EX PARTE TAYLOR v. << (2026)

OPINION

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 was convicted of two counts of unlawful possession of a firearm by a felon. He was sentenced to a term of four years’ imprisonment on each count.

Applicant's writ application raised three grounds of relief, including claims of ineffective assistance of counsel and double jeopardy. The application is non-compliant because Applicant failed to sign the verification. However, because it is clear from the record that Applicant is entitled to relief, the Court will not dismiss it as non-compliant. Ex parte Golden, 991 S.W.2d 859 (Tex. Crim. App. 1999). The State and the trial court agree that the two counts in this judgment are actually for the same conduct and violate double jeopardy.

We agree that Applicant has suffered multiple punishments for the same offense. Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex. Crim. App. 2006). Relief is granted. The judgment in count one of Cause No. C-372-W012849-1802822-A in the 372nd District Court of Tarrant County is vacated and set aside. All remaining issues are denied.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division and Pardons and Paroles Division.

This is an initial post-conviction application for writ of habeas corpus. Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of two counts of unlawful possession of a firearm by a felon. The convicting court, pursuant to a plea agreement in which Applicant waived his right to appeal, sentenced him to two four-year terms of imprisonment, to be served concurrently. Now, Applicant challenges those convictions under the Double Jeopardy Clause of the Fourteenth Amendment to the United States Constitution, as a violation of his right not to be sentenced multiple times for the same offense.¹

Applicant was indicted under Section 46.04(a) of the Texas Penal Code, which, depending on the circumstances, makes firearm possession by a convicted felon unlawful. Tex. Penal Code § 46.04(a). Under Section 46.04(a)(1), a convicted felon may not possess a firearm anywhere for five years after release from confinement or release from supervision, whichever is later. After that, a convicted felon may only possess a firearm at “the premises at which the person lives[,]” under Section 46.04(a)(2).

In this initial writ application, Applicant argues that the two counts of the indictment embodied the same offense; and that his conviction for both counts therefore violated his privilege not to be convicted/punished twice for the same offense. The indictment contains two counts of unlawful possession of a firearm by a felon, both having been committed on November 6, 2023.² Count I alleged that, as a felon, Applicant unlawfully possessed a firearm “away from the premises where [he] lived.”³ Count II alleged that, as a felon, Applicant possessed a firearm within five years of release from confinement for a felony conviction. Applicant had been previously convicted of a state-jail felony on August 20, 2019. See Tapps v. State, 294 S.W.3d 175, 182 (Tex. Crim. App. 2009) (including state-jail felonies for purposes of Section 46.04(a)). Applicant, in fact, possessed one firearm, on one day, within five years of his prior felony conviction.⁴ Today, the Court grants relief by vacating Count I of the indictment.⁵

I respectfully dissent. The double jeopardy claim here was one that should have been obvious from the face of the trial record. Double jeopardy is a waiver-only right, which means it could have been raised for the first time on appeal. Post-conviction habeas corpus is not a substitute for direct appeal. I have taken the position in numerous previous cases that a double jeopardy claim under these circumstances should not be recognized as cognizable in post-conviction habeas corpus proceedings. E.g., Ex parte Estrada, 487 S.W.3d 210, 212–15 (Tex. Crim. App. 2016) (Yeary, J., dissenting); Ex parte Woods, 664 S.W.3d 260, 265–66 (Tex. Crim. App. 2022) (Yeary, J., dissenting).

Because the double jeopardy claim in this case was undoubtedly apparent from the record, Applicant should have raised the claim on direct appeal. It is true that there was no direct appeal in this case, because Applicant was convicted pursuant to a plea agreement in which he waived his right to appeal.⁶ But it is immaterial whether Applicant actually exercised his right to appeal here—the availability of habeas relief does not turn on that question. Whether pursuant to a waiver of appeal, or because a convicted defendant decides not to appeal, claims that could have been brought on appeal are still not ordinarily cognizable in a post-conviction application for writ of habeas corpus.⁷

Because this Court grants post-conviction habeas corpus relief based on a double jeopardy claim that was clear from the trial record, and hence, could have been vindicated on direct appeal,⁸ I respectfully dissent.⁹

FOOTNOTES

1.   Additionally, his writ application raises an ineffective assistance of counsel claim, and a contention that “he is entitled to resentencing because the [convicting] court would have been ‘more lenient’ if it was aware that he was only eligible for one conviction.” Because this Court summarily grants relief based on Applicant's double jeopardy claim, it does not reach those contentions.

