Ex parte Chapa, NO. 03-18-00104-CR

CourtCourt of Appeals of Texas
Writing for the CourtCindy Olson Bourland, Justice
PartiesEx parte Eddie Thomas Chapa
Docket NumberNO. 03-18-00104-CR
Decision Date22 August 2018

Ex parte Eddie Thomas Chapa

NO. 03-18-00104-CR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

August 22, 2018


ON MOTION FOR REHEARING

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
NO.
D-1-DC-16-301468, THE HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING

MEMORANDUM OPINION

We withdraw the memorandum opinion and judgment dated May 23, 2018, substitute the following memorandum opinion and judgment in their place, and deny appellant's motion for rehearing.

Appellant Eddie Thomas Chapa appeals the trial court's denial of his pretrial application for writ of habeas corpus in which he sought to quash the indictment charging him with multiple child sexual abuse offenses. See Tex. Code Crim. Proc. arts. 11.01, 11.08. We affirm the trial court's order denying habeas relief.

BACKGROUND

The indictment in this case contains nine counts—five counts of aggravated sexual assault of a child, see Tex. Penal Code § 22.021, two counts of indecency with a child by sexual contact, see id. § 21.11(a)(1), and two counts of indecency with a child by exposure, see id.

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§ 21.11(a)(2)—that allege various sexual acts perpetrated against L.A.C., a child under the age of 14, on or about August 1, 2011.

Count One alleges that appellant intentionally and knowingly penetrated the sexual organ of L.A.C. with appellant's sexual organ. Count Two alleges that appellant intentionally and knowingly contacted the sexual organ of L.A.C. with appellant's sexual organ. Count Three alleges that appellant intentionally and knowingly penetrated the mouth of L.A.C. with appellant's sexual organ. Count Four alleges that appellant intentionally and knowingly contacted the mouth of L.A.C. with appellant's sexual organ. Count Five alleges that appellant intentionally and knowingly penetrated the sexual organ of L.A.C. with appellant's finger. Count Six alleges that, with intent to arouse and gratify appellant's sexual desire, appellant touched the genitals of L.A.C. Count Seven alleges that, with intent to arouse and gratify appellant's sexual desire, appellant touched "any part of the body" of L.A.C. with appellant's genitals. Count Eight alleges that, with intent to arouse and gratify appellant's sexual desire, appellant exposed his genitals to L.A.C. Count Nine alleges that, with intent to arouse and gratify appellant's sexual desire, appellant caused L.A.C. to expose her genitals.

Subsequent to indictment, appellant filed a document entitled Defendant's Motion to Quash the Indictment and Pre-trial Application for Writ of Habeas Corpus [Double Jeopardy]. In the combination motion/application, appellant asserted that the indictment is "multiplicitous" and must be quashed and set aside because the multiple counts violate the Double Jeopardy Clause.1

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Specifically, he contended that the offenses alleged in Counts Two, Four, Five, Six, Seven, and Eight are the "same offense" as the offense alleged in Count One because they are subsumed within that offense. He further contended that the offense alleged in Count Four is the "same offense" as the offense alleged in Count Three because it is subsumed within that offense.

The trial court conducted a hearing on appellant's combination motion/application. Appellant did not call any witnesses, offer any evidence (though he sought a stipulation from the State), or present any argument to the court (beyond his motion/application). At the hearing, the following occurred:

THE COURT: State of Texas versus Eddie Thomas Chapa. Defendant's Motion to Quash the Indictment. Pretrial application for writ of habeas corpus. [Defense Counsel], you may proceed.

COUNSEL: Thank you, Judge. Judge, I believe that the motion and application is self-explanatory and why we're raising it on

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jeopardy grounds. I would like the record to reflect, and I believe the [S]tate agrees with this, that if any offense alleged in the indictment occurred, that they occurred on exactly the same day.

In other words, if anything happened either orally, vaginally, or by digital penetration, it all occurred in the same incident. And I believe the state accepts that. And so --

PROSECUTOR: The [S]tate will stipulate to that.

COUNSEL: And that date is alleged to be on or about the 1st day of August, 2011. And with that, that's all the argument we have, Judge. If you would accept that stipulation, Judge, then that's all we have.

THE COURT: I accept the stipulation. After hearing your argument and reading the motion, your motion is denied.

