February 15, 2013

Court of Criminal Appeals

Ex parte Milner

No. AP-76,481        02/13/13


Did the habeas applicant make a prima facie showing of actual innocence of a second conviction for attempted capital murder in his subsequent habeas application?


Yes. The “allowable units of prosecution” test should be applied in cases charging two violations of the same statutory provision. The allowable unit of prosecution under PC §19.03(a)(7)(B) is the killing of two or more persons, not each individual victim. Criminal attempt offenses acquire their allowable unit of prosecution from the offense attempted. Each attempted capital murder conviction under PC §§ 19.03(a)(7)(B) and 15.01(b) requires at least two victims not included as victims in other attempted capital murder provisions under the same penal code sections. Because no rational juror could have found the applicant guilty of the second attempted capital murder charge beyond a reasonable doubt absent a constitutional violation, he is entitled to an acquittal in that case.
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Dissent (Keller, P.J.):

The usual remedy when a plea agreement is unenforceable is to undo the plea agreement and place the parties in the position they were in before the pleas. The case should be remanded for proceedings to determine whether the State wishes to waive the jeopardy-barred counts or undo the entire plea.
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For most purposes, you should view this decision more as a double jeopardy decision, as opposed to an “actual innocence” decision. In some ways, the “actual innocence” jurisprudence has developed so that a defendant who has been found “actually innocent” is not necessarily wholly exonerated for any criminal activity that may have occurred during the transaction and for which he was indicted. The basic holding of this case is that, if you have alleged a victim of capital murder or attempted capital murder based on §19.03(a)(7), you cannot again allege that victim in another charge for capital murder or attempted capital murder based on §19.03(a)(7), because the “unit of prosecution” is different for that type of capital murder or attempted capital murder than for other types of capital murder. In footnote 1, the court noted that a charge of murder arising from the same transaction had also been voided as a double jeopardy violation because the murder victim was the same as in the two attempted capital murder charges. If you want more than one sentence in such a situation, the remedy appears to be charging the defendant with a completely different, albeit lesser, offense. The court noted in footnote 40, “If the State had chosen to allege, for example, a murder and two aggravated assaults with a deadly weapon, a murder and two attempted murders, or an attempted capital murder and an aggravated assault, it could have obtained more than one valid conviction.

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