## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S

N O
. A P

- 7 6 , 4 8 1

E x P a r t e K E N N E T H G L E N N M I L N E R , A p p l i c a n t

O N A P P L I C A T I O N F O R A W R I T O F H A B E A S C O R P U S F R O M C A U S E N O
. 2 4 0 5 I N T H E 1 0 0 T H D I S T R I C T C O U R T

C A R S O N C O U N T Y

K E L L E R , P .J., fi led a dis senting opi nion in w hich W O M A C K , J., joined.

For us to consider a subsequent application under article 11.07, the defe ndant must meet an exception under § 4, one of which is the innocenc e-g atewa y excep t i o n
. The innocenc e-g atewa y 1 exception require s that the applicant show that “but for a violation of the United States Constit ution,

no rational juror could have found the applicant g uilty bey ond a re as o n able doubt.” I ag ree that 2 applicant’ s double-jeopa

rdy claims meet this e xc e p ti o n b e c a u s e eac h of his convictions was obtained

See T E X

. C O D E C R I M

. P R O C . art. 11.07, § 4, § 4(a )(2)

. 1
Id. , § 4(a) (2). 2MILNER DISSE NT – 2

in a separ ate proce eding

. Once he was convicted in the first proce eding , he had a complete defe nse

to prosec ution to the rema ining char g es on the basis of the Double J eopar dy Clause’s protec tion

ag ainst succe ssive prosec utions. The innocenc e-g atewa y exception might not be met in a case that 3
involved the Double J eopar dy Clause’s protec tion ag ainst multipl e punishments beca use a doublejeopar dy violation does not occur until judgme nt is rende red on the multipl e offe nses, which is afte r
the jury ’s verdic t. When a double-jeopa rdy violation occur s only afte r a verdic t or finding of g uilt, 4
it logic ally cannot s at i s fy the innocenc e-g atewa y require ment that “no rational juror” could have
found the applicant g uilty

. But the prese nt case involves a “succ essive prosec utions” scena rio, so 5
the double-jeopa

rdy violation does prec ede the finding s of g uilt in the subsequent plea proce eding s.
But there is another problem. The Court g rants an acquittal for the char g es prosec uted in the subsequent plea proce eding s, but t hese char g es wer e part of a plea ag ree ment that included these
char g es and the char g e upon which he was convicted in the first proce eding

. The usual reme dy when

a plea ag ree ment is unenfor cea ble is to undo the plea ag ree ment and place the parties in the position

See E x parte Amador , 326 S.W .3d 202, 205 (Tex. Crim. App. 2010) (Double Jeopardy 3 Clause prohibits succe ssive prosec ution for offe nses that ar e conside red the same).

See Ball v. United States , 470 U.S. 856, 865 (1985) (“We emphasize that while the 4 Gover nment may seek a multipl e-c ount indictment” for cer tain offe nses that are the same for doublejeopar dy purposes, “the acc used may not suffe r two convictions or sentenc es on that indictment. I f, upon the trial, the district judge i s s at i s fi ed t h at there is sufficie nt proof to g o to the jury on both counts, he should instruct the jury as to the elements of ea ch off ense. Should the jury

return g uilty verdic ts for eac h count, howe v er , t h e d i strict judge should enter judgme nt on only one of the statutory offe nses.”)

. See Ex parte Sl ed

ge , No. AP-76,947, 2013 Tex. Crim. App. L EXI S 156, at 16-17 (Tex. 5 Crim. App. J anuar

y 16, 2013) (“Thus, at the time the statutory scheme contemplates that a finding of g uilt must be made (albe it not acte d upon in a formal adjudication), the fac t-finder clea rly ‘could have f ound the applica

nt guilty bey ond a re asonable doubt.’”)MILNER DISSE NT – 3

they wer e in befor e the pleas. This is beca use when a defenda

nt attacks the se ntence he rece ived 6
and for which he barg ained–a s appellant does here –he is attacking the entire judgme nt of conviction.
“To permit rese ntencing in this situation is to bind only one party to the ag ree ment. This is neither logic al nor fa ir.” 7
We have he ld that, for double- jeopar dy violations, the State can choose to w aive an illeg al portion of a plea ag ree ment and settle for enfor cing the rema ining, leg al portion. Consequently , we 8
should rema

