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REVISED
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 96-20194
_______________
JOHN LEE SHUTE,
Petitioner-Appellant,
VERSUS
STATE OF TEXAS
and
TOMMY THOMAS,
Respondents-Appellees.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
July 3, 1997
ON REHEARING
Before REYNALDO G. GARZA, SMITH, and EMILIO M. GARZA, Circuit
Judges.
JERRY E. SMITH, Circuit Judge:
Since the panel opinion was issued in this case, see Shute v.
Texas, 113 F.3d 56 (5th Cir. 1997), the Supreme Court has held
壯 101-106 of the Antiterrorism and Effective Death Penalty Act
("AEDPA") of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1217-21

(1996) (codified at 28 U.S.C. 壯 2244, 2253-2254), inapplicable to
non-capital habeas corpus petitions filed before the act's
effective date of April 24, 1996. See Lindh v. Murphy,
No. 96-6298, 65 U.S.L.W. 4557 (U.S. June 23, 1997). As
petitioner's habeas petition pre-dated the act, he is not subject
to it. Although we reach the same result now as we did under the
AEDPA, Lindh substantially changes our reasoning. Accordingly, we
sua sponte withdraw our prior opinion and substitute the following:
John Shute was indicted for a lesser included offense after a
conviction on the greater offense was reversed for insufficient
evidence of an aggravating element. The district court concluded
that the later indictment did not violate the Double Jeopardy
Clause of the Fifth Amendment and denied a writ of habeas corpus.
We affirm.
I.
In 1983, William Hill, a security officer for a public school
district, responded to a possible burglary at an elementary school.
He did not discover any criminal activity but saw Shute and two
other persons standing across the street, even though it was past
2:00 a.m. Hill offered the men a ride home, and they accepted.
During the ride, Shute pulled out a gun, threatened to kill
2

Hill, and ordered him to drive to a certain place. When they
arrived, Shute ordered Hill out of the car, then shot him in the
neck. Hill survived the attack.
II.
The state indicted Shute for attempted capital murder (the
"First Indictment"). This crime consists of all the elements of
attempted murder plus the following: (1) The victim was a "peace
officer"; (2) the victim was engaged in his official duty at the
time of the attack; and (3) the defendant knew the victim was a
peace officer. TEX. PEN. CODE ANN. � 19.03(a)(1) (Vernon 1994)
(defining capital murder).
Shute stipulated to his guilt of attempted murder but
contested the additional elements. He waived his right to a jury
trial and was convicted and sentenced in state court.
The state court of appeals reversed, holding that the state
had provided insufficient evidence that Hill was engaged in his
official duty, as he was acting as a private security guard and not
as a peace officer. See Shute v. Texas, No. C14-88-00630-CR,
1989 WL 14123, at *2 (Tex. App.SSHouston [14th Dist.] Feb. 23,
1989, writ ref'd) (not designated for publication).
The state then indicted Shute for ordinary attempted murder
(the "Second Indictment"). The state trial court denied Shute's
3

habeas petition that was based on double jeopardy grounds, but the
court of appeals granted relief. See Shute v. Texas, 812 S.W.2d 61
(Tex. App.SSHouston [14th Dist.] 1991). The Court of Criminal
Appeals vacated and remanded for reconsideration in light of Ex
parte Granger, 850 S.W.2d 513 (Tex. Crim. App. 1993) (en banc).
See Shute v. Texas, 857 S.W.2d 55 (Tex. Crim. App. 1993).
On remand, the court of appeals affirmed the denial of habeas
relief. See Shute v. Texas, 858 S.W.2d 606 (Tex. App.SSHouston
[14th Dist.] 1993) ("Shute IV"). The Court of Criminal Appeals
accepted review again and affirmed. See Shute v. Texas, 877 S.W.2d
314 (Tex. Crim. App. 1994) (en banc) ("Shute V").
Shute then filed a habeas petition in federal court. The
district court denied relief, and we granted Shute a certificate of
probable cause to appeal ("CPC") on August 2, 1996.1
In the meantime, the indictment against Shute was dismissed
Section 102 of the Antiterrorism and Effective Death Penalty Act
("AEDPA") of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1217-18 (1996) (codified
at 28 U.S.C. � 2253), amended 28 U.S.C. � 2253 to require a certificate of
appealability ("COA") before a final order in a habeas proceeding can be
appealed. In Drinkard v. Johnson, 97 F.3d 751, 755-56 (5th Cir. 1996), cert.
denied, 117 S. Ct. 1114 (1997), we held that this requirement applies to a habeas
petitioner who, like Shute, had a request for a CPC pending on April 24, 1996,
the effective date of the AEDPA.
Recently, the Supreme Court has decided that "the amendments to chapter
153" apply only "to such cases as were filed after the statute's enactment."
Lindh v. Murphy, No. 96-6298, 65 U.S.L.W. 4557, 4558 (U.S. June 23, 1997). As
� 2253 is a part of chapter 153, Lindh effectively overrules Drinkard on this
point. Because Shute filed his non-capital habeas petition well before April 24,
1996, none of the AEDPA's requirements apply to him.
We granted Shute both a CPC and a COA. The CPC is sufficient to vest
jurisdiction in this court.
4

