by Matt Clarke

In a case of first impression, the Court of Criminal Appeals of Texas held that granting a motion for new trial based solely on the ground that the “verdict is contrary to the law and evidence” is a finding of legal insufficiency of the evidence so that a retrial of the case violates the constitutional prohibition against double jeopardy.

Donnell Sledge was arrested for unlawful possession of heroin, cocaine, and a firearm. The State sought to enhance his punishment for being a habitual offender and using a deadly weapon in the commission of a drug crime. He pleaded not guilty but was convicted on all three charges. However, the same jury found all enhancement paragraphs “not true.’’ The jury sentenced him to 11 years on each charge.

Sledge filed a motion for new trial for each conviction. Each motion stated that the reason was because “the verdict is contrary to the law and evidence.” The trial court granted the motions by checking off a box stating “granted” on each motion and signing the signature block under the box. Thus, it adopted the motions’ reason. The State did not oppose the motions or appeal the granting of the motions.

During pretrial preparations for a retrial, new defense counsel and the State acted as if a retrial should happen. However, at the arraignment hearing, the defense attorney contradicted her earlier comments and argued that double jeopardy barred a second trial. The court overruled her.

That argument was never mentioned again. Sledge was found guilty of the three charges, and all of the enhancement were found to be “true.” The jury sentenced him to 28 years in each case to run concurrently. Sledge timely appealed.

Double jeopardy was not raised as an issue. The Court of Appeals reversed the punishment based on collateral estoppel for the enhancements. The State filed a motion for rehearing in which it noted, for the first time, that the motions for new trial granted in all three cases were not void of specific grounds, as the Court of Appeals had recited, but were explicitly based on “insufficiency of the evidence,” so the State had lost its opportunity to appeal the orders. The State explained that a newly assigned attorney discovered the motions in the file and had not been previously aware of them, and apparently, new defense counsel was also unaware of them because they were “buried in the records from the original dismissed appeals.” The Court of Appeals summarily denied the motion for rehearing.

The State then successfully petitioned the Court of Criminal Appeals for discretionary review, requesting clarification of the effect of motion for new trial granted on grounds that “the verdict is contrary to the law and evidence,” without further explanation. It conceded that State v. Zalman, 400 S.W.3d 590 (Tex. Crim. App. 2013), had already determined that this is a determination of legal insufficiency of the evidence. However, it invited the Court to narrow Zalman when circumstances suggest the motion was granted based on other considerations as well but not expressly stated.

The Court began its analysis by noting that “double jeopardy concerns affect fundamental constitutional rights” and “may be raised for the first time on appeal, or even for the first time on collateral attack when the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and when the enforcement of the usual rules of procedural default serves no legitimate state interests.” Gonzalez v. State, 8 S.W.3d 640 (Tex. Crim. App. 2000).

The Court explained that both the Texas and U.S. Constitutions protect against double jeopardy. U.S. Const. amend. V; Tex. Const. art. I, § 14. Under the Fifth Amendment, there are three distinction protections: “protection against a second prosecution for the same offense after acquittal … protection against a second prosecution for the same offense after conviction … [and] protection against multiple punishments for the same offense.” Bigon v. State, 252 S.W.3d 360 (Tex. Crim. App. 2008). The Court noted that the first category of double jeopardy is implicated in this case.

Reviewing the issue de novo, the Court declined to narrow Zalman, which held that when a “verdict is contrary to the law and evidence,” it raises “a sufficiency and only a sufficiency challenge.” The Zalman Court explained that such a statement of reason is insufficient to put the State on notice of additional claims, and thus, specificity in a motion for new trial is an “essential element.” The Court refused to infer any other reason for the trial court granting the motions based on the record, which provided no explanation for granting the motions other than the “verdict is contrary to the law and evidence.”

The Court stated that when a court concludes that the evidence is insufficient to support the verdict, acquittal is required. Hudson v. Louisiana, 450 U.S. 40 (1981). Because the record is devoid of any explanation for granting the motion, the Court explained that “we must assume that the plain language used in the motion for new trial reflects the intention of the trial court, despite the perplexing reactions of the parties, including the State’s acquiescence in the motion, subsequent failure to appeal, and both parties’ false impressions that [Sledge] could be tried again for the same offenses.” Consequently, a second trial on the same charges would violate the prohibition against double jeopardy, the Court ruled.

Accordingly, the Court reversed the judgment of the Court of Appeals and remanded to the trial court for proceedings consistent with its opinion. See: Sledge v. State, 666 S.W.3d 592 (Tex. Crim. App. 2023).  

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