Stan Brown

Stan Brown is a 1969 graduate of the University of Texas School of Law, licensed by the State Bar of Texas for 45 years. He has been a solo practitioner in Abilene since 1972, a member of TCDLA since 1974 (having served on the Board of Directors from approximately the mid-’80s to the mid-’90s), TCDLA Super Fellow, Board Certified in Criminal Law since 1979, Board Certified in Criminal Appellate Law since the inception of that specialty, and was the first recipient of the State Bar Warren Burnett Award for Legal Services to the Poor in Criminal Matters in 2011. This article is dedicated to his wife, the lovely Lupe Moreno Brown, his loving daughter and son-in-law, Abbey & Jeremy Garner, and his lovable approximately three-year-old grandson, Eli Garner.

Jeopardy Should Attach to an Acquittal in the Court of Appeal

The Double Jeopardy Clause of the United States Constitution provides “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . .” U.S. Const. Amend. V. “There are three distinct types of double jeopardy claims: (1) a second prosecution for the same offense af­ter acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.” Langs v. State, 183 S.W.3d 680, 685 (Tex. Crim. App. 2006). All three types of jeopardy claims arise only when duplicative prosecutions or punishments involve the same offense. Id. The dismissal or abandonment of a criminal charge after jeopardy attaches has the same constitutional significance as an acquittal. Lewis v. State, 889 S.W.2d 403, 406 (Tex. App.—Austin 1994, pet. ref’d) (citing Black v. State, 143 Tex. Crim. 318, 158 S.W.2d 795, 796 (Tex. Crim. App. 1942)). A criminal accusation that is dismissed, waived, or abandoned after the defendant is placed in jeopardy may not be retried. Ex Parte Preston, 833 S.W.2d 515, 517 (Tex. Crim. App. 1992). The Double Jeopardy Clause guarantees a person, having once been acquitted, need never run the gauntlet again. Green v. United States, 355 U.S. 184, 190, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).

An Acquittal Is an Acquittal

An acquittal is an acquittal, whatever the forum.1 The Court of Criminal Appeals concluded in Stephens v. State, 806 S.W.2d 812, 819 (Tex. Crim. App. 1990), “[W]e hold that when a defendant has obtained a reversal of a conviction for a greater offense solely on the ground that there was insufficient evidence to prove the aggravating element of that offense, the Double Jeopardy Clause bars a subsequent prosecution for a lesser included offense.”

Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), held that the Sixth Circuit Court of Appeals, an intermediate appellate court, erred when it found the evidence in­sufficient and reversed and remanded to the trial court. When the evidence is found insufficient on appeal, the appellate court must reverse and reform to show a judgment of acquittal. “[W]e are squarely presented with the question of whether a defendant may be tried a second time when a reviewing court has determined that in a prior trial the evidence was insufficient to sustain the verdict of the jury.” Id. at 5. That language means any reviewing court, intermediate or otherwise. The Court then went on to succinctly set out the Petitioner’s argument:

Petitioner’s argument is straightforward. He contends that the Court of Appeals’ holding was nothing more or less than a decision that the District Court had erred by not granting his motion for a judgment of acquittal. By implication, he argues, the appellate reversal was the operative equivalent of a district court’s judgment of acquittal, entered either before or after verdict. Petitioner points out, however, that had the District Court found the evidence at the first trial inadequate, as the Court of Appeals said it should have done, a second trial would violate the Double Jeopardy Clause of the Fifth Amendment. Therefore, he maintains, it makes no difference that the determination of evidentiary insufficiency was made by a reviewing court since the double jeopardy considerations are the same, regardless of which court decides that a judgment of acquittal is in order.

Id. at 5–6 [emphasis in original].

After an extensive review of prior case law, the Supreme Court determined, “Since we necessarily afford absolute finality to a jury’s verdict of acquittal—no matter how erroneous its decision—it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty.” Id. at 16 [emphasis in original]. The Supreme Court concluded: “Since we hold today that the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient, the only ‘just’ remedy available for that court is the direction of a judgment of acquittal. To the extent that our prior decisions suggest that by moving for a new trial, a defendant waives his right to a judgment of acquittal on the basis of evidentiary insufficiency, those cases are overruled.” Id. at 18; accord, Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

Relying heavily on Burks,2 Evans v. Michigan, ___ U.S.___, 133 S.Ct. 1069, 185 L.Ed.2d 124 (2013), reversed the Michigan Supreme Court: “In the end, this case follows those that have come before it. The trial court’s judgment of acquittal resolved the question of Evans’ guilt or innocence as a matter of the sufficiency of the evidence, not on unrelated procedural grounds. That judgment, ‘however erroneous’ it was, precludes reprosecution on this charge, and so should have barred the State’s appeal as well.Id. at 1078 [emphasis added]. See also Martinez v. Illinois, __ U.S. __, 134 S.Ct. 2070, 188 L.Ed.2d 1112 (2014).

