Appeal from the 248th District Court Harris County, Texas
Trial Court Cause No. 1522187
consists of Justices Higley, Brown, and Caughey.
OPINION ON REHEARING
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. Leachman filed an amended motion for
rehearing from our May 10, 2018 opinion. We deny the amended
motion for rehearing and 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, he was convicted and sentenced to 40 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 Court of
Criminal Appeals 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 Court of
Criminal Appeals 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 Court of Criminal
Appeals 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
then filed a federal habeas corpus petition based on the
denial of his Sixth Amendment right to represent himself,
which the federal district court 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, the federal district court 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 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 filings 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,
thereby violating 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 1520246. The
prosecutor stated that he intended to file an amended motion
to cumulate sentences, seeking only to stack any sentence on
the existing 20-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." Later that day, the habeas court
signed a judgment denying Leachman's pretrial habeas
Proceedings in this Court
September 28, 2016, Leachman timely filed a pro se notice of
appeal from the habeas court's denial of his pretrial
habeas application. See Tex. R. App. P. 26.2(a)(1),
31.1. On October 24, 2016, in compliance with a request from
the Clerk of this Court, the trial court certified
Leachman's right of appeal of the denial of his pretrial
habeas application. See id. 25.2(a)(2), (d). In
compliance with a second request, the district clerk also
filed a second supplemental clerk's record in this Court
on October 26, 2016. This record contains the State's
amended motion to ...