Ex parte Marascio, NO. WR–80,939–01, WR–80,939–02, & WR–80,939–03

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtPer curiam.
PartiesEx parte Eric Reed Marascio, Applicant
Docket NumberNO. WR–80,939–01, WR–80,939–02, & WR–80,939–03
Decision Date07 October 2015

471 S.W.3d 832 (Mem)

Ex parte Eric Reed Marascio, Applicant

NO. WR–80,939–01, WR–80,939–02, & WR–80,939–03

Court of Criminal Appeals of Texas.

Filed: October 7, 2015


John Schomburger, Plano, for Appellant.

John R. Rolater, Jr., Assistant District Attorney, McKinney, Lisa C. McMinn, State's Attorney, Austin, for the State.

OPINION

Per curiam.

Applicant was convicted of three charges of felony Bail Jumping and Failure to Appear, and he was sentenced to eight years' imprisonment for each charge, to run concurrently. In these applications for writ of habeas corpus under Article 11.07 of the Code of Criminal Procedure, Applicant contends that these multiple convictions violate the constitutional prohibition against double jeopardy. We filed and set these applications to determine several issues associated with Applicant's double-jeopardy claims.1We now conclude that

471 S.W.3d 833

Applicant is not entitled to relief. Relief is denied.

Richardson, J., filed a concurring opinion in which Newell, J. joined.

Yeary, J., filed a concurring opinion in which Keasler, J., joined.

Meyers, J., filed a dissenting opinion.

Johnson, J., filed a dissenting opinion.

Alcala, J., filed a dissenting opinion in which Johnson, J., joined.

CONCURRING OPINION

Keasler, J., filed a concurring opinion, in which Herveyand Yeary, JJ., joined.

I concur in denying Eric Maracio's applications for writ of habeas corpus. However, I would do so based on this Court's holding in Ex parte Townsendand its underlying logic and intent. In resolving certain claims, our habeas corpus jurisprudence lacks a consistent theory of cognizability—a term this Court understands to mean which claims are entitled to merits review. The double-jeopardy claim presented today is one example. Relying on familiar error-preservation and rights-based principles, this Court should pronounce a consistent and logical theory defined by unified principles.

I. Preservation of Error

A. Similarity of direct appeal and habeas corpus

Our case law has long held that the error-preservation requirement exists with equal force in habeas proceedings as it does in appellate proceedings. As a result, error preservation is generally a prerequisite to habeas corpus relief.1Since at least 1974 in Ex parte Bagley,this Court has held that “[t]he same rule as to the necessity of an objection to complained of evidence has been applied by this Court in habeas corpus cases.”2Many years after Bagley,this Court continued to embrace the contemporaneous-objection rule on habeas which is, generally, that “appellate courts will not consider any error which counsel for the accused could have called, but did not call, to the attention of the trial court at the time when such error could have been avoided or corrected by the trial court.”3The extension of this premise established the central vein of our habeas jurisprudence that record claims—those that should have been litigated in the trial court and on direct appeal—will be denied.4These principles only added to the widely recognized limitations of the writ set out by this Court over 80 years ago consistent with the writ's ancient origins: “Habeas corpus is an extraordinary writ, and the general rule is that it does not lie where relief may be had, or could have been procured by resort to another remedy. It is also settled that use of the writ will not be permitted as a substitute for appeal.”5Like contemporaneous-objection

471 S.W.3d 834

law generally, whether a particular claim should receive merits review “should be informed first and foremost by the State's legitimate interest in the integrity and finality of convictions. The appellate process is past. Any standard for deciding what claims to entertain in a collateral proceeding should be rigorous.”6But as I later set out, the weighty interests in a conviction's integrity and finality must yield in the face of allegations of certain rights' violations that demand merits review.

In practice, one of the first expressions of the limitations of habeas corpus when an opportunity to appeal existed—and therefore afforded a forum for an adequate remedy—was Ex parte Loper.7This Court held that through an application for writ of habeas corpus, Loper claimed his conviction was “void for many reasons, all of which are matters that could have and should have been urged upon the trial of the Harris County case or upon an appeal therefrom. He failed to appeal such cause.”8For this reason, this Court denied relief.

In Ex parte Pena,the sentencing judge entered a judgment indicating a fine of $10,000 when the jury assessed no fine at all.9Assuming that Pena raised a cognizable complaint, the Court held that he was not entitled to relief because he forfeited any error by not objecting at the time the $10,000 fine was imposed or by complaining on direct appeal.10The record in Penaestablished that Pena was informed that he had the option to appeal, or file a motion to reconsider the sentence, but he elected not to pursue those options.11Citing Ex parte Bagley,the Court held that he was not entitled to relief “because he could have, and should have, complained about the fine at the time it was imposed or on direct appeal.”12

Relying heavily on the axiom “The Great Writ should not be used in matters that should have been raised on appeal,” Ex parte Townsendheld that “[e]ven a constitutional claim is forfeited if the applicant had the opportunity to raise the issue on appeal. This is because the writ of habeas corpus is an extraordinary remedy that is available only when there is no other adequate remedy at law.”13Most likely owing to its sweeping language, Townsendhas been viewed as a defining point in our habeas jurisprudence, but it was hardly new: If an applicant could have appealed the issue he now asserts on habeas, the merits of his claim should not be reviewed.

