Ex parte Denton, Nos. AP–76,801

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation399 S.W.3d 540
Decision Date22 May 2013
PartiesEx parte William Charles DENTON, Applicant.
Docket NumberAP–76,802.,Nos. AP–76,801

399 S.W.3d 540

Ex parte William Charles DENTON, Applicant.

Nos. AP–76,801, AP–76,802.

Court of Criminal Appeals of Texas.

May 22, 2013.


[399 S.W.3d 542]


Gena Bunn, Holmes & Moore, P.L.L.C., Longview, TX, for Appellant.

Lisa C. McMinn, State's Attorney, Austin, TX, for State.


OPINION

JOHNSON, J., delivered the opinion of the Court in which PRICE, WOMACK, KEASLER, HERVEY, COCHRAN, and ALCALÁ, JJ., joined.

In each of two causes, a grand jury indicted applicant for both aggravated robbery and aggravated assault of a named complainant. A petit jury convicted him of all counts and sentenced him to concurrent terms of twenty-five years' imprisonment for each aggravated robbery and twenty years' imprisonment for each aggravated assault.

Applicant asserts that convictions for both aggravated robbery and aggravated assault of each complainant violate the prohibition against double jeopardy. He also asserts that counsel provided ineffective assistance of counsel by failing to object to the double-jeopardy violation in the trial court or to raise it on direct appeal and for failing to preserve for appellate review a claim regarding the trial court's denial of a self-defense instruction. We grant relief.

On May 16, 2012, we refused review of applicant's claim regarding the self-defense instruction, but we ordered that the applications be filed and set for submission on the remaining issues.

(1) Whether Applicant's convictions in each cause for both aggravated robbery and aggravated assault against the same complainant during the same criminal episode constitutes a violation of the prohibition against double jeopardy;

(2) Whether the alleged violation may be remedied in this habeas proceeding or is procedurally defaulted because no objection was raised before the trial court; and

(3) Whether, if the claim is procedurally defaulted, trial counsel's failure to object or appellate counsel's failure to raise the claim constituted deficient representation resulting in harm to Applicant.

Pursuant to our order, applicant has filed a brief addressing these claims. The district attorney has submitted a letter that acknowledges receipt of applicant's brief and states that “[t]he State of Texas does not intend to file a brief in this case.” We shall therefore address these claims

[399 S.W.3d 543]

without the benefit of a brief from the state.

The records from various proceedings below reflect that, in 2005, the two complainants went to applicant's residence. While there, the complainants were assaulted and robbed by applicant and two other men. Denton v. State, Nos. 12–06–00003–CR and 12–06–00004–CR, 2007 WL 677848, 2007 Tex.App. LEXIS 1706 (Tex.App.-Tyler, pets.ref'd). Each of the two indictments at issue here charged applicant with one count of aggravated assault and one count of aggravated robbery. The jury found him guilty of all four charges, with the sentences to run concurrently. The court of appeals affirmed the trial court's judgment. We refused applicant's petitions for discretionary review. Denton v. State, PD–0779–10 and PD–0780–10 (Tex.Crim.App., pet. ref'd August 25, 2010).

In these applications for habeas corpus, applicant asserts that the convictions for both aggravated robbery of and aggravated assault on each complainant violated his constitutional protections against double jeopardy. 1

Each indictment alleges, in different counts, two specific offenses. Indictment number B–13,723 alleges that applicant committed the offenses of aggravated robbery and aggravated assault against complainant “N. Moore,” while indictment number B–13,724 alleges that applicant committed the offenses of aggravated robbery and aggravated assault against complainant “H. Foster.” All of the offenses in both indictments were alleged to have been committed by applicant on or about the 18th day of March 2005.

The habeas court's findings of fact, which are undisputed by the parties, reflect that on March 18, 2005, the complainants went to applicant's residence. Applicant lived in a mobile home that sat in his mother's backyard and which had an attached shed that was furnished and served as his bedroom. 2 The complainants went to the shed to collect a debt owed to Moore by applicant from a previous sale of methamphetamine. Denton v. State, supra at *1, 2007 Tex.App. LEXIS 1706, at *1. While they were inside the shed, the complainants were assaulted and robbed by applicant and two other men. Id. The opinion of the court of appeals noted that the complainants were strip-searched and told to turn over their belongings, that applicant fired a gun into a wall of the shed, and that Moore had been shot in the leg by one of the other two men. Id. at **6–7, 2007 Tex.App. LEXIS 1706, at **18–19. After the complainants turned over their belongings, they were allowed to leave, with applicant escorting Moore out and warning him not to return. The complainants' possessions were never returned to them. Id. at *6–7, 2007 Tex.App. LEXIS 1706, at *19.See also Habeas Court's Findings of Fact and Conclusion of Law. Neither indictment alleged that Moore had been shot, but each indictment alleges both (1) threatening or placing the named complainant in fear by using or exhibiting a firearm and (2) threatening the named complainant by firing a firearm in the room where each complainant was.3

