EX PARTE BROWN v. << (2026)

ORDER

Applicant was convicted of three counts of aggravated sexual assault of a child and sentenced to life imprisonment. The Tenth Court of Appeals affirmed his conviction. Brown v. State, No. 10-12-00264-CR, 2013 WL 1558113 (Tex. App.—Waco Apr. 11, 2013, pet. ref'd). Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See Tex. Code Crim. Proc. art. 11.07.

Applicant contends that he is actually innocent of Count III because it charged the same conduct as Count II and was barred by double jeopardy. Therefore, no rational juror could have found him guilty beyond a reasonable doubt. Tex. Code Crim. Proc. Art. 11.07 § 4(a)(2). Applicant has alleged facts that, if true, might entitle him to relief. Ex parte White, 688 S.W.3d 916 (Tex. Crim. App. 2024). Accordingly, the record should be developed. The trial court is the appropriate forum for findings of fact. Tex. Code Crim. Proc. art. 11.07, § 3(d). The trial court shall order trial counsel to respond to Applicant's claim. In developing the record, the trial court may use any means set out in Article 11.07, § 3(d). If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wants to be represented by counsel, the trial court shall appoint counsel to represent him at the hearing. See Tex. Code Crim. Proc. art. 26.04. If counsel is appointed or retained, the trial court shall immediately notify this Court of counsel's name.

The trial court shall make findings of fact and conclusions of law as to whether Applicant's application is subsequent and subject to dismissal under Tex. Code Crim. Proc. art. 11.07 § 4. If the trial court believes he overcomes the bar on subsequent applications, then the trial court shall make findings regarding whether Applicant is actually innocent, or whether he is otherwise entitled to relief. The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant's claims.

The trial court shall make findings of fact and conclusions of law within ninety days from the date of this order. The district clerk shall then immediately forward to this Court the trial court's findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from hearings and depositions. See Tex. R. App. P. 73.4(b)(4). Any extensions of time must be requested by the trial court and obtained from this Court.

This is a subsequent post-conviction application for writ of habeas corpus. Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of three counts of aggravated sexual assault of a child fourteen years ago, in 2012, and received three life sentences, to be served concurrently, meaning at the same time. His conviction was affirmed on direct appeal in 2013. Brown v. State, No. 10-12-00264-CR, 2013 WL 1558113 (Tex. App.—Waco Apr. 11, 2013, pet. ref'd) (mem. op., not designated for publication). He filed an initial writ application back in 2014, some twelve-and-a-half-years ago. In his initial writ application, Applicant raised various non-meritorious ineffective assistance of counsel claims, and this Court denied relief without written order.

In this subsequent writ application, Applicant for the first time argues that two counts of the indictment contained identical allegations, and that his conviction for both counts violated his privilege not to be convicted twice for the same offense. And, indeed, the two counts contain—verbatim—the same allegation of aggravated sexual assault.¹ Applicant also contends that the complainant testified at trial that only one incident occurred on the alleged date, so that the identical counts can only have alleged the identical incident.

Today, the Court remands this subsequent writ application under Article 11.07, Section 4(a)(2), for further fact development of the double jeopardy claim. See Tex. Code Crim. Proc. art. 11.07, § 4(a)(2) (permitting a subsequent writ to proceed if it alleges facts to establish that, “but for a violation of the United States Constitution, no rational juror could have found the applicant guilty beyond a reasonable doubt”). I respectfully dissent.

The double jeopardy claim here was one that would 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 regarded as cognizable—even in an initial post-conviction application for writ of habeas corpus. 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). I would now argue, moreover, that any claim that is not cognizable in an initial writ application should not be regarded as cognizable in a subsequent writ application.

I see no point in remanding this case to the convicting court for further fact development of what I regard to be a non-cognizable claim.² See Ex parte Dixon, No. WR-56,822-02, 2023 WL 4095154, at *2 (Tex. Crim. App. 2023) (order, not designated for publication) (concluding that non-cognizable claims “shall not be developed on remand”). I therefore respectfully dissent.³

FOOTNOTES

1.   Both Count II and Count III of the indictment read:And it is further presented in and to said Court that the said FREEMAN ARTHUR BROWN in the County of McLennan and State aforesaid on or about the 18th day of July, A.D. 2011, did then and there intentionally or knowingly cause the sexual organ of [L.B.], a child who was then and there younger than 14 years of age and not the spouse of the Defendant, to contact or be penetrated by the Defendant's sexual organ[.]

2.   Applicant also raises new claims of ineffective assistance of both trial and appellate counsel, but each of those claims could have been raised in his initial writ, and he identifies no new facts or law to overcome Section 4’s procedural bar to raising such claims in a subsequent writ application.

3.   If the Court insists on remanding this case, its remand order should at least recommend that the convicting court address laches on remand as well, Applicant having dilly-dallied for over twelve years before raising such an obvious claim.

Per curiam.

Yeary, J. filed a dissenting opinion.