Ex Parte Eligah Darnell, Jr.

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________

No. 02-19-00390-CR
No. 02-19-00391-CR
___________________________

EX PARTE ELIGAH DARNELL, JR.

On Appeal from the 432nd District Court
Tarrant County, Texas
Trial Court Nos. 1037163D, 1575071D

Before Birdwell, Bassel, and Womack, JJ.
Memorandum Opinion by Justice Birdwell
 MEMORANDUM OPINION

Eligah Darnell, Jr. appeals three rulings related to his pretrial habeas applications.

First, Darnell challenges the magistrate’s denial of his application for reduced bail. We

have already overruled this challenge in a previous opinion, citing a lack of jurisdiction.

Our response will be the same here. Moreover, even assuming that we had jurisdiction,

the magistrate did not abuse its discretion because the balance of the evidence weighed

against a bond reduction.

Second, Darnell argues that the magistrate’s decision to allow cross-examination

at the bail-reduction hearing violated his Fifth Amendment rights. This claim suffers

from the same jurisdictional defect as the previous one. Moreover, even assuming

jurisdiction arguendo, this claim is not cognizable on pretrial habeas.

Third, Darnell protests the denial of two habeas applications in which he argued

that double jeopardy and collateral estoppel bar his present prosecution. This challenge

fails because he has not supplied a record showing that he is entitled to relief. We

therefore affirm.

I. BACKGROUND

Darnell is a serial pro se litigant. In a related appeal, we upheld the denial of

three pretrial habeas applications that Darnell filed. See Ex parte Darnell, Nos. 02-19-

00466-CR, 02-20-00046-CR, 02-20-00047-CR, 2020 WL 1293692, at *1 (Tex. App.—

Fort Worth Mar. 19, 2020, pet. ref’d) (mem. op., not designated for publication). The

pertinent facts here are much the same as those we set out in our prior opinion:

2
 The record is sparse in these cases, and most of what is known in these
cases comes from documents attached to Darnell’s notices of appeal
(NOA) or through what he pleaded in his writs. What can be established
from the record is that the State indicted Darnell for failure to comply
with sex-offender-registration requirements. The State’s indictment also
contains a habitual-offender notice stating that prior to his failure to
register, Darnell was previously convicted of failure to comply with sex-
offender-registration requirements and felony possession of a handgun on
the premises of a school.
According to documents attached to his NOA, Darnell called and
rescheduled an October 16, 2018 appointment when he was supposed to
report that he had moved to a new address, and he was more than an hour
late to his rescheduled November 15, 2018 appointment. These
documents further reveal that his appointment to register his new address
was then rescheduled again for November 28, 2018. Nothing in the
record or the NOA documents indicates whether Darnell attended the
November 28, 2018 appointment. But an arrest warrant attached to
Darnell’s NOA shows that police obtained a warrant for Darnell’s arrest
on December 6, 2018. The indictment that is in the record indicates that
the date of his offense occurred on December 5, 2018. Darnell is currently
in jail awaiting trial, allegedly being held under a $25,000 bail.
Id. Darnell filed multiple pro se habeas applications, each of which was denied. In

appellate cause numbers 02-19-00390-CR and 02-19-00391-CR,1 Darnell challenges the

court’s rulings with regard to three of his habeas applications.

1
Some of the relevant documents are absent from the records in these appeals,
but they do appear in the records for Darnell’s previous appeals. An appellate court
may take judicial notice of its own records in the same or related proceedings involving
the same or nearly same parties. Fletcher v. State, 214 S.W.3d 5, 7 (Tex. Crim. App. 2007).
We therefore take judicial notice of the records in cause numbers 02-19-00466-CR, 02-
20-00046-CR, and 02-20-00047-CR.

3
 II. DENIAL OF BOND REDUCTION

For convenience, we begin with Darnell’s second issue in appellate cause number

02-19-00391-CR, in which he contends that the magistrate abused its discretion by

denying his habeas application for a reduction of his bond. Darnell had asked the

magistrate to reduce his bond from $25,000 to $7,000.