[399 S.W.3d 544]

Applicant argues that his convictions for both aggravated robbery and aggravated assault of the same person during a single transaction constitute multiple punishments for the same offense, in violation of the constitutional prohibition against double jeopardy. He asserts that, since the double-jeopardy clause prohibits multiple punishments for the same offense, two of his convictions and resulting punishments are prohibited.

Applicant asserts that the evidence shows that taking Moore's and Foster's belongings was his sole objective and that his assault of Moore and Foster was in furtherance of that single objective, with the firing of a weapon simply being “just a step along the way.” He maintains that the state “parsed what was in reality a single aggravated robbery into two separate crimes,” resulting in two punishments for a single assaultive event and a double-jeopardy violation because jeopardy principles permit only one punishment per complainant. Brief of Applicant at 15.

I. Cognizability

We begin by addressing the second of the issues that we filed and set for submission, which asks whether the alleged violation may be remedied in a habeas proceeding or is procedurally defaulted because no objection was raised in the trial court.

We have previously addressed such claims via writ of habeas corpus application. See, e.g., Ex parte Cavazos, 203 S.W.3d 333 (Tex.Crim.App.2006); Ex parte Hawkins, 6 S.W.3d 554 (Tex.Crim.App.1999); Ex parte Ervin, 991 S.W.2d 804 (Tex.Crim.App.1999). Because of the fundamental nature of the double-jeopardy protections, a double-jeopardy claim may be raised for the first time on appeal or on collateral attack if two conditions are met: 1) the undisputed facts show that the double-jeopardy violation is clearly apparent on the face of the record; and 2) when enforcement of the usual rules of procedural default serves no legitimate state interest. Langs v. State, 183 S.W.3d 680, 687 (Tex.Crim.App.2006); Gonzalez v. State, 8 S.W.3d 640, 643 (Tex.Crim.App.2000).

A double-jeopardy claim is apparent on the face of the trial record if resolution of the claim does not require further proceedings for the purpose of introducing additional evidence in support of the double-jeopardy claim. Ex parte Knipp, 236 S.W.3d 214, 216, n. 3 (Tex.Crim.App.2007); Gonzalez v. State, 8 S.W.3d at 643. In this case, there is no

[399 S.W.3d 545]

need for such expansion of the record because the writ record contains all of the information needed to address the merits of the double-jeopardy claim. If we find that there is a double-jeopardy violation, the remedy will be to vacate one of the convictions; no additional proceedings will be required. Ex parte Cavazos, 203 S.W.3d at 337. While the state may have an interest in maintaining the finality of a conviction, we perceive no legitimate interest in maintaining a conviction when it is clear on the face of the record that the conviction was obtained in contravention of constitutional double-jeopardy protections. “Society's interest, of course, is not simply to convict the guilty. Rather its interest is ‘in fair trials designed to end in just judgments.’ ” Oregon v. Kennedy, 456 U.S. 667, 682, n. 7, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982) (quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949)). See also, United States v. Broce, 488 U.S. 563, 589, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989) (Blackmun, J., dissenting) (no legitimate interest in punishing defendants twice for the same conduct); Green v. Ohio, 455 U.S. 976, 979, 102 S.Ct. 1486, 71 L.Ed.2d 688 (1982) (White, J., dissenting) (“The interests served by the finality requirement, though important, do not outweigh petitioner's interest in receiving the full protection afforded by the Double Jeopardy Clause and avoiding the irreparable injury of a second trial.”)

We recently held that, “[w]hen a double-jeopardy violation has occurred, a writ of habeas corpus is a proper venue through which to challenge the error.” Ex parte Milner, 394 S.W.3d 502, 506 (Tex.Crim.App.2013). We likewise hold here that applicant's claim of a double-jeopardy violation may be addressed and remedied in a habeas corpus proceeding.

