      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-18-00104-CR



                                  Ex parte Eddie Thomas Chapa


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
    NO. D-1-DC-16-301468, THE HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Eddie Thomas Chapa appeals the trial court’s denial of his pretrial

application for writ of habeas corpus in which he sought to quash the indictment charging him with

multiple child sexual abuse offenses. See Tex. Code Crim. Proc. arts. 11.01, 11.08. We affirm the

trial court’s order denying habeas relief.


                                         BACKGROUND

                The indictment in this case contains nine counts—five counts of aggravated sexual

assault of a child, see Tex. Penal Code § 22.021, two counts of indecency with a child by sexual

contact, see id. § 21.11(a)(1), and two counts of indecency with a child by exposure, see id.

§ 21.11(a)(2)—that allege various sexual acts perpetrated against L.A.C., a child under the age of

14, on or about August 1, 2011.

               Count One alleges that appellant intentionally and knowingly penetrated the sexual

organ of L.A.C. with appellant’s sexual organ. Count Two alleges that appellant intentionally and
knowingly contacted the sexual organ of L.A.C. with appellant’s sexual organ. Count Three alleges

that appellant intentionally and knowingly penetrated the mouth of L.A.C. with appellant’s sexual

organ. Count Four alleges that appellant intentionally and knowingly contacted the mouth of L.A.C.

with appellant’s sexual organ. Count Five alleges that appellant intentionally and knowingly

penetrated the sexual organ of L.A.C. with appellant’s finger. Count Six alleges that, with intent to

arouse and gratify appellant’s sexual desire, appellant touched the genitals of L.A.C. Count Seven

alleges that, with intent to arouse and gratify appellant’s sexual desire, appellant touched “any part

of the body” of L.A.C. with appellant’s genitals. Count Eight alleges that, with intent to arouse and

gratify appellant’s sexual desire, appellant exposed his genitals to L.A.C. Count Nine alleges that,

with intent to arouse and gratify appellant’s sexual desire, appellant caused L.A.C. to expose

her genitals.

                Subsequent to indictment, appellant filed a document entitled Defendant’s Motion

to Quash the Indictment and Pre-trial Application for Writ of Habeas Corpus [Double Jeopardy].

In the combination motion/application, appellant asserted that the indictment is “multiplicitous” and

must be quashed and set aside because the multiple counts violate the Double Jeopardy Clause.

Specifically, he contended that the offenses alleged in Counts Two, Four, Five, Six, Seven, and Eight

are the “same offense” as the offense alleged in Count One because they are subsumed within that

offense. He further contended that the offense alleged in Count Four is the “same offense” as the

offense alleged in Count Three because it is subsumed within that offense.

                The trial court conducted a hearing on appellant’s combination motion/application.

Appellant did not call any witnesses, offer any evidence (though he sought a stipulation from the



                                                  2
State), or present any argument to the court (beyond his motion/application). At the hearing, the

following occurred:


       THE COURT:             State of Texas versus Eddie Thomas Chapa. Defendant’s
                              Motion to Quash the Indictment. Pretrial application for writ
                              of habeas corpus. [Defense Counsel], you may proceed.

       COUNSEL:               Thank you, Judge. Judge, I believe that the motion and
                              application is self-explanatory and why we’re raising it on
                              jeopardy grounds. I would like the record to reflect, and I
                              believe the [S]tate agrees with this, that if any offense alleged
                              in the indictment occurred, that they occurred on exactly the
                              same day.

                              In other words, if anything happened either orally, vaginally,
                              or by digital penetration, it all occurred in the same incident.
                              And I believe the state accepts that. And so --

       PROSECUTOR:            The [S]tate will stipulate to that.

       COUNSEL:               And that date is alleged to be on or about the 1st day of
                              August, 2011. And with that, that’s all the argument we have,
                              Judge. If you would accept that stipulation, Judge, then that’s
                              all we have.

       THE COURT:             I accept the stipulation. After hearing your argument and
                              reading the motion, your motion is denied.


Appellant now appeals the denial of his pretrial application for writ of habeas corpus.1




       1
           Although the trial court orally pronounced its ruling on the “motion” and subsequently
signed a written order denying appellant’s “motion,” the order and the record of the hearing reflect
the trial court’s consideration of appellant’s combined motion to quash the indictment and pretrial
application for writ of habeas corpus. Thus, we construe the order denying the motion as a denial
of appellant’s application for writ of habeas corpus, which is an appealable order. See Ex parte
Schmidt, 109 S.W.3d 480, 481 (Tex. Crim. App. 2003) (when trial court has jurisdiction to issue writ
of habeas corpus, denial of relief can be appealed).

