Opinion
WR-84,586-04
02-15-2023
EX PARTE KELLY CEKIMBER PICKETT, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 007-1489-17-A IN THE 7TH DISTRICT COURT FROM SMITH COUNTY
OPINION
PER CURIAM.
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to theft, in Cause No. 007-1488-17, and was sentenced to twelve years' imprisonment. That same day, Applicant also pleaded guilty to unauthorized use of a motor vehicle, in this case, Cause No. 007-1489-17, and was sentenced to seven years' imprisonment. Applicant did not appeal his convictions.
Applicant contends, among other things, that his unauthorized use of a motor vehicle conviction in Cause No. 007-1489-17 violates the Double Jeopardy Clause of the United States Constitution. The State agrees that Applicant is entitled to double jeopardy relief. The trial court determined that Applicant was convicted of both theft and unauthorized use of a motor vehicle for stealing the same truck and that a defendant cannot be rightfully convicted for both truck theft and unauthorized use of that same truck, because unauthorized use is a lesser-included offense of theft. The trial court, therefore, found that Applicant's conviction in Cause No. 007-1489-17 should be vacated because it violates his protection against double jeopardy.
We agree. Relief is granted. Ex parte Jefferson, 681 S.W.2d 33, 34 (Tex. Crim. App. 1984). The judgment in cause number 007-1489-17 in the 7th District Court of Smith County is set aside. Applicant's remaining claims in this application are denied. In a separate action, this Court denied relief in WR-84,586-03 relating to cause number 007-1488-17.
Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division and the Board of Pardons and Paroles.
Yeary, J., filed a dissenting opinion, in which Slaughter, J. joined.
In 2018, Applicant pled guilty to two offenses based on stealing the same truck. Applicant pled guilty to theft and was sentenced to twelve years' imprisonment. On the same day, Applicant pled guilty to unauthorized use of a motor vehicle with a concurrent sentence of seven years' imprisonment. Applicant did not appeal his convictions. In June of 2022, Applicant filed an application for writ of habeas corpus in the county of conviction. Tex. Code Crim. Proc. art. 11.07. In his application, he contends that his unauthorized use of a motor vehicle conviction violates the Double Jeopardy Clause of the United States Constitution. Applicant also claims that he received ineffective assistance from plea counsel for, among other things, failing to object on double jeopardy grounds. Today the Court grants Applicant relief on his substantive double jeopardy claim. The Court does not address the merits of Applicant's ineffective assistance of counsel claim.
As I have expressed before, I believe that a double jeopardy claim should not ordinarily be cognizable in a post-conviction application for writ of habeas corpus. See Ex parte Estrada, 487 S.W.3d 210, 215 (Tex. Crim. App. 2016) (Yeary, J., dissenting) ("I believe double jeopardy more appropriately belongs in Marin's second category of waiver-only rights. That means it can ordinarily be raised for the first time on appeal as long as it has not been affirmatively waived . . .. But it should not ordinarily be regarded as cognizable in a post-conviction application for writ of habeas corpus[.]") (citing Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993)).
Accordingly, the more appropriate disposition for this application would be to address whether Applicant is entitled to relief on his ineffective assistance of counsel claim. This would entail remanding to the convicting court to obtain a response from counsel with respect to why he did not object based on double jeopardy to the indictment for unauthorized use of a motor vehicle.
Because the Court grants relief based on Applicant's double jeopardy claim without considering whether the claim is even cognizable in a post-conviction application for writ of habeas corpus, and because the Court fails to remand for further fact development with respect to Applicant's ineffective assistance of counsel claim, I respectfully dissent.