In the Court of Criminal Appeals of
Texas
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No. WR-97,760-01
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Ex Parte Joseph Taylor, Applicant
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On Application for Writ of Habeas Corpus
In Cause No. C-372-W012849-1802822-A
In the 372nd District Court
Tarrant County
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YEARY, J., filed a dissenting opinion.
This is an initial post-conviction application for writ of habeas corpus. TEX. CODE CRIM. PROC. art. 11.07. Applicant was convicted of two counts of unlawful possession of a firearm by a felon. The
convicting court, pursuant to a plea agreement in which Applicant waived his right to appeal, sentenced him to two four-year terms of imprisonment, to be served concurrently. Now, Applicant challenges
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those convictions under the Double Jeopardy Clause of the Fourteenth Amendment to the United States Constitution, as a violation of his right not to be sentenced multiple times for the same offense. 1
Applicant was indicted under Section 46.04(a) of the Texas
Penal Code, which, depending on the circumstances, makes firearm possession by a convicted felon unlawful. TEX. PENAL CODE § 46.04(a). Under Section 46.04(a)(1), a convicted felon may not possess a firearm anywhere for five years after release from confinement or release from supervision, whichever is later. After that, a convicted felon may only possess a firearm at “the premises at which the person lives[,]” under Section 46.04(a)(2).
In this initial writ application, Applicant argues that the two
counts of the indictment embodied the same offense; and that his conviction for both counts therefore violated his privilege not to be convicted/punished twice for the same offense. The indictment
contains two counts of unlawful possession of a firearm by a felon, both having been committed on November 6, 2023. 2 Count I alleged that, as
1
Additionally, his writ application raises an ineffective assistance of counsel claim, and a contention that “he is entitled to resentencing because the [convicting] court would have been ‘more lenient’ if it was aware that he was only eligible for one conviction.” Because this Court summarily grants relief based on Applicant’s double jeopardy claim, it does not reach those contentions.
2
Counts I and II of the indictment read:
THAT JOSEPH TAYLOR, HEREINAFTER CALLED
DEFENDANT, ON OR ABOUT THE 6TH DAY OF
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a felon, Applicant unlawfully possessed a firearm “away from the premises where [he] lived.”3 Count II alleged that, as a felon, Applicant possessed a firearm within five years of release from confinement for a felony conviction. Applicant had been previously convicted of a statejail felony on August 20, 2019. See Tapps v. State, 294 S.W.3d 175, 182
NOVEMBER 2023, IN THE COUNTY OF TARRANT, STATE
OF TEXAS, DID INTENTIONALLY OR KNOWINGLY
POSSESS A FIREARM AWAY FROM THE PREMISES WHERE
THE DEFENDANT LIVED AND PRIOR TO SAID
POSSESSION THE DEFENDANT WAS CONVICTED OF
THE FELONY OFFENSE OF THEFT FROM PERSON, IN
THE CRIMINAL DISTRICT COURT NO. 1 OF TARRANT
COUNTY, TEXAS, IN CAUSE NUMBER 1591223D, ON THE
20TH DAY OF AUGUST 2019,
COUNT TWO: AND IT IS FURTHER PRESENTED IN AND
TO SAID COURT THAT THE DEFENDANT IN THE
COUNTY OF TARRANT AND STATE AFORESAID ON OR
ABOUT THE 6TH DAY OF NOVEMBER 2023, DID
INTENTIONALLY OR KNOWINGLY POSSESS A FIREARM
AND PRIOR TO SAID POSSESSION THE DEFENDANT WAS
CONVICTED OF THE FELONY OFFENSE OF THEFT FROM
PERSON, IN THE CRIMINAL DISTRICT COURT NO. 1 OF
TARRANT COUNTY, TEXAS, IN CAUSE NUMBER
1591223D, ON THE 20TH DAY OF AUGUST 2019, AND SAID
POSSESSION WAS WITHIN FIVE YEARS OF THE RELEASE
OF THE DEFENDANT FROM CONFINEMENT AFTER THE
DEFENDANT WAS CONVICTED FOR THE ABOVE
FELONY,
3
The record is silent as to where, exactly, Applicant possessed a firearm. But because his possession occurred within five years of his prior felony conviction, Applicant’s conduct could have violated both Section 46.04(a)(1) and Section 46.04(a)(2).