for technical reasons. The state secured a new indictment for
attempted murder (the "Third Indictment"). Shute pleaded guilty
and was sentenced. He appealed that conviction in state court on
the ground that collateral estoppel bars a deadly-weapon finding.
That appeal was denied. See Shute v. Texas, 945 S.W.2d 230 (Tex.
App.SSHouston [1st Dist.] 1997, pet. filed).
III.
At the outset, we sua sponte examine whether this matter is
moot. The cornerstone of the mootness doctrine is that a
controversy must be live and ongoing throughout its adjudication,
which means that it must "touch[] the legal relations of parties
having adverse legal interests" in the outcome of the case.
DeFunis v. Odegaard, 416 U.S. 312, 317 (1974) (per curiam)
(internal quotation marks omitted) (quoting Aetna Life Ins. Co. v.
Haworth, 300 U.S. 227, 240-41 (1937)).
In federal court, Shute sought a writ of habeas corpus on
double jeopardy grounds. This entailed two requests: (1) an order
of release from custody and (2) an injunction against state
prosecution. See Showery v. Samaniego, 814 F.2d 200, 201 n.5 (5th
Cir. 1987). Thus, he sought both immediate and future relief.
The dismissal of the Second Indictment did not render the
controversy moot. "Jurisdiction over a plaintiff's claims for
5

future relief is appropriate only if a reasonable likelihood exists
that the plaintiff will again be subjected to the allegedly
unconstitutional actions." Wallace v. Texas Tech Univ., 80 F.3d
1042, 1047 n.3 (5th Cir. 1996) (citing Honig v. Doe, 484 U.S. 305,
317-18 (1988)). Because the state sought a new indictment, Shute
was likely to be subjected to the same actions.
Once the state secured the Third Indictment, both forms of
requested relief were live again. Shute still wanted release from
custody and still wanted an injunction against prosecution.
Although any state prosecution would be under a different
indictment from the one attacked before the district court, this
cannot make a difference. If the district court had granted the
injunction against state prosecution under the Second Indictment,
prosecution under the Third Indictment would be barred as well.
Otherwise, the state always could defeat a federal double jeopardy
habeas ruling by dismissing an indictment and immediately securing
an identical one.
Shute's request for injunctive relief no longer is live, as he
has pleaded guilty to the charge in the Third Indictment and,
therefore, there is no prosecution to enjoin. His request for
relief from custody, however, remains a live controversy as long as
he is imprisoned.
IV.
6

