IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-80,939-01, WR-80,939-02, & WR-80,939-03
EX PARTE ERIC REED MARASCIO, Applicant
ON APPLICATIONS FOR WRIT OF HABEAS CORPUS CAUSE NOS. W380-80601-09-HC, W380-80602-09-HC, & W380-80603-09-HC IN THE 380TH DISTRICT COURT FROM COLLIN COUNTY
K EASLER, J., filed a concurring opinion, in which H ERVEY and Y EARY, JJ., joined.
CONCURRING OPINION
I concur in denying Eric Maracio’s applications for writ of habeas corpus. However,
I would do so based on this Court’s holding in Ex parte Townsend and its underlying logic
and intent. In resolving certain claims, our habeas corpus jurisprudence lacks a consistent
theory of cognizability—a term this Court understands to mean which claims are entitled to
merits review. The double-jeopardy claim presented today is one example. Relying on
familiar error-preservation and rights-based principles, this Court should pronounce a
consistent and logical theory defined by unified principles. MARASCIO CONCURRENCE—2
I. Preservation of Error
A. Similarity of direct appeal and habeas corpus
Our case law has long held that the error-preservation requirement exists with equal
force in habeas proceedings as it does in appellate proceedings. As a result, error
preservation is generally a prerequisite to habeas corpus relief.1 Since at least 1974 in Ex
parte Bagley, this Court has held that “[t]he same rule as to the necessity of an objection to
complained of evidence has been applied by this Court in habeas corpus cases.” 2 Many years
after Bagley, this Court continued to embrace the contemporaneous-objection rule on habeas
which is, generally, that “appellate courts will not consider any error which counsel for the
accused could have called, but did not call, to the attention of the trial court at the time when
such error could have been avoided or corrected by the trial court.” 3 The extension of this
premise established the central vein of our habeas jurisprudence that record claims—those
that should have been litigated in the trial court and on direct appeal—will be denied.4 These
principles only added to the widely recognized limitations of the writ set out by this Court
1 Garza v. State, 435 S.W.3d 258, 261–62 (Tex. Crim. App. 2014). 2 Ex parte Bagley, 509 S.W.2d 332, 333 (Tex. Crim. App. 1974). See, e.g., Ex parte Jimenez, 364 S.W.3d 866, 882 (Tex. Crim. App. 2012); Ex parte Medellin, 280 S.W.3d 854, 860–63 (Tex. Crim. App. 2008) (Cochran, J., concurring); Ex parte Crispen, 777 S.W.2d 103, 105 (Tex. Crim. App. 1989) (plurality opinion). 3 Ex parte Crispen, 777 S.W.2d at 105. 4 See, e.g., Ex parte Gardner, 959 S.W.2d 189, 199 (Tex. Crim. App. 1996) (op. on mot. for reh’g). MARASCIO CONCURRENCE—3
over 80 years ago consistent with the writ’s ancient origins: “Habeas corpus is an
extraordinary writ, and the general rule is that it does not lie where relief may be had, or
could have been procured by resort to another remedy. It is also settled that use of the writ
will not be permitted as a substitute for appeal.”5 Like contemporaneous-objection law
generally, whether a particular claim should receive merits review “should be informed first
and foremost by the State’s legitimate interest in the integrity and finality of convictions.
The appellate process is past. Any standard for deciding what claims to entertain in a
collateral proceeding should be rigorous.”6 But as I later set out, the weighty interests in a
conviction’s integrity and finality must yield in the face of allegations of certain rights’
violations that demand merits review.
