Opinion
NUMBER 13-15-00534-CR
03-24-2016
THE STATE OF TEXAS, Appellant, v. CHRISTOPHER RAY MALDONADO, Appellee.
On appeal from the 24th District Court of Victoria County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Perkes, and Longoria
Memorandum Opinion by Justice Longoria
The State appeals an order granting appellee Christopher Maldonado's ("Maldonado") special plea of former jeopardy and dismissing the case with prejudice. See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(1), (4) (West, Westlaw through 2015 R.S.) (authorizing the State to take an interlocutory appeal of an order which dismisses an indictment or sustains a claim of former jeopardy). We reverse and remand.
I. BACKGROUND
On August 20, 2015, Maldonado was indicted in cause no. 15-08-28904-A for violating a bond condition relating to the safety of the complainant in a family-violence case two times in a period of twelve months or less. See TEX. PENAL CODE ANN. § 25.072 (West, Westlaw through 2015 R.S.). Specifically, the indictment alleged that Maldonado violated the conditions of his bond "on or about the 7th day of July, A.D., 2015" by attempting to communicate with the complainant two separate times on "June 7, 2015."
As relevant here, section 25.07 of the Texas Penal Code makes it an offense for the defendant in a family violence case to violate a condition of his bond related to the safety of the complainant. TEX. PENAL CODE ANN. § 25.07 (West, Westlaw through 2015 R.S.). Section 25.072 makes it a distinct offense to engage in conduct that violates section 25.07 two or more times in a period of twelve months or less. Id. § 25.072 (West, Westlaw through 2015 R.S.).
The case was called for trial. After the judge administered the oath to the jury and received Maldonado's plea of not guilty, the State moved to amend the manner-and-means portion of the indictment. The State asked to modify the indictment so that it would allege Maldonado attempted to contact the complainant two times on "July 7, 2015" instead of "June 7, 2015." The State explained that the date of June 7, 2015 in the indictment was a "transcription error." The trial court denied the State's motion to amend. The State next filed a motion to dismiss the indictment, which the trial court granted.
On October 15, 2015, Maldonado was indicted in cause no. 15-10-28976-A for violating the same penal code section that was charged in the previous indictment. The language used in the second indictment was identical to the first except that the date of the alleged violations was "July 7, 2015" instead of June 7, and included a third violation: that Maldonado allegedly violated his bond by going to the complainant's residence on the same day.
Maldonado filed an unverified special plea of double jeopardy alleging that he could not be tried under the second indictment because his trial on the previous indictment was dismissed after jeopardy attached. See TEX. CODE CRIM. PROC. ANN. arts. 27.05-.07 (West, Westlaw through 2015 R.S.) (providing for a statutory special plea of former jeopardy). The State moved for a continuance, which the trial court denied. Immediately after denying the continuance, the trial court granted Maldonado's special plea without hearing argument from either counsel. This appeal followed.
II. DISCUSSION
The State argues in two issues that the court was wrong to (1) deny the continuance and (2) grant the plea on double-jeopardy grounds and dismiss the indictment. We agree that the trial court's order granting the special plea and dismissing the indictment was erroneous, but for a different reason. As a threshold issue, we must determine whether the trial court had authority to dismiss the indictment pursuant to a special plea of former jeopardy. See Kelson v. State, 167 S.W.3d 587, 593 (Tex. App.—Beaumont 2005, no pet.) (addressing the threshold issue of whether the defendant's claim of former jeopardy was cognizable on a special plea).
There are three distinct types of double jeopardy claims: (1) a second prosecution for the same offense following an acquittal; (2) a second prosecution for the same offense following a conviction; and (3) multiple punishments for the same offense. Garfias v. State, 424 S.W.3d 54, 58 (Tex. Crim. App. 2014); Bigon v. State, 252 S.W.3d 360, 369 (Tex. Crim. App. 2008). A defendant may raise a double-jeopardy claim through a pretrial writ of habeas corpus, see Gonzalez v. State, 8 S.W.3d 640, 643 n. 9 (Tex. Crim. App. 2000), or a statutory plea of former jeopardy.See TEX. CODE CRIM. PROC. ANN. arts. 27.05-.07. The Texas Court of Criminal Appeals has explained that a defendant bringing a "multiple prosecutions claim" such as the one Maldonado asserted here should usually bring a petition for a pretrial writ of habeas corpus. Gonzalez, 8 S.W.3d at 643 n. 9. A pretrial writ is the preferred method of bringing a multiple prosecutions claim because the defendant may immediately appeal if the trial court denies the petition. See id.; Ex parte McCullough, 966 S.W.2d 529, 531 (Tex. Crim. App. 1998). By contrast, a special plea of former jeopardy must be submitted to the jury along with a plea of not guilty. Bailey v. State, 87 S.W.3d 122, 123 n. 2 (Tex. Crim. App. 2002) (citing Apolinar v. State, 820 S.W.2d 792, 793 (Tex. Crim. App. 1991) (en banc)); see TEX. CODE CRIM. PROC. ANN. art. 27.07 (providing that all fact issues "presented by a special plea shall be tried by the trier of the facts on the trial of the merits").
A double jeopardy claim may also be raised for the first time on direct appeal from a conviction when (1) the undisputed facts show a double-jeopardy violation clearly apparent on the face of the record and (2) enforcing the usual rules of procedural default serve no legitimate state interest. See Garfias v. State, 424 S.W.3d 54, 58 (Tex. Crim. App. 2014).
Put another way, the statutory "procedure for a special plea requires a defendant to be twice put to trial before the merits of his former jeopardy claim may be reached." Bailey, 87 S.W.3d at 123 n. 2. Based on the statutory framework, this Court in State v. Lara reversed a ruling that dismissed an indictment because a special plea of former jeopardy, standing alone, did not authorize the trial court to dismiss a case. 924 S.W.2d 198, 202 (Tex. App.—Corpus Christi 1996, no pet.) (en banc). The State did not raise the issue in Laura, but the Court addressed it as unassigned error. Id. at 201 & n.3; see Bigon, 252 S.W.3d at 369 (holding that Texas courts "have the jurisdiction and authority to review unassigned error"). The State has not raised the issue here but, guided by our decision in Lara, we conclude that it is appropriate for us to address the issue because it implicates the trial court's authority to act. See Lara, 924 S.W.2d at 202 (holding that the trial court "was without authority" to dismiss the case at the pretrial stage on a special plea); see also State v. Mungia, 119 S.W.3d 814, 816 (Tex. Crim. App. 2003) (reiterating that a trial court has no authority to dismiss a case without the State's consent which does not arise from "constitution, statute or common law"). We hold that the trial court in this case erred by dismissing the indictment at this stage of the case based solely on a special plea of double jeopardy. See Bailey, 87 S.W.3d at 123 n. 2; Lara, 924 S.W.2d at 202-03; see also State v. Valdez, No. 13-05-00018-CR, 2007 WL 1218043, at *1 (Tex. App.—Corpus Christi Apr. 26, 2007, no pet.) (mem. op., not designated for publication) (applying Lara to a procedurally similar case).
We do not address the State's issues because it is unnecessary in light of our holding. See TEX. R. APP. P. 47.1. Further, we express no opinion on the merits of Maldonado's double jeopardy claim. --------
III. CONCLUSION
We reverse the order dismissing the indictment and remand for further proceedings consistent with this opinion. See Lara, 924 S.W.2d at 203.
Nora L. Longoria
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 24th day of March, 2016.