Opinion filed September 15, 2016




                                      In The


        Eleventh Court of Appeals
                                   __________

                               No. 11-14-00256-CR
                                   __________

                TERRY ANTHONY VALENTI, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee

                    On Appeal from the 385th District Court
                           Midland County, Texas
                       Trial Court Cause No. CR40880

                     MEMORANDUM OPINION
      Terry Anthony Valenti was previously indicted in trial court cause
no. CR39782 for the offense of forgery by passing. See TEX. PENAL CODE ANN.
§ 32.21(a)(1)(B), (b) (West 2011). The indictment in cause no. CR39782 alleged
that he passed a writing to Jeff Rogers. The case was brought to trial, and a jury was
impaneled. However, the State discovered that the writing was not passed directly
from Appellant to Rogers, and the State obtained a dismissal of cause no. CR39782
prior to opening statements.
      Appellant was subsequently indicted in the underlying proceeding, trial court
cause no. CR40880, for forgery by passing. The indictment alleged that he passed
a writing to Eric Perez. There is no dispute that the writing in both cases was the
same “Power of Attorney for Transfer of Ownership to a Motor Vehicle.” Appellant
filed a special plea of double jeopardy in reliance upon the dismissal of cause
no. CR39782. After a pretrial hearing, the trial court overruled his special plea. The
case went to trial, and the jury convicted Appellant of forgery, as alleged in the
indictment. The jury assessed his punishment at confinement for two years in the
Institutional Division of the Texas Department of Criminal Justice. In three issues
on appeal, Appellant asserts that (1) the evidence was legally insufficient to support
his conviction, (2) the trial court erred in overruling his special plea of double
jeopardy, and (3) the trial court erred in overruling his motion for new trial. We
reverse and render.
                                  Background Facts
      Appellant and his former girlfriend, Debra L. Farley, purchased a 2005 Harley
Davidson Screaming Eagle motorcycle during their relationship while both lived in
Florida. Both of their names were on the certificate of title that was issued in Florida.
Prior to their breakup in May 2011, Appellant went to work in Texas and took the
motorcycle with him.
      In January 2011, Appellant met with Jeff Rogers, the sales and finance
manager at Legacy Harley Davidson (Legacy), to discuss a possible trade-in of the
motorcycle toward the purchase of another motorcycle. Appellant later brought in
the 2005 Screaming Eagle motorcycle for Rogers to inspect. Rogers noticed that
both Appellant and Farley were listed on the loan paperwork for the Screaming Eagle
motorcycle, and he informed Appellant that Farley had to be notified of the trade-in
and that she had to sign a power of attorney to transfer the title. Rogers testified that


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he gave Appellant a power-of-attorney form without any signatures on it and told
Appellant that Farley needed to sign it.
        After Appellant made repairs on the motorcycle, Rogers assigned Eric Perez,
a salesman at Legacy, to facilitate the trade-in with Appellant. Appellant brought
the power of attorney back with what appeared to be the necessary signatures and
handed it to Perez, who then gave it to Rogers. Rogers testified that he placed the
power of attorney and the certificate of title into a folder awaiting credit approval
for Appellant. Upon receiving the certificate of title, Rogers executed it on behalf
of Appellant and Farley pursuant to the executed power of attorney that Appellant
delivered to the dealership.
        Farley testified that she did not sign the power of attorney or authorize anyone
to sign her name on it. She did not hear anything about the motorcycle until a few
weeks after the trade-in occurred. Farley denied consenting to the trade-in of the
motorcycle.
                                                 Analysis
        In his second issue, Appellant contends that his subsequent conviction in the
underlying cause after the dismissal of cause no. CR39782 constituted a double
jeopardy violation.1 For the reasons set forth herein, we agree. Under the United
States Constitution, the Double Jeopardy Clause provides, in part, that no person
shall be “subject for the same offence to be twice put in jeopardy of life or limb.”
U.S. CONST. amend. V. “The Double Jeopardy Clause protects criminal defendants
from three things: 1) a second prosecution for the same offense after acquittal; 2) a
second prosecution for the same offense after conviction; and 3) multiple


        1
          In his first issue, Appellant challenges the sufficiency of the evidence supporting his conviction.
Ordinarily, we would address a challenge to the sufficiency of the evidence first because it could potentially
result in the rendition of a judgment of acquittal by this court. See Tibbs v. Florida, 457 U.S. 31, 41–42
(1982). As set forth herein, Appellant’s successful double jeopardy claim has the same result.

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punishments for the same offense.” Ex parte Milner, 394 S.W.3d 502, 506 (Tex.
Crim. App. 2013) (citing Brown v. Ohio, 432 U.S. 161, 164–65 (1977)). Appellant’s
double jeopardy claim falls under the first protection—a second prosecution for the
same offense after the functional equivalent of an acquittal. See Duran v. State,
No. PD-0429-15, 2016 WL 3448246, at *2 (Tex. Crim. App. June 22, 2016) (“[I]f
the State dismisses, waives, or abandons a charge after a jeopardy has attached (after
a jury is impaneled and sworn in a jury trial), it is tantamount to an acquittal.”).
      Appellant’s double jeopardy claim hinges upon a determination of whether
the prosecution in cause no. CR39782 and the prosecution in the underlying trial
were for the same offense. Appellant presented his double jeopardy claim to the trial
court by filing a special plea of double jeopardy pursuant to TEX. CODE CRIM. PROC.
ANN. art. 27.05 (West 2006). The trial court conducted a brief pretrial hearing on
Appellant’s special plea of double jeopardy. In reliance upon Byrd v. State, 336
S.W.3d 242 (Tex. Crim. App. 2011), the prosecutor asserted at the hearing that the
change of the name of the person to whom Appellant allegedly passed the writing
constituted the allegation of a different offense for double jeopardy purposes. The
trial court agreed with the State’s position and denied Appellant’s special plea of
double jeopardy in a written order citing Byrd.
      From a procedural standpoint, the trial court did not err in denying Appellant’s
special plea of double jeopardy prior to trial. Under Article 27.07, all issues of fact
presented in a special plea of double jeopardy are to be tried by the trier of fact in
the trial on the merits. Apolinar v. State, 820 S.W.2d 792, 793 (Tex. Crim. App.
1991) (citing CRIM. PROC. art. 27.07). Furthermore, special pleas of double jeopardy
are only applicable when the former jeopardy claim involves successive punishment