United States v. Scott, 437 U.S. 82, 90, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), illustrates an acquittal by any legitimate forum is an acquittal:

[I]n Fong Foo v. United States, 369 U.S. 141 (1962), this Court reviewed the issuance of a writ of mandamus by the Court of Appeals for the First Circuit instructing a District Court to vacate certain judgments of acquittal. Although indicating its agreement with the Court of Appeals that the judgments had been entered erroneously, this Court nonetheless held that a second trial was barred by the Double Jeopardy Clause. Id. at 143. Only last Term, this Court relied upon these precedents in United States v. Martin Linen Supply Co., 430 U.S. 564 (1977), and held that the Government could not appeal the granting of a motion to acquit pursuant to Fed. Rule Crim. Proc. 29 where a second trial would be required upon remand. The Court, quoting language in Ball, supra, at 671, stated: “Perhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that ‘[a] verdict of acquittal . . . could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and thereby violating the Constitution.’”

An Intermediate Court of Appeals Is a Higher Court than a District Court or County Court at Law

There is no question that when a trial court grants a defense motion for a directed verdict based on a determination the evidence was insufficient to prove beyond a reasonable doubt the accused committed the offense alleged, the State is barred from appealing and any further prosecution for the offense. See generally, State v. Moreno, 294 S.W.3d 594 (Tex. Crim. App. 2009). “When a trial ends in an acquittal, one of the ‘most fundamental rule[s] in the history of double jeopardy jurisprudence’ is that a defendant cannot be tried again for that same offense.” Id. at 597–598. See also State v. Blackshere, 344 S.W.3d 400, 406 (Tex. Crim. App. 2011) (“Whether the acquittal is ‘based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict,’ any further prosecution, including an appeal by the prosecution that would lead to a second trial, is prohibited. Even where an acquittal is based on an ‘egregiously erroneous foundation,’ such as erroneous exclusion of evidence or erroneous weighing of evidence, the acquittal bars appellate review of the ultimate disposition as well as the underlying foundation.”)

State v. Moreno, supra, 294 S.W.3d at 600, makes plain what jeopardy bars is no further prosecution, whether it is a new trial, resentencing, or any other manner of prosecution:

The problem with the State’s argument, as a matter of federal law, is that it has been presented and rejected nu­mer­ous times in the federal courts, and the answer is now con­trolled by well-established precedent. The facts of this case are strikingly similar to the seminal case of Fong Foo v. United States. In that case, the district judge directed a verdict of acquittal before the Government finished presenting its evidence because of a supposed lack of witness credibility and prosecutorial misconduct. The First Circuit Court of Appeals held that the judge did not have authority to enter a verdict before the Government rested its case. The Supreme Court recognized that the judge’s actions were “egregiously erroneous,” but nevertheless held that the Double Jeopardy Clause prohibited the court of appeals from setting aside the verdict of acquittal and subjecting the defendant to another trial. Numerous cases after Fong Foo reinforced the principle that the Double Jeopardy Clause bars further prosecution, including prosecution-initiated appellate review, even if the acquittal resulted from patent judicial error. For example, in Sanabria v. United States, the trial judge excluded certain evidence as irrelevant and then held that the remaining evidence was insufficient. The Supreme Court held that the acquittal for insufficient evidence could not be appealed, even though it resulted from an erroneous evidentiary ruling. In both Fong Foo and Moreno’s case, the judge entered a verdict of acquittal before the State rested its case. We understand that the judge here was exasperated with the delays, but when a key witness, for either side, is right outside the doors, ready to testify, it is unacceptable and inexcusable not to allow his or her testimony. But the case law is clear that even erroneous acquittals bar further prosecution.

Id. [emphasis added].

