Ortega, Robert Lee ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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PD-0819-04

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ROBERT LEE ORTEGA, Appellant

v.

THE STATE OF TEXAS

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ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE THIRTEENTH COURT OF APPEALS REFUGIO COUNTY

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   Meyers, J., filed a dissenting opinion.

In all honesty, I did not vote to grant this petition for discretionary review. The State Prosecuting Attorney's grounds for review did not seem germane to the court of appeals' opinion. Nevertheless, our Court decided to grant this case, and for all of you curious souls wondering what are the actual grounds for review, they're as follows:

1) Whether the offense of resisting arrest is a lesser-included offense of aggravated

assault of a peace officer;

2) Whether the evidence presented or facts proven are relevant to the determinations of whether one offense is a lesser-included offense of another.

Surely this is a problem concerning charge error? Wrong. It's double jeopardy. The majority has decided to analyze this case on an argument the State Prosecuting Attorney points out within the body of his brief to this Court. When this Court realized that the State Prosecuting Attorney had brought issues that were not dispositive of the double jeopardy question that the court of appeals raised in its analysis, we should have dismissed the petition as improvidently granted. ⁽¹⁾ Irrespective of these procedural abnormalities, I also dissent from the majority's double jeopardy analysis and the outcome in this case. I believe that the court of appeals got it right, but for the wrong reasons.

I agree with the majority opinion in that I understand that the Blockberger test is the proper test that the Supreme Court of the United States has set forth in order to perform a Fifth Amendment double jeopardy analysis. I concede also that the court of appeals in this case erroneously used the "same conduct" reasoning of Grady v. Corbin, ⁽²⁾ which the United States Supreme Court later renounced. However, I believe that this case does not fall under the strict Blockberger elements of the offense analysis for several reasons.

In this case, the State is attempting to prove one of the elements of the crime of resisting arrest as a separate crime. The "use of force" element of the crime of resisting arrest ⁽³⁾ can encompass the crime of assault. In some, but not all cases, the actions of a defendant when resisting arrest could be characterized as an assault because they cause bodily injury. Here, the actions of the Appellant that the State contends constitute the assault charge, i.e. that he repeatedly struck the officer and caused bodily injury, are also the facts which constitute the "use of force" element of the resisting arrest charge. The State should not be able to charge the defendant with the separate crime of assault when they have relied on the same facts to prove the "use of force" element in the resisting arrest conviction. This is analogous to the reasoning which precludes the State from obtaining a separate conviction for the underlying predicate felony in capital murder cases. ⁽⁴⁾ The same facts which prove an element of the capital murder offense, i.e. the felony predicate element, cannot be used to secure a separate felony conviction.

For the above reasons, I must refrain from joining the majority's opinion and respectfully dissent.

Meyers, J.

Filed: September 14, 2005

Publish

1. What is ironic in this whole situation is that this case involves a technical analysis of a number of points of law and fact. In attempting to arrest Mr. Ortega for the traffic offense, the officers claim he struck them while pulling away. While the County Attorney saw it as resisting arrest and obtained a guilty plea and a fine, six months later, the District Attorney saw it as aggravated assault on a police officer. While Mr. Ortega may not be receiving any citizenship awards in Refugio county, (the record reveals that this is not his first offense, and that he shouted obscenities and refused to comply with the officers who arrested him in his mother's front yard), he nevertheless is going to prison for seventy-five years because he made an illegal turn in his car. But this is a technicality, similar to whether Mr. Ortega was pulling or pushing away from the police officer.

2.

Grady v. Corbin, 495 U.S. 508 (1990).

3. Texas Penal Code Section 38.03, entitled Resisting Arrest, Search or Transportation, states:

(a) A person commits an offense if he intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer's presence and at his direction from effecting an arrest, search, or transportation of the actor or another by using force against the peace officer or another (emphasis added).

4.

See Texas Penal Code Section 19.03, Capital Murder, which states in relevant part:

(a) a person commits an offense if he commits murder as defined under Section 19.02(b)(1) and:

(2) the person intentionally commits the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, arson, or obstruction or retaliation.