Pickett, Kelly C AKA Pickett, Kelly Cekimber ( 2023 )

In the Court of Criminal
Appeals of Texas
══════════
No. WR-84,586-04
══════════
EX PARTE KELLY CEKIMBER PICKETT,
Applicant
═══════════════════════════════════════
On Application for a Writ of Habeas Corpus
Cause No. 007-1489-17-A in the 7th District Court
From Smith County
═══════════════════════════════════════
YEARY, J., filed a dissenting opinion, in which SLAUGHTER, J.
joined.
In 2018, Applicant pled guilty to two offenses based on stealing
the same truck. Applicant pled guilty to theft and was sentenced to
twelve years’ imprisonment. On the same day, Applicant pled guilty to
unauthorized use of a motor vehicle with a concurrent sentence of seven
years’ imprisonment. Applicant did not appeal his convictions. In June
PICKETT – 2
of 2022, Applicant filed an application for writ of habeas corpus in the
county of conviction. TEX. CODE CRIM. PROC. art. 11.07. In his
application, he contends that his unauthorized use of a motor vehicle
conviction violates the Double Jeopardy Clause of the United States
Constitution. Applicant also claims that he received ineffective
assistance from plea counsel for, among other things, failing to object on
double jeopardy grounds. Today the Court grants Applicant relief on his
substantive double jeopardy claim. The Court does not address the
merits of Applicant’s ineffective assistance of counsel claim.
As I have expressed before, I believe that a double jeopardy claim
should not ordinarily be cognizable in a post-conviction application for
writ of habeas corpus. See Ex parte Estrada, 487 S.W.3d 210, 215 (Tex.
Crim. App. 2016) (Yeary, J., dissenting) (“I believe double jeopardy more
appropriately belongs in Marin’s second category of waiver-only rights.
That means it can ordinarily be raised for the first time on appeal as
long as it has not been affirmatively waived . . .. But it should not
ordinarily be regarded as cognizable in a post-conviction application for
writ of habeas corpus[.]”) (citing Marin v. State, 851 S.W.2d 275 (Tex.
Crim. App. 1993)).
Accordingly, the more appropriate disposition for this application
would be to address whether Applicant is entitled to relief on his
ineffective assistance of counsel claim. This would entail remanding to
the convicting court to obtain a response from counsel with respect to
why he did not object based on double jeopardy to the indictment for
unauthorized use of a motor vehicle.
Because the Court grants relief based on Applicant’s double
PICKETT – 3
jeopardy claim without considering whether the claim is even cognizable
in a post-conviction application for writ of habeas corpus, and because
the Court fails to remand for further fact development with respect to
Applicant’s ineffective assistance of counsel claim, I respectfully dissent.
FILED: February 15, 2023
DO NOT PUBLISH