In practice, one of the first expressions of the limitations of habeas corpus when an
opportunity to appeal existed—and therefore afforded a forum for an adequate remedy—was
Ex parte Loper.7 This Court held that through an application for writ of habeas corpus,
5 Ex parte Wilcox, 79 S.W.2d 321, 321 (Tex. Crim. App. 1935) (citations omitted). See 2 T HOMAS C ARL S PELLING, A T REATISE ON E XTRAORDINARY R ELIEF IN E QUITY AND AT L AW, § 1151 (Boston, Little, Brown & Co. 1893); 1 J OSEPH S TORY, C OMMENTARIES ON E QUITY J URISPRUDENCE AS A DMINISTERED IN E NGLAND AND A MERICA § 49 (Boston, Little, Brown & Co. 1918). Accord Ex parte Gardner, 959 S.W.2d at 199 (quoting Ex parte Groves, 571 S.W.2d 888, 890 (Tex. Crim. App. 1978), “It is well-settled ‘that the writ of habeas corpus should not be used to litigate matters which should have been raised on direct appeal.’”) 6 Ex parte Goodman, 816 S.W.2d 383, 387 (Tex. Crim. App. 1991) (Clinton, J., concurring); Ex parte Gardner, 959 S.W.2d at 191 n.2 (original opinion). 7 219 S.W.2d 81 (Tex. Crim. App. 1949). MARASCIO CONCURRENCE—4
Loper claimed his conviction was “void for many reasons, all of which are matters that could
have and should have been urged upon the trial of the Harris County case or upon an appeal
therefrom. He failed to appeal such cause.”8 For this reason, this Court denied relief.
In Ex parte Pena, the sentencing judge entered a judgment indicating a fine of
$10,000 when the jury assessed no fine at all.9 Assuming that Pena raised a cognizable
complaint, the Court held that he was not entitled to relief because he forfeited any error by
not objecting at the time the $10,000 fine was imposed or by complaining on direct appeal.10
The record in Pena established that Pena was informed that he had the option to appeal, or
file a motion to reconsider the sentence, but he elected not to pursue those options.11 Citing
Ex parte Bagley, the Court held that he was not entitled to relief “because he could have, and
should have, complained about the fine at the time it was imposed or on direct appeal.” 12
Relying heavily on the axiom “The Great Writ should not be used in matters that
should have been raised on appeal,” Ex parte Townsend held that “[e]ven a constitutional
claim is forfeited if the applicant had the opportunity to raise the issue on appeal. This is
because the writ of habeas corpus is an extraordinary remedy that is available only when
8 Id. at 82. 9 71 S.W.3d 336, 336 (Tex. Crim. App. 2002). 10 Id. at 338. 11 Id. 12 Id. at 338 & n.7 (citing Ex parte Boyd, 58 S.W.3d 134, 136 (Tex. Crim. App. 2001)). MARASCIO CONCURRENCE—5
there is no other adequate remedy at law.”13 Most likely owing to its sweeping language,
Townsend has been viewed as a defining point in our habeas jurisprudence, but it was hardly
new: If an applicant could have appealed the issue he now asserts on habeas, the merits of
his claim should not be reviewed.
If Townsend requires that we ask “Could the applicant have brought his claim on
appeal?” before reviewing a claim’s merits, the answer turns on the nature of the right he
seeks to vindicate. If it was not preserved in the trial court, then the answer turns on whether
the right that the applicant seeks to vindicate is subject to procedural default. After all, if a
particular right is not subject to procedural default, then the claim asserting a violation of that
right can normally be raised in a direct appeal regardless of a contemporaneous objection.
B. Incorporation of Marin v. State
Marin v. State, the watershed decision on whether rights are subject to procedural
default—and therefore whether Texas Rule of Appellate Procedure 33.1’s general
preservation requirement applies14 —provides a ready categorization structure well ingrained
in our criminal law.15 Whether an appellant must preserve error is controlled by where in
13 Ex parte Townsend, 137 S.W.3d 79, 81 (Tex. Crim. App. 2004) (citations omitted). Accord Ex parte Nelson, 137 S.W.3d 666 (Tex. Crim. App. 2004). 14 T EX. R. A PP. P RO. 33.1(a) (requiring that, as a prerequisite to presenting a complaint on appeal, the record show a complaint was made to the trial court alleging specific grounds for the objection that comply with the Rules of Evidence and that the trial court ruled, or refused to rule on, the objection). 15 Marin v. State, 851 S.W.2d 275 (Tex. Crim. App.1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997). MARASCIO CONCURRENCE—6
Marin’s three familiar categories a particular right falls:
• Category-one rights, considered absolute rights or prohibitions, cannot be avoided even with partisan consent. “Accordingly, any party entitled to appeal is authorized to complain that an absolute requirement or prohibition was violated, and the merits of his complaint on appeal are not affected by the existence of a waiver or a forfeiture at trial.” 16