2.   Counts I and II of the indictment read:THAT JOSEPH TAYLOR, HEREINAFTER CALLED DEFENDANT, ON OR ABOUT THE 6TH DAY OF NOVEMBER 2023, IN THE COUNTY OF TARRANT, STATE OF TEXAS, DID INTENTIONALLY OR KNOWINGLY POSSESS A FIREARM AWAY FROM THE PREMISES WHERE THE DEFENDANT LIVED AND PRIOR TO SAID POSSESSION THE DEFENDANT WAS CONVICTED OF THE FELONY OFFENSE OF THEFT FROM PERSON, IN THE CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY, TEXAS, IN CAUSE NUMBER 1591223D, ON THE 20TH DAY OF AUGUST 2019,COUNT TWO: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT THE DEFENDANT IN THE COUNTY OF TARRANT AND STATE AFORESAID ON OR ABOUT THE 6TH DAY OF NOVEMBER 2023, DID INTENTIONALLY OR KNOWINGLY POSSESS A FIREARM AND PRIOR TO SAID POSSESSION THE DEFENDANT WAS CONVICTED OF THE FELONY OFFENSE OF THEFT FROM PERSON, IN THE CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY, TEXAS, IN CAUSE NUMBER 1591223D, ON THE 20TH DAY OF AUGUST 2019, AND SAID POSSESSION WAS WITHIN FIVE YEARS OF THE RELEASE OF THE DEFENDANT FROM CONFINEMENT AFTER THE DEFENDANT WAS CONVICTED FOR THE ABOVE FELONY,

3.   The record is silent as to where, exactly, Applicant possessed a firearm. But because his possession occurred within five years of his prior felony conviction, Applicant's conduct could have violated both Section 46.04(a)(1) and Section 46.04(a)(2).

4.   Applicant's double jeopardy claim certainly has potential merit, but whether he would ultimately succeed is not the point. The double jeopardy claim was clear from the trial record; it should have been brought on direct appeal. See text, post.

5.   The Court grants relief based on the convicting court's endorsement of the State's proposed findings of fact and conclusions of law, with little elaboration on the merits of his double jeopardy claim. The State's proposed conclusions of law simply assumed that “Applicant ha[d] received multiple sentences for the same offense[,]” and therefore concluded that his “two convictions violate the Double Jeopardy Clause.”The issue here is whether Applicant's possession of the same, single firearm on November 23, 2023, within five years of his release from his prior felony conviction, violates both Section 46.04(a)(1) and Section 46.04(a)(2). Whether Applicant's conviction and punishment under both theories of the offense constitutes a double jeopardy violation turns on an “allowable units of prosecution analysis,” which looks to “the focus or gravamen” of the offense. Nawaz v. State, 663 S.W.3d 739, 744–45 (Tex. Crim. App. 2022) (first quoting Ex parte Benson, 459 S.W.3d 67, 71 (Tex. Crim. App. 2015); and then quoting Jones v. State, 323 S.W.3d 885, 889 (Tex. Crim. App. 2010)). Because criminal liability under Section 46.04(a) turns on the defendant's “status” as a felon, and the statute makes otherwise innocent behavior (firearm possession) criminal, we previously decided that it is a “circumstances”-type offense. See Ex parte Woods, 664 S.W.3d 260, 263 (Tex. Crim. App. 2022) (“[T]he statute before us prescribes a ‘circumstance’ offense.”). Section 46.04(a)(1) and Section 46.04(a)(2) identify separate circumstances beyond a person's status as a felon under which firearm possession constitutes an offense. Whether these separate, additional circumstances constitute discrete elements, or whether they are, instead, merely different manners and means of committing the same offense, currently remains unresolved in our jurisprudence. Perhaps Applicant has raised a meritorious double jeopardy claim: He is charged twice for possessing one firearm, on or about one day, within five years of his prior felony conviction. But today the Court grants relief without first deciding this essential, predicate question, seeming to assume that the convicting court correctly adopted the State's proposed findings of fact and conclusions of law. Even if I could agree that Applicant's double jeopardy claim was cognizable, I could not agree that this would be an appropriate way to resolve it on the merits. Resolving the question this way is, I believe, an inappropriate use of the judicial power.