If Townsendrequires that we ask “Could the applicant have brought his

471 S.W.3d 835

claim on appeal?” before reviewing a claim's merits, the answer turns on the nature of the right he seeks to vindicate. If it was not preserved in the trial court, then the answer turns on whether the right that the applicant seeks to vindicate is subject to procedural default. After all, if a particular right is not subject to procedural default, then the claim asserting a violation of that right can normally be raised in a direct appeal regardless of a contemporaneous objection.

B. Incorporation of Marin v. State

Marin v. State,the watershed decision on whether rights are subject to procedural default—and therefore whether Texas Rule of Appellate Procedure 33.1's general preservation requirement applies14—provides a ready categorization structure well ingrained in our criminal law.15Whether an appellant must preserve error is controlled by where in Marin's three familiar categories a particular right falls:

• Category-one rights, considered absolute rights or prohibitions, cannot be avoided even with partisan consent. “Accordingly, any party entitled to appeal is authorized to complain that an absolute requirement or prohibition was violated, and the merits of his complaint on appeal are not affected by the existence of a waiver or a forfeiture at trial.”16
• Category-two rights are those that are not forfeitable—they cannot be surrendered by mere inaction, but are waivable if the waiver is affirmatively, plainly, freely, and intelligently made. The trial judge has an independent duty to implement these rights absent any request unless there is an effective express waiver.17
• Category-three rights are forfeitable and must be requested by a defendant. Many defendants' rights, including constitutional rights, are in this category and can be forfeited by inaction.18

Townsend'ssweeping language, however, was broader than its aim. Townsendsought to cinch habeas corpus back to its original form. Returning to older precedents, Townsendreminded that “[h]abeas corpus is an extraordinary remedy; and, ordinarily, neither a trial court nor this Court, either in the exercise of our original or appellate jurisdiction, should entertain an application for writ of habeas corpus where there is an adequate remedy at law.”19Traditionally, habeas corpus was available only to review jurisdictional defects or denials of fundamental or constitutional rights.20By broadly framing the scope of habeas to exclude all claims that could have been raised on direct appeal, Townsend,when read literally, excludes from habeas review the most sacred, absolute rights and prohibitions—those that, according to Marin,are widely considered

471 S.W.3d 836

critical to the proper functioning of our adjudicatory process.

Clarification of Townsendis required lest we render habeas corpus a shell of its former self, incapable of rendering relief on claims asserting violations of the rights and prohibitions that pose the gravest threat to our system of justice. Ex parte Mossis a...

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38 practice notes
  • Ex parte Perry, NO. PD–1067–15
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 24, 2016
    ...App. 2014). Also, many on this Court want to limit the ability to obtain a writ of habeas corpus even further. See Ex parte Marascio, 471 S.W.3d 832,833-40 (Tex. Crim. App. 2015)(Keasler, J., dissenting).In addition to reaching an incorrect conclusion in this case, the majority also fails t......
  • Riordan v. State, NO. 03-16-00297-CR
    • United States
    • Court of Appeals of Texas
    • August 4, 2017
    ..."forfeitable rights," which are rights that must bePage 17 requested in order to be implemented. Id. at 279-80; see Ex parte Marascio, 471 S.W.3d 832, 835 (Tex. Crim. App. 2015) (discussing categorization structure outlines in Marin); Ex parte Heilman, 456 S.W.3d 159, 162 (Tex. Crim. App. 2......
  • Ex parte Chapa, NO. 03-18-00104-CR
    • United States
    • Court of Appeals of Texas
    • August 22, 2018
    ...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 protecti......
  • Proenza v. State, NO. PD-1100-15
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • November 15, 2017
    ..., 445 S.W.3d 736, 739 (Tex. Crim. App. 2014).57 Ex parte Heilman , 456 S.W.3d 159, 165–66 (Tex. Crim. App. 2015).58 Ex parte Marascio , 471 S.W.3d 832, 837 (Tex. Crim. App. 2015) (Keasler, J., concurring).59 See Cockrell v. State , 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (even "incurable e......
  • Request a trial to view additional results
38 cases
  • Ex parte Perry, NO. PD–1067–15
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 24, 2016
    ...App. 2014). Also, many on this Court want to limit the ability to obtain a writ of habeas corpus even further. See Ex parte Marascio, 471 S.W.3d 832,833-40 (Tex. Crim. App. 2015)(Keasler, J., dissenting).In addition to reaching an incorrect conclusion in this case, the majority also fails t......
  • Riordan v. State, NO. 03-16-00297-CR
    • United States
    • Court of Appeals of Texas
    • August 4, 2017
    ..."forfeitable rights," which are rights that must bePage 17 requested in order to be implemented. Id. at 279-80; see Ex parte Marascio, 471 S.W.3d 832, 835 (Tex. Crim. App. 2015) (discussing categorization structure outlines in Marin); Ex parte Heilman, 456 S.W.3d 159, 162 (Tex. Crim. App. 2......
  • Ex parte Chapa, NO. 03-18-00104-CR
    • United States
    • Court of Appeals of Texas
    • August 22, 2018
    ...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 protecti......
  • Proenza v. State, NO. PD-1100-15
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • November 15, 2017
    ..., 445 S.W.3d 736, 739 (Tex. Crim. App. 2014).57 Ex parte Heilman , 456 S.W.3d 159, 165–66 (Tex. Crim. App. 2015).58 Ex parte Marascio , 471 S.W.3d 832, 837 (Tex. Crim. App. 2015) (Keasler, J., concurring).59 See Cockrell v. State , 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (even "incurable e......
  • Request a trial to view additional results

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