Opinion
WR-93 182-01
12-08-2021
EX PARTE TYRONE DARNELL PRICE, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. C-371-W012016-1598910-A IN THE 371ST DISTRICT COURT FROM TARRANT COUNTY
YEARY, J., filed a dissenting opinion in which KELLER, P.J., joined. SLAUGHTER, J. dissented.
Judge Slaughter would file and set for submission with briefing from the parties.
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 assault, in Case No. 1589959D, and was sentenced to twelve years' imprisonment. TEX. PENAL CODE § 22.01 (b-3) (West 2019). That same day, Applicant also pleaded guilty to assault, in Case No. 1598910R, and was sentenced to twelve years' imprisonment. Id. Applicant did not appeal his convictions.
Applicant contends that his conviction in Case No. 1598910R 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 the indictments for these convictions charged Applicant for an identical criminal act; therefore, Applicant's conviction in Case No. 1598910R should be vacated because it violates his protection against double jeopardy.
Relief is granted. The judgment in Case No. 1598910R in the 371st District Court of Tarrant County is 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.
DISSENTING OPINION
Yeary, J., filed a dissenting opinion in which Keller, P.J. joined.
Applicant's attorney allowed him to plead guilty to two indictments on the same day for the offense of assault on a family member-allegedly committed in the same way, on the same date, against the same victim. Today the Court grants him relief on the only ground alleged in his post-conviction application for writ of habeas corpus: a violation of his constitutional protection against being twice convicted of the same offense embodied in the Double Jeopardy Clause of the Fifth Amendment. But the Court should not grant Applicant summary relief on this basis, for the reasons I have expressed in Ex parte Estrada, 487 S.W.3d 210, 212-15 (Tex. Crim. App. 2016) (Yeary, J., dissenting), and, more recently, in Ex parte Timmons, 630 S.W.3d 98, 98-99 (Tex. Crim. App. 2021) (Yeary, J., dissenting).
Applicant should have sought relief-if he is entitled to any-in the guise of a claim of ineffective assistance of counsel, or even perhaps in the guise of a claim of prosecutorial misconduct. If he had brought either of those claims, the Court would then have inquired whether there might have been some understandable excuse for what otherwise appears to be a plain violation of the double jeopardy bar. But he has not brought either of those claims, even as an alternative claim, and so we have no basis to grant relief on for either of those reasons.
The Court should file and set this writ application to finally articulate whether a double jeopardy claim made under circumstances such as those presented by these cases is even cognizable in post-conviction habeas corpus proceeding, and if so, why. Id. At the very minimum, the Court should not grant relief on this bare double jeopardy claim without at least establishing a requirement, for this and similar cases, that a defendant pursuing such a claim should have to show that an apparent double jeopardy claim (such as this one in this case) was not just a part of some hard-to-understand (without more information) but nevertheless permissible plan or strategy.
Because the Court instead grants summary relief, I respectfully dissent.