Title 28 U.S.C. � 2254(b)-(c) requires a state prisoner to
exhaust available state remedies before seeking federal habeas
relief. The state has not raised exhaustion, but we have the
discretion to refuse the implicit waiver and apply the exhaustion
requirement sua sponte. See Graham v. Johnson, 94 F.3d 958, 970
(5th Cir. 1996) (per curiam); McGee v. Estelle, 722 F.2d 1206, 1214
(5th Cir. 1984) (en banc).
To exhaust available state remedies, a habeas petitioner "must
fairly apprise the highest court of his state of the federal rights
which were allegedly violated." Deters v. Collins, 985 F.2d 789,
795 (5th Cir. 1993). When a state prisoner properly presents his
federal claim to the highest state court on direct review, he need
not ask for state collateral relief on the same ground and on the
same evidence. See Sones v. Hargett, 61 F.3d 410, 415 (5th Cir.
1995); Myers v. Collins, 919 F.2d 1074, 1075-77 (5th Cir. 1990).
Shute sought a pre-trial state habeas writ, raising his double
jeopardy claim. See Ex parte Rathmell, 717 S.W.2d 33, 34 (Tex.
Crim. App. 1986) (en banc) (stating that a pre-trial habeas
petition is the appropriate vehicle by which to review a double
jeopardy claim). His double jeopardy claim has been before the
Texas Court of Criminal Appeals twice. So, he need not raise it on
direct appeal and is not barred from relief by the exhaustion
7

doctrine.2
V.
A.
Although a defendant who pleads guilty ordinarily may not
challenge his conviction on collateral review, see Taylor v.
Whitley, 933 F.2d 325, 327 (5th Cir. 1991), he may do so when "the
indictment was facially duplicative of the earlier offense of which
the defendant had been [tried] . . . ." United States v. Broce,
488 U.S. 563, 575 (1989); accord Taylor, 933 F.2d at 327. This is
true even when he pleaded guilty after first raising his double
jeopardy argument. See Menna v. New York, 423 U.S. 61, 61-62
(1975) (per curiam).
Unfortunately, the record on appeal does not include any of
the three indictments.3 The Texas courts have held that the Second
Indictment alleges a lesser included offense of the First
For the first time at oral argument, the state argued that habeas relief
is barred because the county transferred Shute from the custody of the Harris
County sheriff to the custody of the State of Texas while this appeal was
pending. Even aside from the fact that the state is a respondent in this action
and was served with process, the state cannot defeat federal habeas review merely
by unilaterally transferring the prisoner to the custody of another state actor.
See Schultz v. United States, 373 F.2d 524, 524 (5th Cir. 1967) (per curiam) ("We
think it clear that such a transfer cannot divest this court of jurisdiction to
review the denial of appellant's petition."); cf. FED. R. APP. P. 23(a) ("Pending
review of a decision in a habeas corpus proceeding commenced before a court,
justice or judge of the United States for the release of a prisoner, a person
having custody of the prisoner shall not transfer custody to another unless such
transfer is directed in accordance with the provision of this rule.").
The district court ordered the state to provide copies of the indictments
with its answer, but the state filed a motion to dismiss instead of an answer.
8

Indictment. See Shute IV, 858 S.W.2d at 608. Neither party has
argued that there is any substantive difference between the Second
and Third Indictments, so we treat the Third Indictment, under
which Shute was sentenced, as alleging a lesser included offense of
the crime charged in the First Indictment.
B.
1.
A double jeopardy claim is a question of law. See United
States v. Cluck, 87 F.3d 138, 140 (5th Cir. 1996) (per curiam). In
a habeas context, we review the district court's determinations of
law de novo. See Dison v. Whitley, 20 F.3d 185, 186 (5th Cir.
1994).

Generally, if a defendant obtains a reversal of
his
conviction, double jeopardy does not bar a retrial. See United
States v. Ball, 163 U.S. 662, 671-72 (1896). If the conviction is
reversed for insufficient evidence of guilt, however, double
jeopardy does bar retrial. See Burks v. United States, 437 U.S. 1,
18 (1978). This is because a finding of insufficient evidence of
guilt means that the trial court should have entered a judgment of
acquittal, which would have barred retrial. See id. at 11.4
For double jeopardy purposes, a lesser included offense is
This principle applies to state as well as federal prosecutions. See
Hudson v. Louisiana, 450 U.S. 40, 42 n.3 (1981).
9