• Category-two rights are those that are not forfeitable—they cannot be surrendered by mere inaction, but are waivable if the waiver is affirmatively, plainly, freely, and intelligently made. The trial judge has an independent duty to implement these rights absent any request unless there is an effective express waiver.17
• Category-three rights are forfeitable and must be requested by a defendant. Many defendants’ rights, including constitutional rights, are in this category and can be forfeited by inaction.18
Townsend’s sweeping language, however, was broader than its aim. Townsend sought
to cinch habeas corpus back to its original form. Returning to older precedents, Townsend
reminded that “[h]abeas corpus is an extraordinary remedy; and, ordinarily, neither a trial
court nor this Court, either in the exercise of our original or appellate jurisdiction, should
entertain an application for writ of habeas corpus where there is an adequate remedy at
law.”19 Traditionally, habeas corpus was available only to review jurisdictional defects or
16 Id. at 280. 17 Id. at 279–80. 18 Id. at 279. 19 Ex parte Townsend, 137 S.W.3d 79, 81 n.9 (quoting Ex parte Groves, 571 S.W.2d 888, 890 (Tex. Crim. App. 1978). MARASCIO CONCURRENCE—7
denials of fundamental or constitutional rights.20 By broadly framing the scope of habeas to
exclude all claims that could have been raised on direct appeal, Townsend, when read
literally, excludes from habeas review the most sacred, absolute rights and
prohibitions—those that, according to Marin, are widely considered critical to the proper
functioning of our adjudicatory process.
Clarification of Townsend is required lest we render habeas corpus a shell of its
former self, incapable of rendering relief on claims asserting violations of the rights and
prohibitions that pose the gravest threat to our system of justice. Ex parte Moss is a recent
proof of the principle.21 Moss challenged the trial court’s jurisdiction in revoking her
community supervision. After revocation, Moss absconded and her direct appeal was
dismissed.22 Moss’s jurisdictional complaint came only in the form of her habeas corpus
application. Noting that jurisdiction is a systemic requirement that operates independent of
litigants’ wishes, this Court held that the merits of Moss’s claim could be entertained
irrespective of Townsend’s broad holding.23 Ex parte Moss adhered to Townsend’s intent to
20 Ex parte Banks, 769 S.W.2d 539, 540 (Tex. Crim. App. 1989) (internal citations omitted). 21 Ex parte Moss, 446 S.W.3d 786, 788–89 (Tex. Crim. App. 2014). 22 Id. at 788. 23 Id. at 789. See Sledge v. State, 391 S.W.3d 104, 108 (Tex. Crim. App. 2013) (“[W]e have recognized them to be cognizable without regard to ordinary notions of procedural default—essentially because it is simply not optional with the parties to agree to confer subject matter jurisdiction on a convicting court where that jurisdiction is lacking.”). MARASCIO CONCURRENCE—8 restore habeas to its original intended function: a remedy to address jurisdictional errors and
other equally offensive errors in the adjudicatory process.
We ought to once more refine Townsend’s holding to further its efforts in preserving
the original scope of habeas corpus and the importance of error preservation in deciding
whether to evaluate the merits of an applicant’s claim. Both ends are achieved by expressly
incorporating Marin’s characterization of rights on appeal to determine whether a particular
right is subject to procedural default and therefore will frustrate an applicant’s request for
relief. In view of the historical notions of habeas corpus, only claims involving bare Marin
category-one rights and prohibitions should escape Townsend’s gatekeeping-like holding and
receive merits review.
To be clear, this approach would not apply Marin to all habeas claims. In fact, an
overwhelming majority of the writ applications this Court receives would be unaffected.
Marin would not apply to claims that, in Townsend’s parlance, could not have been brought
on appeal or are better suited for collateral proceedings. Put another way, procedural-default
principles will only prevent the review of record claims and those that, by their nature,
typically afford a litigant an adequate forum for relief. Marin and error-preservation issues
are generally inapplicable to a number of cognizable claims on habeas, including actual
innocence, ineffective assistance of counsel, Brady claims, and other claims that require or
are based on subsequent record development.24 The treatment of these types of claims
24 See, e.g., Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1996) (focusing actual-innocence claims in light of new evidence); Ex parte Nailor, 149 MARASCIO CONCURRENCE—9 remains untouched by such a holding.
