Opinion
No. 06-04-00025-CR
Submitted: April 11, 2005.
Decided: July 7, 2005. DO NOT PUBLISH.
On Appeal from the 5th Judicial District Court Cass County, Texas, Trial Court No. 2003-F-00119.
Before MORRISS, C.J., ROSS and CARTER, JJ.
OPINION
Andrew Lee Gray was convicted by a jury in a single trial of attempted capital murder, aggravated assault on a public servant, and taking a weapon from a police officer. The named victim in each case was Sherry Gillespie, a police officer with the City of Linden. Gray withdrew his previous election to have the jury set his punishment and, before voir dire examination of the jury panel, filed a written election for the trial court to assess punishment. The trial court set Gray's punishment at two life terms for the charges of attempted capital murder and aggravated assault on a public servant, and assessed Gray's punishment at ten years' imprisonment for the charge of taking a weapon from a peace officer. Gray timely appealed to this Court. During the initial round of appellate briefing, Gray's appointed appellate counsel filed an Anders brief in which counsel professionally discussed the record, described the issues reviewed, and concluded there were no arguable grounds for appeal and, as required by Anders, filed a motion to withdraw. During our independent review of the case, we noticed two arguable issues that required further briefing. We therefore abated the appeal, remanded the case to the trial court, and allowed Gray's appointed counsel to withdraw. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). The trial court then appointed new counsel for Gray, see id., and counsel has since submitted a brief to this Court raising four issues in two points of error: (1) whether "[t]he evidence is legally and factually insufficient to support the jury's finding that appellant used or exhibited a deadly weapon during the commission of these offenses," and (2) whether "[t]he dual convictions for attempted capital murder and aggravated assault violated the prohibition against double jeopardy in the U.S. and Texas Constitutions." For the reasons stated below, we overrule the first issue and sustain Gray's second point of error. Accordingly, we vacate Gray's conviction for aggravated assault, reform the judgment to delete that conviction, and otherwise affirm the trial court's judgment as reformed.
I. Legal and Factual Sufficiency of the Evidence To Support a Deadly Weapon Finding
Texas law requires the trial court to enter an affirmative finding in the trial court's judgment "when it is shown that a deadly weapon . . . was used or exhibited during the commission of a felony offense. . . ." Tex. Code Crim. Proc. Ann. art. 42.01, § 1(21) (Vernon Supp. 2004-2005); see also Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (Vernon Supp. 2004-2005) (deadly weapon finding criteria). Gray contends, in his first point of error, the evidence is both legally insufficient and factually insufficient to support the jury's finding that he used or exhibited a deadly weapon during the commission of the alleged offenses. Even though Gray's point is multifarious and subject to being overruled on that basis alone, we disagree that the evidence is insufficient to support the deadly weapon finding on each charge. The statement of facts section of Gray's own appellate brief contains this assertion: "[a]s Gillespie attempted to handcuff Gray, he resisted and reached down and obtained her weapon." (Emphasis added.) In addition to this unintended concession, there is evidence supporting a deadly weapon finding. Gillespie testified that, during the struggle with Gray, she believed he had possession of the gun, even though she was still touching the gun. She also testified Gray was attempting to release the gun's safety mechanism while he was trying to fire the weapon at her. Gillespie was, however, able to prevent Gray from shooting her. She also told the jury that, because Gray had the gun so close to her head, Gillespie was thinking, "[D]on't let him shoot me in the head and that way I may survive." Other witnesses to the crimes testified Gray had control over the gun when he assaulted Gillespie by pushing her to the ground. Licia Rector testified that she saw Gray with the gun, that she observed Gray and Gillespie wrestling for the gun, and that Gillespie had blood coming from her nose and mouth as a result of Gray's assault. Patrick Coughlin told the jury that Gray had "almost complete control" over the gun and was able to point the gun just before Coughlin successfully pulled it away from the two. Therefore, even if we disregarded Gray's concession in his brief that he obtained Gillespie's weapon, we cannot say the evidence is insufficient to support a deadly weapon finding when that evidence is examined using the usual standards of review for factual and legal sufficiency. See Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004) (factual sufficiency); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000) (legal sufficiency). We overrule Gray's first point of error.II. Double Jeopardy