Burks confirmed an appellate acquittal by a higher, yet intermediate, court must be accorded no less deference. “It is unquestionably true that the Court of Appeals’ decision ‘[represented] a resolution, correct or not, of some or all of the factual elements of the offense charged.’ United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977). By deciding the Government had failed to come forward with sufficient proof of petitioner’s capacity to be responsible for criminal acts, that court was clearly saying that Burks’ criminal culpability had not been established. If the District Court had so held in the first instance, as the reviewing court said it should have done, a judgment of acquittal would have been entered, and, of course, petitioner could not be retried for the same offense. See Fong Foo v. United States, 369 U.S. 141 (1962); Kepner v. United States, 195 U.S. 100 (1904). Consequently, as Mr. Justice Douglas correctly perceived in Sapir, it should make no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient, see 348 U.S., at 374. The appellate decision unmistakably meant that the District Court had erred in failing to grant a judgment of acquittal.” Id. at 10–11 [footnote omitted].

Factual Conclusivity Clause

Art. V, § 6(a), Texas Constitution, mandates decisions of the courts of appeals “shall be conclusive on all questions of facts brought before them on appeal or error.” See also Sanabria v. United States, 437 U.S. 54, 71, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978) (“We have recently defined an acquittal as ‘a resolution, correct or not, of some or all of the factual elements of the offense charged’” [emphasis added]). Despite the abandonment of factual sufficiency review in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010), the Factual Conclusivity Clause must still have some meaning. And while it is axiomatic appellate courts do not engage in credibility assessments, the Court of Criminal Appeals has recognized an appellate court must, at times, determine whether a jury’s reliance upon certain evidence is rational. See Shaw v. State, 243 S.W.3d 647, 658 (Tex. Crim. App. 2007) (“The requirement that the evidence must rationally support a jury finding before a defensive instruction is required serves to preserve the integrity of the jury as the factfinder by ensuring that it is instructed as to a defense only when, given the evidence, that defense is a rational alternative to the defendant’s criminal liability. If a jury were instructed as to a defense even though the evidence did not rationally support it, then the instruction would constitute an invitation to the jury to return a verdict based on speculation.”) There is a fine line between making a credibility assessment and assessing whether a factfinder’s reliance on certain evidence was rational, but it is a line that must be drawn. And when that line is drawn by a court of competent jurisdiction at any level, and results in an acquittal no matter how erroneous, the acquittal must be honored.

The court in State v. Stanley, 201 S.W.3d 754, 760 (Tex. Crim. App. 2006), stated as follows:

[T]he Supreme Court has prescribed and “consistently used” a definition of “acquittal” that the trial court’s order in this case does not satisfy. According to that definition, “a defendant is acquitted only when ‘the ruling of the judge, whatever its label, actually represents a resolution [in the defendant’s favor], correct or not, of some or all of the factual elements of the offense charged.’” This Court has similarly observed, in Ex parte George [913 S.W.2d 523, 527 (Tex. Crim. App. 1995)], that while no statutory provision explicitly defines the word “acquittal,” “the context in which it appears throughout the Code of Criminal Procedure creates a powerful inference that it means a finding of fact that the accused is not guilty of the criminal offense with which he is charged.”



The Supreme Court decision in Evans v. Michigan, supra, recognized the law “attaches particular significance to an acquittal” and mandates the acquittal be honored whatever the circumstances:

Both procedural dismissals and substantive rulings result in an early end to trial, but we explained in Scott [437 U.S. 82 (1978)] that the double jeopardy consequences of each differ. “[T]he law attaches particular significance to an acquittal,” so a merits-related ruling concludes proceedings absolutely. Id., at 91, 98 S.Ct. 2187, 57 L.Ed.2d 65. This is because “[t]o permit a second trial after an acquittal, however mistaken the acquittal may have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that ‘even though innocent he may be found guilty,’” ibid. (quoting Green v. United States, 355 U. S. 184, 188[] (1957)). And retrial following an acquittal would upset a defendant’s expectation of repose, for it would subject him to additional “embarrassment, expense and ordeal” while “compelling him to live in a continuing state of anxiety and insecurity.” Id. at 187[].