II. Double-Jeopardy Claims on Habeas
A. The Gonzalez v. State exception
The double-jeopardy error-preservation body of law stands in sharp relief against
Marin’s categorical structure and the preservation requirement of other rights. In Gonzalez
v. State, this Court held Gonzalez had the burden to preserve his double-jeopardy complaint
by objecting at or before the time the charge was submitted to the jury.25 However, the
Gonzalez Court allowed an exception: Because of the “fundamental” nature of double
jeopardy, a double-jeopardy claim may be raised for the first time on appeal (and in dicta, on
collateral attack) only when (1) the undisputed facts show the double-jeopardy violation is
clearly apparent from the face of the record, and (2) enforcement of usual rules of procedural
default serves no legitimate state interest.26 We have recently relied on Gonzalez’s holding
in granting a habeas applicant relief on a double-jeopardy claim that was ostensibly raised
for the first time on habeas.27
S.W.3d 125, 130 (Tex. Crim. App. 2004) (acknowledging ineffective-assistance-of- counsel claims generally need an expanded record which is better accomplished on habeas); Ex parte Brown, 158 S.W.3d 449, 453 (Tex. Crim. App. 2005) (recognizing that a trial record’s insufficiency may prohibit an appellate court from resolving a particular claim on direct appeal). 25 Gonzalez v. State, 8 S.W.3d 640, 642 (Tex. Crim. App. 2000). 26 Id. at 643. 27 See, e.g., Ex parte Denton, 399 S.W.3d 540, 544–45 (Tex. Crim. App. 2013). MARASCIO CONCURRENCE—10 However, the Gonzalez holding has proved problematic, and our recent application
of Gonzalez questions its continued viability. From the start, the two components of the
contemporaneous-objection exception have never been clear. What does it mean to require
that “the undisputed facts show the double-jeopardy violation is clearly apparent from the
face of the record” and the “enforcement of usual rules of procedural default serves no
legitimate state interest”? Except where a jury is instructed on separate theories for an
offense in the disjunctive,28 the clearly-apparent-from-the-record factor requires that we
reach the merits of the claim before determining whether the claim is properly presented.
Determining a threshold issue of procedure based on the claim’s merits results in an
analytical hiccup: If there is a valid double-jeopardy violation, it is sufficiently clear on the
face of the record; if there is no double-jeopardy violation, it is not.29 Without a majority
opinion passing on the issue, the Court allows this anomaly to endure.
The Gonzalez exception’s second prong—when enforcement of usual rules of
procedural default serves no legitimate state interest—has recently become even less clear.
In Langs v. State, we noted this prong was designed to ensure that the trial court and the State
were not deprived of an opportunity to remove the basis of the objection, and to be in a worse
position for the lack of a defendant’s objection.30 However, a more recent case casts this
28 Langs v. State, 183 S.W.3d 680, 687 (Tex. Crim. App. 2006). 29 See, e.g., Garfias v. State, 424 S.W.3d 54, 64 (Tex. Crim. App. 2014); Langs, 183 S.W.3d at 688–89. 30 Langs, 183 S.W.3d at 686, n.22. See Gonzalez, 8 S.W.3d at 645–46. MARASCIO CONCURRENCE—11 meaning in doubt. In Ex parte Denton, this Court held, “While the state may have an interest
in maintaining the finality of a conviction, we perceive no legitimate interest in maintaining
a conviction when it is clear on the face of the record that the conviction was obtained in
contravention of constitutional double-jeopardy protections.”31 Judge Richardson’s
concurring opinion claims Denton did not drain this prong of all meaning.32 Yet, like in
Denton, he would summarily find Gonzalez’s second prong satisfied.33 Without any
discussion, the two bare conclusions are irreconcilable. Judge Richardson disclaims
Gonzalez’s erosion while at once attempting to solidifying it.