6.   A waiver of the right to appeal must be made voluntarily, knowingly, and intelligently. Carson v. State, 559 S.W.3d 489, 492 (Tex. Crim. App. 2018). In this case, Applicant knew “with certainty the punishment” that would be assessed for each count. Blanco v. State, 18 S.W.3d 218, 220 (Tex. Crim. App. 2000). On the first page of his plea papers, Applicant was advised that the range of punishment for each count included imprisonment “of not more than 10 years or less than 2 years[.]” The State recommended four years for each count. Evidently, Applicant “bargained for a sentencing recommendation from the prosecution in exchange for his waiver of the right to appeal,” and he received the benefit of his bargain. Id. When the convicting court followed the State's sentencing recommendation, Applicant was “fully aware of the likely consequences when he waived his right to appeal, and it is not unfair to expect him to live with those consequences now.” Id. (internal quotations omitted) (quoting Mabry v. Johnson, 467 U.S. 504, 511, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984)).

7.   I use the word “ordinarily” advisedly. Under Ex parte Moss, 446 S.W.3d 786 (Tex. Crim. App. 2014), a category one claim under Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993), may be raised for the first time in an initial post-conviction habeas corpus application, even when not raised on appeal. But I have always considered double jeopardy claims to fall into Marin’s category two, not category one. E.g., Estrada, 487 S.W.3d at 214 (“Because it can be waived, [a claim of double jeopardy] cannot be a category-one right.”).

8.   I might be amenable to remanding this case for further fact development regarding Applicant's ineffective assistance of counsel claim. Applicant's initial writ application asks this Court to consider whether his counsel provided ineffective assistance by failing to address the possibility that Applicant faced multiple punishments for the same offense. Such a claim is cognizable and could be explored on remand with a response from trial counsel.Of course, even if counsel performed deficiently in this way, it would only prove prejudicial if it were clear that Applicant has a meritorious double jeopardy claim to begin with. But by summarily granting relief without actually addressing the meat of the issue, the Court cannot effectively address Applicant's ineffective assistance of counsel claim either; “To base an ineffective assistance of counsel claim on law that is unsettled as of the time of the attorney's performance would indulge in the kind of retrospective evaluation that Strickland [v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)] forbids.” Ex parte Salinas, 664 S.W.3d 894, 909 (Tex. Crim. App. 2022) (citing Vaughn v. State, 931 S.W.2d 564, 567 (Tex. Crim. App. 1996)). But unlike the double jeopardy claim, at least Applicant's ineffective assistance claim is cognizable in post-conviction habeas corpus proceedings.

9.   What is more, because Applicant failed to sign his writ application, this Court's normal practice would be simply to dismiss it as non-compliant. Under Ex parte Golden, this Court has said that it will nevertheless sometimes address the merits of an unsworn application and grant relief when, “due to the efforts of the trial court and the State,” it was clear from the record that the applicant was entitled to relief. 991 S.W.2d 859, 862 n.2 (Tex. Crim. App. 1999). Here, it is not clear that Applicant is entitled to relief. His double jeopardy claim was self-evident, but whether this claim should ultimately succeed is not. For this reason, even if I believed Applicant's double jeopardy claim was cognizable, I would not invoke Golden to excuse his non-compliance.

Per curiam.

Yeary, J. filed a dissenting opinion. Schenck, P.J. concurred.