                IN THE COURT OF CRIMINAL APPEALS
                           OF TEXAS

                             NOS. AP-76,801 and AP-76,802


              EX PARTE WILLIAM CHARLES DENTON, Applicant


            ON APPLICATIONS FOR A WRIT OF HABEAS CORPUS
                   FROM HENDERSON COUNTY



      MEYERS, J., filed a dissenting opinion.

                                DISSENTING OPINION

      On January 9, 2013 in Ex Parte Parrott,1 the majority inexplicably decided that an

Applicant must prove harm to obtain relief in a writ of habeas corpus premised on an

illegal-sentence claim. However, less than three months later, this Court has already




      1
          Ex Parte Parrott, No. AP-76,647, 2013 Tex. Crim. App. Unpub. LEXIS 45.
                                                                               Denton Dissent—2


decided to abandon this requirement.2 It does not surprise me that this Court’s

jurisprudence can change from month to month.3 As I have already emphasized in my

dissenting opinion in Parrott, harm is not the correct measure for determining illegality.

Similar to Parrott, the Applicant in this case cannot show harm because the other

sentence is running concurrently with the first and based on the new requirement we

should have denied the writ instead of setting aside the aggravated-assault convictions.


       2
          The majority has attempted to distance themselves from the ruling in Parrott by claiming
that it pertains only to illegal sentence claims and is inapplicable to double jeopardy claims.
However, it is inescapable that a valid double jeopardy claim renders a sentence illegal.
Therefore, a double jeopardy violation is certainly an illegal sentence. It seems predictable that
the majority makes the proclamation that a harm analysis is not the correct measure for double
jeopardy claims (albeit in a footnote), as it is obvious how easily they disregard relevant
standards that have been elicited in recent opinions. This is exactly what I predicted would
happen in our dissenting statement on motion for rehearing in Parrott when I made it clear that it
is entirely inappropriate to use a harm analysis for double-jeopardy claims. While it seems that
the majority now all of a sudden agrees that the harm-analysis requirement created in Parrott is
inappropriate, it is also inappropriate to side-step the issue by stating that the new requirement
does not apply (does this opinion in effect overrule Parrott?).
       3
         Apparently Judge Keller has also decided to quickly abandon the method that the
majority established in Parrott for analyzing illegal sentences such as we have here. However,
her concurring opinion makes clear that she wants nothing to do with the majority’s analysis (I
am not voting for the majority opinion, but I believe it was well reasoned under the old double-
jeopardy standard). She dismissively states:
                The present case involves an exceedingly complex double-jeopardy
                question, with only limited, neutral briefing from the State. Many
                of the significant issues and authorities relevant to the question are
                not addressed in the Court’s opinion. When complex issues are not
                subjected to adversarial testing, and when the relevant issues have
                not been sufficiently aired out, there is a danger in granting relief in
                anything other than a brief, unpublished opinion. I believe that that
                danger manifests itself in the Court’s opinion. Under the
                circumstances, I agree with granting applicant relief but do not join
                the Court’s opinion.
Keller, P.J., concurring opinion at *1.
                                                                          Denton Dissent—3


By failing to conduct a harm analysis in this case, this Court has not only disregarded its

own precedent, but also indicated that our opinion in Parrott was erroneous.




              With these comments, I respectfully dissent.

                                                  Meyers, J.

Filed:
Publish
