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Ex parte Navarro

Court of Appeals of Texas, Fourteenth District

April 6, 2017

EX PARTE JOEL NAVARRO

         On Appeal from the County Criminal Court at Law No. 15 Harris County, Texas Trial Court Cause No. 2098277

          Panel consists of Justices Christopher, Jamison, and Donovan.

          OPINION

          Tracy Christopher Justice.

         This is an appeal from the denial of an application for writ of habeas corpus. The question is this: When an appellate court renders a judgment of acquittal because there is no evidence of an aggravating element, may the defendant be retried for a lesser-included offense that does not require proof of the aggravating element? Our answer is "yes." We reject appellant's argument that a retrial would run afoul of the prohibition against double jeopardy, and we affirm the trial court's order denying his application for writ of habeas corpus.

         Before we set forth the facts of this case, we begin with a brief overview of the two offenses involved in appellant's jeopardy challenge. Both offenses are for driving while intoxicated, but a critical difference lies in the grade of the offenses.

         The lesser offense is perhaps the more familiar of the two: the Class B misdemeanor. To convict a person of the Class B misdemeanor, the State must prove that the person was intoxicated while operating a motor vehicle in a public place. See Tex. Penal Code § 49.04(a)-(b). Intoxication may be established in either of two ways: first, by proving that the person lost the normal use of his faculties by reason of his consumption of alcohol; or second, by proving that the person had an alcohol concentration of 0.08 or more in his blood at the time of the offense. Id. § 49.01(2).

         The greater offense is the Class A misdemeanor, and it requires proof of an aggravating element. To convict a person of the Class A misdemeanor, the State must show, in addition to the proof required of the Class B misdemeanor, that the person had an alcohol concentration level of 0.15 or more at the time of his blood draw. Id. § 49.04(d).

         Appellant was charged by information with the Class A misdemeanor of driving while intoxicated. He pleaded not guilty and his case proceeded to a trial by jury. But when the trial court submitted its guilt-phase charge to the jury, the charge contained the elements of just the Class B misdemeanor. In other words, the trial court did not task the jury with deciding whether the State had proved the aggravating element that appellant had an alcohol concentration level of 0.15 or more at the time of his blood draw.

         The jury returned a verdict of guilty on the Class B misdemeanor, and appellant elected to have the trial court decide his punishment. The trial court then treated the aggravating element as an enhancement allegation. Finding that this perceived enhancement allegation was true, the trial court sentenced appellant in accordance with the penalty range for the Class A misdemeanor. The trial court also entered a judgment reflecting that appellant had been convicted of the Class A misdemeanor.

         Appellant brought an appeal to this court, and we found several errors in the trial court's judgment. We said that the aggravating element was an essential element of the Class A misdemeanor, which should have been submitted to the jury during the guilt phase of trial, not an enhancement allegation to be decided by the trial court during punishment. We also said that there was legally insufficient evidence of the aggravating element. Based on this insufficiency, we rendered a judgment acquitting appellant of the Class A misdemeanor.

         Our analysis did not end there, however. Even though there was no evidence of the aggravating element, we determined that there was sufficient evidence of every other element of the offense, and under binding case law, that meant that we could reform the judgment to reflect a conviction for the Class B misdemeanor and remand for a new punishment hearing. We explained that, had no other issues been presented in the case, that would have been our remedy. But appellant complained of charge error during the guilt phase of his trial, based on the trial court's refusal to give a definition that prescribed what sort of blood evidence the jury could consider when deciding whether he was intoxicated. We agreed that appellant was entitled to the requested definition and that the trial court had reversibly erred by refusing it. So rather than reform the trial court's judgment, we remanded the case for appellant to be retried on just the Class B misdemeanor. See Navarro v. State, 469 S.W.3d 687, 704 (Tex. App.-Houston [14th Dist.] 2015, pet. ref'd).

         Appellant did not file a motion for rehearing in this court, requesting that we revise our appellate remedy. Nor did he file a petition for discretionary review with the Court of Criminal Appeals, arguing that our remedy was incorrect. The State, on the other hand, did file a petition for discretionary review, complaining of our charge-error analysis, but the Court of Criminal Appeals refused the State's petition.

         Back before the trial court, appellant filed an application for writ of habeas corpus, arguing that a retrial would violate several constitutional and statutory prohibitions against placing a person in double jeopardy. The trial court denied relief, and now appellant brings this latest appeal, complaining of the same issue.

         We normally review the trial court's ruling on an application for writ of habeas corpus for an abuse of discretion. See Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006). But when, as here, the resolution of the ultimate issue turns on an application of purely legal ...


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