Unfortunately, the labyrinthine nature of Darnell’s pro se filings caused some

clerical confusion at the trial court and in this court. Due to the confusion, we

addressed his second issue in our previous opinion. See id. at *3–4. And in our opinion,

we made note of another clerical oversight: there was no written, signed order denying

Darnell’s bond-reduction application. See id. at *3. Instead, there were only (1) an

unappealable oral ruling denying the application and (2) a certificate of proceedings

signed by a magistrate providing that Darnell’s “motion” was denied. Id. We did not

view the certificate of proceeding as a valid order that was properly appealable. Id.

(citing Langlais v. State, No. 02-17-00248-CR, 2017 WL 4296447, at *1 (Tex. App.—

Fort Worth Sept. 28, 2017, no pet.) (mem. op., not designated for publication)). In the

absence of a signed, written order, we held that we lacked jurisdiction to consider

Darnell’s appeal of the bond-reduction habeas. Id.; see Ex parte Wiley, 949 S.W.2d 3, 4

(Tex. App.—Fort Worth 1996, no writ).

Despite any discrepancies, this conclusion was the right one, and we stand by it

as the law of the case. Under the “law of the case” doctrine, an appellate court’s

resolution of a question of law in a previous appeal is binding in subsequent appeals

4
concerning the same issue. State v. Swearingen, 478 S.W.3d 716, 720 (Tex. Crim. App.

2015). Therefore, “when the facts and legal issues are virtually identical, they should be

controlled by an appellate court’s previous resolution.” Id. (quoting State v. Swearingen,

424 S.W.3d 32, 36 (Tex. Crim. App. 2014)). Such a rule promotes judicial consistency

and efficiency, id., because without the doctrine, “trial courts would in a great measure

be at sea, and would feel inclined and be authorized to give but little weight to the

decisions of the appellate court.” Carroll v. State, 101 S.W.3d 454, 460 n.35 (Tex. Crim.

App. 2003) (cleaned up) (quoting Lee v. State, 148 S.W. 706, 713 (Tex. Crim. App. 1912)

(op. on reh’g)). For the same reasons stated in our previous opinion, then, we lack

jurisdiction to consider Darnell’s second issue concerning bond reduction.

However, after holding in our prior opinion that we lacked jurisdiction, we went

further: we assumed for the sake of argument that we had jurisdiction; we noted that

there was no record of any hearing wherein Darnell introduced evidence in support of

his bond-reduction writ; and we held that Darnell had not carried his burden to produce

a record showing his right to relief. Darnell, 2020 WL 1293692, at *4.

But we later discovered that the lack of a record was due to another clerical

mishap. Since our previous opinion issued, that mishap has been resolved, and we now

have a record of a hearing at which Darnell presented evidence in support of his bond-

reduction writ. The law of the case doctrine “is not inflexible.” Howlett v. State, 994

S.W.2d 663, 666 (Tex. Crim. App. 1999). An appellate court may reconsider its earlier

disposition of a point of law if the court determines there are exceptional circumstances

5
that mitigate against relying on its prior decision.2 Id. Because there has been a material

and exceptional change in circumstances since our previous opinion, we will revisit our

conclusion-in-the-alternative that Darnell failed to produce a record showing his right

to relief. See Adams v. State, 222 S.W.3d 37, 56 (Tex. App.—Austin 2005, pet. ref’d)

(implying that changed circumstances may justify a departure from the previous appeal’s

result); see also Swearingen, 478 S.W.3d at 721 (same); Duran v. State, No. 02-19-00179-

CR, 2019 WL 6606173, at *2 (Tex. App.—Fort Worth Dec. 5, 2019, pet. ref’d) (per

curiam) (mem. op., not designated for publication) (same); cf. Ex parte Granger, 850

S.W.2d 513, 523 (Tex. Crim. App. 1993) (Clinton, J., dissenting) (arguing that law of the

case should not apply “where either pleadings or proof have materially changed

between appeals”).

In this appeal, we will address the merits, assuming that there was an appealable

order that supported jurisdiction. See Roberts v. State, 221 S.W.3d 659, 665–66 (Tex.

