Timmons, Tevares ( 2021 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-92,604-02
EX PARTE TEVARES TIMMONS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 114-80390-99-A IN THE 114TH DISTRICT COURT
FROM SMITH COUNTY
Per curiam. Yeary, J., filed a dissenting opinion joined by Keller, P.J.
OPINION
Applicant filed this application for a writ of habeas corpus in the county of conviction, and
the district clerk forwarded it to this Court. See TEX . CODE CRIM . PROC . art. 11.07. It concerns
Applicant’s conviction for aggravated robbery.
The State, in 1999, charged Applicant with three offenses: engaging in organized criminal
activity; possession of 50 to 2000 pounds of marihuana; and aggravated robbery. A jury convicted
him of engaging in organized criminal activity and assessed a 35-year sentence. Two months later,
Applicant pled guilty without plea agreements to the aggravated robbery and marihuana possession
charges, and the trial court imposed two 45-year sentences. All the sentences are running
concurrently. Applicant did not appeal.
2
In habeas, Applicant contends his conviction for aggravated robbery is barred by double
jeopardy, so he is actually innocent of the offense, and he argues his guilty plea was not voluntary due
to trial counsel’s failure to realize this fact. Applicant is correct regarding double jeopardy as to the
aggravated robbery conviction, and the State concedes the aggravated robbery conviction should be
vacated. See Ex parte Chaddock, 369 S.W.3d 880 (Tex. Crim. App. 2012) (double jeopardy
prevented prosecution for aggravated assault because the defendant was convicted of engaging in
organized criminal activity with the same aggravated assault as the predicate offense). This Court’s
independent review of the record shows that Applicant involuntarily pled guilty to aggravated robbery
because the prosecution was barred by double jeopardy. Applicant, however, is not actually innocent
of the offense. Indeed, the jury found that Applicant committed the offense when it found him guilty
of engaging in organized criminal activity in which the aggravated robbery was the predicate offense.
Relief is granted. The judgment for aggravated robbery in cause number 114-80390-99 in the
114th District Court of Smith County is vacated. The trial court shall issue any necessary orders
within ten days from the date of this Court’s mandate.
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: September 22, 2021
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