In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-17-00472-CR
NO. 09-17-00473-CR
NO. 09-17-00474-CR
NO. 09-17-00475-CR
NO. 09-17-00476-CR
NO. 09-17-00477-CR
____________________
EX PARTE CALVIN GARY WALKER
__________________________________________________________________
On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause Nos. 14-19970, 14-19969, 14-19968, 14-19967, 14-19966, 14-19965
__________________________________________________________________
MEMORANDUM OPINION
These are accelerated appeals from the trial court’s order denying habeas
relief in six separate cases. In his sole issue in each case, appellant Calvin Gary
Walker contends that the trial court erred by issuing his writ for habeas relief in each
case and then quashing his subpoenas seeking evidence in support of his applications
and by denying his request for an evidentiary hearing. We affirm the trial court’s
order denying habeas relief in trial cause numbers 14-19965, 14-19966, 14-19967,
14-19968, 14-19969, and 14-19970.
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BACKGROUND
In September 2017, Walker filed an application for writs of habeas corpus in
six criminal cases, seeking the dismissal of the indictments against him based on
double jeopardy grounds. In his applications, Walker argued that double jeopardy
applies in all six cases because he was previously prosecuted in federal court for the
same conduct that these pending state cases are based upon. According to Walker’s
applications, the “separate sovereigns exception” to the Double Jeopardy Clause
should be abolished.
Walker acknowledged that he filed applications for a writ of habeas corpus in
these cases in 2014, this Court affirmed the trial court’s denial of his 2014
applications, the Texas Court of Criminal Appeals denied his petitions for
discretionary review, and the United States Supreme Court also denied his petitions
for certiorari without stating a reason. See Ex parte Walker, 489 S.W.3d 1, 14 (Tex.
App.—Beaumont 2016, pet. ref’d), cert. denied, 137 S.Ct. 1813 (2017) (affirming
the trial court’s orders denying Walker a formal evidentiary hearing and habeas relief
on double jeopardy grounds, and concluding that no exception to the dual
sovereignty doctrine applied). Walker’s 2014 applications focused on the “Bartkus
exception” to the dual sovereignty doctrine, which prevents successive prosecutions
by separate sovereigns when one prosecuting sovereign acts as a tool for the other
or when a prosecution by one sovereign amounts to a sham for a second prosecution
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by another sovereign. See id. at 9, 11-12; see also Bartkus v. Illinois, 359 U.S. 121,
123-24 (1959).
Walker contends that after his 2014 applications were denied, the Supreme
Court decided a case in which two of the justices suggested that the Court should
conduct a fresh examination of the separate sovereigns exception to the Double
Jeopardy Clause. See Puerto Rico v. Sanchez Valle, 136 S.Ct. 1863, 1877 (2016)
(Ginsburg, J. and Thomas, J., concurring). According to Walker, the Supreme Court
may have previously denied certiorari because he did not clearly raise the
constitutionality of separate sovereigns exception in his 2014 applications, having
conceded that the dual sovereignty doctrine was valid. In his 2017 applications,
Walker argued that “[t]he separate sovereigns exception harms criminal defendants
in the precise ways the Double Jeopardy Clause seeks to avoid[,]” and that these
cases present an excellent opportunity for the Supreme Court to reconsider the
separate sovereigns exception.
In its response to Walker’s applications, the State asserted that Walker is not
entitled to relief because double jeopardy does not apply to the pending State
prosecutions and because the separate sovereigns exception to double jeopardy
remains the law and is not unconstitutional. The State further argued that Walker’s
applications failed to present any new arguments for the trial court to consider. In
October 2017, the trial court issued six pretrial writs of habeas corpus and concluded
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that Walker’s claims for habeas corpus relief based on the double jeopardy
provisions in the United States and Texas Constitutions should be denied on the
merits.
