IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. 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
FROM COLLIN COUNTY
M EYERS, J., filed a dissenting opinion.
DISSENTING OPINION
The per curiam opinion indicates that we filed and set these applications to
determine several issues associated with Applicant’s double jeopardy claims. Because
the per curiam opinion does not indicate on what basis we are denying relief, it is
impossible to know what rationale or legal theory was applied in order to conclude that
Applicant is not entitled to relief. It is curious to note that the concurring opinions go to
great lengths to indicate that their vote was to procedurally default Applicant rather than
to conduct any analysis of our double jeopardy jurisprudence.
Marascio dissent–Page 2
In Gonzalez v. State, 8 S.W.3d 640 (Tex. Crim. App. 2000) this Court said that
some double jeopardy claims may be cognizable in a writ of habeas corpus if certain
conditions were met. We later stated that “when a defendant has an adequate remedy at
law for his claim, he may not raise the claim in an application for a writ of habeas
corpus.” See Ex Parte Townsend, 137 S.W.3d 79, 82 (Tex. Crim. App. 2004). This
Court has continued to restrict access to the writ of habeas corpus even though the
legislature has been active in expanding the writ process. In the years since Townsend
and Gonzalez came out, the legislature has enacted additional avenues for seeking relief
in applications for writ of habeas corpus–including Code of Criminal Procedure Articles
11.072 and 11.073– making it abundantly clear that it wants to expand the writ process.
Instead of following this directive, this Court’s response has been to find any possible
way to deny applicants relief. What defendant immediately knows at the close of his trial
the available avenues for getting relief? I would guess very few, which is all the more
reason we should allow them to raise issues later in a writ of habeas corpus. It is hard to
figure out exactly what the Court’s purpose is for trying to limit a defendant’s access to
relief because I can find no legitimate law or theory for it and it is blatantly contrary to the
wishes of the legislature. Apparently the Court does not want to take the time to try to
resolve writ questions. As I stated in my dissent in Townsend, “The legislature provided
both the writ of habeas corpus and direct appeal as avenues for relief. This Court should
not usurp the power of the legislature by saying that you can only use one remedy after
Marascio dissent–Page 3
you have exhausted the other.” 137 S.W.3d at 83.
It is embarrassing and almost tragic the lengths to which this Court will go to
avoid having to analyze and decide pressing legal questions. Just within the last two
weeks we stepped away from deciding an interesting eyewitness identification question
involving the weapon-focus effect by posturing some kind of scenario where the
defendant did not provide sufficient information to allow the trial court to determine that
the expert’s testimony was reliable, which was in essence totally uncalled for because the
trial judge completely handled the admission process of the expert testimony. See
Blasdell v. State, No. PD-0162-14, 2015 Tex. Crim. App. LEXIS 916 (September 16,
2015). And in Jaganathan v. State, No. PD-1189-14, 2015 Tex. Crim. App. LEXIS 920
(September 16, 2015), we also decided to not analyze a unique question of law regarding
whether there is or is not criminal liability for venturing into a passing lane on a freeway.
Along with the recent laches case Ex parte Perez, 445 S.W.3d 719 (Tex. Crim. App.
2014), this court seems to be indicating that it is truly not interested in dealing with
pressing and important legal questions. I think those joining the per curiam opinion have
walked away from an interesting and probably significant legal question. My evaluation
of Applicant’s claim is that it had merit and it is a shame that the per curiam opinion is
not telling us on what legal or procedural basis relief is being denied. I therefore
respectfully dissent.
Marascio dissent–Page 4
Filed: October 7, 2015
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