           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                   NO. WR-80,939-01, WR-80,939-02, & WR-80,939-03



                    EX PARTE ERIC REED MARASCIO, Applicant



          ON APPLICATION FOR A WRIT OF HABEAS CORPUS
    CAUSE NOS. W380-80601-09-HC, W380-80602-09-HC, W380-80603-09-HC
                   IN THE 380 TH DISTRICT COURT
                       FROM COLLIN COUNTY



       J OHNSON, J., filed a dissenting opinion.


                             DISSENTING OPINION

       We have not, at least recently, required “magic words” in order to accomplish a legal act.

Bennett v. State, 235 S.W.3d 241 (Tex. Crim. App. 2007). It appears that we have, at least in this

case, reverted. The record reflects that there had been a pre-trial discussion, unfortunately off the

record, during which applicant “took the position that it’s all one act.” When charged by two sets

of three identical indictments, a position of “it’s all one act” rather obviously raises the issue of
                                                                                                                           2

double jeopardy: one act punished multiple times. Counsel need not utter the magic words

“Objection, double jeopardy” in order to raise the issue. While inartfully stated, a plea of “former

jeopardy,” coupled with a request for, and objection to the lack of, a double-jeopardy instruction in

the jury charge, clearly put the trial court on notice that applicant was asserting that he was

unconstitutionally being subjected to multiple punishments for a single act. That claim is apparent

on the face of the record. And the trial court was on notice at a time at which it could have addressed

the issue. As the state observed in its brief, “If raised and litigated, the trial court could obtain the

input of the prosecutor, review case law, hear argument of counsel, and effectuate a remedy in the

most timely and direct fashion.”1 The opportunity to do all those things was present, yet the trial

court, by failing to recognize and address the issue, prevented litigation on double jeopardy. Double

jeopardy may be a waivable right, but applicant did not waive his rights. I would hold that applicant

preserved error. Chase v. State, 448 S.W.3d 6, 28 (Tex. Crim. App. 2014) (“We also conclude that

appellant was permitted to preserve error either by lodging a sufficiently specific objection in

compliance with Article 36.14 or by submitting a proposed instruction in compliance with Article

36.15.”).

         Applicant’s counsel on appeal apparently failed to raise the issue of double jeopardy.

Appellants do not often tell appellate counsel what issues to raise and, even if they did, appellate

counsel does not have to consult with the appellant because the issues raised must all be preserved




         1
           The state avers that it “believes a full Statement of Facts regarding the underlying case will be beneficial to
the Court.” The next 14 pages are a recitation of applicant’s activities out of court, which are unrelated to the single fact
of consequence— that applicant did not appear on a given court date. State’s brief, fn.2 p. 2 and pp. 2-16.
                                                                                                                   3

in the record.2 An appellant may not even know what issues are being appealed. An appellant’s only

recourse on a claim of ineffective assistance is to file a writ asserting that claim.

         The second reason we have given for not enforcing a procedural bar in this context
         is because there is not generally a realistic opportunity to adequately develop the
         record for appeal in post-trial motions. In this regard, we have noted that a
         post-conviction writ proceeding, rather than a motion for new trial, is the preferred
         method for gathering the facts necessary to substantiate such a Sixth Amendment
         challenge: . . .. Hence, in most ineffective assistance claims, a writ of habeas corpus
         is essential to gathering the facts necessary to adequately evaluate such claims.

 Robinson v. State, 16 S.W.3d 808, 810 (Tex. Crim. App. 2000).

         Violation of the right to not be subjected to double jeopardy is a constitutional error, which

may be raised for the first time on an application for a writ of habeas corpus. Ex parte Banks, 769

S.W.2d 539, 541 (Tex. Crim. App. 1989) (“Because this error was of constitutional magnitude, we

considered it on application for writ of habeas corpus even though the error was not raised on direct

appeal.”); Ex parte Milner, 394 S.W.3d 502, 506 (Tex. Crim. App. 2013) (“When a double-jeopardy

violation has occurred, a writ of habeas corpus is a proper venue through which to challenge the

error.”). Because applicant preserved error as to deprivation of a constitutional right, he may raise

it in his application for a writ, and we may address it. Ex parte Townsend, 137 S.W.3d 79 (Tex.