Ex Parte Denton, 399 S.W.3d 540, 544 (Tex. Crim. App. 2013), proclaimed, “Because of the fundamental nature of the double-jeopardy protections, a double-jeopardy claim may be raised for the first time on appeal or on collateral attack if two conditions are met: 1) the undisputed facts show that the double-jeopardy violation is clearly apparent on the face of the record; and 2) when enforcement of the usual rules of procedural default serves no legitimate state interest.” The principle that retroactive effect must be given to decisions that implement fundamental notions of fairness embodied in the concept of due process is certainly broad enough to include the fundamental nature of the guarantee against double jeopardy. Ex Parte Reynolds, 588 S.W.2d 900 (Tex. Crim. App. 1979); Ex Parte Mixon, 583 S.W.2d 378 (Tex. Crim. App. 1979).

There is a school of thought that takes the following contrary position: In federal court the government has a right to appeal a trial court’s judgment of acquittal that overturns the jury’s guilty verdict; therefore the same should apply to an appellate acquittal, particularly by an intermediate appellate court. That position is based on a flawed premise.

Smith v. Massachusetts, 543 U.S. 462, 125 S.Ct. 1129, 160 L.Ed.2d 914 (2005), held the Double Jeopardy Clause did not permit the trial judge to reconsider the initial ruling in favor of the accused on his motion for a required finding of not guilty, once the accused and his codefendant had rested their cases. “[W]e have long held that the Double Jeopardy Clause of the Fifth Amendment prohibits reexamination of a court-decreed acquittal to the same extent it prohibits reexamination of an acquittal by jury verdict.” Id. at 467. The Supreme Court, however, went on in dicta to make the following troublesome observation:

Our cases have made a single exception to the principle that acquittal by judge precludes reexamination of guilt no less than acquittal by jury: When a jury returns a verdict of guilty and a trial judge (or an appellate court) sets aside that verdict and enters a judgment of acquittal, the Double Jeopardy Clause does not preclude a prosecution appeal to reinstate the jury verdict of guilty. United States v. Wilson, 420 U.S. 332, 352–353, 43 L.Ed.2d 232, 95 S.Ct. 1013 (1975).


In United States v. Wilson, supra, nonetheless, decided prior to Burks, a jury had returned a verdict of guilty in defendant’s trial for converting union funds to his own use. The district court, on a post-verdict motion, dismissed the indictment on the ground the delay between the offense and indictment had prejudiced the defendant. The Government’s appeal was dismissed by the Third Circuit on grounds that (1) since the District Court had relied on facts brought out at the trial in finding prejudice from the pre-indictment delay, its ruling was in effect an acquittal; and (2) under the Double Jeopardy Clause of the Fifth Amendment the Government could not constitutionally appeal the acquittal, even though it was rendered by the judge after the jury had returned a verdict of guilty. The Supreme Court held jeopardy did not bar the Government’s appeal from the district court’s post-verdict dismissal of the indictment due to delay. Wilson simply did not involve a finding of insufficient evidence.

Monge v. California, 524 U.S. 721, 729, 118 S.Ct. 2246, 141 L.Ed.2d 615 (1998), held: “We have held that where an appeals court overturns a conviction on the ground that the prosecution proffered insufficient evidence of guilt, that finding is comparable to an acquittal, and the Double Jeopardy Clause precludes a second trial. See Burks v. United States, 437 U.S. 1, 16, 57 L.Ed.2d 1, 98 S.Ct. 2141 (1978).” Greene v. Massey, supra, reaffirmed Burks and held the Double Jeopardy Clause precluded a second trial once a reviewing court determined the evidence introduced at trial was insufficient to sustain a conviction. There is no judgment non obstante veredicto in Texas criminal jurisprudence. State v. Savage, 933 S.W.2d 497, 498–499 (Tex. Crim. App. 1986). Accordingly, Smith v. Massachusetts’ dicta does not in any manner lessen the viability of the position jeopardy attaches when an intermediate court of appeals acquits.

Should you receive one of those rare acquittals in the court of appeals and the State files a petition for discretionary review, my advice is to file a plea in bar based on the foregoing, and then file your reply subject to that plea in bar. We should continue raising this issue until it is fully recognized that an acquittal is, indeed, an acquittal.

