Urbano, Gilbert v. The State of Texas--Appeal from 278th District Court of Walker County

Affirmed and Memorandum Opinion filed January 11, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-01277-CR

____________

GILBERT URBANO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 278th District Court

Walker County, Texas

Trial Court Cause No. 18,655C

M E M O R A N D U M O P I N I O N

In 1989, a Walker County jury found that appellant, while serving time in prison for murder, had committed another murder. The trial court charged the jurors as to capital murder and murder. The jury convicted appellant of capital murder for remuneration. In 1992, the Court of Criminal Appeals reversed appellant=s capital murder conviction, finding insufficient evidence of remuneration. Urbano v. State, 837 S.W.2d 114 (Tex. Crim. App. 1992).

In 1995, appellant was re-indicted for murder based on the same occurrence. In 2003, he was convicted and the jury assessed punishment at twenty-five years in prison to run concurrently with his previous sentence. In three issues, appellant contends the second trial violated (1) his right to be free from double jeopardy under the state and federal constitutions, and (2) his right to due process under the federal constitution.

Double Jeopardy

In his first and second issues, appellant argues his second trial was barred by double jeopardy. The prohibition against double jeopardy protects against successive prosecutions or multiple punishments for the same offense. See U.S. Const. amend. V (ANor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.@); Tex. Const. art. I, ' 14 (ANo 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.@). The Texas and United States Constitutions provide substantially identical double jeopardy protections. Ex parte Mitchell, 977 S.W.2d 575, 580 (Tex. Crim. App. 1997), cert. denied, 525 U.S. 873 (1998).

In Ex parte Granger, 850 S.W.2d 513, 515 (Tex. Crim. App. 1993), the Court of Criminal Appeals determined that a defendant whose conviction for capital murder was reversed could be retried for murder. The court reversed the capital murder conviction because the evidence was insufficient to prove the element of remuneration. Id. Because the original jury charge included the lesser offense of murder, the court concluded double jeopardy did not bar a later prosecution for murder. Id. The court reasoned that because appellant had never been acquitted of murder, the rationale supporting the rule barring retrial following acquittal did not apply to Granger=s reprosecution for murder. Id. at 519.

Here, we have identical circumstancesCthe Court of Criminal Appeals reversed appellant=s conviction for capital murder because there was insufficient evidence of the element of remuneration, but the original jury charge included the lesser offense of murderCthus, Granger clearly controls and appellant has shown no violation of the double jeopardy clause. Further, this court, in identical circumstances, held appellant=s co-defendant was not subjected to double jeopardy. Beltran v. State, 99 S.W.3d 807, 810 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d).

Appellant attempts to distinguish his case from Granger by first asserting Granger is different because the court stated in its first opinion that Aappellant may . . . be retried for the lesser included offense of murder.@ Granger v. State, 605 S.W.2d 602, 605 (Tex. Crim. App. 1980). In the second Granger opinion, however, the court noted that the comment was Apurely advisory@ and Ainappropriate.@ Granger, 850 S.W.2d at 514. Appellant further asserts Granger is distinguishable because the reviewing court did not address all of Granger=s issues. While that is true, it bears no relevance to the double jeopardy analysis. Because an acquittal based on insufficient evidence of a capital element does not bar prosecution for a murder charge that was never abandoned, we overrule appellant=s first two issues.

Due Process

In his third issue, appellant contends the State violated appellant=s due process rights under the Fifth Amendment to the United States Constitution when it indicted and tried appellant for murder following a judicial alteration of law regarding double jeopardy. Appellant contends the Supreme Court=s holding in Bouie v. City of Columbia, 378 U.S. 347, 354, 84 S. Ct. 1697, 1702, 12 L. Ed. 2d 894 (1964), supports his position that the ex post facto doctrine prohibited the retroactive application of Granger because the holding in Granger was unforeseeable.

Article I, section 10 of the United States Constitution prohibits the legislature from passing an ex post facto law. An ex post facto law is a violation of the state or federal constitution if (1) the statute punishes as a crime an act previously committed, which was innocent when done; (2) the statute changes punishment and inflicts greater punishment than was allowed by law at the time the act was committed; or (3) the statute deprives one charged with a crime of any defenses that were available when the act was committed. Collins v. Youngblood, 497 U.S. 37, 42, 110 S. Ct. 2715, 2719, 111 L. Ed. 2d 30 (1990); Ex parte Lopez, 928 S.W.2d 528, 534 (Tex. Crim. App. 1996).

Although the Ex Post Facto Clause normally serves to limit legislative power, an unforeseeable judicial enlargement of a criminal statute, applied retroactively, can function like an ex post facto law and violate the Due Process Clause. Bouie v. City of Columbia, 378 U.S. at 353, 84 S. Ct. at 1702. Appellant argues the ex post facto doctrine prohibited the State from re-indicting him based on new case law because he was deprived of fair notice that he would be subject to another murder trial. The principle that persons have, at the time they engage in conduct, a right to fair notice of what conduct will give rise to which criminal penalties is fundamental to our concept of constitutional liberty, and is, thus, protected against judicial action by the due process clause. Marks v. United States, 430 U.S. 188, 191B92, 97 S. Ct. 990, 992, 51 L. Ed. 2d 260 (1977). Accordingly, a state judicial decision may not operate retroactively if it has the effect of depriving persons of fair notice of what conduct will give rise to which criminal penalties. Proctor v. State, 967 S.W.2d 840, 845 (Tex. Crim. App. 1998).

The trial of appellant for murder did not deprive him of fair notice that murder would give rise to a certain criminal penalty. Murder was not an innocent act before the Granger decision; the court did not change the punishment range for murder; and the Granger decision did not deprive appellant of any defenses that were available to him at the time the murder was committed. The fair notice contemplated by the Ex Post Facto Clause is notice of criminal penalties at the time the act is committed, not notice of whether a person can be tried for an act he knows is a crime at the time he commits the act. See Marks, 430 U.S. at 191B92; 97 S. Ct. at 992. Because the Granger decision did not operate to deprive appellant of due process, his third issue is overruled.

The judgment of the trial court is affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed January 11, 2005.

Panel consists of Justices Anderson, Hudson, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).