In his second point of error, Gray contends his convictions for both attempted capital murder and aggravated assault violate the Double Jeopardy Clauses of both the federal and state constitutions. Gray raises both issues under a single point of error. Attorneys, when briefing constitutional questions, should carefully separate federal and state issues into separate grounds and provide substantive analysis or argument on each separate ground. If sufficient distinction between state and federal constitutional grounds is not provided by counsel, this Court may overrule the ground as multifarious. Heitman v. State, 815 S.W.2d 681, 690 n. 23 (Tex.Crim.App. 1991). Given the fundamental, federal constitutional issues at stake and our reasoning set forth below, we decline to overrule Gray's second point of error as multifarious. However, because Gray provides no separate argument or authority for his state constitutional claim, we will address this issue only as it relates to his federal claim. See Luquis v. State, 72 S.W.3d 355, 364 (Tex.Crim.App. 2002); Lacour v. State, 21 S.W.3d 794, 795 (Tex.App.-Beaumont 2000, no pet.). A. Though Not Raised Below, Double Jeopardy May Be Raised for the First Time on Appeal The State contends Gray may not raise a double jeopardy argument for the first time on direct appeal and cites Gonzalez v. State, 8 S.W.3d 640 (Tex.Crim.App. 2000), for support of its position. In Gonzalez, the Texas Court of Criminal Appeals wrote "a double jeopardy claim may be raised for the first time on appeal or even for the first time on collateral attack when the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and when enforcement of usual rules of procedural default serves no legitimate state interests." Id. at 643 (emphasis added) (footnotes omitted). The State's claim is not supported by caselaw. B. The Federal Double Jeopardy Clause Embodies Several Concepts The Double Jeopardy Clause of the Fifth Amendment embodies several concepts: it protects a person from being twice prosecuted for the same offense, it precludes the state from prosecuting someone for the same offense or a lesser included offense after a jury has acquitted the accused, and it bars punishing a person more than once for the same offense. Nickerson v. State, 69 S.W.3d 661, 670 (Tex.App.-Waco 2002, pet. ref'd) (citing Monge v. California, 524 U.S. 721, 727-28 (1998)); see also U.S. Const. amend. V; Hutchins v. State, 992 S.W.2d 629, 631 (Tex.App.-Austin 1999, pet. ref'd, untimely filed). Gray now invokes that third protection. C. Double Jeopardy Bars Gray's Conviction for Aggravated Assault "To determine whether offenses are the same for jeopardy purposes, we must construe the statutory provisions in question to discern `the allowable unit of prosecution,' which is `a distinguishable discrete act that is a separate violation of the statute.'" Nickerson, 69 S.W.3d at 671 (quoting Ex parte Hawkins, 6 S.W.3d 554, 556 (Tex.Crim.App. 1999)). The State charged Gray with both aggravated assault and attempted capital murder in the same indictment. Regarding attempted capital murder, the indictment alleged,ANDREW LEE GRAY, did then and there, with the specific intent to commit the offense of Capital Murder of Sherry Gillespie, a peace officer, who was acting in the lawful discharge of an official duty, to-wit: attempting the lawful arrest of the said ANDREW LEE GRAY and the said ANDREW LEE GRAY knew Sherry Gillespie was a peace officer and did do an act, to-wit: struggle and disarm said officer and point the said firearm at Sherry Gillespie, which act amounted to more than mere preparation that intended but failed to effect the commission of the offense intended.The State's theory of the attempted capital murder was that Gray struggled with Gillespie and pointed her service firearm at Gillespie, but failed in his attempt to discharge the weapon. To prove that offense, the State needed to show Gray took Gillespie's gun and attempted to use that gun to kill Gillespie by trying to point and fire the gun at her. The indictment next alleged the offense of aggravated assault:
ANDREW LEE GRAY, did then and there intentionally or knowingly cause bodily injury to Sherry Gillespie by struggling with and pushing the said Sherry Gillespie down and the said ANDREW LEE GRAY did then and there know that the said Sherry Gillespie was then and there a public servant, to-wit: a peace officer with the Linden Police Department, and that the said Sherry Gillespie was then and there lawfully discharging an official duty, to-wit: attempting to lawfully detain or arrest the said ANDREW LEE GRAY.And it is further presented in and to said Court that a deadly weapon, to-wit: a firearm, was exhibited or used during the commission of the aforesaid offense. The State's theory of the charge for aggravated assault was that Gray used or exhibited a deadly weapon while "struggling with and pushing the said Sherry Gillespie down," and that Gillespie was a public servant who was lawfully discharging her duties at the time of that assault. See Tex. Pen. Code Ann. § 22.02(a)(2). To prevail on the aggravated assault charge, the State needed to prove Gray used or exhibited a deadly weapon during the time he was assaulting Gillespie. The overwhelming testimony from all of the witnesses was that Gray pointed the gun at Gillespie during the struggle over the gun. Thus, the factual evidence in the record before us does not affirmatively demonstrate any single moment in time — or a discrete act or behavior — where Gray's conduct of pointing the gun at Gillespie (the essence of the attempted capital murder charge) was distinguishable from his conduct of assaulting and struggling with Gillespie over the gun (the essence of the aggravated assault charge). In fact, Rector and Coughlin both described the struggle as lasting for a few seconds. In light of such an absence of evidence regarding a distinguishable "discrete act," the Double Jeopardy Clause precludes the State from securing convictions for both attempted capital murder and aggravated assault. Our conclusion might be different if the evidence had shown that Gray had maintained independent control of the weapon after the struggle concluded and had then pointed it at Gillespie. But that hypothetical situation is not consistent with the evidence in this case. Accordingly, the federal Double Jeopardy Clause prohibits the State from securing two life sentences for the same criminal conduct by Gray. D. The Proper Remedy Is To Vacate the Aggravated Assault Conviction "The proper remedy for the imposition of multiple punishments for the same offense is to affirm the judgment in the cause involving the most serious offense and to set aside the conviction for the lesser offense." Johnson v. State, 6 S.W.3d 323, 324 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd) (referencing Ex parte Pena, 820 S.W.2d 806, 808-10 (Tex.Crim.App. 1991); Johnson v. State, 903 S.W.2d 496, 499 (Tex.App.-Fort Worth 1995, no pet.)). The offense of attempted capital murder is a first degree felony. See Tex. Pen. Code Ann. § 15.01(d) (Vernon 2003) (penalty for criminal attempt is one category lower than offense attempted); Tex. Pen. Code Ann. § 19.03(a)(1) (murder of police officer acting in line of duty is capital crime); Tex. Pen. Code Ann. § 12.31-.32 (Vernon 2003) (capital and first degree felony punishments); Wilson v. State, 810 S.W.2d 807, 812 (Tex.App.-Houston [1st Dist.] 1991, no pet.). The offense of aggravated assault on a public servant is also a first degree felony. See Tex. Pen. Code Ann. § 22.02(b)(2) (Vernon Supp. 2004-2005). Thus, we cannot distinguish between the two merely by examining the applicable penological characterization. However, we feel safe in assuming that public policy would consider the attempted taking of a peace officer's life to be more egregious than causing that same officer to suffer bruises and abrasions to her arms and knee. Accordingly, we vacate Gray's conviction for aggravated assault and reform the trial court's judgment to reflect only convictions for attempted capital murder and taking a weapon from a peace officer. We otherwise affirm the trial court's judgment.
See Tex. Pen. Code Ann. § 19.03(a)(1) (Vernon Supp. 2004-2005).
See Tex. Pen. Code Ann. § 22.02(a) (Vernon Supp. 2004-2005).
See Tex. Pen. Code Ann. § 38.14 (Vernon 2003).
Anders v. California, 386 U.S. 738 (1967).
"The practice of combining two or more separate issues into a single point of error is strongly discouraged, as it often results in the combined point of error being overruled as multifarious." Harris v. State, 133 S.W.3d 760, 764 n. 3 (Tex.App.-Texarkana 2004, pet. ref'd) (referencing Foster v. State, 101 S.W.3d 490, 499 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (three separate issues combined into single point of error ruled inadequately briefed and multifarious); Parra v. State, 935 S.W.2d 862, 875 (Tex.App.-Texarkana 1996, pet. ref'd) (point of error brought under both state and federal bases overruled as multifarious)).
The Fifth Amendment's Double Jeopardy Clause is enforceable against the states through the Fourteenth Amendment. Ashe v. Swenson, 397 U.S. 436, 437 (1970) (citing Benton v. Maryland, 395 U.S. 784 (1969)).
The State did not alternatively allege Gray committed the offense of aggravated assault by causing serious bodily injury. See Tex. Pen. Code Ann. § 22.02(a)(1).