Ex parte Leachman

• Decision Date: 19 June 2018
• Docket Number: NO. 01-16-00787-CR,01-16-00787-CR
• Citation: 554 S.W.3d 730
• Parties: EX PARTE Matthew LEACHMAN
• Court: Texas Court of Appeals

554 S.W.3d 730

EX PARTE Matthew LEACHMAN

NO. 01-16-00787-CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued June 19, 2018

Rehearing Denied June 19, 2018

Rehearing Denied August 16, 2018

Discretionary Review Refused December 5, 2018

Matthew Leachman, 1200 Baker Street, Houston, TX 77002, for Appellant.

Kim Ogg, District Attorney—Harris County, Clint Morgan, Assistant District Attorney, 1201 Franklin, Suite 600, Houston, TX 77002, for State.

Panel consists of Justices Higley, Brown, and Caughey.

OPINION ON REHEARING

Laura Carter Higley, Justice

Appellant, Matthew Leachman, appeals from the trial court’s denial of his pro se application for a pretrial writ of habeas corpus, filed under article 11.08 of the Texas Code of Criminal Procedure.¹ Leachman contends that double jeopardy bars his retrial. Leachman filed an amended motion for rehearing from our May 10, 2018 opinion. We deny the amended motion for rehearing and affirm.²

Background

A. Procedural History in State Court

In the conviction at issue under trial court cause number 786224, Leachman was charged in 1998 by indictment of aggravated sexual assault of a child.³ Following a jury trial, in which the trial court had denied Leachman’s motion to represent himself, he was convicted and sentenced to 40 years' confinement in 1998. See Leachman v. Stephens , No. 4:11-CV-212, 2015 WL 5730378, at *1 (S.D. Tex. Sept. 30, 2015) (mem. and order, not designated for publication) (federal habeas proceeding summarizing procedural history). After this Court affirmed the conviction, the Court of Criminal Appeals granted Leachman’s petition for discretionary review, vacated our decision, and remanded for consideration of claims not at issue here. See Stephens , 2015 WL 5730378, at *1 ; see Leachman v. State , No. 01-98-01255-CR, 2004 WL 744820 (Tex. App.—Houston [1st Dist.] Apr. 8, 2004) (mem. op. on reh'g, not designated for publication), vacated , No. PD-0517-05, 2005 WL 2990698 (Tex. Crim. App. Nov. 9, 2005) (not designated for publication). On remand, this Court again affirmed Leachman’s conviction, the Court of Criminal Appeals refused his petition for discretionary review, and the U.S. Supreme Court denied his petition for certiorari.

See Stephens , 2015 WL 5730378, at 1 ; see Leachman v. State , No. 01-98-01255-CR, 2006 WL 2381441, at *1 (Tex. App.—Houston [1st Dist.] Aug. 17, 2006, pet. ref'd), cert. denied , 554 U.S. 932, 128 S.Ct. 2995, 171 L.Ed.2d 911 (2008).

Leachman filed a state application for a writ of habeas corpus challenging the denial of his motion to represent himself. See Stephens , 2015 WL 5730378, at *1. The state habeas court recommended denial, and the Court of Criminal Appeals denied Leachman’s first habeas application without a written order. See Ex parte Leachman , No. WR-36-445-04 (Tex. Crim. App. Dec. 1, 2010).

B. Procedural History in Federal Court

Leachman then filed a federal habeas corpus petition based on the denial of his Sixth Amendment right to represent himself, which the federal district court denied as procedurally defaulted. See Stephens , 2015 WL 5730378, at *1, *4 (citing Faretta v. California , 422 U.S. 806, 835–36, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ). The Fifth Circuit affirmed the federal district court’s judgment on all issues, except the finding that Leachman could not demonstrate cause and prejudice to excuse the procedural default of his Faretta self-representation claim. See id. ; see Leachman v. Stephens , 581 Fed.Appx. 390, 398 (5th Cir. 2014) (not designated for publication), cert. denied , ––– U.S. ––––, 135 S.Ct. 2315, 191 L.Ed.2d 984 (2015). On remand, the federal district court conditionally granted Leachman’s federal habeas corpus petition on his Faretta self-representation claim on September 30, 2015, and ordered his release unless the State moved to grant him a new trial within 90 days. See Stephens , 2015 WL 5730378, at *6.

C. The State Habeas Corpus Application and Writ Hearing

On November 4, 2015, the State timely moved for a new trial under trial court cause number 786224, which the state judge for the retrial granted on the record. On August 17, 2016, the state court granted the State’s motions to transfer its prior filings to new cause numbers, noting that the original indictment under trial court cause number 786224 had been reindicted into two separate trial court cause numbers, 1520246 (anal sodomy) and 1520247 (oral sodomy), after the grand jury had indicted Leachman on two separate counts of aggravated sexual assault of a child.

