State v. Almendarez

301 S.W.3d 886

The STATE of Texas, Appellant, v. Eduardo ALMENDAREZ, Appellee.

No. 13-09-282-CR.

Court of Appeals of Texas, Corpus Christi-Edinburg.

December 10, 2009.

Carlos Valdez, Dist. Atty., Matt Dixon, Asst. Dist. Atty., Corpus Christi, for The State of Texas.

David Diaz, Corpus Christi, for appellee.

Before Justices YAÑEZ, BENAVIDES, and VELA.

OPINION

Opinion by Justice VELA.

Appellee, Eduardo Almendarez, was charged by information with two counts of animal cruelty for the neglect of two horses. See TEX. PENAL CODE ANN. § 42.09(a)(2) (Vernon Supp. 2009). Almendarez filed a pre-trial motion to quash the information, contending that double jeopardy barred his prosecution. He urged that a justice court had, in a prior hearing, terminated his ownership of the horses and ordered him to pay $211.00 in restitution to Nueces County Animal Control for the expense incurred in seizing both horses. The trial court granted the motion to quash, and the State appealed¹ to this Court. In two issues, the State contends the doctrines of double jeopardy and collateral estoppel do not bar prosecution of Almendarez for cruelty to animals.² We reverse and remand.

I. PROCEDURAL BACKGROUND

On May 27, 2008, Ramon Herrera, III, Animal Control Manager for Nueces County Animal Control, presented an application to Nueces County Justice of the Peace Court, Precinct 1, Place 1, for a warrant³ to seize two horses, a black quarter horse mare and a brown filly, owned by Eduardo Almendarez, because they were "being cruelly treated and that said [horses have] not been reasonably provided necessary food, care, or shelter...." The justice court granted the application that same date and set a hearing on the matter for June 2, 2008.⁴ After the hearing, the justice court determined⁵ that the brown filly had been cruelly treated and divested⁶ Almendarez of all ownership interest in and right to the brown filly. The court ordered Almendarez to pay $211.00 in restitution⁷ to Nueces County Animal Control to cover the expenses of the seizure and care of the horses.

On October 30, 2008, the Nueces County District Attorney's Office filed an information alleging in Count 1 that Almendarez "did then and there intentionally and knowingly fail unreasonably to provide necessary FOOD for a HORSE in the defendant's custody, by NOT PROVIDING FOOD OR WATER." (emphasis in original). In Count 2, the information alleged that he "did then and there intentionally and knowingly fail unreasonably to provide necessary FOOD for a FOAL in the defendant's custody, by NOT PROVIDING FOOD OR WATER." (emphasis in original). Defense counsel filed a motion to quash the information, contending that the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution barred prosecution of this case. After a hearing, the trial court granted the motion to quash.

II. STANDARD OF REVIEW

In reviewing a trial court's ruling on a motion to quash an information, we apply an abuse-of-discretion standard. Thompson v. State, 44 S.W.3d 171, 174 (Tex.App.-Houston [14th Dist.] 2001, no pet.). A trial court abuses its discretion if it acts without reference to any guiding rules or principles, or acts arbitrarily or unreasonably. Id. (citing Lyles v. State, 850 S.W.2d 497, 502 (Tex.Crim.App.1993)).

III. DISCUSSION

In issue one, the State contends double jeopardy does not bar the criminal prosecution because the penalty ordered by the justice court did not constitute "criminal punishment" for double-jeopardy purposes. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides, in relevant part, "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb." U.S. CONST. amend. V, cl. 2. The Double Jeopardy Clause of the Texas Constitution provides, "[N]o 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."⁸ TEX. CONST. art. 1, § 14. "The Fifth Amendment double jeopardy clause protects against multiple prosecutions for the `same offense' following acquittal or conviction. It also protects against multiple punishments for the `same offense.'" Villanueva v. State, 227 S.W.3d 744, 747 (Tex. Crim.App.2007). "[T]he Double Jeopardy Clause `prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense.'" Witte v. United States, 515 U.S. 389, 396, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995) (quoting Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 82 L.Ed. 917 (1938)) (emphasis in original).

