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Click here for the full text of this decision FACTS:An indictment for assault of a public servant alleged that on or about Nov. 3, 2000, in Refugio County, the appellant intentionally and knowingly caused bodily injury to Doug Carter by striking Carter with his hand, knowing Carter was a public servant (specifically, a peace officer) and while Carter was lawfully discharging the official duty of arresting him, and in retaliation for, and on account of, the exercise of official power and the performance of official duty. The trial began on April 22, 2002. In the first two days of the trial, the court arraigned the appellant and selected a jury. On the morning of the third day, after the jurors were sworn, the appellant’s attorney told the court that he “was told just a minute ago that my client had actually already been convicted in county court for resisting arrest . . .; therefore, it would seem . . . that this trial actually might be barred by double jeopardy.” He “object[ed] to proceeding at this time.” The court overruled his objection, and the trial continued. The appellant told the district court that “we’re raising a double jeopardy defense . . . and we’ll object to the object to the trial, I guess.” The court ruled, saying “With regard to your plea of double jeopardy, I will overrule that motion.” The appellant presented no evidence before the jury. The jury found him guilty of assault of a public servant. The court of appeals decided the appeal on double-jeopardy grounds. It held, “Because we conclude that resisting arrest and assault on a peace officer are the”same offense’ for double jeopardy purposes in this case and because we find that appellant has already been tried and convicted for resisting arrest, we reverse the judgment of the trial court and order a judgment of acquittal on the assault charge.” HOLDING:Reversed and remanded. The court believes that the court of appeals’ analysis is not in accord with the interpretation of the double jeopardy clause that the U.S. Supreme Court has adopted. The court of appeals held that there was a double-jeopardy violation because “in the assault trial, the State relied on and proved the same facts � showing an intentional use of force against the officer � that were necessary to prove the resisting arrest charge. The State thus established that appellant committed the offense of resisting arrest for the second time. This is not allowed.” The court states that this reasoning is essentially that of Grady v. Corbin, 495 U.S. 508 (1990), which the U.S. Supreme Court has overruled. Three years after Grady, the U.S. Supreme Court said in United States v. Dixon, 509 U.S. 688 (1993): “We have concluded, however, that Grady [v. Corbin] must be overruled. Unlike Blockburger [v. United States, 284 U.S. 299 (1932)] analysis, whose definition of what prevents two crimes from being the”same offence,’ U.S. Const., Amdt. 5, has deep historical roots and has been accepted in numerous precedents of this Court, Grady lacks constitutional roots. The”same-conduct’ rule it announced is wholly inconsistent with earlier Supreme Court precedent and with the clear common-law understanding of double jeopardy.” This court states that, “The 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. The offense of assault required proof of at least one fact that the offense of resisting arrest did not: that the appellant caused bodily injury. The offense of resisting arrest required proof of a fact that the offense of assault did not: that the appellant prevented or obstructed a peace officer from effecting an arrest.” By the Blockburger rule, the offenses were not the same, the court concludes, therefore there was no violation of the double jeopardy clause. OPINION:Womack, J., delivered the opinion of the court, in which Keller, P.J., and Johnson, Keasler, Hervey and Holcomb, JJ., joined. Price and Cochran, JJ., concurred in the judgment. Meyers, J., filed a dissenting opinion. DISSENT:Meyers, J. “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. 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 Blockburger 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. . . . “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.”

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