Aside from the Gonzalez exception’s analytical uncertainty and inconsistent
application, the express incorporation of Marin’s framework calls Gonzalez’s rationale and
holding further into doubt because it is premised on double-jeopardy’s “fundamental”
nature—nomenclature that does not conform to Marin’s categories or application. Indeed,
Marin itself initially spoke in terms of fundamental rights. Yet it did so to differentiate rights
that are forfeited by inaction and those that carry special significance, only to further distill
them into waivable-only rights and absolute rights and prohibitions.34 Marin was a reaction
to the frequent labeling of errors as “fundamental” that were immune from procedural
31 Ex parte Denton, 399 S.W.3d at 545. 32 Post, at 10 (Richardson, J., concurring). 33 Id. 34 Marin, 851 S.W.2d at 278–79. MARASCIO CONCURRENCE—12 default. At the time of the Marin decision, this Court recognized more than a dozen kinds
of fundamental error.35 Indiscriminate use of “fundamental errors” led to “piecemeal
developments that each ha[d] somewhat different rationales. The overall situation, then,
simply could not be explained by reference to any unifying principle or principles.” 36
Gonzalez’s rationale that in some instances double-jeopardy claims avoid procedural
default because double jeopardy is fundamental does not adequately support that holding.
Without further reducing double-jeopardy protections into an absolute right or prohibition
or a waiver-only right, the Gonzalez exception is a holding with incomplete reasoning. As
a result, Gonzalez’s treatment of double jeopardy is anomalous—it is a claim that must be
preserved, yet may still be reviewed in limited circumstances. Gonzalez’s holdings are
logically flawed, difficult to implement, irreconcilable with our procedural-default rules, and
inapposite to Marin’s goal of achieving unified procedural-default rules. We should overrule
it.
B. Categorizing double jeopardy under Marin
Placing a defendant’s double-jeopardy rights into a Marin category accomplishes two
things: (1) it determines if an objection is required in the trial court in the first place, and (2)
if not, it then determines whether an effective waiver is required. This is admittedly no easy
task; it requires taking a holistic approach that considers the nature of the rights’ importance
35 Sanchez v. State, 120 S.W.3d 359, 365 (Tex. Crim. App. 2003). 36 Id.; Saldano v. State, 70 S.W.3d 873, 887–88 (Tex. Crim. App. 2002). MARASCIO CONCURRENCE—13 in our judicial system and preserves the rights’ potency.
Double-jeopardy rights fall outside of Marin’s first category because they may be
waived, and therefore they cannot be absolute rights or prohibitions by definition. We have
previously held that a defendant may affirmatively waive his right to the Fifth Amendment’s
double-jeopardy protections.37 While a guilty plea alone does not waive a defendant’s
double-jeopardy rights, the record of a proceeding may indicate that a defendant may
effectuate a waiver by agreeing to subject himself to double jeopardy if it benefits him.38 In
Ex parte Birdwell, we held “that the applicant agreed to subject himself to a second trial for
the same offense, and to receive a lesser sen tence which he had already earned enough credit
to have discharged.”39 Because there are some instances when double-jeopardy rights may
be waived, they cannot be placed in Marin’s first category.
Further, finding that double jeopardy is an absolute right or prohibition would stifle
the ability of the State and a defendant to engage in free negotiation to arrive at mutually
beneficial resolutions of criminal cases. If a defendant chooses to subject himself to a
37 Ex parte Birdwell, 7 S.W.3d 160 (Tex. Crim. App. 1999) (holding that applicant waived his double-jeopardy right to be free from a second prosecution because the record of this proceeding shows that the applicant agreed to subject himself to a second trial for the same offense); Ex parte McJunkins, 954 S.W.2d 39, 41 (Tex. Crim. App. 1997). 38 Ex parte Birdwell, 7 S.W.3d at 163–64 (citing Menna v. New York, 423 U.S. 61, 63 n.2 (1975) and United States v. Broce, 488 U.S. 563, 575 (1989)). 39 Id. at 164. See Jeffers v. United States, 432 U.S. 137, 153 (1977) (holding that Jeffer’s affirmative request for separate trials “deprived him of any right that he might have had against consecutive trials.”). MARASCIO CONCURRENCE—14 potential double-jeopardy violation because, in his judgment, it results in a beneficial
outcome of a pending case instead of standing on his double-jeopardy rights, he should be
free to do so.40 In a negotiated plea bargain, a defendant already expressly gives up a whole
host of rights, including the right to a jury trial, the right to require the State to prove guilt
beyond a reasonable doubt, the right to confront and cross-examine witnesses against the
defendant, and in certain cases, the right to be sentenced by a judge considering the entire
range of punishment.41 It makes little sense to elevate double-jeopardy rights to a station so
sacrosanct that the defendant himself—and for whom those rights exist—may not
intentionally forego them.
