Turner v. State

528 S.W.3d 569

Richard TURNER, Appellant

v.The STATE of Texas, Appellee

No. 06-15-00220-CR.

Court of Appeals of Texas, Texarkana.

Submitted: August 25, 2016

Decided: December 2, 2016

Craig L. Henry, Attorney at Law, 723 Main Street, Texarkana, TX 75504, for appellant.

Lauren N. Sutton, Assistant District Attorney, 601 Main St., Texarkana, TX 75501, for appellee.

Before Morriss, C.J., Moseley and Burgess, JJ.

OPINION

Opinion by Justice Moseley

Richard Turner was convicted by a jury of burglary of a habitation with intent to commit aggravated assault¹ and was sentenced to twenty-five years' incarceration. On appeal, Turner complains that he has been subjected to two double-jeopardy violations, that he received ineffective assistance of counsel, and that he received insufficient notice of the State's intent to seek a deadly-weapon finding. We reject Turner's claims and affirm the trial court's judgment, as modified to reflect conviction of the proper offense.

I. Background

Angered at the refusal of his estranged wife, Amy Turner (Amy), to reconcile with him, Turner showed up at her apartment, kicked open the door, beat her head with his fists, and threw her down the stairs. Although Amy was then able to flee in her vehicle, Turner pursued her in his truck, chased her down the interstate highway, and rammed her car with his truck. This ramming disabled Amy's car, and she was forced to open the door when the car's interior began filling with smoke. At that point, Turner forced Amy into his truck and drove her to a remote location, where he continued to beat her. Turner eventually drove Amy back to her apartment, where police officers were awaiting his arrival, freeing Amy from him.

Turner was arrested and charged with various forms of burglary of a habitation.

Count one of the indictment recited that Turner committed burglary of a habitation by entering the habitation and either attempting to commit or actually committing the felony offense of aggravated assault. The second paragraph of count one charged Turner with burglary of a habitation with the intent to commit the felony offense of aggravated assault. Count two of the indictment charged Turner with burglary of a habitation with the intent to commit assault. The final paragraph of the indictment recited that Turner committed burglary of a habitation and attempted to commit, or committed, an assault against Amy. The jury convicted Turner of burglary of a habitation with the intent to commit aggravated assault.

II. Double Jeopardy

A. Acquittal Judgments for Burglary of a Habitation Do Not Implicate Double Jeopardy Protections

The trial court pronounced sentence and entered a judgment of conviction against Turner for burglary of a habitation with intent to commit aggravated assault on September 18, 2015. The judgment of conviction thus pertains to the second paragraph of count one of the indictment. The trial court likewise entered two judgments acquitting Turner of the charge of burglary of a habitation, each ostensibly acquitting Turner of the indicted offenses of burglary of a habitation with the intent to commit assault and burglary of a habitation while attempting to commit or committing assault. Each judgment of acquittal² includes the notation "COUNT TWO." Accordingly, one judgment of acquittal pertains to the first paragraph of count two, and the second judgment of acquittal pertains to the second paragraph of count two. The "Date Judgment Entered" portion of each judgment indicates that the respective judgments were entered on September 18, 2015. Each judgment was signed by the trial court on October 9, 2015.

Turner claims that the two judgments entered by the trial court acquitting him of (1) burglary of a habitation with the intent to commit assault, and (2) burglary of a habitation while attempting to commit or committing an assault invalidate the judgment of conviction because burglary of a habitation with intent to commit aggravated assault (the crime of which Turner was convicted) could not be proven unless all of the elements of burglary of a habitation were likewise proven. Because Turner claims he was acquitted of burglary of a habitation, he contends that the Fifth Amendment Double Jeopardy Clause of the United States Constitution bars his conviction for the greater offense of burglary of a habitation with intent to commit aggravated assault. Because the jury was never asked to determine Turner's guilt for the offenses on which the judgments of acquittal are based, those judgments do not implicate double-jeopardy considerations. Moreover, Turner's conviction occurred before the judgments of acquittal were entered.