                                                 3
                                           DISCUSSION

               In his sole point of error, appellant asserts that the trial court erred in denying his

application for writ of habeas corpus and refusing to quash the indictment against him. He maintains

that the “multiplicity” doctrine, grounded in the Double Jeopardy Clause, “bars the State from trying

him repeatedly for the same alleged offense.”2

               In reviewing a trial court’s decision on a pretrial application for writ of habeas corpus,

we review the facts in the light most favorable to the trial court’s ruling and, absent an abuse of

discretion, uphold the ruling. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006);

Ex parte Ali, 368 S.W.3d 827, 830 (Tex. App.—Austin 2012, pet. ref’d). An abuse of discretion

does not occur unless the trial court acts “arbitrarily or unreasonably” or “without reference to any

guiding rules and principles,” State v. Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016) (quoting

Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)), or unless the trial court’s

decision “falls outside the zone of reasonable disagreement,” Johnson v. State, 490 S.W.3d 895, 908

(Tex. Crim. App. 2016).

               On appeal, appellant contends that he “is entitled to habeas relief, in the form of the

indictment being quashed, because the underlying alleged offense cannot be the basis of nine




       2
           Appellant articulates his double jeopardy claim using the concept of “multiplicity,”
borrowed from federal prosecutions. In a federal prosecution, “[a]n indictment is multiplicitous if
it charges a single offense in multiple counts, thus raising the potential for multiple punishment for
the same offense, implicating the [F]ifth [A]mendment double jeopardy clause.” United States
v. Reagan, 596 F.3d 251, 253 (5th Cir. 2010) (quoting United States v. Brechtel, 997 F.2d 1108,
1112 (5th Cir. 1993)) (footnotes omitted). Appellant cites to no instance, and we are not aware of
any, where the “multiplicity” doctrine has been applied at the pretrial stage in a state prosecution
in Texas.

                                                   4
separate accusations, subjecting the Appellant to being tried nine times for the same offense, and

possibly being punished nine times for a single offense.” He argues in his brief that Counts One,

Two, Six, Seven, Eight, and Nine charge appellant with “the same conduct,” and that the offenses

alleged in Counts Two, Six, Seven, Eight, and Nine are subsumed within the offense alleged in

Count One.3 Similarly, appellant argues that “the same is true” of Counts Three, Four, Seven, and

Eight and that the offenses alleged in Counts Four, Seven, and Eight are subsumed within the offense

alleged in Count Three.4 Thus, according to appellant, Counts Two, Four, Six, Seven, Eight, and

Nine are “multiplicitous and, therefore, violative of the Fifth Amendment [Double Jeopardy

Clause],” and the indictment “should have been quashed.” Appellant did not specifically articulate

at the hearing, nor does he on appeal, which specific double jeopardy protection he asserts—the

protection against multiple or successive prosecutions or the protection against multiple

punishments—and he referenced both protections in his habeas application and his appellate brief.

Also, in his brief, he mentions “trying [appellant] repeatedly” and “being tried nine times” as well

as “possibly being punished nine times.” However, a “multiplicity” claim is based on a multiple




       3
          We observe that appellant references different counts in his argument on appeal than he
did before the trial court below. In his habeas application, appellant argued that the offenses alleged
in Counts Two, Four, Five, Six, Seven, and Eight are subsumed within the offense alleged in
Count One. On appeal, he does not reference Counts Four and Five but now includes Count Nine
as an offense subsumed by the Count One offense. This discrepancy does not impact our analysis.
       4
         Again, we observe that appellant references different counts in his argument on appeal than
he did below. In his habeas application, appellant argued that the offense alleged in Count Four is
subsumed within the offense alleged in Count Three. On appeal, he now includes Counts Seven and
Eight as offenses subsumed by the Count Three offense. Once again, this discrepancy does not
impact our analysis.

                                                  5
punishments violation, so we construe appellant’s assertion of a double jeopardy violation in his

habeas application as a multiple punishments claim.

               Pretrial habeas, followed by an interlocutory appeal, is an extraordinary remedy.