                                           4
claims, not successive prosecution claims. Id. at 794; Kelson v. State, 167 S.W.3d
587, 592 (Tex. App.—Beaumont 2005, no pet.).2
        In addition to asserting that the trial court erred in denying his special plea of
double jeopardy, Appellant asserts that his double jeopardy rights were violated
because he was prosecuted twice for the same offense. He requests that we render a
judgment of acquittal because of the violation. The double jeopardy protections are
fundamental in nature. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App.
2000). A double jeopardy claim may be raised for the first time on appeal where
“the undisputed facts show the double jeopardy violation is clearly apparent on the
face of the record and when enforcement of usual rules of procedural default serves
no legitimate state interests.” Id. In this case, the record is fully developed for the
purpose of determining whether Appellant was tried for the same offense. See Saenz
v. State, 131 S.W.3d 43, 50 (Tex. App.—San Antonio 2003), aff’d, 166 S.W.3d 270
(Tex. Crim. App. 2005). Furthermore, the trial court and the State were aware of
Appellant’s double jeopardy claim because of his special plea of double jeopardy.
See id. We conclude that there is no need for further proceedings to add new
evidence to the record and that the enforcement of the usual rules of procedural
default—by not addressing the merits of Appellant’s claim of a double jeopardy
violation in this appeal—would serve no legitimate state interest.
        In its brief, the State asserted that “[t]his Court should examine the double
jeopardy claim in light of the holding [in] Parker v. State, 985 S.W.2d 460 (Tex.
Crim. App. 1999).” The State further stated that Byrd v. State, the case upon which
it and the trial court relied in denying Appellant’s special plea of double jeopardy, is


        2
          The proper procedural method for defendants to utilize when claiming a double jeopardy violation
arising from successive prosecutions is a pretrial writ of habeas corpus. Apolinar, 820 S.W.2d at 794;
Kelson, 167 S.W.3d at 592. The special plea of double jeopardy is deficient because it does not protect
against retrial. Apolinar, 820 S.W.2d at 794; Kelson, 167 S.W.3d at 592.

                                                    5
distinguishable because it involved theft rather than forgery.                         The State
acknowledges that the facts in this case are “in line with the situation” in Parker.
Furthermore, the State acknowledges that, under the holding in Parker, Appellant
was tried for the same offense in the underlying trial that was the subject of cause
no. CR39782. We agree.3
       In Parker, the indictment alleged that the defendant passed a forged writing
to the store manager. 985 S.W.2d at 461–62. However, the defendant actually
passed the writing to a salesperson at the store, not the store manager. Id. at 462.
The salesperson subsequently passed the writing to the store manager. Id. The
defendant asserted on appeal that “the indictment alleged he passed a forged
instrument to one person, whereas the proof at trial established that he passed it to
another, therefore there was a fatal variance between the allegation in the indictment
and the proof at trial.” Id. at 461. Following Dukes v. State, the Court of Criminal
Appeals concluded that, “where a person presents a forged instrument to one
individual, and allows the instrument to be given to a second individual with the
intention that the second individual will accept and give value for the instrument, he
has passed that instrument to the second individual.” Id. at 464 (quoting Dukes v.
State, 742 S.W.2d 472, 474 (Tex. App.—Dallas 1987, pet. ref’d)). “[I]t is the intent
of the person passing the forged instrument which is at issue in a forgery case, not
whether the passee will accept and give value for the instrument.” Id. at 463 (citing
Watson v. State, 718 S.W.2d 892, 895 (Tex. App.—Beaumont 1986, pet. ref’d)).
The court further held that “[e]ither [the salesperson] or [the store manager] could
be named in the indictment as the individual to whom the instrument was passed”
under the facts in the case. Id. at 464.


       3
       We commend the State on bringing the adverse holding in Parker to our attention and
acknowledging that Appellant’s double jeopardy claim should be reviewed on the merits in this appeal.

                                                 6
      The facts in this appeal are analogous to the facts in Parker. While Appellant
passed the power of attorney to Perez, Perez then passed the power of attorney to
Rogers. Rogers then acted upon the power of attorney by executing the certificate
of title on behalf of Farley. Thus, under Parker, the evidence at trial established that
Appellant passed the power of attorney to Rogers. Accordingly, the underlying trial
constituted a successive prosecution for the same offense that was dismissed after
jeopardy attached in trial court cause no. CR39782. We sustain Appellant’s second
issue asserting a double jeopardy violation.
                                   This Court’s Ruling
      We vacate Appellant’s conviction for forgery by passing because the
conviction violates the Double Jeopardy Clause of the U.S. Constitution.
Accordingly, we reverse the judgment of the trial court, and we render a judgment
of acquittal. See Saenz, 131 S.W.3d at 53.




                                                      JOHN M. BAILEY
                                                      JUSTICE


September 15, 2016
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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