considered to be the same crime as the greater offense. See Harris
v. Oklahoma, 433 U.S. 682, 682-83 (1977) (per curiam). Therefore,
had the trier of fact simply acquitted Shute of attempted capital
murder, the state could not prosecute him for attempted murder. In
analyzing the particular double jeopardy question presented,
however, it is important to examine the various possibilities.
If the trier of fact had found that Shute lacked intent, it
necessarily would have acquitted him of both attempted capital
murder and attempted murder, as the lack of that element negates
both crimes. Similarly, if the court had found insufficient
evidence that Shute had intent, it would have entered an acquittal
for both crimes. Thus, an appellate judgment of insufficient
evidence on the intent element would require an acquittal on both
counts and would bar retrial.
If, on the other hand, the trier of fact had found all
elements except the official duty element, it would have acquitted
Shute of attempted capital murder and convicted him of attempted
murder. Similarly, if the court had found insufficient evidence of
the official duty element, it would have acquitted on attempted
capital murder but would have allowed the trier of fact to consider
the crime of attempted murder. Under this scenario, the trier of
fact would have convicted Shute of the attempted murder. Because
an appellate judgment of insufficient evidence on a particular
element is the equivalent of a trial court judgment of insufficient
10

evidence, see Burks, 437 U.S. at 11, the same result should occur
when the appellate court finds insufficient evidence.5
The wrinkle arises from the state appellate court's resolution
of this case. The court entered an acquittal for attempted capital
murder but did not enter a conviction for the crime of attempted
murder, even though the trier of fact had found all the elements of
that crime beyond a reasonable doubt.6
2.
The Eleventh Circuit has addressed this very issue and found
that the Double Jeopardy Clause does not bar retrial. See Beverly
v. Jones, 854 F.2d 412, 416 (11th Cir. 1988). The court reasoned
that, because the state appellate court could have imposed a
conviction on the defendant, it had the power to give him another
chance at acquittal:
Moreover, this is not a case in which the State was
See United States v. Skipper, 74 F.3d 608, 611-12 (5th Cir. 1996) (stating
that, in the federal system, the appellate court may direct a conviction on the
lesser included offense if it finds insufficient evidence of one of the extra
elements); see also Dickenson v. Israel, 644 F.2d 308, 309 (7th Cir. 1981) (per
curiam) (stating that a state may do the same).
Texas follows the rule that, if the state did not request or receive an
instruction on the lesser included offense at the first trial, it is deemed to
have abandoned the lesser included offense and may not try the defendant again.
See Stephens v. Texas, 806 S.W.2d 812, 817-18 (Tex. Crim. App. 1990) (en banc).
If the state requested or received such an instruction, however, it may re-
prosecute on the lesser included offense. See Granger, 850 S.W.2d at 520.
Because Shute was tried without a jury, there were no jury instructions, and the
judge was authorized to convict on a lesser included offense. See Cunningham v.
Texas, 726 S.W.2d 151, 153 (Tex. Crim. App. 1987) (en banc). Under such
circumstances, the prosecution is not required to seek any instructions. See
Shute V, 877 S.W.2d at 315.
11

presented with multiple opportunities to convict and
punish an individual for a single offense; rather, quite
the opposite is true. At his request, [the defendant]
was given another chance to rebut the State's evidence
that he committed the [lesser included offense] even
though the State had already obtained a conviction for
that offense.
Id. at 415.7
We agree with the Eleventh Circuit's cogent analysis. Even
though Shute stipulated to the elements of attempted murder at his
first trial, the state took upon itself the burden of proving those
elements at retrial. The state had no obligation to grant Shute an
opportunity to obtain an acquittal for a crime of which he already
had been convicted. Shute cannot complain now of this act of
judicial grace.
AFFIRMED.
Although no other circuit has addressed this issue, the Ninth Circuit has
confronted a similar question. The jury, which was instructed on various lesser
included offenses, acquitted on first degree murder but deadlocked on the lesser
included offenses. See United States v. Gooday, 714 F.2d 80, 81 (9th Cir. 1983).
The court held that double jeopardy did not bar retrial on the lesser included
offenses. See id. at 83. Gooday is a stronger case for a double jeopardy bar
than is Beverly or the instant case, as Gooday never was convicted of anything,
while Beverly and Shute were found guilty beyond a reasonable doubt of every
element of the lesser included offense.
12