Ex parte Ingram, 533 S.W.3d 887, 891 (Tex. Crim. App. 2017); Ex parte Perry, 483 S.W.3d 884,

895 (Tex. Crim. App. 2016). This remedy is reserved “for situations in which the protection of the

applicant’s substantive rights or the conservation of judicial resources would be better served by

interlocutory review.” Ex parte Weise, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001); see Ingram,

533 S.W.3d 891–92; Perry, 483 S.W.3d at 895. Whether a claim is cognizable on pretrial habeas

is a threshold issue that should be addressed before the merits of the claim may be resolved.

Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010); Ex parte Paxton, 493 S.W.3d 292, 297

(Tex. App.—Dallas 2016, pet. ref’d); see, e.g., Perry, 483 S.W.3d at 895 (addressing cognizability

of “as applied” challenge to constitutionality of statute); Ex parte Doster, 303 S.W.3d 720, 724–27

(Tex. Crim. App. 2010) (addressing cognizability of claim involving Interstate Agreement on

Detainers Act); Ex parte Smith, 185 S.W.3d 887, 893 (Tex. Crim. App. 2006) (addressing

cognizability of in pari materia claim). When determining whether an issue is cognizable by pretrial

habeas, courts consider a variety of factors, including whether the rights underlying the claims would

be effectively undermined if not vindicated before trial and whether the alleged defect would bring

into question the trial court’s power to proceed. Perry, 483 S.W.3d at 895–96; Weise, 55 S.W.3d

at 619.

               The Double Jeopardy Clause of the Fifth Amendment prohibits a second prosecution

for the same offense after the accused has already been convicted or acquitted of that crime and



                                                  6
forbids multiple punishments for the same offense in a single prosecution. U.S. Const. amend. V;

see Stevenson v. State, 499 S.W.3d 842, 850 (Tex. Crim. App. 2016); Speights v. State,

464 S.W.3d 719, 722 (Tex. Crim. App. 2015); Garfias v. State, 424 S.W.3d 54, 58 (Tex. Crim.

App. 2014); Loving v. State, 401 S.W.3d 642, 646 (Tex. Crim. App. 2013); Ex parte Milner,

394 S.W.3d 502, 506 (Tex. Crim. App. 2013). Ordinarily, a double jeopardy claim is cognizable on

a pretrial writ. See Perry, 483 S.W.3d at 895; Weise, 55 S.W.3d at 619; Stephens v. State,

806 S.W.2d 812, 814 (Tex. Crim. App. 1990); Ex parte Robinson, 641 S.W.2d 552, 555 (Tex. Crim.

App. 1982).    However, for the reasons that follow, we conclude that appellant’s multiple

punishments double jeopardy claim is not cognizable on a pretrial writ.

               The Fifth Amendment protects a defendant against being placed twice in jeopardy for

the same offense. U.S. Const. amend. V, cl. 2 (“nor shall any person be subject for the same offence

to be twice put in jeopardy of life or limb”). “This protection is implicated only when jeopardy has

attached.” Ex parte Macias, 541 S.W.3d 782, 785 (Tex. Crim. App. 2017), cert. denied sub nom.

Macias v. Texas, — U.S. —, No. 17-7896, 2018 WL 1070549 (Apr. 16, 2018); see Serfass v. United

States., 420 U.S. 377, 388 (1975) (“The Court has consistently adhered to the view that jeopardy

does not attach, and the constitutional prohibition can have no application, until a defendant is ‘put

to trial before the trier of facts, whether the trier be a jury or a judge.’”); State v. Moreno,

294 S.W.3d 594, 597 (Tex. Crim. App. 2009) (observing that “jeopardy must have attached initially”

before double jeopardy protections are implicated); Ortiz v. State, 933 S.W.2d 102, 105 (Tex. Crim.

App. 1996) (explaining that reason for defining particular point when jeopardy attaches in criminal

proceedings is that double jeopardy prohibition does not apply until jeopardy attaches). In Texas,



                                                  7
jeopardy attaches in a jury trial only when a jury is empaneled and sworn. Macias, 541 S.W.3d at

785; Moreno, 294 S.W.3d at 597; Ex parte Preston, 833 S.W.2d 515, 517 (Tex. Crim. App. 1992).

Jeopardy attaches in a bench trial when both sides have announced ready and the defendant pleads

to the charging instrument. Moreno, 294 S.W.3d at 597; State v. Torres, 805 S.W.2d 418, 421 (Tex.