II. Double Jeopardy

The Fifth Amendment's Double Jeopardy Clause provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. The Double Jeopardy Clause of the Fifth Amendment, applicable to the states through the Fourteenth Amendment, protects an accused against 1) a second prosecution for the same offense after acquittal, 2) a second prosecution for the same offense...

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133 practice notes
  • Bates v. State, No. 06–14–00096–CR
    • United States
    • Court of Appeals of Texas
    • June 17, 2015
    ...demonstrate how [the Texas Court of Criminal Appeals] and other courts have interpreted and applied constitutional law.”Ex parte Denton, 399 S.W.3d 540, 553 n. 30 (Tex.Crim.App.2013) (orig. proceeding) (Keller, P.J., concurring); see Tex.R.App. P.77.3.35 In other words, the Court determined......
  • Ex parte Marascio, NO. WR–80,939–01, WR–80,939–02, & WR–80,939–03
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • October 7, 2015
    ...707 (1969). Furthermore, this Court has held repeatedly that double-jeopardy protections are of a fundamental nature. SeeEx parte Denton,399 S.W.3d 540, 544 (Tex. Crim. App. 2013); Langs v. State,183 S.W.3d 680, 687 (Tex. Crim. App. 2006); Gonzalez,8 S.W.3d at 643.Rather than apply strict p......
  • Aekins v. State, NO. PD–1712–13
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • October 22, 2014
    ...the same person, were distinct and separate sales made at different times”).5 Hawkins, 6 S.W.3d 554, 557 n. 8. See also Ex parte Denton, 399 S.W.3d 540, 548 (Tex.Crim.App.2013) (Keller, P.J., concurring).6 Blockburger, 284 U.S. at 304, 52 S.Ct. 180 (predicating the same-elements test on the......
  • Ex parte Benson, 81,764–01
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • April 15, 2015
    ...L.Ed. 306 (1932).5 U.S. Const.amend 5, cl. 2.6 Brown v. Ohio, 432 U.S. 161, 164, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) ; Ex parte Denton, 399 S.W.3d 540, 545 (Tex.Crim.App.2013).7 Brown, 432 U.S. at 165, 97 S.Ct. 2221 ; Denton, 399 S.W.3d at 545.8 Missouri v. Hunter, 459 U.S. 359, 366, 103 S......
  • Request a trial to view additional results
133 cases
  • Bates v. State, No. 06–14–00096–CR
    • United States
    • Court of Appeals of Texas
    • June 17, 2015
    ...demonstrate how [the Texas Court of Criminal Appeals] and other courts have interpreted and applied constitutional law.”Ex parte Denton, 399 S.W.3d 540, 553 n. 30 (Tex.Crim.App.2013) (orig. proceeding) (Keller, P.J., concurring); see Tex.R.App. P.77.3.35 In other words, the Court determined......
  • Ex parte Marascio, NO. WR–80,939–01, WR–80,939–02, & WR–80,939–03
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • October 7, 2015
    ...707 (1969). Furthermore, this Court has held repeatedly that double-jeopardy protections are of a fundamental nature. SeeEx parte Denton,399 S.W.3d 540, 544 (Tex. Crim. App. 2013); Langs v. State,183 S.W.3d 680, 687 (Tex. Crim. App. 2006); Gonzalez,8 S.W.3d at 643.Rather than apply strict p......
  • Aekins v. State, NO. PD–1712–13
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • October 22, 2014
    ...the same person, were distinct and separate sales made at different times”).5 Hawkins, 6 S.W.3d 554, 557 n. 8. See also Ex parte Denton, 399 S.W.3d 540, 548 (Tex.Crim.App.2013) (Keller, P.J., concurring).6 Blockburger, 284 U.S. at 304, 52 S.Ct. 180 (predicating the same-elements test on the......
  • Ex parte Benson, 81,764–01
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • April 15, 2015
    ...L.Ed. 306 (1932).5 U.S. Const.amend 5, cl. 2.6 Brown v. Ohio, 432 U.S. 161, 164, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) ; Ex parte Denton, 399 S.W.3d 540, 545 (Tex.Crim.App.2013).7 Brown, 432 U.S. at 165, 97 S.Ct. 2221 ; Denton, 399 S.W.3d at 545.8 Missouri v. Hunter, 459 U.S. 359, 366, 103 S......
  • Request a trial to view additional results

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