Ex Parte Drake , 1994 Tex. Crim. App. LEXIS 94 ( 1994 )

OPINION

BAIRD, Judge.

A jury convicted applicant of two counts of attempted capital murder, Tex.Penal Code Ann. § 15.01(a), and § 19.03, and assessed punishment at twenty-five years confinement on each count. The trial judge ordered the sentences to run consecutively. Tex.Penal Code Ann. § 12.32. The Court of Appeals affirmed. Drake v. State, No. 10-83-057-CR (Tex.App.—Waco, delivered December 22, 1983) (not published). On petition for discretionary review, we affirmed the judgment of the Court of Appeals in Drake v. State, 686 S.W.2d 935 (Tex.Cr.App.1985) (plurality opinion). However, we subsequently overruled Drake in Fortune v. State, 745 S.W.2d 364, 370 (Tex.Cr.App.1988). In this application for writ of habeas corpus filed pursuant to Tex.Code Crim.Proc.Ann. art. 11.07, applicant seeks to have one of the convictions set aside contending the two offenses were improperly joined in the same indictment. For the following reasons, we will grant the requested relief.

I.

Applicant was convicted of two separate counts of attempted capital murder. A single indictment alleged each count in a separate paragraph and further alleged the offenses were committed as part of the same criminal transaction. A plurality of this Court held it was error to allege both offenses in a single indictment regardless of whether the offenses arose out of the same or different criminal transactions. Drake, 686 S.W.2d at 944. Nonetheless, we concluded that because the Court of Appeals held the offenses arose from different criminal transactions, applicant waived his complaint by failing to object to the misjoinder of the offenses.¹ Id., at 944-945.

In Ex parte Siller, 686 S.W.2d 617 (Tex.Cr.App.1985), handed down the same day as Drake, we held it was fundamental error for the State to obtain multiple convictions for non-property offenses alleged in two or more counts in a single indictment. Thus, because the State was not authorized to obtain more than one conviction from the indictment against Siller, Siller’s conviction for the second alleged offense was void. Siller, 686 S.W.2d at 620.

In Fortune v. State, 745 S.W.2d 364 (Tex.Cr.App.1988), we rejected the Drake plurality’s distinction between joinder of offenses arising from the same and from different criminal transactions. Acknowledging that the source of the error in Drake was the same as that in Siller, i.e., that the State lacked the authority to obtain multiple convictions from a single indictment, we overruled Drake, holding that any conviction in excess of one per indictment would be void, regardless of whether the offenses occurred in the same or different transactions.² Fortune, 745 S.W.2d at 369-370. Thus, a defendant was not required to object to misjoinder at trial because a void conviction is challenge-able at any stage of the proceedings. Id., (citing Jones v. State, 622 S.W.2d 109 (Tex.Cr.App.1981), and, Keegan v. State, 618 S.W.2d 54 (Tex.Cr.App.1981)). See also, Johnson v. State, 784 S.W.2d 47, 48-49 (Tex.Cr.App.1990), and, Holcomb v. State, 745 S.W.2d 903, 906-908 (Tex.Cr.App.1988).

II.

The threshold question in the instant case is whether this issue is cognizable under an art. 11.07 post-conviction application for writ of habeas corpus. In Ex parte Pena, 820 S.W.2d 806, 807 n. 2 (Tex.Cr.App.1991), we answered that question in the affirmative and held that multiple convictions resulting from the misjoinder of two non-property offenses in an indictment may be challenged on habeas corpus. See also, Ex parte Cravens, 805 S.W.2d 790 (Tex.Cr.App.1991), Ex parte Broyles, 759 S.W.2d 674 (Tex.Cr.App.1988), and, Ex parte Siller, supra. Consequently, we must next determine whether applicant is entitled to relief.

Habeas corpus is an extraordinary remedy and, consequently, is available only when there is no other adequate remedy at law. Ex parte Groves, 571 S.W.2d 888, 889 (Tex.Cr.App.1978), and, Ex parte Wilcox, 128 Tex.Cr.R. 146, 79 S.W.2d 321 (Tex.Cr.App.1935). See also, Ex parte Rathmell, 717 S.W.2d 33, 49 (Tex.Cr.App.1986) (Onion, P.J., dissenting). Because of the unique nature of the remedy, habeas corpus relief is underscored by elements of fairness and equity. See, Ex parte Eureste, 725 S.W.2d 214, 217 (Tex.Cr.App.1987) (Clinton, J., dissenting). As a general rule, a post-conviction writ of habeas corpus is reserved for those instances in which there was a jurisdictional defect in the trial court which renders the judgment void or for denials of fundamental or constitutional rights. State ex rel. Holmes v. Third Court of App., 885 S.W.2d 389, 397 (Tex.Cr.App.1994); Ex parte Sadberry, 864 S.W.2d 541, 542 (Tex.Cr.App.1993); and, Ex parte Goodman, 816 S.W.2d 383, 385 (Tex.Cr.App.1991).

The State contends consideration of this issue is precluded by our decision in Drake, supra. Although habeas corpus should generally not be used to re-litigate matters which were addressed on appeal, Ex parte Schuessler, 846 S.W.2d 850, 852, n. 6 (Tex.Cr.App.1993), a previously litigated issue is subject to collateral attack where our prior judgment is subsequently rendered void or where we have decided to apply relief retroactively after a subsequent change in the law. See, id., and, Ex parte Stuart, 653 S.W.2d 13 (Tex.Cr.App.1983).