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(Tex. Crim. App. 2009) (including state-jail felonies for purposes of Section 46.04(a)). Applicant, in fact, possessed one firearm, on one day, within five years of his prior felony conviction. 4 Today, the Court grants relief by vacating Count I of the indictment. 5
4
Applicant’s double jeopardy claim certainly has potential merit, but whether he would ultimately succeed is not the point. The double jeopardy claim was clear from the trial record; it should have been brought on direct appeal. See text, post.
5
The Court grants relief based on the convicting court’s endorsement of the State’s proposed findings of fact and conclusions of law, with little elaboration on the merits of his double jeopardy claim. The State’s proposed conclusions of law simply assumed that “Applicant ha[d] received multiple sentences for the same offense[,]” and therefore concluded that his “two convictions violate the Double Jeopardy Clause.”
The issue here is whether Applicant’s possession of the same, single firearm on November 23, 2023, within five years of his release from his prior felony conviction, violates both Section 46.04(a)(1) and Section 46.04(a)(2). Whether Applicant’s conviction and punishment under both theories of the offense constitutes a double jeopardy violation turns on an “allowable units of prosecution analysis,” which looks to “the focus or gravamen” of the offense. Nawaz v. State, 663 S.W.3d 739, 744–45 (Tex. Crim. App. 2022) (first quoting Ex parte Benson, 459 S.W.3d 67, 71 (Tex. Crim. App. 2015); and then quoting Jones v. State, 323 S.W.3d 885, 889 (Tex. Crim. App. 2010)). Because criminal liability under Section 46.04(a) turns on the defendant’s “status” as a felon, and the statute makes otherwise innocent behavior (firearm possession) criminal, we previously decided that it is a “circumstances”-type offense. See Ex parte Woods, 664 S.W.3d 260, 263 (Tex. Crim. App. 2022) (“[T]he statute before us prescribes a ‘circumstance’ offense.”). Section 46.04(a)(1) and Section 46.04(a)(2) identify separate circumstances beyond a person’s status as a felon under which firearm possession constitutes an offense. Whether these separate, additional circumstances constitute discrete elements, or whether they are, instead, merely different manners and means of committing the same offense, currently remains unresolved in our jurisprudence. Perhaps Applicant has raised a meritorious double jeopardy claim: He is charged twice for possessing one firearm, on or about one day, within five years of his prior felony
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I respectfully dissent. The double jeopardy claim here was one
that should have been obvious from the face of the trial record. Double jeopardy is a waiver-only right, which means it could have been raised for the first time on appeal. Post-conviction habeas corpus is not a substitute for direct appeal. I have taken the position in numerous previous cases that a double jeopardy claim under these circumstances should not be recognized as cognizable in post-conviction habeas corpus proceedings. E.g., Ex parte Estrada, 487 S.W.3d 210, 212–15 (Tex. Crim. App. 2016) (Yeary, J., dissenting); Ex parte Woods, 664 S.W.3d 260, 265–66 (Tex. Crim. App. 2022) (Yeary, J., dissenting).
Because the double jeopardy claim in this case was undoubtedly
apparent from the record, Applicant should have raised the claim on direct appeal. It is true that there was no direct appeal in this case, because Applicant was convicted pursuant to a plea agreement in which he waived his right to appeal.6 But it is immaterial whether Applicant
conviction. But today the Court grants relief without first deciding this essential, predicate question, seeming to assume that the convicting court correctly adopted the State’s proposed findings of fact and conclusions of law. Even if I could agree that Applicant’s double jeopardy claim was cognizable, I could not agree that this would be an appropriate way to resolve it on the merits. Resolving the question this way is, I believe, an inappropriate use of the judicial power.
