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Ex parte St. Aubin

Court of Criminal Appeals of Texas

September 20, 2017

Ex parte KEITH MICHAEL ST. AUBIN, Applicant


          Keller, P.J., delivered the opinion of the court as to part II.C. in which Keasler, Hervey, Yeary, and Keel, JJ., joined and otherwise announced the judgment of the court and filed an opinion in which Hervey, Yeary, and Keel, JJ., joined. Keasler, J., filed a concurring opinion. Newell, J., filed a dissenting opinion in which Alcala, Richardson, and Walker, JJ., joined.


          Keller, P.J.

         Applicant claims that the Double Jeopardy Clause was violated when the State obtained multiple convictions against him in a single trial. He raises this claim for the first time in this subsequent habeas application under Article 11.07.[1] We hold that this multiple-punishments double-jeopardy claim does not satisfy the innocence-gateway exception. Furthermore, because the double-jeopardy principles used to resolve the "new" case upon which applicant relies were not new, he has not satisfied the new-legal-basis exception. Because an exception to the prohibition against subsequent applications has not been satisfied, we dismiss this application.

         I. BACKGROUND

         Applicant shot five people at the 1998 Mardi Gras celebration in Galveston. He was charged with one count of murder and four counts of attempted capital murder. Nava was the victim alleged in the murder count and he was the second victim alleged in each of the attempted capital murder counts. At a single trial, applicant was found guilty of all five charges and sentenced to life imprisonment in each case, with the sentences to run concurrently.[2]

         In 2001, applicant filed a number of habeas applications in which he alleged ineffective assistance of counsel and jury instruction error in these cases. While these applications were on remand to the trial court, applicant filed more habeas applications. We denied relief on these later applications in November 2001, and on the initial applications in May 2002. The current habeas applications were filed in the trial court on July 15, 2015.

         II. ANALYSIS

         A. Subsequent-Application Bar Generally

         After the final disposition of an initial application that challenges a conviction, we may not consider the merits of a subsequent habeas application for that conviction unless the applicant satisfies an exception to the statutory prohibition against subsequent applications.[3] The current applications were filed after the final disposition of initial applications that challenged the convictions at issue.[4] The question, then, is whether there is an exception to the subsequent-application bar.

         B. Innocence-Gateway Exception

         One such exception is the "innocence gateway" exception, which requires a showing by a preponderance of the evidence that "but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt."[5] This language requires, at the very least, that the alleged constitutional violation occur at or before a finding of guilt.[6] A claim based on the "successive prosecutions" strand of double-jeopardy jurisprudence satisfies such a requirement. This is so because a successive-prosecutions violation involves two separate criminal proceedings.[7] If the offenses in the two proceedings are the same for double jeopardy purposes, then the second proceeding should never have occurred-the issue of the applicant's guilt would never have been submitted to a jury.[8] In Ex parte Milner, the double jeopardy claim was clearly a successive-prosecutions claim.[9] It is not clear whether Ex parte Knipp involved a successive-prosecutions claim or a multiple-punishments claim.[10] Even if it involved a multiple-punishments claim, though, Knipp's claim differed from typical multiple-punishments claims where, for instance, two offenses have overlapping elements that render them "the same" for double jeopardy purposes. In Knipp, the State simply made a mistake in charging Knipp twice for one drug delivery.[11] The offense upon which we granted relief under Art. 11.07 §4(a)(2) never occurred at all. At the very least, it would be incorrect to say that Knipp held that a multiple-punishments claim necessarily meets the innocence-gateway exception.

         The reasoning that applies to a successive-prosecutions double-jeopardy claim does not apply to a multiple-punishments double-jeopardy claim. When the convictions occur at a single criminal trial, the role of the double-jeopardy guarantee "is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense."[12] The Supreme Court has explicitly recognized that the State has the right to prosecute and obtain jury verdicts on two offenses in a single trial, even if the offenses are the same for double jeopardy purposes.[13] Because the protection against double jeopardy does not prohibit multiple jury verdicts of guilt within a single trial, it cannot be said that "but for a violation of the protection against double jeopardy, no rational juror would have found the applicant guilty of both offenses." A rational juror might well be able to find a defendant guilty of both offenses, and doing so would not violate the Constitution. It is only upon entry of a judgment for multiple offenses, after sentencing, that a multiple-punishments violation even occurs. A multiple-punishments violation occurs after sentencing, so a necessary precondition for the innocence-gateway exception-that a constitutional violation occur at or before a finding of guilt-is typically not met.[14] The only possible exception would be the unusual type of claim at issue in Knipp where a duplicate offense is mistakenly charged. Applicant's multiple-punishments claim does not fall within the unusual fact situation at issue in Knipp, so his claim fails to meet the "at or before a finding of guilt" precondition for invoking the innocence-gateway exception.

