*1 Glenn Parte Kenneth MILNER, Applicant.
No. AP-76481. of Texas. Appeals
Court of Criminal 13, 2013.
Feb. *2 Milner,
Kenneth Glenn se. pro Amarillo, Levi L. Spriggs, for Kenneth Glenn Milner.
Luke McLean Inman State. OPINION JOHNSON, J., opinion delivered MEYERS, PRICE, the Court in which KEASLER, HERVEY, COCHRAN, and ALCALÁ, JJ., joined.
Pursuant
to the
of Article
11.07 of the Texas
Criminal
Code of
Proce-
dure, the
court
clerk
the trial
transmit-
ted to this
for writ
application
corpus.
of habeas
parte Young,
(Tex.Crim.App.1967). Ap-
guilty
at-
plicant plead
to two counts of
tempted
capital murder and
count
imposed
murder.
trial
separate
and cumulative life
con-
sentences
each
appeal.
viction.
did not
subsequent
corpus,
In a
writ of habeas
applicant’s murder conviction was deter-
jeopardy.1
mined to be barred
double
February
Appeals
On
the United States
Court of
Fifth Circuit
vacated
review,
ground
After
we sustain the first
can be
contends
he
He now
and third
attempted capi-
not reach the second
alleged
do
only one
convic-
grounds
conviction
the second
hold
tal murders because
*3
Clause of the
Jeopardy
Double
in Cause
attempted capital
violates the
tion for
murder
and the Due Process
Amendment
Jeopardy
Fifth
No.
the Double
2405 violates
Amendment
of the Fourteenth
Clause
of
the Fifth Amendment
the
Clause of
trial
Constitution. The
the United States
has
Applicant
States Constitution.
United
findings
fact and conclu-
of
court entered
actually
of
proven that he is
innocent
the
application for
previous
of
on a
sions
law
capital
attempted
conviction for
second
challenged the
corpus
that
writ
murder,
that,
for a violation
the
and
but
conviction, but did
capital-murder
same
Constitution,
ju-
rational
States
no
United
findings
for the
hearing
hold a
enter
not
beyond
guilty
ror
have found him
could
and
this
We filed
set
application.
current
Therefore,
re-
grant
doubt.
we
reasonable
deter-
application
writ
submission
lief.
mine:
1)
actually innocent
applicant is
whether
History
Procedural
applicable
violated the
having
twice
indict-
applicant
of a violation
No.
was
penal code statute because
In Cause
3)3
(Count
and
Jeopardy protection
the
Double
ed
one count of murder
that
guarantee of the United States Constitu-
applicant knowingly
that
and inten-
alleged
tion,
therefore,
a violation of
and
absent
of Frankie Gar-
tionally caused the death
Constitution,
juror
no
rational
by shooting
cia
him with
firearm.
In
beyond
applicant
have found
indicted for
applicant
Cause No.
having
twice violat-
reasonable doubt
murder,
that
capital
alleging
he
attempted
statute;
penal
code
applicable
ed
Jimmy
to murder
Britten and
attempted
and
course of
same scheme and
2)
legal
applicant’s
whether the
basis
conduct, applicant caused the death of
was available to
double-jeopardy claim
2405, appli-
Frankie Garcia. In Cause No.
previous
ap-
in his three
writ
applicant
capital
attempted
cant was indicted for
2
plications; and
murder, alleging
attempted
that he
and,
3)
11.07,
Kenneth
in the same
murder
Williams
of art.
whether the
conduct,
case,
applicant
and
scheme
course
applied
particular
as
this
caused the death of Frankie Garcia.
are unconstitutional.
prior ap-
Although applicant
No.
concedes
murder conviction
Cause
2379, holding
plications,
that the conviction violated
indicate
the records of
Clause,
Fifth Amendment’s Double
applications.
previous
has
five
that he
filed
Dixon,
interpreted in
v.
be-
United States
aggravating ele-
cause the murder was the
included two counts of
This indictment also
Nos.
ment
2404
(Counts
2),
capital murder
1 and
state
double-jeopar-
held that the
federal court also
quashed
count
trial court
dismissed
by applicant's
dy
not
violation was
waived
alleged
applicant
2
2. Counts and
count
Johnson,
99-10461,
guilty plea.
Milner
No.
capital
by killing
murder
Frankie
committed
Cir.2000).
(5th
WL
Because
committing or at-
Garcia in the course of
part
already
federal
has
vacated
court
burglary.
kidnapping
tempting to commit
agreement, nothing
here
plea
we do
can undo
original
agreement
place
plea
parties
position they were in before
in the
pleas were entered.
plications
plea bargain, applicant
Pursuant
to a
He alternatively
were filed.
plead guilty
to the
mur-
challenges the constitutionality of that arti-
ders in Cause Nos.
and 2405 and to
cle if
precludes
we determine that it
con-
(Count 3)
in Cause
2379 and
No.
subsequent
sideration of this
writ. We
was assessed consecutive life sentences in need not
questions
reach these
we
because
pleas
each cause. The three
were entered
conclude that
has shown that this
in separate proceedings
consec-
conducted
jurisdiction
to consider his sub-
day.
on the
utively
did
sequent
on the
writ
basis of
evidence
appeal
his convictions.
he
actually
innocent
offense.
