Milner, Ex Parte Kenneth Glenn, 394 S.W.3d 502

Applicant pled guilty to counts 2404 and 2405 (attempted capital murder) and count 2379 (murder) under a single plea-bargain, receiving consecutive life sentences.
Cause Nos. 2404 and 2405 each allege attempted capital murder; the deaths of Frankie Garcia were involved in both schemes.
The trial court previously denied relief; current application is the sixth habeas petition challenging the specific conviction in 2405.
Applicant contends the 2405 conviction violates the Double Jeopardy Clause by punishment for the same offense under two convictions for the same statutory provision.
Court considers whether the application is procedurally barred and, if not, whether applicant is actually innocent of the 2405 offense under art. 11.07, §4(a)(2).
Court ultimately holds that the 2405 conviction is barred by double jeopardy and grants relief, vacating 2405 and directing acquittal; dissenting view argues for different remedy.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether 2405 violates double jeopardy.	Milner asserts two attempts under same statute; punishment twice.	State contends two offenses require multiple victims under statute; unit of prosecution supports two convictions.	Yes; 2405 violates double jeopardy; acquittal remedy granted.
Whether the writ is procedurally available despite Art. 11.07, §4.	Subsequent writ could bypass §4 if innocence shown.	§4 bars second petitions absent §4(a)(2) showing; argues jurisdiction under innocence gateway.	Yes; Court has jurisdiction under §4(a)(2) due to actual innocence showing.
What is the appropriate unit of prosecution for attempted capital murder under §19.03(a)(7)(B) and §15.01.	Attempted capital murder units align with traditional assault units; multiple victims require separate offenses.	Mass-murder framework implies two or more victims create a single capital-murder count; unit is more than one victim.	Unit is the attempted murders of more than one person in the same scheme or course of conduct; counts can be limited to one conviction.

Saenz v. State, 166 S.W.3d 270 (Tex. Crim. App. 2005) (addressed capital murder units under §19.03(a)(7)(A)/(B); unit is multi-victim)
Sanabria v. United States, 437 U.S. 54 (U.S. 1978) (introduced allowable unit of prosecution and complex double-jeopardy analysis)
Corwin v. State, 870 S.W.2d 23 (Tex. Crim. App. 1993) (statutory construction on capital murder; attempted capital murder unit tied to the offense attempted)
Ball v. United States, 470 U.S. 856 (U.S. 1985) (multi-count indictment; separate convictions barred when same offense requires single unit)
Milner v. Johnson, No. 99-10461, 2000 WL 293963 (5th Cir. 2000) (5th Cir. 2000) (discussed innocence gateway and remand remedies in subsequent writs)
Ex parte Hawkins, 6 S.W.3d 554 (Tex. Crim. App. 1999) (precedent on double jeopardy and habeas corpus)
Ex parte Ervin, 991 S.W.2d 804 (Tex. Crim. App. 1999) (discussed related double-jeopardy and procedural considerations)
Ex parte Knipp, 236 S.W.3d 214 (Tex. Crim. App. 2007) (meritorious double-jeopardy claim in a subsequent writ with actual innocence showing)
Ex parte Brodies, 219 S.W.3d 396 (Tex. Crim. App. 2007) (dual considerations in post-conviction double-jeopardy relief)
United States v. Dixon, 273 F.3d 636 (5th Cir. 2001) ( Fifth Circuit interpretation of double jeopardy in unified offenses)
United States v. Reagan, 596 F.3d 251 (5th Cir. 2010) (allowable unit of prosecution for scheme-based offenses)