State v. Donaldson

557 S.W.3d 33

The STATE of Texas, Appellant

v.Eric Wayne DONALDSON, Appellee

NO. 03–16–00085–CR

Court of Appeals of Texas, Austin.

Filed: April 20, 2017

Sammy M. McCrary, Chief Felony Prosecutor, Joshua D. Presley, Comal County Criminal District Attorney's Office, New Braunfels, TX, for State.

Eric S. Rosen, Law Office of Eric Rosen, Samuel Rosen, Rosen & Rosen Law Office, Austin, TX, for Appellee.

Before Chief Justice Rose, Justices Goodwin and Bourland

OPINION

Melissa Goodwin, Justice

Eric Wayne Donaldson was indicted in Comal County cause number CR2014–499 for five counts of theft of property and one count of fraudulent use or possession of identifying information. Donaldson moved to quash the indictment, arguing that the double jeopardy clauses of the United States Constitution and the Texas Constitution precluded his prosecution. The trial court granted Donaldson's motion to quash in part. The State appeals, contending that the trial court erred in concluding that the prosecution in Comal County is barred by the double jeopardy prohibition against successive prosecutions. For the reasons set out below, we reverse the trial court's order and remand for further proceedings consistent with this opinion.

BACKGROUND

On March 5, 2014, a Hays County grand jury indicted Donaldson in cause number CR–14–0122 for two offenses: credit card abuse committed against an elderly individual, see Tex. Penal Code § 32.31(b), (d), and fraudulent use or possession of identifying information of less than five items committed against an elderly individual, see id. § 32.51(b)(1), (c)(1), (c–1)(1).

On November 5, 2014, a Comal County grand jury indicted Donaldson in cause number CR2014–499 for six offenses: one count of theft of property valuing $1,500 or more but less than $20,000, see id. § 31.03(a), (e)(4)(A),¹ four counts of theft of property valuing less than $1,500 with two prior theft convictions, see id. § 31.03(a), (e)(4)(D), and one count of fraudulent use or possession of identifying information of five or more but less than ten items, see id. § 32.51(b)(1), (c)(2).

Both indictments arose, at least in part, out of the same theft incident that occurred in Comal County where, on or about December 23, 2013, Donaldson stole the purse of Patricia Ross from her shopping cart as she was shopping. The record indicates that Donaldson was subsequently arrested in Hays County when he was caught in the process of stealing another woman's purse. At the time of his arrest for that incident, Donaldson had Ross's identifying information on his person. The State does not dispute that there was only one incident of theft from Patricia Ross—that is, that all of the items stolen from Ross that are the subject of the two indictments at issue were obtained when her purse was stolen in December 2013.

On February 17, 2015, Donaldson pled guilty pursuant to a plea bargain to both counts of the Hays County indictment in cause number CR–14–0122. In accordance with the plea agreement, he was sentenced to seven years in the Texas Department of Justice on each count, with the sentences to run concurrently.

On November 10, 2015, Donaldson filed a motion to quash the Comal County indictment in cause number CR2014–499 in which he asserted violations of the double jeopardy protections afforded by the United States and Texas constitutions. Specifically, as relevant to the trial court's ruling being appealed,² he argued that his prosecution for fraudulent use or possession of identifying information in Comal County is barred by his previous conviction in Hays County for fraudulent use or possession of identifying information because the count alleging the offense, Count VI, "is factually the same criminal episode as prosecuted in Hays County." After a hearing, the trial court agreed and quashed Count VI of the indictment, barring the prosecution. In support of its ruling, the trial court issued written Findings of Fact and Conclusions of Law. Relevant to this appeal, the court made the following fact finding:

6. The Hays County case (CR–14–0122) is factually the same offense as the Comal County case (2014–499). The two prosecutions arise out of the same criminal episode. In each indictment the State alleges the same victim and that the crime occurred on the same date.

The court made the following legal conclusions:

8. The gravamen of the offense under Texas Penal Code 32.51 is the act of obtaining, possessing, using, or transferring an item of identifying information with the intent to defraud another. In other words, the gravamen of the offense is a single act of identity theft.

9. Because the gravamen of the offense is the act of identity theft each act of identity theft is an allowable unit of prosecution under the statute.

10. Because both the Hays County and Comal County indictments charge the same act of identity theft, Mr. Donaldson has illegally been charges [sic] twice under the same unit of prosecution. This violates the constitutional protections against double jeopardy under both the Fifth Amendment United States [sic] and Article I, Section 10 of the Texas Constitution.

The State appeals the trial court's ruling, see Tex. Code Crim. Proc. art. 44.01(a)(1) (providing that State may appeal from dismissal of any portion of indictment), contesting these conclusions.

