          IN THE COURT OF CRIMINAL APPEALS
                      OF TEXAS
                 NOS. WR-80,939-01, WR-80,939-02, WR-80,939-03



                  EX PARTE ERIC REED MARASCIO, Applicant



         ON APPLICATIONS 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 OF COLLIN COUNTY

       Y EARY, J., filed a concurring opinion in which K EASLER, J., joined.

                              CONCURRING OPINION

       It is my understanding that one of the reasons we filed and set this post-conviction

application for writ of habeas corpus was to address the latent tension between Gonzalez v.

State, 8 S.W.3d 640 (Tex. Crim. App. 2000), and Ex parte Townsend, 137 S.W.3d 79 (Tex.

Crim. App. 2004)—especially in light of last year’s opinion in Ex parte Moss, 446 S.W.3d

786 (Tex. Crim. App. 2014). Today, Judge Richardson would have the Court resolve that

tension by simply deferring to Gonzalez’s categorization of a double jeopardy claim as

“fundamental.” Concurring Opinion at 7, 9. But Judge Richardson does not go on to explain

what he means by “fundamental,” much less why Gonzalez’s characterization of double
                                                                               Marascio — 2


jeopardy rights as “fundamental” should suffice to trump the rule of forfeiture announced in

Townsend—that an issue that was available to be raised on direct appeal, but was not, may

not be broached for the first time in post-conviction habeas corpus proceedings, since habeas

proceedings are not a substitute for direct appeal.

       We have subsequently provided a basis for reconciliation, in Moss. There we held that

the Townsend rule of forfeiture is a qualified one, and it does not apply to claims that would

fit within the first category of Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993),

embracing absolute requirements or prohibitions. Such category one Marin claims are

“essentially independent of the litigants’ wishes . . . and cannot, therefore, be waived or

forfeited by the parties.” Moss, 446 S.W.3d at 788 (quoting Marin, 851 S.W.2d at 279). It

seems to me that, after Moss, the question whether Townsend applies to foreclose raising a

double jeopardy claim for the first time in a post-conviction habeas corpus application

depends upon whether such a claim is, by its nature, a category one Marin claim. That is the

question the Court should be asking itself today. To simply announce to the bench and bar

that Gonzalez controls because it labeled a double jeopardy claim “fundamental”—without

any explanation of what that means and without any analysis of where such a claim might

fit within the Marin categories—begs the question entirely. After Moss, we do not adequately

resolve the tension between Gonzalez and Townsend by simply anointing one over the other.

       Because Judge Keasler addresses all the right questions, and because I agree with his

answers, I join his concurring opinion.
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FILED: October 7, 2015
PUBLISH