Crim. App. 2007) (assuming jurisdiction arguendo and addressing underlying merits);

Darnell, 2020 WL 1293692, at *4 (same); Jones v. State, 161 S.W.3d 685, 692 (Tex. App.—

Fort Worth 2005, pet. ref’d) (similar). Nonetheless, our result is unchanged. As we

explain, Darnell’s second issue lacks merit because the balance of the evidence at the

hearing weighed against granting a bond reduction.

2
Such circumstances may include recognition that our previous ruling was
“clearly erroneous,” Howlett, 994 S.W.2d at 666, or situations “when there has been a
change in the controlling law” since the first decision. Carroll v. State, 42 S.W.3d 129,
131 (Tex. Crim. App. 2001).

6
 We review the habeas court’s denial of a bond-reduction request for an abuse of

discretion. Ex parte Scott, 122 S.W.3d 866, 868 (Tex. App.—Fort Worth 2003, no pet.);

see Tex. Code Crim. Proc. Ann. art. 17.15. To determine whether a habeas court abused

its discretion, we must decide whether the court acted without reference to any guiding

rules or principles; in other words, we ask whether the act was arbitrary or unreasonable.

Scott, 122 S.W.3d at 868.

The primary purpose of bail is to ensure a defendant’s presence at trial. Ex parte

Benefield, 403 S.W.3d 240, 242 (Tex. Crim. App. 2013). However, the citizen who has

been accused, but not convicted, has a strong interest in liberty. Id. Accordingly, bail

should be set high enough to give reasonable assurance that the defendant will appear

at trial, but it should not operate as an instrument of oppression. Scott, 122 S.W.3d at

868. The trial court must strike a balance between the defendant’s presumption of

innocence and the State’s interest in securing the defendant’s presence. Ex parte Taylor,

No. 02-20-00010-CR, 2020 WL 1963788, at *3 (Tex. App.—Fort Worth Apr. 23, 2020,

no pet.) (per curiam) (mem. op., not designated for publication). In habeas proceedings,

the burden is on the defendant to show that bail is excessive. Benefield, 403 S.W.3d at

242.

Article 17.15 of the Texas Code of Criminal Procedure sets forth the following

criteria for establishing a defendant’s bond:

1. The bail shall be sufficiently high to give reasonable assurance that
the undertaking will be complied with.

7
 2. The power to require bail is not to be so used as to make it an
instrument of oppression.
3. The nature of the offense and the circumstances under which it was
committed are to be considered.
4. The ability to make bail is to be regarded, and proof may be taken
upon this point.
5. The future safety of a victim of the alleged offense and the
community shall be considered.
Tex. Code Crim. Proc. Ann. art. 17.15. As part of “the nature of the offense,” the court

should consider the length of the potential sentence. Benefield, 403 S.W.3d at 242. To

ensure these factors are appropriately weighed and to provide a framework by which to

determine appropriate bail, courts also consider the defendant’s work record, his family

and community ties, his length of residency, his prior criminal record, his conformity

with previous release conditions, the existence of any other outstanding bonds, and any

aggravating circumstances alleged to have been involved in the charged offense. Taylor,

2020 WL 1963788, at *3; see Benefield, 403 S.W.3d at 242.

Darnell’s evidence focused on his limited ability to pay. Darnell testified that at

the time of the habeas hearing, he had been incarcerated for nine months, had no

sources of income, and owned no property. He explained that his family members had

limited resources as well. Darnell offered into evidence a certificate of his inmate trust

account showing occasional deposits of a few dollars along with corresponding

withdrawals, leaving an end balance of $0.18.

8
 On cross-examination, the State drew out evidence concerning other factors.

Darnell agreed that prior to his arrest, he was on parole for failure to register as a sex

offender in 2010, for which the jury had assessed punishment at 75 years. 3 Darnell also

confirmed that aside from his 2010 conviction, he had other felony convictions for

burglary of a habitation, unlawful carrying of a weapon, and another offense of failure

to register. 4 Finally, Darnell confessed that when an arrest warrant was issued for the

present offense, he cut off his GPS monitor: “Once the warrant was issued, I didn’t

see no reason why I should be walking around with a monitor on.”

“Although the ability to meet a bond must be considered, it is not dispositive.”