Walker filed a motion to set aside the trial court’s order denying the merits of
his applications, requesting that the trial court abide by its oral pronouncement at the
pretrial hearing and withhold ruling on the merits until both parties have had an
opportunity to file supplemental information. Walker attached a copy of the
reporter’s record of the hearing which reflects that the trial court agreed to give
Walker time to supplement his applications. In November 2017, the trial court
vacated and set aside its October 2017 order denying Walker’s applications on the
merits and ordered that he supplement the applications by December 4, 2017. Walker
issued two subpoenas duces tecum in relation to his applications, one for Jefferson
County District Attorney, Bob Wortham, and one for former United States Attorney,
John Malcolm Bales. Walker requested that Wortham and Bales provide, among
other things, copies of all records of communications between former District
Attorney Corey Crenshaw or the Jefferson County’s District Attorney’s office and
former United States Attorney Bales or any member of the United States Attorney’s
Office regarding Walker or the State’s prosecution of Walker.
The State filed a motion to quash Walker’s subpoenas duces tecum. In its
amended motion to quash, the State argued that Walker’s subpoenas are premised
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on the State’s decision to prosecute Walker, but Walker’s current applications make
a “facial” challenge to the constitutionality of the doctrine of dual sovereignty and
are not based on double jeopardy. The State argued that in his 2014 applications,
Walker tried to claim that based upon the surrounding circumstances related to the
State’s prosecution, the Bartkus exception to the general rule of dual sovereignty
applied because the Jefferson County District Attorney’s Office was being used as a
mere tool of federal authorities who were dissatisfied with the outcome of Walker’s
federal trial. The State further argued that the legality of the State’s prosecution of
Walker was resolved in Walker’s 2014 applications when the trial court determined
that the federal prosecution was not used as a “‘cover or tool’” for Walker’s
subsequent state prosecutions on separate charges.
According to the State, even if the Supreme Court were to declare the doctrine
of dual sovereignty unconstitutional, Walker still would not be entitled to relief
because the State prosecutions at issue are unrelated to the federal prosecution and
do not constitute double jeopardy. The State maintained that Walker’s 2017
applications delve into circumstances that have no relevance to the constitutionality
of the doctrine of dual sovereignty, and that Walker should not be allowed to seek
evidence that involves matters that were resolved in his 2014 applications.
According to the State, Walker is asking the trial court to revisit the separate
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sovereigns exception without regard to Bartkus and to declare it unconstitutional
despite the fact that it remains the law.
On December 4, 2017, the trial court conducted a status conference hearing,
during which Walker’s counsel stated that Walker’s efforts to supplement had been
frustrated by the State’s motions to quash. Walker’s counsel requested a factual
hearing to make a record, explaining that in the 2014 applications, Walker was never
given an opportunity to develop the record. The State maintained that it stood by its
motions to quash because Walker was attempting to discover evidence to re-litigate
matters that had been resolved in Walker’s 2014 applications. The State asked that
the trial court limit Walker’s discovery to the issue raised in his 2017 applications,
asking the trial court to declare the doctrine of dual sovereignty unconstitutional, and
to deny Walker relief. The State requested that the trial court take judicial notice that
Walker had been prosecuted and convicted in federal court for failing to pay federal
taxes when due. The State also requested that the trial court rule that no double
jeopardy applies because the State’s charges are different from the federal offense
for which Walker was convicted.
The trial court granted the State’s motions to quash, denied Walker’s request
for a factual hearing, and denied Walker’s 2017 applications, finding that his new
claim for relief is without merit. In its written order, the trial court took judicial
notice of the legal claims that Walker presented in his 2014 applications, of its 2014
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orders denying Walker habeas relief, and of this Court’s opinion affirming the trial
court’s denial of relief. The trial court determined that from the face of Walker’s
2017 applications and the arguments that Walker’s counsel made during the
December 2017 hearing, Walker’s “lone ‘new’ legal claim” amounts to the assertion
that “as an exception to a defendant’s double-jeopardy protections, the dual
sovereignty doctrine should not exist.” The trial court noted that it is well established
that an individual may be prosecuted separately by two different sovereigns for the
commission of the same act and that the separate prosecutions do not violate federal
due process or constitutional prohibitions against double jeopardy. The trial court
further noted that the Texas Court of Criminal Appeals, various intermediate
appellate courts in Texas, and the Fifth Circuit have all applied the dual sovereignty
doctrine to preclude double jeopardy claims based on successive prosecutions
brought by the state and federal authorities for the same act or conduct.
