Appeal from the 248th District Court Harris County, Texas
Trial Court Cause No. 1522187
consists of Justices Higley, Brown, and Caughey.
Carter Higley Justice
Matthew Leachman, appeals from the trial court's denial
of his pro se application for a pretrial writ of habeas
corpus, filed under article 11.08 of the Texas Code of
Criminal Procedure. Leachman contends that double jeopardy
bars his retrial. We hold that the trial court acted within
its discretion in denying the application and we affirm.
Procedural History in State Court
conviction at issue under trial court cause number 786224,
Leachman was charged in 1998 by indictment of aggravated
sexual assault of a child.Following a jury trial, in which the
trial court had denied Leachman's motion to represent
himself and he was represented by counsel, he was convicted
and sentenced to forty years' confinement in 1998.
See Leachman v. Stephens, No. 4:11-CV-212, 2015 WL
5730378, at *1 (S.D. Tex. Sept. 30, 2015) (mem. and order,
not designated for publication) (federal habeas proceeding
summarizing procedural history). After this Court affirmed
the conviction, the Texas Court of Criminal Appeals
("CCA") granted Leachman's petition for
discretionary review, vacated our decision, and remanded for
consideration of claims not at issue here. See
Stephens, 2015 WL 5730378, at *1; see Leachman v.
State, No. 01-98-01255-CR, 2004 WL 744820 (Tex.
App.-Houston [1st Dist.] Apr. 8, 2004) (mem. op. on
reh'g, not designated for publication), vacated,
No. PD-0517-05, 2005 WL 2990698 (Tex. Crim. App. Nov. 9,
2005) (not designated for publication). On remand, this Court
again affirmed Leachman's conviction, the CCA refused his
petition for discretionary review, and the U.S. Supreme Court
denied his petition for certiorari. See Stephens,
2015 WL 5730378, at 1; see Leachman v. State, No.
01-98-01255-CR, 2006 WL 2381441, at *1 (Tex. App.-Houston
[1st Dist.] Aug. 17, 2006, pet. ref'd), cert.
denied, 554 U.S. 932, 128 S.Ct. 2995 (2008).
filed a state application for a writ of habeas corpus
challenging the denial of his motion to represent himself.
See Stephens, 2015 WL 5730378, at *1. The state
habeas court recommended denial and the CCA denied
Leachman's first habeas application without a written
order. See Ex parte Leachman, No. WR-36-445-04 (Tex.
Crim. App. Dec. 1, 2010).
Procedural History in Federal Court
Leachman filed a federal habeas corpus petition based on the
denial of his Sixth Amendment right to represent himself
which the federal court, Judge Kenneth M. Hoyt, denied as
procedurally defaulted. See Stephens, 2015 WL
5730378, at *1, *4 (citing Faretta v. California,
422 U.S. 806, 835-36, 95 S.Ct. 2525 (1975)). The Fifth
Circuit affirmed the federal district court's judgment on
all issues, except the finding that Leachman could not
demonstrate cause and prejudice to excuse the procedural
default of his Faretta self-representation claim.
See id.; see Leachman v. Stephens, No.
12-20187, 581 Fed.Appx. 390, 398 (5th Cir. 2014) (not
designated for publication), cert. denied, 135 S.Ct.
2315 (2015). On remand, Judge Hoyt conditionally granted
Leachman's federal habeas corpus petition on his
Faretta self-representation claim on September 30,
2015, and ordered his release unless the State moved to grant
him a new trial within 90 days. See Stephens, 2015
WL 5730378, at *6.
The State Habeas Corpus Application and Writ
November 4, 2015, the State timely moved for a new trial
under trial court cause number 786224, which Judge Katherine
Cabaniss, the state judge for the retrial, granted on the
record. On August 17, 2016, the state court granted the
State's motions to transfer its prior motions to new
cause numbers, noting that the original indictment under
trial court cause number 786224 had been reindicted into two
separate trial court cause numbers, 1520246 (anal sodomy) and
1520247 (oral sodomy), after the grand jury had indicted
Leachman on two separate counts of aggravated sexual assault
of a child.
August 30, 2016, Leachman filed a pro se pretrial habeas
corpus application in the trial court, which was assigned to
the underlying trial court cause number 1522187. Leachman
asserted that, while the State may seek a new indictment on
the same offense, the superseding indictment must mirror the
initial charge. See Ex parte Legrand, 291 S.W.3d 31,
38-39 (Tex. App.-Houston [14th Dist.] 2009, pet.
ref'd) (citing United States v. Holland, 956
F.2d 990, 993 (10th Cir. 1992)). He claimed that the State
was attempting to turn the single charge into two separate
charges, two convictions, and two sentences.
September 28, 2016, the habeas judge, who did not preside
over Leachman's original trial, held a non-evidentiary
writ hearing on Leachman's pro se habeas application in
which both sides presented argument, but no witnesses.
Leachman repeated his argument that the State was trying to
take the same offense and split it into multiple offenses,
which violates the multiple punishment aspect of the double
jeopardy clause. The State responded that it intended to
withdraw its motion to consolidate and would proceed to trial
only on the first trial court cause number. The prosecutor
stated that he intended to file an amended motion to cumulate
sentences, seeking only to stack any sentence on the existing
twenty-year sentence Leachman was still serving.
end of the writ hearing, the habeas court orally denied
Leachman's writ. The habeas court noted that if the
State's "intent is to proceed on one of the two new
indictments, as opposed to both, " that "take[s]
care of any potential issues, so I am going to deny your
writ of habeas corpus." The habeas court later that day