EX PARTE HUBERT v. << (2023)

Once again, the Court is presented with an opportunity to re-examine our approach to post-conviction collateral attacks based on double jeopardy claims that were not raised on appeal. Instead of addressing the appropriate use of writs of habeas corpus in the context of double jeopardy claims, the Court summarily grants relief citing Ex parte Woods, 664 S.W.3d 260 (Tex. Crim. App. 2022). For the reasons I dissented in that, and previous cases raising the same question, I dissent again here. Id. at 265–66 (Yeary, J., dissenting); see also Ex parte Estrada, 487 S.W.3d 210, 214–15 (Tex. Crim. App. 2016) (Yeary, J., dissenting) (arguing that a double jeopardy claim that can be raised for the first time on appeal should be raised in that proceeding, and that the failure to do so constitutes a forfeiture for purposes of obtaining relief in post-conviction habeas corpus proceedings, since habeas is not a substitute for direct appeal).

I would file and set this case to consider this issue of cognizability. Because the Court still does not, I dissent.

Yeary, J., filed a dissenting opinion, in which Slaughter, J., joined.