's prosecution of him for misapplication of fiduciary property violates the Double Jeopardy Clause of the U.S. Constitution because it arises out of the same conduct as his prior prosecution for theft. In the trial court his argument was that this prosecution violates a federal constitutional prohibition against multiple punishments for the same offense. Perez's application for a writ of habeas corpus was expressly based on the multiple-punishments theory of double jeopardy, and it did not offer a legal analysis or argument that a writ should issue because multiple prosecutions were barred under the circumstances.
CR 12 ("Multiple punishments cannot be imposed for the same conduct, under two distinct statutes, where the Legislature only intended for the conduct to be punished once."); CR 13 ("[T]he intent of the legislature with regard to theft and misapplication of fiduciary duty indicates a Defendant should not be punished under both provisions in the circumstances those charges were filed against the Defendant.").
The Double Jeopardy Clause, which has been applied to the states as "a fundamental ideal in our constitutional heritage," states that no person shall be "subject for the same offence to be twice put in jeopardy of life or limb." Courts have recognized three types of double-jeopardy claims: 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. "A multiple-punishments violation can arise either in the context of lesser-included offenses, when the same conduct is punished under a greater and a lesser-included offense, and when the same conduct is punished under two distinct statutes although the Legislature only provided for the conduct to be punished once." In his pretrial habeas-corpus application, Perez argued that latter has occurred in this case.
Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 2062 (1969).
See, e.g., Illinois v. Vitale, 447 U.S. 410, 415, 100 S. Ct. 2260, 2264 (1980); Garfias v. State, 424 S.W.3d 54, 58 (Tex. Crim. App. 2014).
Garfias, 424 S.W.3d at 58.
CR 13-15 (analysis of legislative intent to permit multiple punishments under the penal statutes at issue in this appeal, applying the factors identified in Ervin v. State, 991 S.W.2d 804, 814 (Tex. Crim. App. 1999)).
While this appeal was pending, the original theft case against Perez was remanded to the trial court with instructions to enter an order "barring prosecution" for the theft offense. Therefore Perez was not punished, and he will not be punished, for the offense of theft based on the underlying events.
See Perez, 525 S.W.3d at 342.
After the retrial of the theft charge was barred, this court notified Perez that his appeal apparently had become moot because he no longer could be subject to multiple punishments for the theft and misapplication of fiduciary property offenses. In response, Perez introduced a new argument that his appeal is not moot because the Double Jeopardy Clause also protects defendants against a second prosecution for the same offense after acquittal.
Cf. TEX. R. APP. P. 42.3(a) (procedure for notice to parties prior to involuntary dismissal of civil cases based on apparent want of jurisdiction).
See Garfias, 424 S.W.3d at 58.
"Pretrial habeas, followed by an interlocutory appeal, is an extraordinary remedy," which is "reserved 'for situations in which the protection of the applicant's substantive rights or the conservation of judicial resources would be better served by interlocutory review.'" Perez did not argue in his pretrial habeas-corpus application that the State's prosecution of him for misapplication of fiduciary property would constitute a second prosecution after acquittal.
Ex parte Perry, 483 S.W.3d 884, 895 (Tex. Crim. App. 2016) (citing Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010)).
Id. (quoting Ex parte Weise, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001)).
In reviewing an order denying habeas relief, an intermediate court of appeals only reviews issues that were properly raised in the habeas petition and addressed by the trial court. Requiring Perez to raise his multiple-prosecutions claim for the first time in the trial court serves legitimate state interests. The trial court and the prosecution should have an opportunity to remove the basis for the objection, and it is an inappropriate waste of scarce resources for this court to unnecessarily address issues raised for the first time in an interlocutory appeal, when the issue still can be raised and addressed for the first time by the trial court. Accordingly, because Perez did not present to the trial court his argument that the State's prosecution of him for misapplication of fiduciary property would be an impermissible second prosecution after acquittal, he may not raise the argument for the first time on appeal from a pretrial habeas-corpus application that was based on a different argument, and it is no basis for reversing the trial court's order at this stage of proceedings.