Crim. App. 1991); State v. Fisher, 212 S.W.3d 378, 380 (Tex. App.—Austin 2006, pet. ref’d). In

this case, jeopardy has not yet attached as to any of the offenses with which appellant is charged and

on which he bases his double jeopardy claim. Thus, the constitutional prohibition against double

jeopardy does not yet apply, and the double jeopardy protections are not yet implicated.

               Moreover, pretrial habeas is generally unavailable “when the resolution of a claim

may be aided by the development of a record at trial.” Ingram, 533 S.W.3d at 892 (quoting Weise,

55 S.W.3d at 620); Perry, 483 S.W.3d at 895; Doster, 303 S.W.3d at 724; Smith, 185 S.W.3d at 893.

Appellant argues that because some counts of the indictment are lesser included offenses that are

subsumed by the greater offenses alleged, punishments that may be assessed for those subsumed

offenses would violate double jeopardy. See Maldonado v. State, 461 S.W.3d 144, 149 (Tex. Crim.

App. 2015) (“An offense may be factually subsumed when there is a single act that cannot physically

occur in the absence of another act.”); id. at 150 n.1(“An offense can also be legally subsumed when

one offense is a lesser-included offense of another.”); see also Garfias, 424 S.W.3d at 58 (observing

that one scenario under which multiple punishments double jeopardy claim arises is in context of

lesser included offenses, where same conduct is punished under both greater and lesser included

offense). That may very well be the case. However, such a determination cannot be made at this

pretrial stage of the proceedings on the undeveloped record.



                                                  8
                If alleged offenses occur during a single continuous act, with a single impulse, in

which several different statutory provisions are necessarily violated along that continuum, some of

the offenses may merge together or be subsumed, and the defendant may be punished only once.

Aekins v. State, 447 S.W.3d 270, 275 (Tex. Crim. App. 2014) (discussing “the merger doctrine,” “the

single impulse doctrine,” or, here in Texas, “the doctrine of subsumed acts”). Thus, a defendant may

not be convicted for a completed sexual assault by penetration and also for conduct—such as

exposure or contact—that is “demonstrably and inextricably part of that single sexual assault.” Id.

at 281; see Patterson v. State, 152 S.W.3d 88, 92 (Tex. Crim. App. 2004); see also Loving,

401 S.W.3d at 650 (Cochran, J., concurring).

                Conversely, if the offenses do not occur during a single continuous act but are instead

separate and discrete acts, a defendant who commits more than one sexual act against the same

victim may be convicted and punished for each separate and discrete act, even if those acts were

committed in close temporal proximity. Aekins, 447 S.W.3d at 278; Vick v. State, 991 S.W.2d 830,

833 (Tex. Crim. App. 1999). The key is that one act ends before another act begins. Aekins,

447 S.W.3d at 278. This is true for acts violating not only different statutes but different subsections

of a single statute, as well as for different discretely prohibited acts within the same subsections of

a single statute. Id. (internal citations omitted); Gonzales v. State, 304 S.W.3d 838, 849 (Tex. Crim.

App. 2010); see Vick, 991 S.W.2d at 833.

                The question in this case, then, is whether the exposure offenses alleged in the

indictment are subsumed by the contact or penetration offenses alleged, and whether the contact

offenses alleged in the indictment (that may or may not subsume the exposure offenses) are



                                                   9
subsumed by the penetration offenses alleged. Such a determination depends on the facts of the case.

See Maldonado, 461 S.W.3d at 148–150 (explaining that whether charged sexual acts are incident

to and subsumed by other charged sexual offenses or are separate and distinct offenses depends on

facts of case); see, e.g., Patterson, 152 S.W.3d at 92 (concluding that indecency by exposure may

or may not be part of sexual assault or indecency by sexual contact, depending on facts of case).

Appellant seeks to answer this question pretrial. However, as the facts of this case have yet to be

developed by the presentation of evidence at trial, whether some or any of the alleged offenses are

factually subsumed by other alleged offenses cannot be determined.

                The Court of Criminal Appeals has explained that there are two relevant inquiries in

a double jeopardy analysis when considering whether the offenses at issue are “the same” for double

jeopardy purposes: legal sameness and factual sameness. Ex parte Castillo, 469 S.W.3d 165, 172

(Tex. Crim. App. 2015); see Aekins, 447 S.W.3d at 283 (Keller, P.J., concurring) (“For offenses to

be the ‘same’ for double-jeopardy purposes, they must be the same both in ‘law’ and in ‘fact.’”).

