Marascio, Eric Reed

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