Ex parte Cook, No. 02-18-00537-CR, 2019 WL 2323643, at *4 (Tex. App.—Fort Worth

May 31, 2019, no pet.) (per curiam) (mem. op., not designated for publication). Ergo,

while the ability-to-pay factor weighs in Darnell’s favor, the magistrate could have

reasonably determined that this “one factor” did not outweigh the other factors

suggesting that Darnell was a flight risk. See Ex parte Payten, No. 02-13-00447-CR, 2013

WL 5968449, at *3 (Tex. App.—Fort Worth Nov. 7, 2013, no pet.) (per curiam) (mem.

op., not designated for publication). The charged offense was Darnell’s third time to

be prosecuted for failure to register. Darnell faced the possibilities that parole for his

3
Darnell testified that despite his parole status, the parole department’s rules
could possibly allow him to be released on bond “if certain information was provided
on [his] behalf.”
4
Left unmentioned was Darnell’s 1989 conviction for indecency with a child, for
which he was required to register as a sex offender.

9
75-year sentence would be revoked and that, as a repeat felony offender, another steep

sentence would be assessed for the charged offense. Darnell had a lengthy criminal

history as well as a demonstrated disregard for release conditions. And Darnell

presented no evidence concerning his work record, family ties, or length of residency

that might otherwise suggest an “incentive to remain despite the possibility of

conviction.” See Ex parte Peyton, No. 02-16-00029-CR, 2016 WL 2586698, at *5 (Tex.

App.—Fort Worth May 5, 2016) (mem. op., not designated for publication), pet. dism’d,

No. PD-0677-16, 2017 WL 1089960 (Tex. Crim. App. Mar. 22, 2017) (per curiam) (not

designated for publication).

On balance, these factors strongly support the magistrate’s decision not to reduce

bond from $25,000 to $7,000.5 Therefore, because we lack jurisdiction, and because

even assuming jurisdiction, the magistrate did not abuse its discretion, we overrule

Darnell’s second issue.

III. FIFTH AMENDMENT RIGHTS UNDER S IMMONS

We next consider Darnell’s first and third issues in appellate cause number 02-

19-00391-CR, which concern his testimony at the bail-reduction hearing. We did not

address these issues in our prior opinion, but the jurisdictional reasoning stated therein

applies to these issues with equal force: we lack jurisdiction to consider these issues

5
In his reply brief, Darnell asks us to abate the appeal so that the magistrate can
sign an order that would give us jurisdiction to address the merits. Having already
assumed jurisdiction and addressed the merits, we decline to do so.

10
because the magistrate did not render an appealable order concerning Darnell’s habeas

application for bail reduction. See Darnell, 2020 WL 1293692, at *3. Nonetheless, even

assuming jurisdiction arguendo, Darnell would not prevail.

The subject of these issues is the magistrate’s decision to allow the State to cross-

examine him about his prior convictions at the bail hearing. Darnell opened the hearing

by testifying about his inability to pay bail. On cross-examination, the State began by

asking, “Mr. Darnell, you were convicted of failure to register as a sex offender in 2010;

is that correct?” Darnell attempted to plead the Fifth Amendment in order to avoid

testifying about his criminal history. The magistrate denied his request, reasoning that

Darnell could not invoke the Fifth Amendment to avoid this limited cross-examination

on subjects that directly related to his suitability for bail. The magistrate explained that

by testifying at the bail hearing, Darnell had opened himself up to cross-examination

about “any matters that pertain to the setting of . . . bond, which include risk to the

community.” Darnell was directed to answer the State’s questions about his criminal

history, which he did.

In his first and third issues, Darnell contends that the magistrate abused its

discretion by requiring him “to forfeit his Fifth Amendment right to remain silent . . .

in order to safeguard his Eighth Amendment right to reasonable bail.” Darnell cites

Ex parte Homan for the proposition that he did not open himself to cross-examination

about his criminal history simply by testifying in support of his claim that bail was

11
excessive. 963 S.W.2d 543, 544 (Tex. App.—Tyler 1996), pet. dism’d sub nom. Homan v.

State, 962 S.W.2d 599 (Tex. Crim. App. 1998).