“The legal-sameness inquiry depends on only the pleadings and statutory law—not the record—to

ascertain whether two offenses are the same.” Castillo, 469 S.W.3d at 172. If the offenses are

legally the same, the next step is to determine whether the offenses are factually the same. Id. at 169;

Ex parte Benson, 459 S.W.3d 67, 72 (Tex. Crim. App. 2015). “The factual-sameness inquiry

requires a reviewing court to examine the entire record to determine if the same offenses have been

alleged.” Castillo, 469 S.W.3d at 172. “To prevail on a double jeopardy claim, the claimant must

prove both legal sameness and factual sameness.” Id. at 169.




                                                  10
               While the undeveloped record here may suggest that the offenses alleged in some of

the counts are legally the same as offenses alleged in other counts (because they might be subsumed

lesser included offenses), the undeveloped record does not—and cannot at this pretrial

stage—demonstrate that any of the offenses alleged in some counts are factually the same as offenses

alleged in other counts. “We determine factual sameness by determining the allowable unit of

prosecution and reviewing the trial record to establish how many units have been shown.” Castillo,

469 S.W.3d at 169; see Harris v. State, 359 S.W.3d 625, 631 (Tex. Crim. App. 2011) (allowable

unit of prosecution for indecency with child by exposure is each exposure); Pizzo v. State,

235 S.W.3d 711, 717 (Tex. Crim. App. 2007) (allowable unit of prosecution for indecency with child

by sexual contact is each act of prohibited touching); Loving, 401 S.W.3d at 647–48 (allowable unit

of prosecution of aggravated sexual assault is each completed act of specific prohibited conduct)

(citing Vick, 991 S.W.2d at 832–33). In this case, the determination of factual sameness can only

be made after the record has been developed by the presentation of evidence at trial. See, e.g.,

Maldonado, 461 S.W.3d at 149–50 (looking beyond pleadings at evidence presented at trial of

separate instances of sexual contact to resolve double jeopardy multiple punishments claim); see

Perry, 483 S.W.3d at 899 n.81 (noting that “‘allowable unit of prosecution’ issues sometimes require

an examination of evidence beyond the pleadings”).

               Because factual development of the record is necessary, pretrial resolution of

appellant’s claim is not available. See Perry, 483 S.W.3d at 899; Doster, 303 S.W.3d at 724; Smith,

185 S.W.3d at 893. We acknowledge that there is one recognized exception to the general

prohibition against pretrial resolution of claims that require record development: when the



                                                11
constitutional right at issue includes a right to avoid trial. See Ingram, 533 S.W.3d at 892; Perry,

483 S.W.3d at 899. And, generally, the constitutional protection against double jeopardy is

considered such a right. See Ingram, 533 S.W.3d at 892; Perry, 483 S.W.3d at 899 & nn.80–81.

However, we do not find the exception to be applicable to a claim concerning the constitutional

prohibition against double jeopardy in the multiple punishments context.

               The Double Jeopardy Clause embodies three separate guarantees—(1) protection

against prosecution for the same offense following an acquittal; (2) protection against prosecution

for the same offense following a conviction; and (3) protection against multiple punishments for the

same offense, Ex parte Ward, 964 S.W.2d 617, 624 (Tex. Crim. App. 1998); Ex parte Broxton,

888 S.W.2d 23, 25 (Tex. Crim. App. 1994); Stephens, 806 S.W.2d at 816; see Illinois v. Vitale,

447 U.S. 410, 415 (1980); Ex parte Chaddock, 369 S.W.3d 880, 891 (Tex. Crim. App. 2012), which

encompass two protections: the protection against multiple or successive prosecutions and the

protection against multiple punishments, see United States v. Dixon, 509 U.S. 688, 696 (1993); State

v. Perez, 947 S.W.2d 268, 270 (Tex. Crim. App. 1997); State v. Donaldson, — S.W.3d —,

No. 03-16-00085-CR, 2017 WL 1508662, at *3 (Tex. App.—Austin Apr. 20, 2017, no pet.). A

review of the case law regarding double jeopardy claims asserted on pretrial habeas demonstrates

that the double jeopardy protection being asserted (and resolved) pretrial involves the protection

against multiple or successive prosecutions. See, e.g., Castillo, 469 S.W.3d at 171; Ex parte

Amador, 326 S.W.3d 202, 205 (Tex. Crim. App. 2010); Ex parte Watson, 306 S.W.3d 259, 261

