IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-92,604-02
EX PARTE TEVARES TIMMONS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 114-80390-99-A IN THE 114TH DISTRICT COURT
FROM SMITH COUNTY
YEARY, J., filed a dissenting opinion in which KELLER, P.J., joined.
DISSENTING OPINION
In August of 1999, Applicant was convicted by a jury of the offense of engaging in
organized criminal activity. TEX. PENAL CODE § 71.02(a). A few months later, he pled
guilty to committing one of the predicate offenses to that offense: aggravated robbery. Id.
at § (a)(1); see also TEX. PENAL CODE § 29.03 (aggravated robbery). Now, more than 20
years later, the Court holds that Applicant’s conviction for the predicate offense violates
double jeopardy, and it summarily vacates Applicant’s conviction for that offense. What is
more, the Court then declares that this double-jeopardy violation rendered Applicant’s
guilty plea to the predicate offense involuntary even though the appropriate relief when
setting aside a conviction on the ground of an involuntary plea would be to remand the
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defendant to the custody of the charging authorities for a re-trial. I would at least file and
set the cause to examine several issues.
First, by summarily granting Applicant relief on double-jeopardy grounds, the Court
once again overlooks the fact that only scant analysis has been afforded the issue of whether
such a claim should even be permitted to be raised in a post-conviction application for writ
of habeas corpus brought under Article 11.07 of the Code of Criminal Procedure. TEX.
CODE CRIM. PROC. art. 11.07. As I explained in Ex parte Estrada, 487 S.W.3d 210, 212–
15 (Tex. Crim. App. 2016) (Yeary, J., dissenting), the issue of double-jeopardy
cognizability in post-conviction habeas should be more fully explored in the context of Ex
parte Townsend, 137 S.W.3d 79 (Tex. Crim. App. 2009), Ex parte Moss, 446 S.W.3d 786
(Tex. Crim. App. 2014), and Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993).
Second, even if the Court is convinced that Applicant’s double-jeopardy claim
should be cognizable in post-conviction habeas corpus proceedings, there remains the issue
of laches to consider. Applicant did not file his first post-conviction writ application until
March of 2021—more than 20 years after his 1999 convictions. Such a delay typically
triggers a laches inquiry. Ex parte Perez, 398 S.W.3d 206, 216 (Tex. Crim. App. 2013). A
laches inquiry is especially appropriate when, as here, there still exists at least one plausible
form of prejudice the State might suffer on account of the delay: prejudice to its ability to
contest the merits of Applicant’s claim for habeas corpus relief. And the State’s ability to
contest Applicant’s double-jeopardy claim is no mean consideration.
The constitutional insulation from being twice prosecuted for the “same” offense
for double-jeopardy purposes is a waiver-only right. Estrada, 487 S.W.3d at 214–15
(Yeary, J., dissenting); Ex parte Marascio, 471 S.W.3d 832, 839 (Tex. Crim. App. 2015)
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(Keasler, J., concurring). Double-jeopardy protection can be waived, but it must be waived
affirmatively, in a manner suggesting that the defendant was aware that he enjoyed it and
voluntarily chose to give it up anyway. See Marin, 851 S.W.2d at 279 (observing that a
waiver “is not sufficient in contemplation of the law unless it amounts to the intentional
relinquishment or abandonment of a known right or privilege.”) (quoting Johnson v. Zerbst,
304 U.S. 458, 464 (1938)) (internal quotation marks omitted). In any given case, however,
the passage of time might hamper the State’s ability to show that an applicant did, in fact,
affirmatively waive his double-jeopardy protections—say, in exchange for a highly
favorable plea offer from the State that would embrace and favorably dispose of related
offenses he had also been accused of committing. As I think this hypothetical illustrates,
the way in which laches might operate in the context of double-jeopardy claims in post-
conviction habeas corpus proceedings raises additional issues that further highlight the
need to file and set this cause for exploration and analysis.
Third—and for similar reasons—I would not conclude that Applicant involuntarily
entered his guilty plea to the predicate offense because there is an apparent double-jeopardy
violation on the record, as the Court simply declares in its per curiam opinion today. With
the passage of so much time, we cannot necessarily know whether Applicant may have
knowingly and intelligently bargained away his double-jeopardy rights.
And, in any event, declaring Applicant’s guilty plea to be involuntary is superfluous.
The appropriate relief for such a claim would be to reverse the conviction and remand the
case for a new trial. By sustaining Applicant’s double-jeopardy claim, the Court has already
availed him of greater relief than that; it has vacated his conviction and dismissed the
accusation against him. See Ex parte Chaddock, 369 S.W.3d 880, 886 (Tex. Crim. App.
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2012) (plurality opinion) (granting relief on a meritorious successive-prosecutions double-
jeopardy claim in the form of vacating the conviction and dismissing the indictment with
prejudice).
For the reasons I expressed in my dissent in Estrada—and more—I would at least
file and set this writ application. I would not simply grant relief based on what may only
appear, in the obscurity of time, to have been a double-jeopardy violation. I therefore
respectfully dissent.
FILED: September 22, 2021
PUBLISH