CAVEAT (or, in the interest of full disclosure): This article involves the continuing saga of Bowen v. State, 322 S.W.3d 435 (Tex. App.—Eastland 2010, pet. granted) (Bowen 1); reversed by Bowen v. State, 374 S.W.3d 427 (Tex. Crim. App. 2012) (Bowen 2); and relies in large part on one of the arguments set out in the pending appeal to the court of appeals in Bowen v. State, No. 11-13-00114-CR, 11th Court of Appeals, Eastland, Texas. An extended oral argument is set for January 8, 2015. In the meantime, Gaddy v. State, 433 S.W.3d 128 (Tex. App.—Fort Worth 2014, pet. ref’d), on remand from the Court of Criminal Appeals and relying on Bowen 2, held its previous appellate acquittal of Gaddy of felony DWI because the State failed to prove one of the two prior jurisdictional DWIs alleged, did not bar reformation of the judgment to reflect conviction of a misdemeanor DWI. The Appellant’s PDR was refused on August 27, 2014. The Court of Criminal Appeals must eventually, in my opinion, settle this issue. Gaddy is not the final word, particularly in view of the fact the two prior DWI allegations in a felony DWI indictment are jurisdictional.


1. United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 41 L.Ed. 300 (1896): “As to the defendant who had been acquitted by the verdict duly returned and received, the court could take no other action than to order his discharge. The verdict of acquittal was final, and could not be reviewed, on error or otherwise, without putting him twice in jeopardy, and thereby violating the Constitution. However it may be in England, in this country a verdict of acquittal, although not followed by any judgment, is a bar to a subsequent prosecution for the same offence” [citations omitted]. See also, Evans v. Michigan, ___U.S.___, 133 S.Ct. 1069, 1074, 185 L.Ed.2d 124 (2013), with the following: “We granted certiorari to resolve the disagreement among state and federal courts on the question whether retrial is barred when a trial court grants an acquittal because the prosecution had failed to prove an ‘element’ of the offense that, in actuality, it did not have to prove . . . [citation omitted] We now reverse . . . In answering this question, we do not write on a clean slate . . . It has been half a century since we first recognized that the Double Jeopardy Clause bars retrial following a court-decreed acquittal, even if the acquittal is ‘based upon an egregiously erroneous foundation.’ Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962) (per curiam). A mistaken acquittal is an acquittal nonetheless, and we have long held that ‘[a] verdict of acquittal . . . could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and thereby violating the Constitution.’ United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 41 L.Ed. 300 (1896).” Id.

2. “Most relevant here, our cases have defined an acquittal to encompass any ruling that the prosecution’s proof is insufficient to establish criminal liability for an offense [citations omitted]. Burks v. United States, 437 U.S. 1, 10, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) [citation omitted]. Thus an ‘acquittal’ includes ‘a ruling by the court that the evidence is insufficient to convict,’ a ‘factual finding [that] necessarily establish[es] the criminal defendant’s lack of criminal culpability,’ and any other ‘rulin[g] which relate[s] to the ultimate question of guilt or innocence.’” Evans v. Michigan, supra, 133 S.Ct. at 1074–1075.

“Perhaps most inconsistent with the State’s and United States’ argument is Burks. There we held that when a defendant raises insanity as a defense, and a court decides the ‘Government ha[s] failed to come forward with sufficient proof of [the defendant’s] capacity to be responsible for criminal acts,’ the defendant has been acquitted because the court decided that ‘criminal culpability ha[s] not been established.’ 437 U.S., at 10, 98 S.Ct. 2141, 57 L.Ed.2d 1. Lack of insanity was not an ‘element’ of Burks’ offense, bank robbery by use of a dangerous weapon [citation omitted]. Rather, insanity was an affirmative defense to criminal liability. Our conclusion thus depended upon equating a judicial acquittal with an order finding insufficient evidence of culpability, not insufficient evidence of any particular element of the offense.” Evans v. Michigan, supra, 133 S.Ct. at 1078.

3. Cf., Benavidez v. State, 323 S.W.3d 179, 183 fn. 19 (Tex. Crim. App. 2010): “We have never required a cross-petition from an appellant to justify remanding the cause to the intermediate appellate court to address any extant, as-yet-unaddressed claims of trial error. Because of the jeopardy consequences of an appellate acquittal, it is even more ‘necessary to final disposition of the appeal’ that, when a court of appeals erroneously concludes that there is trial error in a case, but has not yet addressed a claim of legal sufficiency, we remand the case to that court for consideration of that still-pending issue.”