6
A waiver of the right to appeal must be made voluntarily, knowingly, and intelligently. Carson v. State, 559 S.W.3d 489, 492 (Tex. Crim. App. 2018). In this case, Applicant knew “with certainty the punishment” that would be assessed for each count. Blanco v. State, 18 S.W.3d 218, 220 (Tex. Crim. App. 2000). On the first page of his plea papers, Applicant was advised that the range of punishment for each count included imprisonment “of not more than 10 years or less than 2
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actually exercised his right to appeal here—the availability of habeas relief does not turn on that question. Whether pursuant to a waiver of appeal, or because a convicted defendant decides not to appeal, claims that could have been brought on appeal are still not ordinarily cognizable in a post-conviction application for writ of habeas corpus. 7
Because this Court grants post-conviction habeas corpus relief
based on a double jeopardy claim that was clear from the trial record, and hence, could have been vindicated on direct appeal, 8 I respectfully
years[.]” The State recommended four years for each count. Evidently, Applicant “bargained for a sentencing recommendation from the prosecution in exchange for his waiver of the right to appeal,” and he received the benefit of his bargain. Id. When the convicting court followed the State’s sentencing recommendation, Applicant was “fully aware of the likely consequences when he waived his right to appeal, and it is not unfair to expect him to live with those consequences now.” Id. (internal quotations omitted) (quoting Mabry v. Johnson, 467 U.S. 504, 511 (1984)).
7
I use the word “ordinarily” advisedly. Under Ex parte Moss, 446 S.W.3d 786 (Tex. Crim. App. 2014), a category one claim under Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993), may be raised for the first time in an initial postconviction habeas corpus application, even when not raised on appeal. But I have always considered double jeopardy claims to fall into Marin’s category two, not category one. E.g., Estrada, 487 S.W.3d at 214 (“Because it can be waived, [a claim of double jeopardy] cannot be a category-one right.”).
8
I might be amenable to remanding this case for further fact development regarding Applicant’s ineffective assistance of counsel claim. Applicant’s initial writ application asks this Court to consider whether his counsel provided ineffective assistance by failing to address the possibility that Applicant faced multiple punishments for the same offense. Such a claim is cognizable and could be explored on remand with a response from trial counsel.
Of course, even if counsel performed deficiently in this way, it would only prove prejudicial if it were clear that Applicant has a meritorious double jeopardy claim to begin with. But by summarily granting relief without actually addressing
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dissent. 9
FILED: October 8, 2026 PUBLISH
the meat of the issue, the Court cannot effectively address Applicant’s ineffective assistance of counsel claim either; “To base an ineffective assistance of counsel claim on law that is unsettled as of the time of the attorney’s performance would indulge in the kind of retrospective evaluation that Strickland [v. Washington, 466 U.S. 668, 690 (1984)] forbids.” Ex parte Salinas, 664 S.W.3d 894, 909 (Tex. Crim. App. 2022) (citing Vaughn v. State, 931 S.W.2d 564, 567 (Tex. Crim. App. 1996)). But unlike the double jeopardy claim, at least Applicant’s ineffective assistance claim is cognizable in post-conviction habeas corpus proceedings.
9
What is more, because Applicant failed to sign his writ application, this Court’s normal practice would be simply to dismiss it as non-compliant. Under Ex parte Golden, this Court has said that it will nevertheless sometimes address the merits of an unsworn application and grant relief when, “due to the efforts of the trial court and the State,” it was clear from the record that the applicant was entitled to relief. 991 S.W.2d 859, 862 n.2 (Tex. Crim. App. 1999). Here, it is not clear that Applicant is entitled to relief. His double jeopardy claim was self-evident, but whether this claim should ultimately succeed is not. For this reason, even if I believed Applicant’s double jeopardy claim was cognizable, I would not invoke Golden to excuse his non-compliance.