On August 30, 2016, Leachman filed a pro se pretrial habeas corpus application in the trial court, which was assigned to the underlying trial court cause number 1522187. Leachman asserted that, while the State may seek a new indictment on the same offense, the superseding indictment must mirror the initial charge. See Ex parte Legrand , 291 S.W.3d 31, 38–39 (Tex. App.—Houston [14th Dist.] 2009, pet. ref'd) (citing United States v. Holland , 956 F.2d 990, 993 (10th Cir. 1992) ). He claimed that the State was attempting to turn the single charge into two separate charges, two convictions, and two sentences.

On September 28, 2016, the habeas judge, who did not preside over Leachman’s original trial, held a non-evidentiary writ hearing on Leachman’s pro se habeas application in which both sides presented argument, but no witnesses. Leachman repeated his argument that the State was trying to take the same offense and split it into multiple offenses, thereby violating the multiple-punishment aspect of the double jeopardy clause. The State responded that it intended to withdraw its motion to consolidate and would proceed to trial only on the first trial court cause number 1520246. The prosecutor stated that he intended to file an amended motion to cumulate sentences, seeking only to stack any sentence on the existing 20-year sentence Leachman was still serving.

At the end of the writ hearing, the habeas court orally denied Leachman’s writ. The habeas court noted that if the State’s "intent is to proceed on one of the two new indictments, as opposed to both," that "take[s] care[ ] of any potential issues, so I am going to deny your writ of habeas corpus." Later that day, the habeas court signed a judgment denying Leachman’s pretrial habeas corpus application.

D. Proceedings in this Court

On September 28, 2016, Leachman timely filed a pro se notice of appeal from the habeas court’s denial of his pretrial habeas application. See TEX. R. APP. P. 26.2(a)(1), 31.1. On October 24, 2016, in compliance with a request from the Clerk of this Court, the trial court certified Leachman’s right of appeal of the denial of his pretrial habeas application. See id. 25.2(a)(2), (d). In compliance with a second request, the district clerk also filed a second supplemental clerk’s record in this Court on October 26, 2016. This record contains the State’s amended motion to cumulate sentences, which was filed only in the first charge 1520246, and the docket sheet for the second charge 1520247, showing that no such motion was filed there.

This Court abated this case several times for the habeas court to hold a hearing to determine whether the State intended to dismiss the second charge, as it appeared to have stated at the writ hearing. This Court’s February 15, 2018 Order reinstated this case after the district clerk filed a compliant supplemental clerk’s record. This record included the habeas court’s findings of fact and conclusions of law and order, signed on February 8, 2018, arising from the abatement hearing. The State clarified that it intended to proceed to trial first on the first charge, but did not intend to dismiss the second or other charges, pending the outcome of the first trial. The habeas court found that the State never stated that it had intended to dismiss the second charge at the writ hearing, and that it does not intend to dismiss the second charge now. This Court’s Order also requested briefing. See TEX. R. APP. P. 31.1. Both Leachman and the State have filed briefs, and Leachman has filed a reply.

Leachman also filed an advisory in this Court, attaching an "Advisory to the Court and Motion to Re-Open Proceedings" that he filed in the federal habeas court. Leachman argued that the federal court should re-open the habeas petition because the state trial court’s grant of a new trial was void, asserting that only the Court of Criminal Appeals may do so under art. 11.07. Leachman further claimed that he intended to raise these issues before the Court of Criminal Appeals.⁴

Leachman then filed a motion for judicial notice in this Court on April 20, 2018, contending that this Court must take judicial notice of the federal habeas court order, signed on February 8, 2018, regarding his motion to re-open proceedings. Leachman requests that this Court take judicial notice of the federal court order for his propositions that: (1) the federal district court did not view its earlier, conditional order granting federal habeas relief as voiding the state conviction, and (2) the question of whether the state trial court’s new-trial order was void was a matter for the state courts.

In the February 8, 2018 federal court order, the federal district court held that the State had complied with its earlier order granting habeas relief and ordering Leachman’s release unless the State moved to grant him a new trial within 90 days. The federal district court also noted that it lacked jurisdiction over Leachman’s retrial, but that Leachman "may move in state court to dismiss the indictment for lack of jurisdiction," and "[i]f he is again convicted, then he may challenge defects in the proceeding through a direct appeal and, if necessary, postconviction proceedings pertaining to that conviction." Thus, the federal district court denied Leachman’s motion to re-open the federal proceedings and denied his motion for oral argument as moot.

This Court requested a response to the motion from the State, which was filed on ...