nd this case for proce eding s to deter m i n e whether the State wishes to waive the jeopar dy -bar

red counts or to undo the entire plea. The Court proce eds as if the State has expressed

an intent to waive the illega l counts, but I see nothing in the rec ord showing that to be the case
. Absent a waiver by the State, the proper reme dy is to undo the entire ag ree ment, which in this case
would entail vac ating all of the plea s and re turning the par ties to the position t hey

wer e in prior to the plea pr ocee dings.
The Court say s that, beca

use the Fifth Circuit ha s alre ady vacated one of the case s that was part of the plea ag ree ment, “nothing we do here can undo the orig inal plea ag ree ment and place the 9 parties in the position they wer e in befor e the pleas wer e enter ed.” I disag ree
. The Fifth Circuit did

not v acate applicant’ s murder conviction. Rather, it said, “The judgme nt of the [federa l] district

Shannon v. State , 708 S.W .2d 850, 852 (Tex

. C ri m
. Ap p
. 1986); Rhodes v. State, 240 6 S.W .3d 882, 890 (Tex. Crim. App. 2007) (“State corr ectly arg ued [i n Shannon ] t hat bec ause the re was a plea ba rg ain, the prope r re medy

was to undo the e ntire plea .”).
Shannon , 708 S.W .2d at 852. 7 Ex parte Erv in , 991 S.W .2d 804, 817 (Tex. Crim. App. 1999). 8
See Milner v. Johnson , No. 99-10461, 2000 WL 293963 (5 Cir. Fe bruar y 17, 2000) (not 9 t h desig nated f

or publication).MILNER DISSE NT – 4

court deny

ing Milner’s habea s petition is VACATED and this c ase is REMANDED to the district

court with instructions to g rant Milner’s petitio n fo r a writ of habea s corpus.” Pursuant to that 1 0

rema nd order , a United States Mag istrate J udg e made rec ommendation s to th e f e d e r a l d is tr ic t c o u

r t. 1 1
The mag istrat e rec ommended that the murder conviction be vacated while the other convictions

rema in intact. But, sig nificantly , the mag istrate adde d:

1 2
The undersig ned notes petitio n er’ s conviction in Cause No. 2379 was obtained pursuant to a plea barg ain ag ree ment wher eby petitioner was to plead g uilty i n the three separ ate prosec utions and accept three (3) consec utive life sentenc es in exchang e for the State’s ag ree ment not to seek the death penalty in Cause No. 2379. The undersig ned makes no rec ommendation with reg ard to, the issue of whether the plea barg ain agr eeme nt is now s ubject to being set a side and the State permitted to re- prosec ute petitioner a s if no plea a g ree ment had bee n rea ched. 1 3
The fede ral district court ado p t ed the mag istrate’s repor t and rec ommendations. 1 4 Consequently , the fede ral district court order ed that the murder conviction be set aside and the life

sentenc e on that conviction be vacated. The fede ral district court s tated that “Petitioner’s other 1 5
convictions and life se ntence s . . . are not affe cted by this Order a

nd rema in in effe ct.” 1 6
The fede ral district court did not dispose of the murder conviction by rende ring a judgme nt

Id. 1 0
Milner v. Johnson , No. 2: 94-CV-0207 (Mag istrate, N.D. Tex. J uly 2 1 , 2 0 0 0 ) (not 1 1 desig nated f

or publication).
Id. at 3. 1 2
Id. 1 3
Milner v. Johnson , No. 2: 94-CV-0207, at 1 (N.D. Tex. J uly 24, 2000) (not desig nated for 1 4 publication) (“The District J udg e is of the opinion the Mag istrate J udg e’s Report and Recommenda tion should be, and here by is, ADOPTED.”)

. Id. at 1-2. 1 5
Id. at 2. 1 6MILNER DISSE NT – 5

of acquittal or a dismiss al with prejudice

. The court simply set the conviction aside, while expli citly
acknow ledg ing the possibili ty of undoing the plea barg ain and returning the par ties to the position they wer e in bef

ore the pleas.

I respe ctfully

dissent.
Filed: F ebrua

ry 13, 2013 Publis h