         C. "New Legal Basis" Exception

         Another exception to the bar against subsequent applications is the "new legal basis" exception, which requires a showing that "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 . . . legal basis for the claim was unavailable on the date the applicant filed the previous application."[15] Applicant relies upon Ex parte Milner for the proposition that he has suffered a double jeopardy violation. It is true that Milner was decided after applicant filed his prior applications and it involved the same types of charges as those at issue in this case: a murder and multiple attempted murders that all alleged the killing of the same victim.[16] But Milner received relief under the innocence-gateway exception. In Milner, we expressly declined to address whether the new-legal-basis exception was satisfied.[17]

          We conclude that it was not. Neither Milner nor Saenz, [18] on which Milner partially relied, [19]satisfy the new-legal-basis exception. To show that he is entitled to consideration of a subsequent application on the basis of new law, an applicant must show that "the legal basis was not recognized by and could not have been reasonably formulated from a final decision of the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state on or before" the date of the previous application.[20] Although this Court had not previously addressed a double-jeopardy claim involving the type of charges before us until the decision in Milner, the principles of double-jeopardy law that were used to resolve Milner (and Saenz) were not new, but were familiar principles articulated in earlier cases from the Supreme Court and this Court. Milner, in fact, cited and relied upon well-established caselaw from the Supreme Court and this Court that articulated how to analyze multiple-punishment double jeopardy claims (Ball v. United States and Ex parte Ervin) and unit-of-prosecution issues (Sanabria v. United States and Ex parte Hawkins).[21] Saenz likewise relied upon the familiar analyses set forth in Sanabria, Hawkins, and Ervin.[22] The double-jeopardy claim applicant makes could have been, and in Milner and Saenz was, reasonably formulated from double-jeopardy decisions from the Supreme Court and this Court that existed before applicant filed his earlier applications.[23]

         D. Disposition

         In summary, applicant's multiple-punishments double-jeopardy claims meet neither the innocence-gateway nor the new-legal-basis exception to the subsequent-application bar. Finding no other potentially applicable exception, we hold that the subsequent-application bar applies and that we may not consider the merits of applicant's claims. We dismiss the current applications under Tex. Code Crim. Proc. art. 11.07, § 4.

          Keasler, J., filed a concurring opinion.

         Because I cannot join much of the Court's reasoning, I join only Part II.C. of its opinion and concur in the judgment. Based on my views of a double-jeopardy claim's non-cognizability, the Court's resolution of Michael St. Aubin's double-jeopardy claims under Code of Criminal Procedure Article 11.07, § 4 is largely academic. It is not clear to me how a non-cognizable claim could ever satisfy § 4(a)(2)'s "innocence gateway."[1] Resolving St. Aubin's claims under § 4 based on the type of double-jeopardy claim he asserts poses larger implications concerning this Court's interpretation of Article 11.07 as it relates to initial and subsequent applications.


         In Ex parte Marascio, I asserted that, because double-jeopardy claims in most instances are record claims available on appeal, they should not be cognizable in an application for habeas corpus.[2] I reassert the argument here.

         We have long recognized the principle that habeas corpus proceedings may not be used for claims that should have been raised on appeal.[3] If a claim was available on appeal but was not asserted in the court of appeals, an applicant has generally forfeited his claim and the claim may not be heard in a collateral attack.[4] But this rule must permit two exceptions: (1) claims that by their nature require subsequent record development; and (2) claims asserting a violation of an absolute requirement or prohibition-critical components to the proper functioning of our adjudicatory process-that we categorized as immune from procedural default in Marin v. State, [5] our watershed decision on procedural default and error preservation.[6]

         Ex parte Moss is a recent example of the latter.[7] Moss challenged the trial court's jurisdiction to revoke her community supervision. After revocation, Moss absconded and her direct appeal was dismissed.[8] Moss asserted her jurisdictional complaint for the first time in a habeas corpus application. Noting that jurisdiction is a systemic requirement that operates independent of litigants' wishes, this Court held that the merits of ...

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