Conard Hargest, III v. State ( 2005 )

In The Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-05-057 CR ____________________

CONARD HARGEST, III, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 260th District Court Orange County, Texas Trial Court No. D-040579-R

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MEMORANDUM OPINION

Appellant Conard Hargest, III ⁽¹⁾ was indicted in Chambers County for unauthorized use of a motor vehicle. The indictment alleged that on February 9, 2004, Hargest "did then and there intentionally and knowingly operate a motor-propelled vehicle, to-wit: a 1997 TOYOTA AVALON, without the effective consent of [complainant], the owner thereof." See Tex. Pen. Code Ann. § 31.07 (Vernon 2003). Hargest pled guilty, and the trial court sentenced him to twelve months of confinement in a state jail facility and assessed a $1,000.00 fine.

Hargest was later indicted for aggravated robbery in Orange County. The first count of the aggravated robbery indictment alleged that on February 9, 2004, Hargest

did then and there while in the course of committing theft of property of [complainant], and with intent to obtain and maintain control of said property, intentionally and knowingly cause bodily injury to [complainant], a person 65 years of age or older, by pushing the said [complainant] down and taking the keys from her hand[.]

See Tex. Pen. Code Ann. § 29.03(a)(3)(A) (Vernon 2003). The second count alleged Hargest

did then and there while in the course of committing theft, and with intent to obtain and maintain control of property of [complainant], without the effective consent of the said [complainant], and with intent to deprive [complainant] of said property, did then and there intentionally and knowingly threaten and place [complainant] in fear of imminent bodily injury and death, and was a person 65 years of age or older[.]

See Tex. Pen. Code Ann. § 29.03(a)(3)(A) (Vernon 2003). Hargest filed a petition for writ of habeas corpus, in which he contended his trial for aggravated robbery was barred by double jeopardy. The trial court denied Hargest's petition.

The State elected to proceed solely on count one of the aggravated robbery indictment. Hargest waived his right to a jury trial and pled guilty. The trial court sentenced him to ten years of confinement in the Texas Department of Criminal Justice - Institutional Division. Hargest then filed this appeal, in which he contends the trial court erred in denying his petition for habeas corpus because double jeopardy barred his aggravated robbery trial. We affirm.

Hargest asserts unauthorized use of a motor vehicle is the same offense as aggravated robbery for double jeopardy purposes. Our analysis of the issue is governed by Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). In Blockburger, the Supreme Court of the United States held as follows:

[t]he applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.

Blockburger, 52 S.Ct. at 182. See also Mallett v. State, 65 S.W.3d 59, 68 (Tex. Crim. App. 2001). The aggravated robbery charge required the State to prove that Hargest intentionally and knowingly caused bodily injury to the complainant, and that the complainant was 65 years of age or older; the unauthorized use of a motor vehicle charge did not. See Tex. Pen. Code Ann. §§ 29.03, 31.07 (Vernon 2003). The unauthorized use of a motor vehicle charge required the State to prove that Hargest intentionally and knowingly operated a motor-propelled vehicle; the aggravated robbery charge did not, since that indictment alleged Hargest stole complainant's keys, not her vehicle. See id. Therefore, the two charges do not constitute the same offense for double jeopardy purposes. See Blockburger, 52 S.Ct. at 182; Mallett, 65 S.W.3d at 68.

In support of his contention that unauthorized use of a motor vehicle is the same offense as aggravated robbery for double jeopardy purposes, Hargest cites Griffin v. State, 614 S.W.2d 155, 158 n. 4 (Tex. Crim. App. 1981); Pierson v. State, 689 S.W.2d 481, 482 (Tex. App.--Houston [14th Dist.] 1985, pet. ref'd); Teague v. State, 789 S.W.2d 380, 382 (Tex. App.--Houston [1st Dist.] 1990, pet. ref'd); and Roy v. State, 76 S.W.3d 87, 93 (Tex. App.--Houston [14th Dist.] 2002, no pet.). However, each of these cases is either distinguishable or inapposite.

Griffin held that, in the context of jury instructions, unauthorized use of a vehicle can be a lesser included offense of aggravated robbery. Griffin, 614 S.W.2d at 160 n. 4. Griffin did not address whether the two offenses constitute the same offense for double jeopardy purposes. Likewise, the Teague court analyzed the issue of whether the trial court could convict the defendant of unauthorized use of a motor vehicle when the indictment only charged him with aggravated robbery. Teague, 789 S.W.2d at 381-83. Teague did not involve the issue of double jeopardy. Although Pierson addressed the issue of double jeopardy, the Pierson court did not apply the Blockburger test, nor did it identify the aggravating element of the robbery in its analysis. See Pierson, 689 S.W.2d at 482-83; Blockburger, 52 S.Ct. at 182; Mallett, 65 S.W.3d at 68. The property allegedly stolen during the aggravated robbery in Roy was the complainant's vehicle, not the keys to the vehicle. Roy, 76 S.W.3d at 91-92. Therefore, we do not find these cases persuasive.

Hargest argues that although the offense involved both the keys and the car, his acts were committed pursuant to the same transaction, thereby rendering his acts a single criminal episode. See Tex. Pen. Code Ann. § 3.01(1) (Vernon 2003). However, "[t]he courts of Texas are bound to follow the Supreme Court's rule that Fifth Amendment jeopardy questions must be resolved by application of the Blockburger test, which compares elements of offenses -- not conduct." Ortega v. State, 171 S.W.3d 895, 899 (Tex. Crim. App. 2005) (en banc).

The trial court did not abuse its discretion by denying Hargest's application for writ of habeas corpus. See Ex parte Peralta, 87 S.W.3d 642, 645 (Tex. App.--San Antonio 2002, no pet.) (Appellate courts review trial court's decision on writ of habeas corpus under an abuse of discretion standard.). Hargest's sole issue is overruled, and the judgment of the trial court is affirmed.

AFFIRMED.

_____________________________ STEVE McKEITHEN

Chief Justice

Submitted on October 6, 2005

Opinion Delivered November 16, 2005

Do Not Publish

Before McKeithen, C.J., Gaultney and Kreger, JJ.

1. Appellant is also referred to as "Conrad Hargest, III" in various documents in the appellate record.