White, Victor

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-84,934-07

EX PARTE VICTOR WHITE, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. D-38,105-B IN THE 358TH DISTRICT COURT
FROM ECTOR COUNTY

KELLER, P.J., filed a dissenting opinion in which YEARY, KEEL, and
SLAUGHTER, JJ., joined.

Applicant claims that two of his three convictions violate double jeopardy, and that counsel

was ineffective for failing to raise the double-jeopardy claim. He raises these claims in a subsequent

writ application. Because he does not claim that his double-jeopardy complaint is based on new

facts or new law, he can meet an exception to the subsequent-writ bar only by meeting 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.”1 I would hold that his multiple-punishments double-

1
See TEX. CODE CRIM. PROC. art. 11.07, § 4(a)(2) (emphasis added).
WHITE DISSENT — 2

jeopardy claim does not meet this exception.2

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. In Ball, the Supreme Court explained that there was no impropriety in the

prosecutor filing a charging instrument including counts that involved offenses that were the same

for double-jeopardy purposes “even though the defendant could not in the end stand convicted of

both offenses.”3 The Supreme Court also said,

If, upon the trial, the district judge is satisfied that there is sufficient proof to go to
the jury on both counts, he should instruct the jury as to the elements of each offense.
Should the jury return guilty verdicts for each count, however, the district judge
should enter judgment on only one of the statutory offenses.4

The Supreme Court could not have been more clear: two charged offenses that are the same for

double-jeopardy purposes can be submitted to the jury, even if conviction on both would violate

double jeopardy. Violation of double jeopardy is prevented by entering judgment on only one of the

offenses.

Because the double jeopardy violation occurs only after the finding of guilt, it cannot be a

2
A plurality of the Court already held this in Ex parte St. Aubin, 537 S.W.3d 39, 43 (Tex.
Crim. App. 2017) (plurality op.), and the fifth vote for the result in that case agreed that the
plurality’s discussion of double-jeopardy law was “legally correct,” id. at 48 (Keasler, J.,
concurring). Arguably that makes St. Aubin a fractured decision with a common binding holding.
Unkart v. State, 400 S.W.3d 94, 100 (Tex. Crim. App. 2013). Even if it is not, a view of the law
shared by five judges in a prior decision of this Court ought to at least be seriously considered. But
regardless of all of that, the Court ought to address the Supreme Court’s reasoning in Ball, infra,
which I focus on in this dissent.
3
Ball v. United States, 470 U.S. 856, 860 n.8 (1985) (emphasis added).
4
Id. at 865.
WHITE DISSENT — 3

“but for” cause of the finding of guilt.5 The Milner case cited by the Court today involved a double-

jeopardy claim based on successive prosecutions rather than on multiple punishments.6 Unlike a

multiple-punishments violation, a successive-prosecutions violation occurs when a defendant is tried

a second time, and so the violation precedes the finding of guilt in the second case.7

And this makes sense. As a practical matter, if a defendant is charged with two offenses that

are the same for double-jeopardy purposes, and it violates double jeopardy to submit them both to

the jury, how would a trial judge know which offense to submit to the jury and which offense to

dismiss? A jury might find a defendant guilty of one but not the other if both were submitted, and

if the judge dismissed the wrong case, a defendant whom the jury believed guilty of the other offense

would walk free. Sometimes it would be possible to submit one of the offenses as an alternative

manner and means or as a lesser-included offense, but not always.8 And we have held that when

5
See St. Aubin, 537 S.W.3d at 43-44 (plurality op.).
6
See Ex parte Milner, 394 S.W.3d 502, 505 (Tex. Crim. App. 2013) (“Applicant plead guilty
to the attempted capital murders in Cause Nos. 2404 and 2405 . . . was assessed consecutive life
sentences in each cause. The three pleas were entered in separate proceedings conducted
consecutively on the same day.”); id. at 504 (“Applicant has proven that he is actually innocent of
the second conviction for attempted capital murder.”). See also St. Aubin, 537 S.W.3d at 42-43
(discussing Milner).
7
See Brown v. Ohio, 432 U.S. 161, 165 (1977) (“The Double Jeopardy Clause protects
against a second prosecution for the same offense after acquittal. It protects against a second
prosecution for the same offense after conviction. And it protects against multiple punishments for
the same offense.”) (internal quotation marks omitted). See also St. Aubin, 537 S.W.3d at 42. In
fact, the St. Aubin plurality distinguished Milner for precisely this reason. See id. at 42-43. Given
not only St. Aubin, but the obvious difference between the successive-prosecution and multiple-
punishment branches of double-jeopardy jurisprudence, the Court errs to uncritically rely on Milner.
8
See Ex parte Ervin, 991 S.W.2d 804, 806, 815-16 (Tex. Crim. App. 1999) (Manslaughter
and intoxication manslaughter are the same offense for double jeopardy purposes when they arise
out of the same incident causing the same death even though they are codified in different chapters
of the Penal Code and neither is a lesser-included offense of the other.).
WHITE DISSENT — 4

there is a multiple-punishment double-jeopardy violation, the remedy is for the appellate court to

retain the most serious offense, which is that for which the greatest sentence was assessed.9 But

when the jury assesses punishment, that would not be known until after the jury assesses sentence,

and even when the trial judge assesses punishment, that would not be known until the end of the

punishment evidence.

The Court errs in failing to address the Supreme Court’s analysis of the issue in Ball. The

Court also errs to uncritically rely upon Milner, a successive-prosecutions case.

We should dismiss the entire application pursuant to Article 11.07, § 4. Because the Court

grants relief on the double-jeopardy claim, I respectfully dissent.

Filed: May 15, 2024
Publish

9
Bien v. State, 550 S.W.3d 180, 188 (Tex. Crim. App. 2018).