Appellant now appeals the denial of his pretrial application for writ of habeas corpus.2

STANDARD OF REVIEW

We review a trial court's decision on a pretrial application for writ of habeas corpus, we review the facts in the light most favorable to the trial court's ruling and, absent an abuse of discretion, uphold the ruling. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006); Ex parte Ali, 368 S.W.3d 827, 830 (Tex. App.—Austin 2012, pet. ref'd). An abuse of discretion

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does not occur unless the trial court acts "arbitrarily or unreasonably" or "without reference to any guiding rules and principles," State v. Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016) (quoting Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)), or unless the trial court's decision "falls outside the zone of reasonable disagreement," Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016).

DISCUSSION

In his sole point of error, appellant asserts that the trial court erred in denying his application for writ of habeas corpus and refusing to quash the indictment against him. He maintains that the "multiplicity" doctrine, grounded in the Double Jeopardy Clause, "bars the State from trying him repeatedly for the same alleged offense."

Pretrial habeas, followed by an interlocutory appeal, is an extraordinary remedy. Ex parte Ingram, 533 S.W.3d 887, 891 (Tex. Crim. App. 2017); Ex parte Perry, 483 S.W.3d 884, 895 (Tex. Crim. App. 2016). This remedy is reserved "for situations in which the protection of the applicant's substantive rights or the conservation of judicial resources would be better served by interlocutory review." Ex parte Weise, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001); see Ingram, 533 S.W.3d 891-92; Perry, 483 S.W.3d at 895. Whether a claim is cognizable on pretrial habeas is a threshold issue that should be addressed before the merits of the claim may be resolved. Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010); Ex parte Paxton, 493 S.W.3d 292, 297 (Tex. App.—Dallas 2016, pet. ref'd); see, e.g., Perry, 483 S.W.3d at 895 (addressing cognizability of "as applied" challenge to constitutionality of statute); Ex parte Doster, 303 S.W.3d 720, 724-27 (Tex. Crim. App. 2010) (addressing cognizability of claim involving Interstate Agreement on

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Detainers Act); Ex parte Smith, 185 S.W.3d 887, 893 (Tex. Crim. App. 2006) (addressing cognizability of in pari materia claim). When determining whether an issue is cognizable by pretrial habeas, courts consider a variety of factors, including whether the rights underlying the claims would be effectively undermined if not vindicated before trial and whether the alleged defect would bring into question the trial court's power to proceed. Perry, 483 S.W.3d at 895-96; Weise, 55 S.W.3d at 619.

Appellant contends that he "is entitled to habeas relief, in the form of the indictment being quashed, because the underlying alleged offense cannot be the basis of nine separate accusations, subjecting the Appellant to being tried nine times for the same offense, and possibly being punished nine times for a single offense." He argues in his brief that Counts One, Two, Six, Seven, Eight, and Nine charge appellant with "the same conduct," and that the offenses alleged in Counts Two, Six, Seven, Eight, and Nine are subsumed within the offense alleged in Count One.3 Similarly, appellant argues that "the same is true" of Counts Three, Four, Seven, and Eight and that the offenses alleged in Counts Four, Seven, and Eight are subsumed within the offense alleged in Count Three.4 Thus, according to appellant, Counts Two, Four, Six, Seven, Eight, and Nine are

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"multiplicitous and, therefore, violative of the Fifth Amendment [Double Jeopardy Clause]," and the indictment "should have been quashed." Appellant did not specifically articulate at the hearing, nor does he on appeal, which specific double-jeopardy protection he asserts—the protection against successive prosecutions or the protection against multiple punishments—and he referenced both protections in his habeas application and his appellate brief. Also, in his brief, he mentions "trying [appellant] repeatedly" and "being tried nine times" as well as "possibly being punished nine times." However, a "multiplicity" claim is based on a multiple-punishments violation, so we construe appellant's assertion of a double-jeopardy violation in his habeas application as a multiple-punishments claim. For the reasons that follow, we conclude that appellant's multiple-punishments double-jeopardy claim is not cognizable on a pretrial writ.

The Double Jeopardy Clause of the Fifth Amendment protects a defendant against being placed twice in jeopardy for the same offense. U.S. Const. amend. V, cl. 2 ("nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb"). The clause embodies three separate guarantees—protection against prosecution for the same offense following an acquittal, protection against prosecution for the same offense following a conviction, and protection against multiple punishments for the same offense. Illinois v. Vitale, 447 U.S. 410, 415 (1980); Brown v. Ohio, 432 U.S. 161, 164-65 (1977); Ex parte Marascio, 471 S.W.3d 832, 847 (Tex. Crim. App. 2015); Ex Parte Denton, 399 S.W.3d 540, 545 (Tex. Crim. App. 2013). These guarantees encompass two protections—the protection against successive prosecutions and the protection against multiple punishments. See United States...

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