Ex parte Milner

• Decision Date: 13 February 2013
• Docket Number: No. AP–76481.,AP–76481.
• Citation: 394 S.W.3d 502
• Parties: Ex Parte Kenneth Glenn MILNER, Applicant.
• Court: Texas Court of Criminal Appeals

394 S.W.3d 502

Ex Parte Kenneth Glenn MILNER, Applicant.

No. AP–76481.

Court of Criminal Appeals of Texas.

Feb. 13, 2013.

Kenneth Glenn Milner, pro se.

Levi L. Spriggs, Amarillo, for Kenneth Glenn Milner.

Luke McLean Inman for the State.

OPINION

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

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 plead guilty to two counts of attempted capital murder and one count of murder. The trial court imposed separate and cumulative life sentences for each conviction. Applicant did not appeal.

In a subsequent writ of habeas corpus, applicant's murder conviction was determined to be barred by double jeopardy.¹He now contends that he can be guilty of only one of the two alleged attempted capital murders because the second conviction violates the Double Jeopardy Clause of the Fifth Amendment and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The trial court entered findings of fact and conclusions of law on a previous application for writ of habeas corpus that challenged the same capital-murder conviction, but did not hold a hearing or enter findings for the current application. We filed and set this writ application for submission to determine:

1) whether applicant is actually innocent of having twice violated the applicable penal code statute because of a violation of the Double Jeopardy protection and guarantee of the United States Constitution, and therefore, absent a violation of the Constitution, no rational juror could have found applicant guilty beyond a reasonable doubt of having twice violated the applicable penal code statute; and

2) whether the legal basis for applicant's double-jeopardy claim was available to applicant in his three previous writ applications; ² and

3) whether the provisions of art. 11.07, § 4, as applied to this particular case, are unconstitutional.

After review, we sustain the first ground and do not reach the second and third grounds and hold that applicant's conviction for attempted capital murder in Cause No. 2405 violates the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution. Applicant has proven that he is actually innocent of the second conviction for attempted capital murder, and that, but for a violation of the United States Constitution, no rational juror could have found him guilty beyond a reasonable doubt. Therefore, we grant relief.

Procedural History

In Cause No. 2379, applicant was indicted for one count of murder (Count 3) ³ that alleged that applicant knowingly and intentionally caused the death of Frankie Garcia by shooting him with a firearm. In Cause No. 2404, applicant was indicted for attempted capital murder, alleging that he attempted to murder Jimmy Britten and that, in the same scheme and course of conduct, applicant caused the death of Frankie Garcia. In Cause No. 2405, applicant was indicted for attempted capital murder, alleging that he attempted to murder Kenneth Williams and, in the same scheme and course of conduct, applicant caused the death of Frankie Garcia.

Pursuant to a plea bargain, applicant plead guilty to the attempted capital murders in Cause Nos. 2404 and 2405 and to murder (Count 3) in Cause No. 2379 and was assessed consecutive life sentences in each cause. The three pleas were entered in separate proceedings conducted consecutively on the same day. Applicant did not appeal his convictions.

Applicant filed the current application, his sixth, in the trial court on December 1, 2010. It was transmitted to this Court on January 3, 2011, and set for submission on January 26, 2011. In this application, applicant raises a double-jeopardy claim, arguing that, in Cause No. 2405, he was subjected to a second prosecution for a single violation of the same penal statute (attempted capital murder) and consequently assessed two separate and cumulative terms of imprisonment for the same offense. Applicant contends that this is contrary to the legislative intent for this offense and that, instead of applying the proper standard of review for applicant's initial double-jeopardy claim—“allowable units of prosecution” ⁴—the habeas court incorrectly applied the Blockburger⁵ “same-elements” test, which does not apply in cases that charge two violations of the same statutory provision.