Crim. App. 2004) does not apply here because Townsend is a case that is only about statutory

interpretation of Article 42.08 of the Texas Code of Criminal Procedure, which governs cumulation

of sentences. The Townsend opinion contains neither the word “double” nor the word “jeopardy.”

         No one contests that applicant was placed on bond on three felonies or that he twice failed



        2
           Ex parte Moss, 446 S.W .3d 786, 790 (Tex. Crim. App. 2014) (“[T]he resolution of Applicant’s claim turns
on documents in the record . . ..”); Ex parte Niswanger, 335 S.W .3d 611, 615 (Tex. Crim. App. 2011) (“Allegations of
ineffectiveness must be based on the record, and the presumption of a sound trial strategy cannot be overcome absent
evidence in the record of the attorney’s reasons for his conduct.”)
                                                                                                                            4

to appear. Nor does anyone contest that he was convicted of three charges of failure to appear and

that the trial of the remaining three charges resulted in a mistrial, which allows the state to retry him

on those charges.3

         I find it odd that the state argues that “[p]enalizing the violation of a bond rather than the

singular failure to appear provides a more direct relationship between the harm and the penalty.

After all, if a defendant fails to appear on three bonds, the surety forfeits the principal in each bond,

as was the case here.” Bondsmen assess the risk that a given client will abscond and charge a

commensurate fee, usually a substantial one of at least ten percent; it is their business to assume risk,

which in some ways is like laying down chips at the Blackjack table. Sometimes they correctly

assess the risk and gain substantial income for fairly little work. Sometimes they miscalculate and

become liable for the principal. Again, that is their business—the way they earn their living. The

state’s role in a criminal prosecution is to prosecute the offender. It is in no way the role of the state

to safeguard the income of a bondsman. A defendant has already paid whatever the bondsman

charged and may, at least theoretically be subject to being sued by the bondsman, but that “harm”

is not relevant to any criminal charges. The bondsman will indeed suffer financial loss, but the harm

that is relevant here is harm to an actual party to the lawsuit, in this case, the defendant, and to the

administration of justice. Having six third-degree offenses instead of two may not harm a defendant

when he also has a 75-year sentence in another case, but we are not deciding only this case; we are



         3
              I was startled to read in the state’s brief that by “failing to apprise the trial court and State of this issue,
Applicant appears to have deprived the State of a proper opportunity to prosecute him for at least one more offense.
After all, the second set of indictments alleged a different failure to appear. Thus, if at trial Applicant’s Double Jeopardy
theory holds water, the State still could have obtained a conviction for the failure to appear.” This assertion totally
ignores the fact that the state did have a “proper opportunity to prosecute him for at least one more offense” and in fact
did so; the jury failed to reach verdicts on the three indictments that alleged the second failure to appear, and the state
is free to try appellant again on those charges.
                                                                                                                       5

deciding the law, and having six sentences, even concurrent ones, instead of two is likely to have a

negative effect on the Parole Board’s decision on release.

         By the language of the statute, the gravamen of the offense is that the defendant failed to

appear. Using the eighth-grade grammar test, a phrase that is preceded by a preposition (“in”),4 is

a circumstance, not a gravamen.5 Ergo, “in accordance with the terms of his release,” is a

circumstance that makes failure to appear in court an offense. The sole gravamen of the offense

remains the act of failing to appear, thus the unit of prosecution is the number of times the offense

was committed. Ex parte Goodbread, 967 S.W.2d 859, 860 (Tex. Crim. App. 1998) (“For Double

Jeopardy purposes, the same offense means the identical criminal act, not the same offense by name.

. . . [W]hen one cannot determine from the State’s pleadings whether the offenses prosecuted are the

same, the court must look to the proof offered at trial.”). In this case, therefore, the state may charge

him with two offenses, one for each missed court date. Garfias v. State, 424 S.W.3d 54, 58 (Tex.

Crim. App. 2014).

