                                        In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                              ____________________

                               NO. 09-17-00472-CR
                               NO. 09-17-00473-CR
                               NO. 09-17-00474-CR
                               NO. 09-17-00475-CR
                               NO. 09-17-00476-CR
                               NO. 09-17-00477-CR
                              ____________________

                EX PARTE CALVIN GARY WALKER
__________________________________________________________________

                On Appeal from the Criminal District Court
                           Jefferson County, Texas
 Trial Cause Nos. 14-19970, 14-19969, 14-19968, 14-19967, 14-19966, 14-19965
__________________________________________________________________

                           MEMORANDUM OPINION

      These are accelerated appeals from the trial court’s order denying habeas

relief in six separate cases. In his sole issue in each case, appellant Calvin Gary

Walker contends that the trial court erred by issuing his writ for habeas relief in each

case and then quashing his subpoenas seeking evidence in support of his applications

and by denying his request for an evidentiary hearing. We affirm the trial court’s

order denying habeas relief in trial cause numbers 14-19965, 14-19966, 14-19967,

14-19968, 14-19969, and 14-19970.

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                                 BACKGROUND

      In September 2017, Walker filed an application for writs of habeas corpus in

six criminal cases, seeking the dismissal of the indictments against him based on

double jeopardy grounds. In his applications, Walker argued that double jeopardy

applies in all six cases because he was previously prosecuted in federal court for the

same conduct that these pending state cases are based upon. According to Walker’s

applications, the “separate sovereigns exception” to the Double Jeopardy Clause

should be abolished.

      Walker acknowledged that he filed applications for a writ of habeas corpus in

these cases in 2014, this Court affirmed the trial court’s denial of his 2014

applications, the Texas Court of Criminal Appeals denied his petitions for

discretionary review, and the United States Supreme Court also denied his petitions

for certiorari without stating a reason. See Ex parte Walker, 489 S.W.3d 1, 14 (Tex.

App.—Beaumont 2016, pet. ref’d), cert. denied, 137 S.Ct. 1813 (2017) (affirming

the trial court’s orders denying Walker a formal evidentiary hearing and habeas relief

on double jeopardy grounds, and concluding that no exception to the dual

sovereignty doctrine applied). Walker’s 2014 applications focused on the “Bartkus

exception” to the dual sovereignty doctrine, which prevents successive prosecutions

by separate sovereigns when one prosecuting sovereign acts as a tool for the other

or when a prosecution by one sovereign amounts to a sham for a second prosecution
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by another sovereign. See id. at 9, 11-12; see also Bartkus v. Illinois, 359 U.S. 121,

123-24 (1959).

      Walker contends that after his 2014 applications were denied, the Supreme

Court decided a case in which two of the justices suggested that the Court should

conduct a fresh examination of the separate sovereigns exception to the Double

Jeopardy Clause. See Puerto Rico v. Sanchez Valle, 136 S.Ct. 1863, 1877 (2016)

(Ginsburg, J. and Thomas, J., concurring). According to Walker, the Supreme Court

may have previously denied certiorari because he did not clearly raise the

constitutionality of separate sovereigns exception in his 2014 applications, having

conceded that the dual sovereignty doctrine was valid. In his 2017 applications,

Walker argued that “[t]he separate sovereigns exception harms criminal defendants

in the precise ways the Double Jeopardy Clause seeks to avoid[,]” and that these

cases present an excellent opportunity for the Supreme Court to reconsider the

separate sovereigns exception.

      In its response to Walker’s applications, the State asserted that Walker is not

entitled to relief because double jeopardy does not apply to the pending State

prosecutions and because the separate sovereigns exception to double jeopardy

remains the law and is not unconstitutional. The State further argued that Walker’s

applications failed to present any new arguments for the trial court to consider. In

October 2017, the trial court issued six pretrial writs of habeas corpus and concluded
                                          3
that Walker’s claims for habeas corpus relief based on the double jeopardy

provisions in the United States and Texas Constitutions should be denied on the

merits.

