Opinion
NO. WR-84,934-07
05-15-2024
EX PARTE Victor WHITE, Applicant
Michelle Townsend, for State. M. Michele Rogers, for Applicant.
ON APPLICATION FOR A WRIT OF HABEAS CORPUS, CAUSE NO. D-38,-105-B IN THE 358TH DISTRICT COURT, FROM ECTOR COUNTY
Michelle Townsend, for State.
M. Michele Rogers, for Applicant.
OPINION
Per curiam.
Applicant was convicted via a three-count indictment of attempted capital murder (count I), attempted murder (count II), and aggravated assault (count III). He was sentenced to life imprisonment for count I, twenty years’ imprisonment for count II, and twenty years’ imprisonment for count III. The Eleventh Court of Appeals affirmed his convictions. White v. State, No. 11-13-00096-CR, 2015 WL 1470162 (Tex. App.—Eastland Mar. 26, 2015) (not designated for publication). Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See Tex. Code Crim. Proc. Ann Art. 11.07.
In this subsequent habeas application, Applicant contends that his trial was unfair and that trial counsel was ineffective. These claims are barred as subsequent. Tex. Code Crim. Proc. Ann. Art. 11.07 § 4. Applicant also contends that his convictions for attempted murder (count II) and aggravated assault (count III) violate double jeopardy. This claim is not barred as subsequent. Tex. Code Crim. Proc. Ann. Art. 11.07 § 4; Ex parte Milner, 394 S.W.3d 502 (Tex. Crim. App. 2013).
Relief is granted. Counts II and III of the judgment in cause number D-38,105 in the 358th District Court of Ector County are set aside. Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division and the Board of Pardons and Paroles.
Keller, P.J., filed a dissenting in which Yeary, Keel and Slaughter, JJ., joined.
Keller, P.J., filed a dissenting opinion in which Yeary, Keel, and Slaughter, JJ., joined.
Applicant claims that two of his three convictions violate double jeopardy, and that counsel was ineffective for failing to raise the double-jeopardy claim. He raises these claims in a subsequent writ application. Because he does not claim that his double-jeopardy complaint is based on new facts or new law, he can meet an exception to the subsequent-writ bar only by meeting the "innocence gateway" exception, which requires a showing by a preponderance of the evidence that "but for a violation of the United States Constitution, no rational juror could have found the applicant guilty beyond a reasonable doubt.".I would hold that his multiple-punishments double-jeopardy claim does not meet this exception.
See Tex. Code Crim. Proc art. 11.07, § 4(a)(2) (emphasis added).
A plurality of the Court already held this in Ex parte St. Aubin, 537 S.W.3d 39, 43 (Tex. Crim. App. 2017) (plurality op.), and the fifth vote for the result in that case agreed that the plurality’s discussion of double-jeopardy law was "legally correct," id. at 48 (Keasler, J., concurring). Arguably that makes St. Aubin a fractured decision with a common binding holding. Unkart v. State, 400 S.W.3d 94, 100 (Tex. Crim. App. 2013). Even if it is not, a view of the law shared by five judges in a prior decision of this Court ought to at least be seriously considered. But regardless of all of that, the Court ought to address the Supreme Court's reasoning in Ball, infra, which I focus on in this dissent.
The Supreme Court has explicitly recognized that the State has the right to prosecute and obtain jury verdicts on two offenses in a single trial, even if the offenses are the same for double-jeopardy purposes. In Ball, the Supreme Court explained that there was no impropriety in the prosecutor filing a charging instrument including counts that involved offenses that were the same for double-jeopardy purposes "even though the defendant could not in the end stand convicted of both offenses." The Supreme Court also said,
Ball v. United States, 470 U.S. 856, 860 n.8, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985) (emphasis added).
If, upon the trial, the district judge is satisfied that there is sufficient proof to go to the jury on both counts, he should instruct the jury as to the elements of each offense. Should the jury return guilty verdicts for each count, however, the district judge should enter judgment on only one of the statutory offenses.
Id. at 865, 105 S.Ct. 1668.
The Supreme Court could not have been more clear: two charged offenses that are the same for double-jeopardy purposes can be submitted to the jury, even if conviction on both would violate double jeopardy. Violation of double jeopardy is prevented by entering judgment on only one of the offenses.
Because the double jeopardy violation occurs only after the finding of guilt, it cannot be a "but for" cause of the finding of guilt. The Milner case cited by the Court today involved a double-jeopardy claim based on successive prosecutions rather than on multiple punishments. Unlike a multiple-punishments violation, a successive-prosecutions violation occurs when a defendant is tried a second time, and so the violation precedes the finding of guilt in the second case.
See St. Aubin, 537 S.W.3d at 43-44 (plurality op.).
See Ex parte Milner, 394 S.W.3d 502, 505 (Tex. Crim. App. 2013) ("Applicant plead guilty to the attempted capital murders in Cause Nos. 2404 and 2405 … was assessed consecutive life sentences in each cause. The three pleas were entered in separate proceedings conducted consecutively on the same day."); id. at 504 ("Applicant has proven that he is actually innocent of the second conviction for attempted capital murder."). See also St. Aubin, 537 S.W.3d at 42-43 (discussing Milner).
See Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) ("The Double Jeopardy Clause protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.") (internal quotation marks omitted). See also St. Aubin, 537 S.W.3d at 42. In fact, the St. Aubin plurality distinguished Milner for precisely this reason. See id. at 42-43. Given not only St. Aubin, but the obvious difference between the successive-prosecution and multiple-punishment branches of double-jeopardy jurisprudence, the Court errs to uncritically rely on Milner.
And this makes sense. As a practical matter, if a defendant is charged with two offenses that are the same for double-jeopardy purposes, and it violates double jeopardy to submit them both to the jury, how would a trial judge know which offense to submit to the jury and which offense to dismiss? A jury might find a defendant guilty of one but not the other if both were submitted, and if the judge dismissed the wrong case, a defendant whom the jury believed guilty of the other offense would walk free. Sometimes it would be possible to submit one of the offenses as an alternative manner and means or as a lesser-included offense, but not always. And we have held that when there is a multiple-punishment double-jeopardy violation, the remedy is for the appellate court to retain the most serious offense, which is that for which the greatest sentence was assessed. But when the jury assesses punishment, that would not be known until after the jury assesses sentence, and even when the trial judge assesses punishment, that would not be known until the end of the punishment evidence.
See Ex parte Ervin, 991 S.W.2d 804, 806. 815-16 (Tex. Crim. App. 1999) (Manslaughter and intoxication manslaughter are the same offense for double jeopardy purposes when they arise out of the same incident causing the same death even though they are codified in different chapters of the Penal Code and neither is a lesser-included offense of the other.).
Bien v. State, 550 S.W.3d 180, 188 (Tex. Crim. App. 2018).
The Court errs in failing to address the Supreme Court’s analysis of the issue in Ball. The Court also errs to uncritically rely upon Milner, a successive-prosecutions case.
We should dismiss the entire application pursuant to Article 11.07, § 4. Because the Court grants relief on the double-jeopardy claim, I respectfully dissent.