(Tex. Crim. App. 2009); Ex parte Lewis, 219 S.W.3d 335, 338 (Tex. Crim. App. 2007); Wheeler,

203 S.W.3d at 322; Ex parte Goodbread, 967 S.W.2d 859, 860 (Tex. Crim. App. 1998); Ex parte



                                                12
Ward, 964 S.W.2d 617, 618 (Tex. Crim. App. 1998); Ex parte Coleman, 940 S.W.2d 96, 97 (Tex.

Crim. App. 1996); Ex parte Williams, 799 S.W.2d 304, 305 (Tex. Crim. App. 1990); Ex parte

Peterson, 738 S.W.2d 688, 689 (Tex. Crim. App. 1987); see also Gonzalez v. State, 8 S.W.3d 640,

643 n.9 (Tex. Crim. App. 2000) (observing that the Court of Criminal Appeals has “decided that a

pretrial writ of habeas corpus is usually the procedural vehicle by which a defendant should raise a

‘successive prosecutions for the same offense’ double jeopardy claim”).

               The use of pretrial habeas to resolve a successive prosecutions claim is consistent

with the limited purpose of pretrial habeas. As we noted earlier, pretrial habeas, followed by

an interlocutory appeal, is an extraordinary remedy, see Ingram, 533 S.W.3d at 891–92; Ellis,

309 S.W.3d at 79, that is reserved “for situations in which the protection of the applicant’s

substantive rights or the conservation of judicial resources would be better served by interlocutory

review,” see Ingram, 533 S.W.3d at 891–92 (quoting Weise, 55 S.W.3d at 620); Perry, 483 S.W.3d

at 895. The substantive right involved in a successive prosecutions double jeopardy claim involves

the right to avoid trial.5 Thus, a pretrial remedy to vindicate that right is not only appropriate but


       5
           The legal and practical value of the constitutional right not to be exposed to jeopardy
twice—that is, the “right not to be tried” twice—would be destroyed if it were not vindicated before
trial. See United States v. Hollywood Motor Car Co., 458 U.S. 263, 267 (1982) (“[T]he protection
afforded by the Double Jeopardy Clause . . . encompass[es] a ‘right not to be tried’ which must be
upheld prior to trial if it is to be enjoyed at all.”); Abney v. United States, 431 U.S. 651, 660 (1977)
(“[T]he rights conferred on a criminal accused by the Double Jeopardy Clause would be significantly
undermined if appellate review of double jeopardy claims were postponed until after conviction and
sentence. . . . [T]he Double Jeopardy Clause protects an individual against more than being
subjected to double punishments. It is a guarantee against being twice put to trial for the same
offense.”); id. at 662 (“[I]f a criminal defendant is to avoid exposure to double jeopardy and thereby
enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be
reviewable before that subsequent exposure occurs.”); Ex parte Robinson, 641 S.W.2d 552, 555
(Tex. Crim. App. 1982) (“We are compelled to hold that there is a Fifth Amendment right not to be

                                                  13
preferred. Ex parte Rathmell, 717 S.W.2d 33, 34 (Tex. Crim. App. 1986). However, that is not the

case for a double jeopardy multiple punishments claim. The double jeopardy protection against

multiple punishments—the right not to be punished multiple times for the same offense in a single

prosecution—is not a right that involves the right to avoid trial. Cf. Perry, 483 S.W.3d at 895

(concluding that nature of constitutional right at issue entitled appellant to raise claims by pretrial

habeas corpus).

               Nor is the conservation of judicial resources better served by interlocutory review of

a multiple punishments claim. In fact, given the undeveloped record, the situation here demonstrates

that the contrary is true. In this case, the right appellant seeks to claim—his constitutional right to

be free from multiple punishments for the same offense in a single prosecution—cannot be

vindicated before trial. Appellant asserts only a potential violation of the double jeopardy protection

against multiple punishments. Ultimately, after the evidence is presented at trial, that constitutional

protection may not in fact be violated. Even if the evidence is such that some of the alleged offenses

are subsumed by other alleged offenses, as appellant contends, it is possible that appellant may not

be convicted—and therefore not punished—for those subsumed offenses. For example, the State

may, depending on the evidence at trial, opt to abandon some counts before they are submitted to

the jury for consideration. Further, the jury may not find appellant guilty of counts relating to

potentially subsumed offenses. If it does, the State may move to abandon the counts of any

subsumed offenses, after the jury’s guilty verdict before punishment is determined, in order to avoid

a multiple punishments violation. Or, after the jury has assessed punishment(s), the trial court



exposed to double jeopardy, and that it must be reviewable before that exposure occurs.”).