A. Whether Jeopardy Attached At The Justice Court Hearing

We must first determine whether jeopardy previously attached at the justice court hearing before examining whether Almendarez's current prosecution for animal cruelty is barred by a second jeopardy. Ex parte Ward, 964 S.W.2d 617, 625 (Tex.Crim.App.1998); Ex parte George, 913 S.W.2d 523, 525 (Tex.Crim.App.1995); see State v. Moreno, 294 S.W.3d 594, 597 (Tex.Crim.App.2009) (stating that "jeopardy must have attached initially[]" before double-jeopardy protections are implicated.); see also Illinois v. Somerville, 410 U.S. 458, 467, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973) (stating that "the conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial."). Attachment of jeopardy is necessary because in order for the principles of double jeopardy to be invoked, there must be a former jeopardy. Ex parte Ward, 964 S.W.2d at 625. In other words, "an accused must suffer jeopardy before he can suffer double jeopardy." Serfass v. United States, 420 U.S. 377, 393, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975) (quoted in Ex parte McAfee, 761 S.W.2d 771, 772 (Tex.Crim. App.1988)). In Ex parte George, the court of criminal appeals addressed the doctrine of attachment of jeopardy:

[T]he modern development of constitutional jurisprudence makes the resolution of jeopardy questions depend, in most contexts, upon a doctrine known as the attachment of jeopardy. Thus, before it can be said that an accused has been put in jeopardy a second time, in violation of the Texas or United States Constitution, it must appear that he was actually put in jeopardy before.

Ex parte George, 913 S.W.2d at 525 (emphasis added). "Thus, determining when jeopardy attaches is the initial source for examining whether a proceeding is barred as a second jeopardy." Ex parte Ward, 964 S.W.2d at 625 (emphasis in original).

Double jeopardy does not bar remedial civil proceedings based on the same offense as a prior criminal prosecution, or vice versa. State v. Solar, 906 S.W.2d 142, 146 (Tex.App.-Fort Worth 1995, pet. ref'd); see also One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 235-36, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972) (per curiam) (stating that Congress may impose both a civil and a criminal sanction for the same act or omission; double jeopardy clause merely prohibits attempting to punish criminally for same offense); Malone v. State, 864 S.W.2d 156, 159 (Tex.App.-Fort Worth 1993, no pet.) (stating that trial for termination of parental rights is a civil proceeding with a remedial result—protecting abused and neglected children—and does not trigger jeopardy bar to subsequent criminal prosecution for aggravated sexual assault of child). "[I]n determining whether a criminal prosecution is barred due to the prohibition against multiple punishments, attachment of jeopardy occurs in a civil proceeding when punishment is actually imposed." Ex parte Ward, 964 S.W.2d at 624 n. 8 (emphasis in original). If a civil sanction or remedy imposed on a person does not constitute punishment, a subsequent criminal prosecution of that individual arising out of the same situation, circumstances, or conduct neither implicates nor violates the protections against double jeopardy. See, e.g., Ex parte Tharp, 935 S.W.2d 157, 159-61 (Tex.Crim.App.1996) (holding that an administrative license suspension did not constitute punishment and therefore did not implicate the protections against double jeopardy in regard to a subsequent DWI prosecution); Fant v. State, 931 S.W.2d 299, 308-09 (Tex.Crim. App.1996) (holding that Texas' civil asset-forfeiture scheme did not constitute punishment and therefore did not implicate the protections against double jeopardy in regard to a subsequent prosecution for the offense underlying the asset forfeiture); Capps v. State, 265 S.W.3d 44, 49 (Tex.App.-Houston [1st Dist.] 2008, pet. ref'd) (concluding that disciplinary actions brought against attorney did not constitute criminal punishment to bar subsequent criminal proceedings); Ex parte Sheridan, 974 S.W.2d 129, 131-34 (Tex. App.-San Antonio 1998, pet. ref'd) (holding that the cancellation of the defendant's alcoholic beverage license because he lied on the application did not constitute punishment and therefore did not bar his subsequent prosecution for making false statements on the application). Here, if the termination of Almendarez's rights to the brown filly and the order of restitution did not constitute punishment, his subsequent criminal prosecution arising out of the same conduct neither implicated nor violated the protections against double jeopardy. See id.; see also Ex parte Ward, 964 S.W.2d at 630 (explaining that "had jeopardy attached in the civil tax proceeding [for possession of drugs] ... any proceeding initiated by the State to prosecute the ... defendants on the possession of drugs would have been considered the functional equivalent of a successive prosecution placing them at risk for a second punishment for the same conduct.") (emphasis in original).

"Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction." Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) (ho...