NO. 73,548






Meyers, J., delivered a concurring opinion.


Applicant pleaded guilty to two separate indictments. The first indictment alleged that he committed aggravated robbery of Gilberto Trevino, III, on or about January 3, 1993. The second alleged that he committed aggravated robbery of Chris Shipman on the same date. Based on applicant's guilty pleas, the trial court sentenced him to two concurrent life terms.

Applicant argues on collateral attack that each indictment alleged the "same offense," inasmuch as each involved the same underlying theft. He therefore maintains that he is being punished twice for the same offense in violation of the Double Jeopardy Clause of the Federal Constitution.

By pleading guilty to two separate indictments, applicant conceded guilt to two separate offenses and thereby affirmatively relinquished his right to assert a double jeopardy claim on collateral attack. United States v. Broce, 488 U.S. 563, 109 S. Ct. 757, 102 L. Ed. 2d 927 (1989). Broce is directly on point with the facts of this case. The defendants in Broce were charged in separate indictments with "concerted acts to rig bids and suppress competition in violation of the Sherman Act." Id. at 565-68, 109 S. Ct. at 760-62. They later pleaded guilty to the two indictments in a single proceeding. Id. Convictions were entered on the pleas and the District Court sentenced Broce to concurrent sentences and a fine on each count. Id. On collateral attack, the Broce defendants sought to vacate their sentences on the ground that the bid-rigging schemes alleged in each indictment was but a single conspiracy. Id. They therefore maintained that they were being punished twice for a single conspiracy in violation of the Fifth Amendment's Double Jeopardy Clause. The Tenth Circuit granted relief, noting that while double jeopardy protection could be waived, the defendants' guilty pleas did not constitute such a waiver. Id.

The Supreme Court reversed the judgment of the Court of Appeals, holding that the defendants' double jeopardy claim was barred in light of their guilty pleas to the two indictments. Id. The Court concluded that the nature of a guilty plea foreclosed any opportunity to collaterally attack the basis for conviction where the pleas were for facially distinct offenses. Specifically, the Court wrote: "Just as a defendant who pleads guilty to a single count admits guilt to the specified offense, so too does a defendant who pleads guilty to two counts with facial allegations of distinct offenses concede that he has committed two separate crimes." Id., at 570, 109 S. Ct. at 763. Moreover, the Court held that the fact that the defendants did not specifically and consciously waive their rights to be free from double jeopardy was of no consequence. The Court suggested that the relinquishment of those rights was implicit in the defendants' counseled pleas of guilty. See id., at 573-74, 109 S. Ct. 764 ("Relinquishment derives not from any inquiry into a defendant's subjective understanding of the range of potential defenses, but from the admissions necessarily made upon entry of a voluntary plea of guilty"). In other words, by entering guilty pleas to the two indictments, the Broce defendants conceded guilt to each offense and affirmatively relinquished all defenses that were inconsistent with that plea.(1) Thus, the only grounds still open to those defendants was an attack directly on the voluntary and intelligent nature of the guilty plea itself. Because the defendants made no such claims, the Court concluded that they were not entitled to relief. Id., at 574, 109 S. Ct. at 765.

The application at bar is governed by the principles articulated in Broce. Applicant affirmatively relinquished any double jeopardy protection when he made his knowing and intelligent plea of guilty to two facially distinct indictments. "A failure by counsel to provide advice may form the basis of a claim of ineffective assistance of counsel, but absent such a claim it cannot serve as the predicate for setting aside a valid plea." Id. Therefore, the majority has no business reaching the merits of applicant's jeopardy arguments. Based on the Supreme Court's holding in Broce, I would deny relief. I concur only in the Court's judgment.


Delivered: December 8, 1999


1. The Fifth Amendment's double jeopardy protection "represents a fundamental ideal in our constitutional heritage." Benton v. Maryland, 395 U.S. 784, 797, 89 S. Ct. 2056, 2062, 23 L. Ed. 2d 707 (1969). As a fundamental right, that protection is not subject to the restrictions of the general rule of procedural default and is not subject to waiver strictly because a defendant failed to object at trial. See Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App. 1993). Instead, in order for a defendant to relinquish his rights under the Double Jeopardy Clause, he must make some sort of explicit waiver of those rights. See Green v. United States, 355 U.S. 184, 191-92, 78 S. Ct. 221, 225-26, 2 L. Ed. 2d 199 (1957). However, as Broce illustrates, that relinquishment need not be a conscious waiver of the specific defense of double jeopardy. Instead, in order to "waive" his rights under the Double Jeopardy Clause within the meaning of Marin, a defendant must take some affirmative action inconsistent with those constitutional rights. See, e.g., Ricketts v. Adamson, 483 U.S. 1, 107 S. Ct. 2680, 97 L. Ed. 2d 1 (1987) (defendant breached plea agreement entered into knowingly and voluntarily that explicitly conditioned defendant's more lenient sentence on agreement to testify against co-defendants); United States v. Scott, 437 U.S. 82, 98-99, 98 S. Ct. 2187, 2197-98, 57 L. Ed. 2d 65 (1978) (defendant successfully moved to dismiss indictment "on a basis unrelated to factual guilt or innocence of the offense of which he is accused"); Jeffers v. United States, 432 U.S. 137, 152-53, 97 S. Ct. 2207, 2217-18, 53 L. Ed. 2d 168 (1977) (plurality opinion) (defendant successfully opposed Government's motion to consolidate two offenses into one trial); United States v. Dinitz, 424 U.S. 600, 609-10, 96 S. Ct. 1075, 1080-81, 47 L. Ed. 2d 267 (1976) (defendant successfully moved for mistrial); see also United States v. Devine, 934 F.2d 1325, 1342-43 (5th Cir. 1991) (holding defendant did not waive protection against multiple punishments because "no evidence of any affirmative act [by defendant] that might be construed as a voluntary and knowing waiver of [that right]"). Where a defendant takes no affirmative action that could be construed as a "waiver," this Court has repeatedly been willing to address the merits of a double jeopardy claim for the first time in a writ petition. See Ex parte Ervin, 991 S.W.2d 804 (Tex. Crim. App. 1999); Ex parte Evans, 530 S.W.2d 589, 591 (Tex. Crim. App. 1975).