                                                  14
may—at the State’s request, on its own motion, or on appellant’s request—vacate the convictions

for any subsumed offenses that violate the double jeopardy protection against multiple punishments.

Appellant’s multiple punishments claim, raised in a pretrial habeas writ, is premature and not ripe

for appellate review. See, e.g., Smith, 185 S.W.3d at 893 (concluding that in pari materia claim is

not cognizable in pretrial writ of habeas corpus because appellant could pursue claim on appeal if

necessary and because claim was not ripe for review: “An appellate decision on the in pari materia

claim would be premature before the State has had an opportunity to develop a complete factual

record during a trial.”).

                Appellate courts must be careful to ensure that a pretrial writ is not misused to secure

pretrial appellate review of matters that should not be put before the appellate court at the pretrial

stage. See Ellis, 309 S.W.3d at 79; Doster, 303 S.W.3d at 724; Ex parte Smith, 178 S.W.3d 797, 801

(Tex. Crim. App. 2005). “Neither a trial court nor an appellate court should entertain an application

for writ of habeas corpus when there is an adequate remedy by appeal.” Weise, 55 S.W.3d at 619;

accord Ex parte Carter, 514 S.W.3d 776, 785 (Tex. App.—Austin 2017, pet. ref’d); Paxton,

493 S.W.3d at 297; see Queen v. State, 212 S.W.3d 619, 623 (Tex. App.—Austin 2006, no pet.)

(observing that writ of habeas corpus is extraordinary remedy available only when there is no other

adequate remedy at law and is not to be used as substitute for appeal). A violation of the protection

against multiple punishments can be corrected after trial. See Rathmell, 717 S.W.2d at 34 (“To be

sure, the Double Jeopardy Clause protects an individual against being twice convicted for the same

crime, and that aspect of the right can be fully vindicated on an appeal following final judgment.”

(quoting Abney v. United States, 431 U.S. 651, 660 (1977))). Here, appellant may pursue his



                                                  15
multiple punishments claim on appeal if necessary. See Ex parte Denton, 399 S.W.3d 540,

544 (Tex. Crim. App. 2013); Langs v. State, 183 S.W.3d 680, 687 (Tex. Crim. App. 2006);

Gonzalez, 8 S.W.3d at 643. For that matter, appellant has post-trial remedies in the trial court before

an appeal as he can assert his multiple punishments claim at sentencing or in a motion for new trial.

See, e.g., Preciado v. State, 346 S.W.3d 123, 126 (Tex. App.—Amarillo 2011, pet. ref’d) (affirming

trial court’s grant of new trial to resolve violation of prohibition against multiple punishments for

same offense).

                 In sum, appellant’s multiple punishments double jeopardy claim is not cognizable on

pretrial habeas for several reasons. First, the double jeopardy prohibition against being twice placed

in jeopardy does not yet apply, and the double jeopardy protections have not yet been implicated,

because jeopardy has not attached to any of the offenses upon which appellant bases his double

jeopardy claim. Second, the resolution of appellant’s double jeopardy multiple punishments claim

requires the development of a record at trial as the determination of whether some or any of the

alleged offenses are subsumed by other alleged offenses—and thus are legally and factually “the

same offense”—depends on the facts of the case. Third, the constitutional right appellant seeks to

assert does not involve the right to avoid trial, nor are judicial resources conserved (but are in fact

squandered) by reviewing appellant’s double jeopardy claim prior to the development of facts at trial.

Finally, should a multiple punishments violation actually occur in this case, appellant has an

adequate remedy post-trial—either in the trial court or on appeal.

                 Accordingly, because appellant’s multiple punishment claim is not cognizable in a

pretrial application for writ of habeas corpus, we conclude that the trial court did not abuse its



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discretion in denying appellant’s application and refusing to quash the indictment. We overrule

appellant’s sole point of error.


                                         CONCLUSION

                 Having concluded that the trial court did not abuse its discretion in denying

appellant’s pretrial application for writ of habeas corpus, we affirm the trial court’s order denying

habeas relief.



                                              __________________________________________
                                              Cindy Olson Bourland, Justice

Before Justices Puryear, Pemberton, and Bourland

Affirmed

Filed: May 23, 2018

Do Not Publish




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