DISCUSSION

In challenging the trial court's order quashing Count VI of the indictment, the State argues that the trial court erred in concluding that the Comal County prosecution for fraudulent use or possession of identifying information violates the double jeopardy prohibition against successive prosecutions because the court erroneously concluded that the Comal County charge was "the same offense" as the Hays County conviction. The State asserts that the trial court erred in concluding that the unit of prosecution under Penal Code section 32.51 is the entire transaction (the "theft of a person's identity") and that Donaldson failed to meet his burden of showing that he is being prosecuted again for the same offense.

Standard of Review

In reviewing a trial court's ruling, an appellate court must first determine the applicable standard of review. Guzman v. State , 955 S.W.2d 85, 87 (Tex. Crim. App. 1997). This determination for assessing a trial court's ruling on a motion to quash turns on which judicial actor is best positioned to determine the issue in controversy. Holton v. State , 487 S.W.3d 600, 608 (Tex. App.–El Paso 2015, no pet.) ; Ribble v. State , No. 02-14-00129-CR, 2015 WL 1407761, at *1 (Tex. App.–Fort Worth Mar. 26, 2015, no pet.) (mem. op., not designated for publication); Sample v. State , 405 S.W.3d 295, 301 (Tex. App.–Fort Worth 2013, pet. ref'd) ; see State v. Moff , 154 S.W.3d 599, 601 (Tex. Crim. App. 2004) ("The amount of deference appellate courts afford a trial court's rulings depends upon which ‘judicial actor’ is better positioned to decide the issue.") (citing Guzman , 955 S.W.2d at 89 ); State v. Stukes , 490 S.W.3d 571, 574 (Tex. App.–Houston [14th Dist.] 2016, no pet.) (same); State v. Velasquez , 487 S.W.3d 661, 664 (Tex. App.–San Antonio 2016, pet. granted) (same). " ‘If the issue involves the credibility of a witness, thereby making the evaluation of that witness' [sic] demeanor important, compelling reasons exist for giving the trial court discretion in applying the law to the facts.’ " Stukes , 490 S.W.3d at 574 (quoting Guzman , 955 S.W.2d at 87 ). By contrast, if the issue does not require such assessments, the trial court is not in an appreciably better position than the reviewing court to make that determination, so review should be de novo. Moff , 154 S.W.3d at 601 ; Stukes , 490 S.W.3d at 574 ; see Guzman , 955 S.W.2d at 87. Accordingly, "[q]uestions of law—such as the sufficiency of an indictment or the constitutionality of a statute—are reviewed de novo because neither the trial court nor the reviewing court occupies an appreciably better position than the other to decide the issue," whereas "rulings that turn on evaluations of witness credibility and demeanor are reviewed for an abuse of discretion because the appellate court—deciding the issue from a cold record—is in an appreciably weaker position than the trial court." Holton , 487 S.W.3d at 608–09 ; Ribble , 2015 WL 1407761, at *1 ; Sample , 405 S.W.3d at 301 ; see Smith v. State , 309 S.W.3d 10, 13–14 (Tex. Crim. App. 2010) (concluding court of appeals erroneously applied abuse-of-discretion standard because sufficiency of charging instrument presents question of law so appellate court reviews trial judge's ruling on motion to quash charging instrument de novo); Lawrence v. State , 240 S.W.3d 912, 915 (Tex. Crim. App. 2007) (applying de novo review to decide constitutionality of statute challenged in motion to quash).

In this case, Donaldson raises a double jeopardy claim that did not require the trial court to evaluate the credibility or demeanor of witnesses. The trial court's decision was based on the indictments from each case, the record from the Hays County plea, the motion to quash, and the argument of counsel. Further, the facts are undisputed. When the facts are uncontested and the trial court's ruling does not turn on the credibility or demeanor of witnesses, a de novo review by the appellate court is appropriate. Ex parte Martin , 6 S.W.3d 524, 526 (Tex. Crim. App. 1999) ; Ex parte Ali , 368 S.W.3d 827, 831 (Tex. App.–Austin 2012, pet. ref'd) ; see also Ovalle v. State , No. 03-08-00334-CR, 2009 WL 1708826, at *5 (Tex. App.–Austin June 19, 2009, pet. ref'd) (mem. op., not designated for publication) ("Where there are no underlying questions of fact, double jeopardy is a question of law we review de novo."). Because the facts are uncontested and there were no witness credibility determinations or demeanor observations to be made, the trial court was in no better position than this Court is now with regard to determining whether Donaldson's prosecution in Comal County for fraudulent use or...