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Click here for the full text of this decision FACTS:On Aug. 27, 2001, a Cherokee County grand jury presented an indictment that charged appellant with theft under Texas Penal Code 31.03. The indictment alleged, in relevant part, that appellant, “on or about the 1st day of July, 1999 and before the presentment of this indictment, in the County and State aforesaid, did then and there intentionally appropriate, by acquiring and otherwise exercising control over, property, to-wit: United States Currency of the value of at least $200,000 from the owner, PATRICK RAY MCCOWN, without the effective consent of the owner, and with the intent to deprive the owner of the property.” On Jan. 22, 2002, the state brought appellant to trial under the indictment. In its opening statement to the jury, the state explained that it intended to prove that on numerous occasions between May 1999 and October 2000, appellant, a delivery truck driver for a lumber company, had intentionally overcharged Patrick McCown for lumber that appellant had delivered to him. The state explained further that the overcharges in question had totaled more than $200,000. The state’s first � and, as it turned out, only � witness, Randy Hatch, an investigator for the Cherokee County district attorney’s office, testified that in early October 2000, appellant had given him a written statement concerning appellant’s deliveries of lumber to McCown. During the course of Hatch’s testimony, the state offered appellant’s written statement into evidence, but appellant objected to the admission of the written statement on the ground it “contain[ed] extraneous offenses.” Appellant explained to the trial court that under the holding in Turner v. State, 636 S.W.2d 189 (Tex.Crim.App. 1982) (op. on reh’g), the indictment against him charged “but one crime on one date” and that, therefore, evidence of other crimes on other dates was inadmissible. The trial court overruled appellant’s objection and admitted his written statement into evidence. A bench conference then ensued, after which the state moved to dismiss the indictment. The trial court, over appellant’s objection, granted the state’s motion. On Jan. 28, 2002, a second Cherokee County grand jury presented an indictment that charged appellant with aggregated theft under Texas Penal Code 31.09. This second indictment alleged, in relevant part, that appellant, “on or about the 1st day of May, 1999 through October 4, 2000 and before the presentment of this indictment, in the County and State aforesaid, did then and there pursuant to one scheme or continuing course of conduct that began on or about May 1, 1999 and continued until on or about October 4, 2000 unlawfully appropriate by acquiring or otherwise exercising control over property, to-wit: United States Currency from Pat McCown, the owner thereof, with intent to deprive the owner of the property, and the aggregate value of the property obtained was $200,000 or more.” On March 19, 2002, appellant filed a petition for habeas corpus relief in the trial court, asking the trial court to dismiss the second indictment on the ground that the Double Jeopardy Clause of the Fifth Amendment, among other things, barred the state from prosecuting him for the aggregated theft offense alleged in the second indictment. On April 26, 2002, the trial court held an evidentiary hearing on appellant’s petition. At that hearing, the State essentially conceded that it intended to present, at the second trial, the same evidence it had originally intended to present at the first trial. The appellant claimed he was subjected to double jeopardy. The trial court issued an order denying appellant any relief. The court of appeals affirmed the trial court’s order in an unpublished opinion. Ex Parte Robbie Goodman, No. 12-02-00160-CR (Tex. App. – Tyler 2003). HOLDING:Reversed and remanded. Because the trial court granted the State’s motion to dismiss the first indictment, the Double Jeopardy Clause prohibits the state from reprosecuting appellant for the one theft alleged in the first indictment. The Double Jeopardy Clause also prohibits the state from prosecuting appellant for any lesser offense included within the theft alleged in the first indictment, since, for the purposes of the clause, a greater offense and a lesser included offense are “the same offence.” Brown v. Ohio, 432 U.S. 161 (1977). “The state, in its current prosecution of appellant for aggregated theft, may attempt to prove any number of the aggregated theft’s constituent thefts. However, consistent with the Double Jeopardy Clause, the state may not attempt to relitigate the facts underlying the theft alleged in the first indictment in an effort to prove that that offense or any of its lesser included offenses is one of the aggregated theft’s constituent thefts. In other words, the state, in proving aggregated theft, may not rely upon proof of the theft alleged in the first indictment or any of its lesser included offenses. At appellant’s trial for aggregated theft, the trial court must ensure that the state does not rely upon such proof. If necessary, the trial court may require the state to prove, by a preponderance of the evidence, that it is not relying upon such proof. If the State is unable to so prove, then the trial court must select, from among the constituent thefts that the state does prove, and strike from the jury’s consideration, the one constituent theft that most closely resembles the theft alleged in the first indictment. In that way, the trial court will ensure appellant’s rights under the Double Jeopardy Clause.” OPINION:Holcomb, J., delivered the opinion of the court, in which Meyers, Price, Womack, Johnson, Keasler, Hervey and Cochran, JJ., joined. Keller, P.J., filed a concurring opinion. CONCURRENCE:Keller, P.J. “I join the opinion of the Court except to the extent that it specifies a particular procedure for protecting appellant from violation of his double jeopardy rights. The State should be prohibited from putting on evidence of a single theft that could have been proved under the original indictment. But jeopardy has not attached to the”the one constituent theft offense that most closely resembles’ the one plead (whatever that might mean) or any other particular theft that the State could have proved under the indictment. To suggest that the procedure mandated by the Court is the only proper procedure is contrary to our on-or-about jurisprudence.”

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