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Click here for the full text of this decision FACTS:On Aug. 14, 2005, Bruce Glenn Milner shot his estranged wife, Leza Maddalone, and his mother-in-law, Debra Sanchez. Maddalone died from the wounds, but Sanchez lived. The state indicted Milner for the murder of Maddalone and the attempted murder of Sanchez. The murder trial of Maddalone occurred first in Cause No. 49995. During the guilt-innocence stage of the murder trial, the state presented evidence that Milner shot Sanchez, including the number of times she was shot and the nature of her injuries. A jury convicted Milner of murder and assessed his punishment at life in prison and a $10,000 fine. After the jury found Milner guilty of murder, the state proceeded with the trial for the attempted murder of Debra Sanchez in Cause No. 50811. Seven days before the attempted-murder trial, Milner filed a pretrial application for writ of habeas corpus, claiming a double jeopardy violation. Milner claimed that he was put “at risk,” because the state introduced evidence pertaining to the attempted murder during the murder trial. The trial court denied the writ of habeas corpus and found Milner’s double jeopardy claim to be frivolous. A jury convicted Milner of the attempted murder of Sanchez in Cause No. 50811 and assessed punishment at 70 years in prison. Milner contended that the state should not have been permitted to try him for the attempted murder of Sanchez, because that offense had already been proved at the murder trial of Maddalone. Specifically, Milner argued that trying him for the offense of attempted murder in a second trial resulted in a violation of his constitutional right against being placed in double jeopardy. HOLDING:Affirmed. The guiding rule and principle determining whether a criminal defendant may be put on trial twice for the same offense is known as double jeopardy. The Fifth Amendment of the U.S. Constitution states that, “No person . . . shall . . . be subject for the same offense to be twice put in jeopardy of life or limb.” The Texas Constitution contains a similar provision. The protection of the constitutional prohibition against former jeopardy, former conviction or acquittal applies only where the second prosecution is for the same offense as that for which a person has already been in legal jeopardy. The former trial must have been upon the same criminal act for which the state is again seeking to prosecute the defendant for double jeopardy to be invoked by a criminal defendant. To determine whether jeopardy attaches, a court must inquire whether each offense contains an element not contained in the other. If a different element is present, double jeopardy does not attach. If each element of the offense in the first indictment is identical to the offense in the second indictment, double jeopardy attaches and bars successive prosecutions. In Milner’s case, the court stated, the two offenses had different victims. In addition, the two offenses � murder and attempted murder � are statutorily distinct from one another. Murder requires that the victim “intentionally or knowingly causes the death of an individual,” whereas attempted murder requires that the accused “does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.” Thus, the court concluded that the trial court did not abuse its discretion in finding that these were different and separate offenses, and Milner was not put in double jeopardy by being prosecuted for an offense of which he had already been convicted. The court also disagreed with Milner that the testimony regarding the extraneous offense � the shooting of Sanchez � during the guilt-innocence phase of the murder trial violated his double jeopardy rights. Information regarding the extraneous offense (the attempted murder) was elicited during the guilt-innocence stage of trial, the court noted. Although Milner did not assert an objection to the testimony, the court observed that such evidence would have been admissible as same-transaction contextual evidence. Same transaction contextual evidence imparts to the trier of fact “information essential to understanding the context and circumstances of events which, although legally separate offenses, are blended or interwoven.” OPINION:Keyes, J.; Nuchia, Jennings and Keyes, JJ.

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