      Walker filed a motion to set aside the trial court’s order denying the merits of

his applications, requesting that the trial court abide by its oral pronouncement at the

pretrial hearing and withhold ruling on the merits until both parties have had an

opportunity to file supplemental information. Walker attached a copy of the

reporter’s record of the hearing which reflects that the trial court agreed to give

Walker time to supplement his applications. In November 2017, the trial court

vacated and set aside its October 2017 order denying Walker’s applications on the

merits and ordered that he supplement the applications by December 4, 2017. Walker

issued two subpoenas duces tecum in relation to his applications, one for Jefferson

County District Attorney, Bob Wortham, and one for former United States Attorney,

John Malcolm Bales. Walker requested that Wortham and Bales provide, among

other things, copies of all records of communications between former District

Attorney Corey Crenshaw or the Jefferson County’s District Attorney’s office and

former United States Attorney Bales or any member of the United States Attorney’s

Office regarding Walker or the State’s prosecution of Walker.

      The State filed a motion to quash Walker’s subpoenas duces tecum. In its

amended motion to quash, the State argued that Walker’s subpoenas are premised
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on the State’s decision to prosecute Walker, but Walker’s current applications make

a “facial” challenge to the constitutionality of the doctrine of dual sovereignty and

are not based on double jeopardy. The State argued that in his 2014 applications,

Walker tried to claim that based upon the surrounding circumstances related to the

State’s prosecution, the Bartkus exception to the general rule of dual sovereignty

applied because the Jefferson County District Attorney’s Office was being used as a

mere tool of federal authorities who were dissatisfied with the outcome of Walker’s

federal trial. The State further argued that the legality of the State’s prosecution of

Walker was resolved in Walker’s 2014 applications when the trial court determined

that the federal prosecution was not used as a “‘cover or tool’” for Walker’s

subsequent state prosecutions on separate charges.

      According to the State, even if the Supreme Court were to declare the doctrine

of dual sovereignty unconstitutional, Walker still would not be entitled to relief

because the State prosecutions at issue are unrelated to the federal prosecution and

do not constitute double jeopardy. The State maintained that Walker’s 2017

applications delve into circumstances that have no relevance to the constitutionality

of the doctrine of dual sovereignty, and that Walker should not be allowed to seek

evidence that involves matters that were resolved in his 2014 applications.

According to the State, Walker is asking the trial court to revisit the separate


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sovereigns exception without regard to Bartkus and to declare it unconstitutional

despite the fact that it remains the law.

      On December 4, 2017, the trial court conducted a status conference hearing,

during which Walker’s counsel stated that Walker’s efforts to supplement had been

frustrated by the State’s motions to quash. Walker’s counsel requested a factual

hearing to make a record, explaining that in the 2014 applications, Walker was never

given an opportunity to develop the record. The State maintained that it stood by its

motions to quash because Walker was attempting to discover evidence to re-litigate

matters that had been resolved in Walker’s 2014 applications. The State asked that

the trial court limit Walker’s discovery to the issue raised in his 2017 applications,

asking the trial court to declare the doctrine of dual sovereignty unconstitutional, and

to deny Walker relief. The State requested that the trial court take judicial notice that

Walker had been prosecuted and convicted in federal court for failing to pay federal

taxes when due. The State also requested that the trial court rule that no double

jeopardy applies because the State’s charges are different from the federal offense

for which Walker was convicted.

      The trial court granted the State’s motions to quash, denied Walker’s request

for a factual hearing, and denied Walker’s 2017 applications, finding that his new

claim for relief is without merit. In its written order, the trial court took judicial

notice of the legal claims that Walker presented in his 2014 applications, of its 2014
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orders denying Walker habeas relief, and of this Court’s opinion affirming the trial

court’s denial of relief. The trial court determined that from the face of Walker’s

2017 applications and the arguments that Walker’s counsel made during the

December 2017 hearing, Walker’s “lone ‘new’ legal claim” amounts to the assertion

that “as an exception to a defendant’s double-jeopardy protections, the dual

sovereignty doctrine should not exist.” The trial court noted that it is well established

that an individual may be prosecuted separately by two different sovereigns for the

commission of the same act and that the separate prosecutions do not violate federal

due process or constitutional prohibitions against double jeopardy. The trial court

further noted that the Texas Court of Criminal Appeals, various intermediate

appellate courts in Texas, and the Fifth Circuit have all applied the dual sovereignty

doctrine to preclude double jeopardy claims based on successive prosecutions

brought by the state and federal authorities for the same act or conduct.