The trial court found that Walker’s remaining arguments in his 2017
applications are an attempt to re-litigate the claims in his 2014 applications that have
been “fully, fairly, and finally litigated, and the legal merits of said claims have been
rejected by this Court and by the Ninth Court of Appeals[.]”The trial court found
that it “is constrained by the ‘law of the case’ doctrine from ruling any further on
[Walker’s 2014] claims.” The trial court concluded that “[b]ecause the dual-
sovereignty doctrine is recognized as a valid and viable theory of law by numerous
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courts of superior jurisdiction, . . . [the trial court] is duty-bound to also recognize
and apply said doctrine[.]” Because the legal viability of the dual sovereignty
doctrine presents a question of law, the trial court determined that “it was not
necessary for [the trial court] to hear testimony from witnesses at an evidentiary
hearing.”
Analysis
In a single appellate issue, Walker contends that the trial court erred by issuing
his six writs of habeas relief, quashing Walker’s subpoenas seeking evidence in
support of his applications, and refusing Walker’s request for a factual hearing to
make a record. We review the granting or denial of an application for writ of habeas
corpus under an abuse of discretion standard. Ex parte Klem, 269 S.W.3d 711, 718
(Tex. App.—Beaumont 2008, pet. ref’d); see also Ex parte Craft, 301 S.W.3d 447,
448 (Tex. App.—Fort Worth 2009, no pet.) (mem. op. on reh’g). We consider the
entire record and review the facts in the light most favorable to the trial court’s
ruling. Ex parte Klem, 269 S.W.3d at 718. We afford almost total deference to the
trial court’s determination of historical facts supported by the record, especially
findings that are based on an evaluation of credibility and demeanor. Id. We afford
the same deference to the trial court’s rulings on application of law to fact questions
when resolution of those questions turns on an evaluation of credibility and
demeanor. Id. We review the determination de novo when resolution of those
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questions turns on an application of legal standards. Id.; see also Ex parte Aguilar,
501 S.W.3d 176, 178 (Tex. App.—Houston [1st Dist.] 2016, no pet.).
Facial constitutional challenges are cognizable on application for pretrial writ
of habeas corpus. See Ex parte Perry, 483 S.W.3d 884, 896 (Tex. Crim. App. 2016).
Whether the separate sovereigns exception is facially constitutional is a question of
law that is subject to de novo review. See Ex parte Lo, 424 S.W.3d 10, 14 (Tex.
Crim. App. 2013). Based on Walker’s 2017 applications and the arguments that
Walker’s counsel made during the December 2017 hearing, the trial court
determined that Walker’s sole legal claim challenged the viability of the dual
sovereignty doctrine, despite the doctrine being well established and having been
applied by courts of superior jurisdiction. Viewing the entire record in favor of the
trial court’s ruling, we conclude that the trial court did not abuse its discretion by
declining to declare the dual-sovereignty doctrine unconstitutional. See id.; Ex parte
Klem, 269 S.W.3d at 718.
We further conclude that the trial court did not abuse its discretion by
determining that the legal viability of the dual sovereignty doctrine presents a
question of law that did not require an evidentiary hearing, and that Walker was not
entitled to develop a factual record concerning Walker’s 2014 claims that have been
finally litigated. See Ware v. State, 736 S.W.2d 700, 701 (Tex. Crim. App. 1987)
(stating that the legal principle of the “law of the case” provides that an appellate
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court’s resolution of a question of law in a previous appeal of the same case will
govern the disposition of the same issue in a subsequent appeal); Ex parte Walker,
489 S.W.3d at 13-14 (concluding that Walker failed to allege facts showing that the
Bartkus exception to the dual sovereignty doctrine applied to the State’s
indictments). We overrule Walker’s issue and affirm the trial court’s order denying
Walker’s applications for writ of habeas corpus in trial cause numbers 14-19965, 14-
19966, 14-19967, 14-19968, 14-19969, and 14-19970.
AFFIRMED.
______________________________
STEVE McKEITHEN
Chief Justice
Submitted on March 21, 2018
Opinion Delivered April 18, 2018
Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.
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