In Ex parte Schuessler, we granted habeas relief because Sehuessler’s original conviction was subsequently held to be void. Following his conviction for murder, the Court of Appeals reversed Schuessler’s conviction and remanded for a new trial on the ground that the jury’s rejection of Schuessler’s insanity defense was against the great weight and preponderance of the evidence. Schuessler v. State, 647 S.W.2d 742, 749 (Tex.App.—El Paso 1983). On the State’s petition, we reversed the Court of Appeals, holding that Court erred by conducting a factual sufficiency review rather than a legal sufficiency review. Schuessler v. State, 719 S.W.2d 320, 321 (Tex.Cr.App.1986) (op. on reh’g). We then concluded the evidence was legally sufficient to support the jury’s verdict of guilt. Id., at 328-330. However, four years later, in Meraz v. State, 785 S.W.2d 146 (Tex.Cr.App.1990), we expressly overruled Schues-sler, holding we had usurped the fact-finding jurisdiction of the courts of appeals in violation of the Texas Constitution. Meraz, 785 S.W.2d at 154-155.

Schuessler subsequently sought to reinstate the judgment of the Court of Appeals through a post-conviction writ of habeas corpus. Ex parte Schuessler, 846 S.W.2d 850. We initially noted that our opinion on discretionary review was not simply erroneous but void because we lacked the jurisdiction to review the court of appeals’ evidentiary review. Id., at 852. While Schuessler would not be entitled to relief from a prior decision which was subsequently determined to be erroneous, he would be entitled to relief from one which was subsequently determined to be void. Id. Consequently, because our opinion on discretionary review was void, we held that Schuessler was entitled to relief. Id., at 853 (citing Ex parte Kirby, 626 S.W.2d 533, 534 (Tex.Cr.App.1981)).

Similarly, we have also granted habeas relief after rejecting similar claims on discretionary review and collateral attack. In Ex parte Stuart, 653 S.W.2d 13, the defendant challenged his conviction, and the prior convictions used to enhance it, through numerous applications for writ of habeas corpus. Id. At one point, we cited Stuart for abuse of the writ process. Id. Seven years after his conviction, Stuart again sought habeas relief, challenging the use of the prior convictions to enhance his sentence. Id., at 14. We found that Stuart’s claims had merit in light of changes in the law following our affirmance of his conviction. Id. We then held that under Cooper v. State, 631 S.W.2d 508 (Tex.Cr.App.1982), and, Ex parte Augusta, 639 S.W.2d 481 (Tex.Cr.App.1982), Stuart was entitled to relief retroactively. Id., 653 S.W.2d at 14-15.

Thus, it is readily apparent in light of Schuessler and Stuart, that previous litigation of an issue does not necessarily bar its reconsideration on habeas corpus. In Fortune, we made clear that the State had no authority to allege more than one offense in a single indictment and, therefore, the trial judge was without the legal power to enter judgments and impose sentence on more than one offense in a single indictment. Fortune, 745 S.W.2d at 370. See also, Johnson, 784 S.W.2d at 49-50. As a result, any conviction in excess of one per indictment was void. In Ex parte Cravens, 805 S.W.2d 790, and, Ex parte Broyles, 759 S.W.2d 674, we granted habeas relief retroactively to defendants whose multiple convictions for mis-joined offenses became final prior to our decision in Fortune. Thus, applicant, like Cravens and Broyles, was improperly convicted of the second offense alleged in his indictment. Consequently, it would be unjust, considering our explicit rejection of Drake, to deny applicant relief while granting that same relief to Cravens and Broyles. Therefore, applicant is entitled to relief.

III.

Accordingly, applicant is entitled to a dismissal of one of the offenses for which he was convicted. In Ex parte Pena, 820 S.W.2d 806, we adopted the “most serious offense” test to determine which offense to dismiss. Id., at 809. However, in the instant case, both offenses for which applicant was convicted are the same, as are the punishments assessed. By contrast, in Holcomb, we noted that “in the majority of cases this Court has chosen [to uphold] the offense that the defendant was convicted of first.” Id., 745 S.W.2d at 908 (citing Ex parte Ellison, 699 S.W.2d 218 (Tex.Cr.App.1985), and, Ex parte Siller, supra). See also, Broyles, 759 S.W.2d at 675-676. Therefore, the judgment and sentence imposed under count two in Cause No. 82-313-C is vacated and set aside. The judgment, as reformed, shall reflect only a conviction for the offense alleged in count one, paragraph one of the indictment.

It is so ordered.

MEYERS, J., dissents.

1 . As opposed to the misjoinder of offenses arising from different criminal transactions, which required an objection or the error was waived, a complaint concerning misjoined offenses arising from the same criminal transaction could not be waived by failing to object. Drake, 686 S.W.2d at 944. The plurality explained that since there is essentially "only one resultant offense of which the accused may be convicted and for which one may be punished” when multiple offenses arise from the same transaction, an objection to mis-joined offenses would be unnecessary because the trial judge would be " ‘without legal authority' to enter judgment and impose sentence for more than one offense.” Id. (quoting Ex parte Easley, 490 S.W.2d 570, 571 (Tex.Cr.App.1972)).

2 . Judge Teague initially noted the inconsistency between Drake and Sitter and suggested Drake be overruled. Sitter, 686 S.W.2d at 622 (Teague, I., concurring).