Our first task is to determine whether Darnell’s claim is cognizable in a pretrial

habeas proceeding. Pretrial habeas is an extraordinary remedy, and we are careful to

ensure that the writ is not misused to secure appellate review of matters that should not

be put before appellate courts at the pretrial stage. Ex parte Ellis, 309 S.W.3d 71, 79

(Tex. Crim. App. 2010). “Consequently, whether a claim is even cognizable on pretrial

habeas is a threshold issue that should be addressed before the merits of the claim may

be resolved.” Id.

When determining whether an issue is cognizable on pretrial habeas, courts

consider whether the alleged defect would bring into question the trial court’s power to

proceed. Ex parte Weise, 55 S.W.3d 617, 619 (Tex. Crim. App. 2001). Habeas is not

appropriate when resolution of the question presented, even if resolved in favor of the

applicant, would not result in immediate release. Ex parte Perry, 483 S.W.3d 884, 895

(Tex. Crim. App. 2016). Thus, an applicant may use a pretrial writ to assert his

constitutional entitlements with respect to bail. Id. Conversely, an applicant may not

use a pretrial writ to challenge the denial of a motion to suppress. Id.

Darnell’s challenge to the magistrate’s decision to allow cross-examination at his

bail hearing arguably falls under the heading of his challenge to excessive bail. Thus,

based on its form, Darnell’s challenge would at first appear to be cognizable on pretrial

habeas.

12
 However, in habeas cases, “courts are encouraged to elevate substance over

form.” Ex parte Cantu, 913 S.W.2d 701, 704 (Tex. App.—San Antonio 1995, pet. ref’d).

It is the substance of the application and the relief sought that controls, not its title.

Ex parte Gray, 649 S.W.2d 640, 642 (Tex. Crim. App. 1983); see In re Daniel, 396 S.W.3d

545, 549 (Tex. Crim. App. 2013) (orig. proceeding); Ex parte Caldwell, 58 S.W.3d 127,

130 (Tex. Crim. App. 2000). For instance, facial constitutional challenges are

cognizable, and as-applied challenges generally are not, but “[i]f a claim designated as a

facial challenge is in fact an as-applied challenge, courts should refuse to consider the

merits of the claim.” Ellis, 309 S.W.3d at 79–80. Thus, to determine whether Darnell’s

challenge is cognizable on pretrial habeas, we analyze its substance.

Darnell’s challenge rests on the principles announced in Simmons v. United States,

390 U.S. 377, 394, 88 S. Ct. 967, 976 (1968). “In Simmons, the Supreme Court reasoned

that ‘an undeniable tension is created’ when an accused must give up” the constitutional

right not to incriminate oneself in order to exercise a right afforded by another

provision of the Bill of Rights. 6 Nelson v. State, 765 S.W.2d 401, 403 (Tex. Crim. App.

1989) (quoting Simmons, 390 U.S. at 394, 88 S. Ct. at 976). The Court’s concern that

one constitutional right should not have to be surrendered in order to assert another

led the Simmons Court to bar the use of certain testimony of an accused; the Court held

6
Or, as Aristotle described this sort of tension in 350 B.C., a man who is equally
hungry and thirsty, when placed between food and drink, is bound to remain where he
is. See Aristotle, On the Heavens, Book II, Part 14 (J.L. Stocks trans.)
http://classics.mit.edu/Aristotle/heavens.2.ii.html.

13
“that when a defendant testifies in support of a motion to suppress evidence on Fourth

Amendment grounds, his testimony may not thereafter be admitted against him [at trial]

on the issue of guilt unless he makes no objection.” Id. (quoting Simmons, 390 U.S. at

394, 88 S. Ct. at 976).

As Darnell points out, Texas law has extended the thread of Simmons into another

constitutional context: when an accused testifies at a pretrial hearing in support of an

Eighth Amendment claim of excessive bail, he does not sacrifice his constitutional right

against incriminating himself such that he opens himself up to wide-ranging cross-

examination that may later be admitted at trial.7 Mendoza v. State, 959 S.W.2d 321, 326

(Tex. App.—Waco 1997, pet. ref’d); Homan, 963 S.W.2d at 544; accord United States v.