         Much has been made of “in accordance with the terms of his release.” According to the

indictments in these cases,

             after being lawfully released from custody on bail for a pending felony criminal
             offense . . . styled The State of Texas v. Eric Reed Marascio, with the condition that
             he subsequently appear in court, did intentionally and knowingly fail to appear for
             a docketed court setting in accordance with the terms of his release, namely, his
             Felony Surety Bond for $5,000.00 dated December 5, 2008, and filed with the
             District Clerk of Collin County on December 11, 2008, against the peace and dignity
             of the State. (Italics in original.)

         4
           For the use of the eighth-grade grammar test as to another preposition, “by,” see, e.g., Stuhler v. State, 218
S.W .3d 706, 718 (Tex. Crim. App. 2007) (“Generally, adverbial phrases, introduced by the preposition ‘by,’ describe
the manner and means of committing the offense. They are not the gravamen of the offense, nor elements on which the
jury must be unanimous.”) (quoting Jefferson v. State, 189 S.W .3d at 315-16 (Cochran J., concurring)).”

         5
             “The violation of the terms of release is the gravamen of the offense, . . ..” State’s brief, p. 31.
                                                                                                                             6

         The “terms of his release” are that a bondsman must post bail in the amount of $5,000. That

transaction is a private contract with a third-party, not a contract with the court to be released on a

personal recognizance bond.6 He fulfilled his obligation “in accordance with the terms of his

release” by hiring a bondsman to post bail. The only way in which the dignity of the trial court was

harmed was that he failed to appear. He did that on two occasions and is therefore subject to one

punishment for each failure to appear: a single punishment for a single act.

         In some cases, the terms of his release may include more than simply posting bail. And there

are statutory defenses to prosecution,7 so we need something to measure an alleged failure to appear

against, hence the language “in accordance with the terms of his release.”

         We do not charge a thief with four thefts if he steals a wallet that contains cash and three

credit cards; we charge him with a single theft. And if a burglar enters a home without consent once

and commits theft, assault, and arson, he may be charged with only one burglary, not three.8

Likewise we should not condone three charges for a single act of failing to appear.

         The state urges that if “the Court holds that jumping bail on multiple cases is a single offense,

it would create a perverse incentive to jump bail when facing multiple charges and reduce the utility

of the bail jumping statute.” State’s brief at 18. The logic of that assertion escapes me. The mere



         6
            Assuming that it is proper for a court to insert itself into a private civil contract between a defendant and a
bondsman, may the court then criminalize any breach of that private contract? W hat if a defendant is meticulous about
court dates but fails to check in with the bondsman?

         7
             Tex. Penal Code Sec. 38.10
                   ...
                   (b) It is a defense to prosecution under this section that the appearance was incident to community
                   supervision, parole, or an intermittent sentence.
                   (c) It is a defense to prosecution under this section that the actor had a reasonable excuse for his failure
                   to appear in accordance with the terms of his release.

         8
             He may, however, be charged separately for theft, assault, and arson, but then not for burglary.
                                                                                                    7

fact that a defendant faces multiple charges may be reason enough to abscond. And if a defendant

is facing multiple charges, he would face the same number of charges, plus at least one more, when

he is returned to custody. If this Court condones multiple punishments for a single failure to appear,

those charges will be part of the same criminal episode and very likely will be tried in the same

proceeding, making, in most cases, concurrent sentences mandatory pursuant to Article 42.08 of the

Texas Code of Criminal Procedure. Penal Code Section 38.10(f) states that “[a]n offense under this

section is a felony of the third degree if the offense for which the actor’s appearance was required

is classified as a felony.” Assuming the lack of prior offenses with which to enhance the punishment

range—which may be a stretch in many cases—the defendant will be subject to a maximum of ten

additional years’ imprisonment, no matter how many indictments are brought. Such a sentence may

well not deter flight if the underlying charges are offenses of a higher degree and are subject to

stacking.

       I would address, on our own motion, a claim of ineffective assistance as to appellate counsel

for failing to appeal the preserved claim of constitutional error that subjected applicant to double

jeopardy. Further, I would hold that a single act of failure to appear is subject to a single

punishment, no matter how many individual charges are pending.

       I respectfully dissent.



Filed: October 7, 2015
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