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
Per curiam. YEARY , J. filed a dissenting opinion joined by SLAUGHTER , J.
OPINION
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the
clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to theft, in Cause
No. 007-1488-17, and was sentenced to twelve years’ imprisonment. That same day, Applicant also
pleaded guilty to unauthorized use of a motor vehicle, in this case, Cause No. 007-1489-17, and was
sentenced to seven years’ imprisonment. Applicant did not appeal his convictions.
Applicant contends, among other things, that his unauthorized use of a motor vehicle
conviction in Cause No. 007-1489-17 violates the Double Jeopardy Clause of the United States
Constitution. The State agrees that Applicant is entitled to double jeopardy relief. The trial court
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determined that Applicant was convicted of both theft and unauthorized use of a motor vehicle for
stealing the same truck and that a defendant cannot be rightfully convicted for both truck theft and
unauthorized use of that same truck, because unauthorized use is a lesser-included offense of theft.
The trial court, therefore, found that Applicant’s conviction in Cause No. 007-1489-17 should be
vacated because it violates his protection against double jeopardy.
We agree. Relief is granted. Ex parte Jefferson, 681 S.W.2d 33, 34 (Tex. Crim. App. 1984).
The judgment in cause number 007-1489-17 in the 7th District Court of Smith County is set aside.
Applicant’s remaining claims in this application are denied. In a separate action, this Court denied
relief in WR-84,586-03 relating to cause number 007-1488-17.
Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional
Institutions Division and the Board of Pardons and Paroles.
Delivered: FEBRUARY 15, 2023
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