Perry, 788 F.2d 100, 115–16 (3d Cir. 1986). “While Simmons dealt with the Fourth

Amendment protection from unreasonable searches and seizures, we cannot agree that

the Eighth Amendment right to nonexcessive bail is entitled to less protection than the

Fourth Amendment right or the Fifth Amendment privilege against self-incrimination.”

Homan, 963 S.W.2d at 544.

But here, Darnell has already been cross-examined on his criminal history. On

appeal, Darnell does not specify exactly what relief he seeks with regard to the

7
The same logic is embedded in our rules of evidence, which provide that “[b]y
testifying outside the jury’s hearing on a preliminary question, a defendant in a criminal
case does not become subject to cross-examination on other issues in the case.” Tex.
R. Evid. 104(d).

14
magistrate’s decision to allow cross-examination at the bail hearing. He simply cites

Homan and Simmons and then prays for relief.

Still, Darnell’s invocation of Simmons—and the Texas cases that have extended it

to the bail context—offer some indication as to the nature of the relief that Darnell

seeks. The remedy that Simmons prescribed for the accused’s dilemma is to prevent the

accused’s pretrial testimony from being used at the trial on guilt. See 390 U.S. at 394,

88 S. Ct. at 976. It is effectively a guarantee that incriminating statements given at the

pretrial hearing will be suppressed at trial.

Thus, at bedrock, Darnell’s bid for Simmons protection is not a demand for

reasonable bail, such that it would be cognizable on pretrial habeas. See Perry, 483

S.W.3d at 895. Instead, the substance of the relief he seeks is essentially a request for

suppression. See Gray, 649 S.W.2d at 642. Our resolution of this request would not

result in his immediate release or undermine the trial court’s power to proceed; it would

simply limit the availability of his pretrial testimony for use at trial. See Perry, 483 S.W.3d

at 895; Weise, 55 S.W.3d at 619. As a suppression question, it is not cognizable on

pretrial habeas. See Perry, 483 S.W.3d at 895.

We therefore overrule Darnell’s first and third issues without addressing their

merits, both for want of jurisdiction and ineligibility for pretrial habeas relief.

IV. DOUBLE JEOPARDY AND COLLATERAL ESTOPPEL

Next, we take up Darnell’s habeas challenge concerning double jeopardy and

collateral estoppel. Darnell filed two habeas applications concerning these topics, each

15
of which the trial court denied with formal written orders. Darnell has appealed the

denial of his applications in appellate cause number 02-19-00390-CR,8 though he did

not brief his double jeopardy or collateral estoppel arguments on appeal.

“In an appeal from a trial court’s denial of an application for writ of habeas

corpus, an appellate court may, but is not required to, request briefing from the parties.”

Ex parte Houston, No. 02-16-00359-CR, 2016 WL 6277408, at *1 n.3 (Tex. App.—Fort

Worth Oct. 27, 2016, no pet.) (mem. op., not designated for publication) (citing Tex.

R. App. P. 31.1). There being no briefing before us on these matters, “we will review

the trial court’s ruling based on what appellant raised in his habeas corpus application[s]

and argued in the trial court.” See Ex parte Willhoite, No. 05-05-01586-CR, 2006 WL

933354, at *1 (Tex. App.—Dallas Apr. 12, 2006, pet. ref’d) (not designated for

publication).

8
Darnell’s notice of appeal did not specifically mention either of the written
orders denying his habeas applications concerning double jeopardy and collateral
estoppel. Nevertheless, “[t]he Rules of Appellate Procedure should be construed
reasonably, yet liberally, so that the right of appeal is not lost by imposing requirements
not absolutely necessary to effect the purpose of a rule.” Harkcom v. State, 484 S.W.3d
432, 434 (Tex. Crim. App. 2016). “A person’s right to appeal a civil or criminal
judgment should not depend upon traipsing through a maze of technicalities.” Id. “We
do not require ‘magic words’ or a separate instrument to constitute notice of appeal.”
Id. The notice of appeal is “sufficient if it shows the party’s desire to appeal from the
judgment or other appealable order.” Tex. R. App. P. 25.2(c)(2). Liberally construing
the notice of appeal as we are required to do, we conclude that Darnell has shown his
desire to appeal the denial of his habeas applications concerning double jeopardy and
collateral estoppel.