See Ex parte Bolivar, 386 S.W.3d 338, 345 (Tex. App.—Corpus Christi 2012, no pet.); Ex parte Tucker, 977 S.W.2d 713, 715 (Tex. App.—Fort Worth 1998 ("An order denying habeas relief on the merits is appealable only with regard to those matters properly raised by the . . . habeas . . . petition and addressed by the trial court."), pet. dism'd, 3 S.W.3d 576 (Tex. Crim. App. 1999)).
See Gonzalez v. State, 8 S.W.3d 640, 645 (Tex. Crim. App. 2000); see also Loredo v. State, 159 S.W.3d 920, 923 (Tex. Crim. App. 2004) ("Fairness to all parties requires a party to advance his complaints at a time when there is an opportunity to respond or cure them."); Maynard v. State, 685 S.W.2d 60, 65 (Tex. Crim. App. 1985) (noting that "the purpose of an objection [made at trial] is twofold: first, a specific objection is required to inform the trial judge of the basis of the objection and afford him or her an opportunity to rule on it; and second, a specific objection is required to afford opposing counsel an opportunity to remove the objection or supply other testimony").
See, e.g., Young v. State, 826 S.W.2d 141, 149 (Tex. Crim. App. 1991) ("if the issue had been timely raised in the trial court, it could have been resolved there, and the parties and the public would have been spared the expense of an appeal").
See Bolivar, 386 S.W.3d at 345. Our dissenting colleague suggests that Garfias v. State stands for the proposition that Perez may assert his new double-jeopardy argument for the first time on appeal. Garfias is easily distinguishable on procedural grounds. Perez is appealing from the denial of a pretrial habeas-corpus application, and he still has an opportunity to assert his new argument for the first time in the trial court, which, of course, is the normal and preferred genesis for an issue that might ultimately be reviewed by a court of appeals. See, e.g., TEX. R. APP. P. 33.1 (general rule for preservation of appellate complaints requires that as a prerequisite to presenting a complaint for appellate review, the record must show that it was made to the trial court by a timely request and that the trial court ruled or refused to rule on the request). In contrast, Garfias was an appeal from a conviction after a jury trial. See Garfias, 424 S.W.3d at 56. So was the key authority relied upon by Garfias (see id. at 58 & n.16), the decision in Gonzalez v. State, 8 S.W.3d 640 (Tex. Crim. App. 2000). The Court acknowledged that—unlike the circumstances presented in Gonzalez and Garfias—"a pretrial writ of habeas corpus is usually the procedural vehicle by which a defendant should raise a 'successive prosecutions for the same offense' double-jeopardy claim." Gonzalez, 8 S.W.3d at 643 n.9. The Gonzalez opinion further expressly acknowledged that its holding was consistent with the rules of appellate procedure, including the general requirement that issues be raised in the trial court before being raised on appeal. Id. at 643 n.10 (citing TEX. R. APP. P. 33.1). The Court in Gonzalez also noted that it "reads too much" into the relevant authorities to conclude that all multiple-punishments claims may be raised for the first time on appeal. Id. at 644. As discussed above, there is no reason in this case to make an exception to the ordinary procedure requiring issues to be presented to a trial court before being pressed in an appeal, which is supported by legitimate efficiency justifications.
Perez is no longer subject to punishment in the State's previous prosecution of him for theft. As a result, he will not be subject to multiple punishments for the same offense if the State prosecutes him for misapplication of fiduciary property, and his argument that he will be subject to multiple punishments for the same offense has become moot.
See Henson v. State, 173 S.W.3d 92, 104-05 (Tex. App.—Tyler 2005, pet. ref'd) (reversing conviction for criminal solicitation of a minor and holding that double-jeopardy claim based on multiple punishments was moot because he was no longer being punished for both indecency with a child and criminal solicitation of a minor); Burke v. State, 80 S.W.3d 82, 85-86 (Tex. App.—Fort Worth 2002, no pet.).
See Henson, 173 S.W.3d at 104-05; Burke, 80 S.W.3d at 85-86.
Conclusion
We dismiss the appeal.
Michael Massengale
Justice Panel consists of Chief Justice Radack and Justices Keyes and Massengale. Publish. TEX. R. APP. P. 47.4. Justice Keyes, dissenting.