Parrott, Ex Parte Jimmie Mark Jr.

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-76,647

EX PARTE JIMMIE MARK PARROTT, JR., Applicant

ON APPLICANT'S MOTION FOR REHEARING OFAPPLICANT'S

PETITION FOR WRIT OF MANDAMUS IN CAUSE NO. 1227343-B IN THE 230TH DISTRICT COURT OF HARRIS COUNTY

Meyers, J., filed a statement dissenting to the denial of Applicant's Motion for Rehearing.

DISSENT

The majority agrees that the enhancement was improper, yet failed to grant Applicant habeas relief based on an illegal-sentence claim. This decision and the subsequent denial of Applicant's motion for rehearing means that Applicant will continue to serve an illegal sentence based on an improper enhancement and a flawed prior conviction. Failing to correct this mistake when we had the chance is irresponsible, and requiring Applicant to prove harm as a basis for relief has opened the door to analyze other illegality claims in this manner. What is really troubling is that a valid double jeopardy claim resulting from the imposition of multiple sentences for the same conduct, which would normally render a sentence illegal, will now be subject to a harm analysis. ⁽¹⁾ Harm is not the correct measure for determining illegality. A harm analysis is used after error has been found. It is entirely inappropriate to use such analysis for jurisdictional issues, illegal-sentence claims or double-jeopardy claims involving multiple sentences for one act. In this case there is no final judgment and Applicant is still serving an illegal sentence.

With these comments, I respectfully dissent.

Meyers, J.

Filed: March 27, 2013

Publish

1. I cannot envision a scenario in which we would ever grant relief by applying a harm analysis to a claim of double jeopardy based on an individual being punished twice for the same conduct.