The Double Jeopardy Clause states, "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb ...." U.S. CONST. amend. V. "Perhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that ‘(a) [sic] verdict of acquittal ... could not be reviewed, on error or otherwise, without putting (a defendant) [sic] twice in jeopardy, and thereby violating the Constitution.’ " United States v. Martin Linen Supply Co. , 430 U.S. 564, 571, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977) (alterations in original) (quoting Ball v. United States , 163 U.S. 662, 671, 16 S.Ct. 1192, 41 L.Ed. 300 (1896) ). Here, however, Turner seeks to utilize this protection as a sword rather than a shield, essentially claiming that after a jury verdict of guilt was entered against him on the primary offense, the subsequent judgments of acquittal eviscerate his conviction. This reasoning must fail. "[W]hat constitutes an ‘acquittal’ is not to be controlled by the form of the judge's action." Id. (citing United States v. Sisson , 399 U.S. 267, 270, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970) ). Instead, "the ruling of the judge, whatever its label," must represent "a resolution, correct or not, of some or all of the factual elements of the offense charged." Id. The acquittals at issue do not meet this test.

Although Turner was charged with four crimes by indictment, the court's charge only presented the jury with the options of finding Turner guilty of (1) burglary of a habitation with intent to commit aggravated assault, (2) burglary of a habitation, or (3) criminal trespass of a habitation. The "Forms of Verdict #1" gave the jury the option to find Turner guilty or not guilty of burglary of a habitation with intent to commit aggravated assault as charged in the indictment. Following the recitation of those two options, the jury was instructed, "If you find the Defendant guilty of Burglary of a Habitation with Intent to Commit Aggravated Assault[,] you will not answer any other questions relating to Cause No. 13F0312–102." The jury was then instructed that if it found Turner not guilty of burglary of a habitation with intent to commit aggravated assault, it was to "consider the lesser offense of Burglary of a Habitation." Because the jury found Turner guilty of burglary of a habitation with intent to commit aggravated assault, it did not answer any additional questions related to the recited cause number. The jury, therefore, never entered a finding that Turner was not guilty of burglary of a habitation or any offense listed in count two of the indictment.

After the presentation of the evidence at trial, the jury returned to the courtroom with a verdict. The jury foreman informed the trial court that the jury's verdict was unanimous. The trial court then announced the verdict in open court on September 17, 2015, by reading, "We, the jury, find the defendant, Richard Turner, guilty in Cause No. 13F312–102 of burglary of a habitation with intent to commit aggravated assault as charged in the indictment, and it's signed by the presiding juror." The trial court then informed the jury that the guilt/innocence phase of the trial was concluded and recessed the jury. Following the punishment phase of the trial, the trial court entered three written judgments. The judgment of conviction of burglary of a habitation with intent to commit aggravated assault properly memorialized the jury's sole verdict of conviction in this case.

The court's charge did not give the jury the option of determining Turner's guilt with respect to the offense of burglary of a habitation with the intent to commit assault or burglary of a habitation while attempting to commit or committing an assault. Consequently, the trial court's two judgments of acquittal on count two of the indictment were improper because they failed to memorialize any verdict of the jury. Moreover, because the charge of the court did not provide the jury with the option to find Turner guilty of either of the offenses alleged in count two of the indictment, Turner was not in jeopardy of conviction for those offenses when the court's charge was read to the jury.

It is also true that Turner stood convicted of the offense of burglary of a habitation with intent to commit aggravated assault before the acquittal judgments were rendered. Turner was convicted when the jury found him guilty, the verdict was announced in open court, and the guilt phase of the trial concluded. The actual judgment of conviction merely memorialized the jury's verdict of guilt. See, e.g. , Dunn v. State , 176 S.W.3d 880, 885 (Tex. App.—Fort Worth 2005, no pet.) (court may not receive verdict in criminal trial and enter judgment different from that called for by jury verdict); Chafin v. State , 95 S.W.3d 549, 555 (Tex. App.—Austin 2002, no pet.) (trial court may not enter a different judgment from that called for by verdict).

Turner, nevertheless, relies on Fong Foo v. United States , 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962) (per curiam), in which the trial court directed a verdict of acquittal before the prosecution finished presenting its evidence. Id. at 142, 82 S.Ct. 671. While the trial court's action was recognized as "egregiously erroneous," the Supreme Court determined that the Double Jeopardy Clause...