The nature of double-jeopardy protections leads me to conclude that they are best
suited as category-two Marin rights. Although Gonzalez’s use of the term fundamental in
describing double jeopardy was overly broad, it correctly recognized double-jeopardy
protections as substantively different from other rights extinguished by mere inaction. The
United States Supreme Court has consistently noted that, with its foundation in common law,
double-jeopardy rights are deeply ingrained in our system of jurisprudence. It is well
established that “the State with all its resources and power should not be allowed to make
40 See Ex parte Birdwell, 7 S.W.3d at 160 (holding that applicant waived his double-jeopardy right to be free from a second prosecution because the record of the proceeding shows that the applicant agreed to subject himself to a second trial for the same offense). 41 Grado v. State, 445 S.W.3d 736, 740 (Tex. Crim. App. 2014). See Mendez v. State, 138 S.W.3d 334, 344 (Tex. Crim. App. 2004). MARASCIO CONCURRENCE—15 repeated attempts to convict an individual for an alleged offense, thereby subjecting him to
embarrassment, expense and ordeal and compelling him to live in a continuing state of
anxiety and insecurity, as well as enhancing the possibility that even though innocent he may
be found guilty.”42 The Supreme Court continued, “Like the right to trial by jury, it is clearly
‘fundamental to the American scheme of justice.’”43 And the ability to waive a trial by jury
is equally established:
[A]n accused, in the exercise of a free and intelligent choice, and with the considered approval of the court, may waive trial by jury, and so likewise may he competently and intelligently waive his Constitutional right to assistance of counsel. There is nothing in the Constitution to prevent an accused from choosing to have his fate tried before a judge without a jury even though, in deciding what is best for himself, he follows the guidance of his own wisdom and not that of a lawyer.44
Although double-jeopardy rights are prominent fixtures within our criminal-justice system,
they are not barriers. Placing double jeopardy within Marin’s second category strikes the
right balance consistent with their nature. Not simply extinguished by inaction or inattention,
double-jeopardy rights must be affirmatively waived. This categorization preserves double-
jeopardy rights’ ability to provide individual protections while at the same time permitting
a defendant to relinquish them if he so chooses. Placing double-jeopardy rights within
Marin’s second category further ensures that defendants in the trial court will always have
42 Benton v. Maryland, 395 U.S. 784, 796 (1969) (quoting Green v. United States, 355 U.S. 184, 187–88 (1957)). 43 Id. 44 Adams v. United States ex rel. McCann, 317 U.S. 269, 275 (1942). MARASCIO CONCURRENCE—16 a forum to vindicate alleged double-jeopardy violations. By holding that double-jeopardy
rights are immune to procedural default, double-jeopardy claims will always be available on
appeal in the absence of an express waiver regardless of whether trial counsel preserves for
appeal a double-jeopardy complainant. This approach forecloses these claims on habeas, but
the ability to seek relief in the appellate courts far exceeds any potential relief after the
appellate process has come and gone.
III. Conclusion
The general rule espoused by Townsend (and many other opinions before it) remains
the same: If an applicant could have brought a claim on direct appeal, then the claim’s merits
will not be entertained on habeas. A bare or primary violation of a category-one Marin
absolute right or prohibition should be the only exception to Townsend. This is contrasted
by secondary claims of constitutional right violations raised by way of another right, for
example instances of ineffective-assistance-of-counsel claims. Failure to exercise this
available right to appeal should prove fatal to freestanding double-jeopardy claims on
collateral review.
Because double-jeopardy claims are category-two waiver-only claims and the present
record does not contain an effective double-jeopardy waiver, Marascio’s double-jeopardy
claims could have been raised on direct appeal and do not satisfy the exception to
Townsend’s general rule. For these reasons, I concur in denying Marascio’s applications for
writ of habeas corpus. MARASCIO CONCURRENCE—17 DELIVERED: October 7, 2015
PUBLISH