      The trial court found that Walker’s remaining arguments in his 2017

applications are an attempt to re-litigate the claims in his 2014 applications that have

been “fully, fairly, and finally litigated, and the legal merits of said claims have been

rejected by this Court and by the Ninth Court of Appeals[.]”The trial court found

that it “is constrained by the ‘law of the case’ doctrine from ruling any further on

[Walker’s 2014] claims.” The trial court concluded that “[b]ecause the dual-

sovereignty doctrine is recognized as a valid and viable theory of law by numerous
                                           7
courts of superior jurisdiction, . . . [the trial court] is duty-bound to also recognize

and apply said doctrine[.]” Because the legal viability of the dual sovereignty

doctrine presents a question of law, the trial court determined that “it was not

necessary for [the trial court] to hear testimony from witnesses at an evidentiary

hearing.”

                                       Analysis

      In a single appellate issue, Walker contends that the trial court erred by issuing

his six writs of habeas relief, quashing Walker’s subpoenas seeking evidence in

support of his applications, and refusing Walker’s request for a factual hearing to

make a record. We review the granting or denial of an application for writ of habeas

corpus under an abuse of discretion standard. Ex parte Klem, 269 S.W.3d 711, 718

(Tex. App.—Beaumont 2008, pet. ref’d); see also Ex parte Craft, 301 S.W.3d 447,

448 (Tex. App.—Fort Worth 2009, no pet.) (mem. op. on reh’g). We consider the

entire record and review the facts in the light most favorable to the trial court’s

ruling. Ex parte Klem, 269 S.W.3d at 718. We afford almost total deference to the

trial court’s determination of historical facts supported by the record, especially

findings that are based on an evaluation of credibility and demeanor. Id. We afford

the same deference to the trial court’s rulings on application of law to fact questions

when resolution of those questions turns on an evaluation of credibility and

demeanor. Id. We review the determination de novo when resolution of those
                                           8
questions turns on an application of legal standards. Id.; see also Ex parte Aguilar,

501 S.W.3d 176, 178 (Tex. App.—Houston [1st Dist.] 2016, no pet.).

      Facial constitutional challenges are cognizable on application for pretrial writ

of habeas corpus. See Ex parte Perry, 483 S.W.3d 884, 896 (Tex. Crim. App. 2016).

Whether the separate sovereigns exception is facially constitutional is a question of

law that is subject to de novo review. See Ex parte Lo, 424 S.W.3d 10, 14 (Tex.

Crim. App. 2013). Based on Walker’s 2017 applications and the arguments that

Walker’s counsel made during the December 2017 hearing, the trial court

determined that Walker’s sole legal claim challenged the viability of the dual

sovereignty doctrine, despite the doctrine being well established and having been

applied by courts of superior jurisdiction. Viewing the entire record in favor of the

trial court’s ruling, we conclude that the trial court did not abuse its discretion by

declining to declare the dual-sovereignty doctrine unconstitutional. See id.; Ex parte

Klem, 269 S.W.3d at 718.

      We further conclude that the trial court did not abuse its discretion by

determining that the legal viability of the dual sovereignty doctrine presents a

question of law that did not require an evidentiary hearing, and that Walker was not

entitled to develop a factual record concerning Walker’s 2014 claims that have been

finally litigated. See Ware v. State, 736 S.W.2d 700, 701 (Tex. Crim. App. 1987)

(stating that the legal principle of the “law of the case” provides that an appellate
                                          9
court’s resolution of a question of law in a previous appeal of the same case will

govern the disposition of the same issue in a subsequent appeal); Ex parte Walker,

489 S.W.3d at 13-14 (concluding that Walker failed to allege facts showing that the

Bartkus exception to the dual sovereignty doctrine applied to the State’s

indictments). We overrule Walker’s issue and affirm the trial court’s order denying

Walker’s applications for writ of habeas corpus in trial cause numbers 14-19965, 14-

19966, 14-19967, 14-19968, 14-19969, and 14-19970.

      AFFIRMED.



                                             ______________________________
                                                    STEVE McKEITHEN
                                                        Chief Justice


Submitted on March 21, 2018
Opinion Delivered April 18, 2018
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.




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