16
 As to double jeopardy, Darnell alleged in his habeas applications that on May 25,

2010, a jury found him guilty of the offense of failure to register. Darnell alleged that

in the 2010 case, he was charged with and convicted of failing to register his address at

2800 Lena Street in 2006 and, subsequently, failing to report an intended change of

address. Darnell argued that in the present case, the State is violating double jeopardy

by attempting to prosecute him again for “the same offense and operative facts.”

The record suggests that Darnell is not being prosecuted again for the same

offense and operative facts, but that he is instead being prosecuted for an entirely

different change of address in 2018. As to the statute under which Darnell is being

prosecuted, the unit of prosecution is one separate offense for each change of address.

Young v. State, 341 S.W.3d 417, 426 (Tex. Crim. App. 2011) (interpreting Tex. Code

Crim. Proc. Ann. art. 62.055(a)).

Regardless, we need not decide whether Darnell’s present prosecution violates

double jeopardy because Darnell has produced no record to substantiate his factual

allegations concerning the 2010 case. As the applicant, Darnell had the obligation to

provide a sufficient record that supports his factual allegations with proof by a

preponderance of the evidence. Ex parte Chandler, 182 S.W.3d 350, 353 n.2 (Tex. Crim.

App. 2005). Especially glaring is the absence of the indictment for the 2010 case, which

is necessary to determine whether double jeopardy has been violated under Texas’s

method of evaluating successive prosecutions.

17
 To determine whether the defendant has been subjected to successive

prosecutions for the same offense in violation of double jeopardy, we start with the

“same elements” test set forth in Blockburger. See United States v. Dixon, 509 U.S. 688,

696, 113 S. Ct. 2849, 2856 (1993); Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct.

180, 182 (1932). Under the Blockburger test, two offenses are not the same if “each

provision requires proof of a fact which the other does not.” Bien v. State, 550 S.W.3d

180, 184 (Tex. Crim. App. 2018) (quoting Blockburger, 284 U.S. at 304, 52 S. Ct. at 182),

cert. denied, 139 S. Ct. 646 (2018). But in Texas, the analysis does not end there. Using

the cognate-pleadings approach, we also look to the pleadings to flesh out the

Blockburger test. Id. (citing Bigon v. State, 252 S.W.3d 360, 370 (Tex. Crim. App. 2008)).

Under the cognate-pleadings approach, even if the offenses have differing elements

under Blockburger, they may still be the same for double-jeopardy purposes if the

indictment alleges the same “facts required.” Bigon, 252 S.W.3d at 370. Our focus is

“on the elements alleged in the charging instrument.” Id.

But here, the critical charging instrument from 2010 does not appear in our

record. Because “the original indictment does not appear in the appellate record . . .

appellant has not provided us with a sufficient record to determine whether both

indictments were for the same offense.” Arundel v. State, No. 05-92-02239-CR, 1997

WL 304431, at *2 (Tex. App.—Dallas June 5, 1997, no pet.) (not designated for

publication). We therefore resolve Darnell’s double-jeopardy claim against him.

18
 Darnell’s claim of collateral estoppel suffers from the same defect. As with his

double-jeopardy claim, Darnell has not supplied us with a record upon which to assess

the merits of his collateral-estoppel claim. See Ex parte Taylor, 101 S.W.3d 434, 442 (Tex.

Crim. App. 2002) (“In each case, the entire record—including the evidence, pleadings,

charge, jury arguments, and any other pertinent material—must be examined to

determine precisely the scope of the jury’s factual findings.”). He has failed to carry his

burden, and we resolve this claim against him. See Chandler, 182 S.W.3d at 353 n.2.

V. CONCLUSION

Having overruled each of the issues that Darnell briefed before this court in

cause number 02-19-00391-CR, and having overruled the unbriefed challenges found

in the habeas applications that Darnell appealed in cause number 02-19-00390-CR, we

affirm the denial of habeas relief.

/s/ Wade Birdwell

Wade Birdwell
Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: October 8, 2020

19