Turner, Donald Allen
PD-0870-17
| Tex. App. | Oct 20, 2017Background
- Turner was charged in 1989 in Midland County on two 10‑count indictments (aggravated sexual assault and indecency with a child); a hung jury in the first prosecution preceded a re‑indictment and deferred adjudication that was later revoked.
- Turner was later convicted in El Paso (2004) on two counts of indecency with a child and sentenced to life; he challenges multiple convictions and enhancements across cases and raises double‑jeopardy and ineffective‑assistance claims.
- Central factual contention: many charged acts arose from the same date (April 16, 1989) and overlapping complainants; Turner contends the acts were a single continuous impulse and therefore punishable only once (units/merger/subsumption theory).
- Turner argues trial counsel was ineffective for failing to quash indictments on double‑jeopardy grounds, to demand a State election, to investigate unitization/merger issues, and to challenge use of prior convictions for enhancement under Apprendi principles.
- Procedural posture: Turner filed untimely notices of appeal decades after sentence; the Texas courts of appeals dismissed the appeals for lack of jurisdiction. Turner filed a petition for discretionary review asserting the substantive double‑jeopardy and counsel‑ineffectiveness claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether indecency and aggravated sexual‑assault counts are the same offense (Blockburger elements test) | Turner: the offenses are the same under an elements analysis; convictions thus violate double jeopardy | State: prosecutions and convictions are valid; procedural defenses / separate statutory elements | Appellate courts did not reach merits — appeals dismissed as untimely; record materials argue they are the same under elements but no appellate relief granted due to jurisdictional dismissal |
| Whether the charged acts merge under the units / single‑impulse (subsumption) doctrine | Turner: discrete acts all arose from the same day/impulse and therefore merge; Patterson/subsumption should control | State: prosecutions proceeded on distinct counts/dates; election and proof choices supported separate prosecutions | The memorandum argues the units analysis favors Turner, but appellate courts dismissed the appeal for lack of jurisdiction and therefore did not resolve the subsumption claim on the merits |
| Whether collateral estoppel (Ashe) bars retrial or re‑prosecution of specific facts | Turner: prior proceedings/hung jury and factual findings preclude re‑litigation of discrete facts | State: finality and procedural posture do not support estoppel; alternative procedural defenses | Court of appeals did not decide collateral estoppel; briefing asserts Ashe principles but appeal was dismissed as untimely |
| Whether counsel was ineffective for failing to quash indictments, demand election, investigate priors, and prevent unconstitutional sentence enhancement (Apprendi) | Turner: counsel’s pretrial and sentencing failures deprived him of effective assistance and led to multiple punishments and improper enhancement | State: procedural default and timeliness issues; prior conviction properly used per trial court findings | Courts dismissed the appeal for want of jurisdiction; ineffective‑assistance and Apprendi‑type enhancement complaints were presented but not resolved on the merits by the appellate courts |
Key Cases Cited
- Blockburger v. United States, 284 U.S. 299 (1932) (test for whether two statutory offenses are the same for double‑jeopardy purposes)
- Ashe v. Swenson, 397 U.S. 436 (1970) (collateral estoppel as part of double‑jeopardy protection)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing statutory maximum must be submitted to a jury beyond a reasonable doubt)
- Carmell v. Texas, 529 U.S. 513 (2000) (construction and retroactivity limits on statutes permitting conviction on uncorroborated child‑victim testimony)
- Garfias v. State, 424 S.W.3d 54 (Tex. Crim. App. 2014) (same‑offense analysis and merger/unit questions in Texas)
- Aekins v. State, 447 S.W.3d 270 (Tex. Crim. App. 2014) (discussion of units of prosecution and reliance on record/evidence when pleadings are ambiguous)
- Ex parte Amador, 326 S.W.3d 202 (Tex. Crim. App. 2010) (double‑jeopardy and multiple‑punishment principles)