Bailey v. State (2002)

In Bailey v. State, 87 S.W.3d 122 (Tex. Crim. App. 2002), the defendants in Bailey were originally charged with stealing money from the City of Houston. Id. at 123. The defendants worked for a construction company that had a contract with the city to complete various projects. Id. at 124. The workers completed time sheets to falsely indicate they were working and entitled to pay. Id. Rick Collins, the owner of the construction company, testified he issued paychecks to the defendants based on the time sheets and was later reimbursed by the city. Id. at 125. Several city officials testified the city was not responsible for paying any contractor's employees; the city's only obligation was to pay the contractor under the terms of the contract. Id. The trial court granted the defendants' motion for acquittal on the ground the evidence demonstrated the money allegedly stolen belonged to the construction company and not to the city as alleged in the indictments. Id. The State subsequently re-indicted the defendants, alleging the same conduct, but listing Rick Collins as the owner of the money. Id. The defendants filed applications for writs of habeas corpus claiming double jeopardy. Id. The Court of Criminal Appeals agreed with the State that double jeopardy did not bar the second prosecutions. The court first noted that "traditionally, courts in Texas have held that an acquittal because of a variance between the pleading and the proof does not bar reprosecution on a new charge alleging that version of the offense which the State's evidence proved in the first trial." Id. at 126-27. Noting that the test is whether the subsequent charge involves the "same offense" rather than the "same conduct," the court reasoned that theft of money from the City of Houston was not the same offense as theft of money from Rick Collins, and double jeopardy was not implicated. Id. at 126, 127. The Court did not discuss the essential elements of the offense of theft, the allowable unit of prosecution for theft, or legal sufficiency. See Bailey, 87 S.W.3d at 126-29. Rather, the court held that when a defendant has been acquitted of an offense because of a variance between the charging instrument and the proof, double jeopardy does not bar a subsequent prosecution for a different offense based on the "same conduct." Id. at 128-29. In Bailey v. State, had to determine "whether re-indicting appellants for the same course of conduct while alleging a different victim" constituted double jeopardy. Id at 126. The State first indicted the defendants for engaging in organized criminal activity involving theft from the City of Houston. During trial, the court granted an acquittal because the State not only failed to put on evidence of the theft of money from the City of Houston, but rather, had introduced evidence that the theft was from a different owner--a contractor who was reimbursed by the City of Houston. Id. at 125. The State subsequently re-indicted the defendants for the same theft of property, but named the contractor as the owner of the property. The Court of Criminal Appeals rejected the argument that the second prosecution was barred by double jeopardy principles. "Evidence that appellants stole money from the contractor would not sustain a conviction under the indictment alleging the victim to be the City of Houston. In other words, proof of one will not prove the other. Thus, the offenses are not the same for double jeopardy purposes." Id. at 127.