This Court's Authority to Consider Applicant's Subsequent Writ

Applicant argues that, although this is a subsequent application for writ of habeas corpus, it should not be procedurally barred by Texas Code Criminal Procedure art. 11.07, § 4, because the legal basis for relief was not yet recognized by this Court when the previously considered habeas applications were filed. He alternatively challenges the constitutionality of that article if we determine that it precludes consideration of this subsequent writ. We need not reach these questions because we conclude that applicant has shown that this court has jurisdiction to consider his subsequent writ on the basis of evidence that he is actually innocent of the offense.

Article 11.07, § 4(a) states that

(a) If a subsequent application for writ of habeas corpus is filed after final disposition of an initial application challenging the same conviction, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that:

(1) the current claims and issues have not been and could not have been presented previously in an original application or in a previously considered application filed under this article because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous claim; or

(2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt.

This Court has recognized that, even if an application does not meet the requirements of § 4(a)(1), a subsequent application for writ of habeas corpus may overcome the procedural bar of art. 11.07, § 4, if an applicant can show a constitutional violation that fulfills the requirements of § 4(a)(2).⁶ In order to show that the constitutional violation satisfies the requirements of subsection (a)(2), an applicant must accompany the constitutional-violation claim with a prima facie claim of actual innocence.⁷ In cases claiming double-jeopardy violations, an applicant may prove actual innocence by providing facts sufficient to establish by a preponderance of the evidence that, but for a double-jeopardy violation, no rational juror could have found the applicant guilty of the challenged offense beyond a reasonable doubt.⁸ As we explain in detail below, applicant has established that his conviction in Cause No. 2405 is barred by double jeopardy in light of his conviction in Cause No. 2404. Because he has shown that no rational juror could have found him guilty of both offenses without violating the federal constitutional prohibition against double jeopardy, applicant has made a prima facie case that, but for a violation of the United States Constitution, no rational juror could have found the applicant guilty beyond a reasonable doubt. Therefore, this subsequent writ meets the jurisdictional requirements in art. 11.07, § 4(a)(2).

Standard of Review

The protections afforded by the Double Jeopardy Clause of the Fifth Amendment were extended to state criminal prosecutions through the Due Process Clause of the Fourteenth Amendment.⁹ The Double Jeopardy Clause protects criminal defendants from three things: 1) a second prosecution for the same offense after acquittal; 2) a second prosecution for the same offense after conviction; and 3) multiple punishments for the same offense. ¹⁰ When a double-jeopardy violation has occurred, a writ of habeas corpus is a proper venue through which to challenge the error.¹¹ Here, applicant claims that his second conviction for Cause No. 2405 violates both the second and third protections; he was convicted in two separate criminal trials for a single violation of the same penal statute and was assessed two separate and cumulative terms of life imprisonment.¹² Applicant asserts that the two convictions offend the prohibition against convicting a defendant “of more offenses than the legislature intended.”

This Court must determine whether applicant's acts constitute a single violation of the charged offense or two separate violations of the same criminal statute. The protection against double jeopardy does not apply to separate and distinct offenses that occur during the same transaction. ¹³ If a criminal act involves separate victims and distinct offenses—rather than multiple victims for a single offense—separate prosecutions are not barred.¹⁴

In order to determine if the Double Jeopardy Clause's prohibition against multiple punishments for the same offense has been violated, we assess whether a defendant “is convicted of more offenses than the legislature intended.” ¹⁵ To determine if the legislature intended to treat applicant's acts as a single offense or multiple offenses, we must ascertain the “allowable unit of prosecution” from the statutory text and any available legislative history.¹⁶ Any ambiguity will be resolved in favor of lenity.¹⁷

Analysis

In Cause Nos. 2404 and 2405, applicant was convicted of attempted capital murder under Texas Penal Code §§ 15.01 (criminal attempt) and 19.03(a)(7)(B) (capital murder). A plain reading of the capital-murder statute shows that, in order to be convicted pursuant to section 19.03(a)(7)(B), a defendant must commit both a murder under Texas Penal Code § 19.02(b)(1) and at least one...