*4
Applicant
the current application,
filed
4(a)
11.07, §
Article
states that
sixth,
1,
his
in the trial court on December
(a)
subsequent
If a
application for writ
2010. was
It
transmitted
this Court on
corpus
habeas
is filed after
dis-
final
January
set for
submission
position
anof
initial application challeng-
26,
January
application, ap-
2011. In this
conviction,
ing the same
a
may
claim,
plicant
double-jeopardy
raises a
ar-
consider the merits
or grant
relief
that,
2405,
in
No.
he
guing
based on the subsequent application un-
subjected to a
prosecution
second
for a
application
less the
contains sufficient
single
penal
violation of the same
statute
specific
establishing
facts
that:
murder)
(attempted
and conse-
(1)
quently
separate
assessed two
and cumula-
the current claims and
have
issues
tive
imprisonment
terms
for
same
not been and could not have been
offense.
contends that
this is
presented
previously
original ap-
an
contrary
legislative
intent for this
plication or
previously
in a
considered
that,
applying
offense and
instead of
application filed
this
be-
article
proper
of review
standard
for
legal
cause the factual or
basis
for
initial double-jeopardy claim—“allowable
claim was unavailable on the date the
prosecution”4
units of
habeas court
claim;
—the
applicant
previous
filed the
incorrectly
applied
Blockburger5
(2) by
preponderance
a
evi-
test,
“same-elements”
not ap-
dence,
but
a violation of
Unit-
ply
charge
cases
two violations of
ju-
ed States Constitution no rational
statutory provision.
ror could have
the applicant
found
beyond a
reasonable doubt.
Authority
Court’s
This
to Consider
Applicant’s Subsequent Writ
that,
recognized
This Court has
that,
application
even if an
does not
Applicant argues
meet
although
is a
4(a)(1),
requirements
§
subsequent
a
subsequent application for
writ
corpus,
application
it
for writ of habeas corpus
should not be procedurally
11.07,
procedural
barred
overcome the
bar of
Code Criminal Procedure
art.
11.07,
4,
4,§
art.
if an applicant
because the
basis for
can show a constitu
legal
not yet recognized by
relief was
tional
the require
this Court
violation
fulfills
4(a)(2).6
previously
when the
ap-
considered habeas
ments of
In order to show that
States,
54,
States,
299,
4. Sanabria v.
69-
Blockburger
United
437 U.S.
United
284 U.S.
(1932).
(1978);
52 S.Ct.
76 L.Ed.
S.Ct.
the double-jeopardy prohibition against
Analysis
multiple punishments for the same offense.
agreed
The court of appeals
and rendered
In Cause
Nos.
judgments of
acquittal
two of his con-
attempted capi
was convicted of
victions. This Court affirmed the court of
tal murder under
Penal
Code
appeals and
the aggravating
noted that
(criminal
§§
attempt)
15.01
circumstance
raises
the murder
murder).
19.03(a)(7)(B) (capital
A plain
*6
charge
capital murder under section
reading
capital-murder
of
statute
19.03(a)(7)(A)
killing
is
“more than one
that, in
shows
order to be
pursu
convicted
person during the same criminal transac-
19.03(a)(7)(B),
ant to section
a defendant
22
tion.” We
the legislative
examined
his-
must
both
commit
a murder under Texas
tory
portion
of this
the capital
of
murder
19.02(b)(1)
§
Penal
and at
one
Code
least
statute and
legislators
noted that
“under-
during
additional murder
different crimi
stood the statute
transactions,
single
to allow for a
nal
pursuant
to the same
capital murder when the
unit
allowable
of
scheme
course of
Similarly,
conduct.
prosecution of
one’
‘more than
murder was
capital
charge
pursuant
murder
to sec
19.03(a)(7)(A)
met.”23 We concluded that the allowable
tion
requires multiple homi
prosecution
capital
unit of
un-
cides in
same
murder
criminal transaction.18
19.03(a)(7)(A)
Therefore, in
der section
killing
order
capi
to be convicted of
19.03(a)(7),
persons.
only
tal
two or more
murder under section
de
We held that
fendant must kill
one
Saenz’s capital-murder
“more than one
convictions
per
19
son.”
all
could
capital
While
other cases of
be sustained because two murders
prosecution
murder allow for a
for each
had to be shown to
mur-
capital
establish
victim,
19.03(a)(7)(A);
individual
these two
of der under section
the State
Ervin,
(Tex.
19.03(a)(7).
parte
15. Ex
807
19. Tex. Penal Code
States,
Crim.App.1999); see
v. United
470
Ball
856, 861,
U.S.
105 S.Ct.
L.Ed.2d
20.
Id.
(1985).
Saenz,
establish section capital tions.24 murder 19.03(a)(7)(B), prose- the allowable unit argues The that Saenz state individu- cution for this statute is not each section specifically tailored al, killing more than one individ- but the 19.03(a)(7)(A) during (multiple murders argues ual. The state that the transaction) notes a difference in Cause Nos. 2404 and 2405— murders between section section murders —were assaul- completed unlike 19.03(a)(7)(B)(multiple part of murders as therefore, It contends tive nature. conduct); continuing scheme or course be prosecution the allowable unit of should offenses, the allowable like other assault the same as other assault offenses.28 (B) is unit of subsection fail each individual victim. We to find charge applicant The with state chose state differentiation in Saenz to which the attempted capital murder under sections only refers. mention of section 19.03(a)(7)(B) statutory and 15.01. The 19.03(a)(7)(B) similarity Saenz notes attempt, Texas Penal text for criminal all between the two subsections: unlike 15.01, states that Code murders, capital require other (a) if, an person A commits offense victim, capital-mur both of these two offense, specific intent to commit an he require der least mur subsections at amounting act to more than does an a single ders to constitute offense. We mere that tends but fails to preparation stated, of ... exception ‘With the Section in- effect the commission the offense 19.03(a)(7)(B) (multiple commit murders tended. during but as ted different transactions (b) attempts person If a an offense conduct), ..., part of the same course of aggravated, be his conduct all other in which cases attempt an to commit the *7 constitutes charged may apply be ... all in situa if aggravated offense an element where victim been tions one aggravates accompanies offense aggravating killed.”25 The of sec element attempt. 19.03(a)(7)(B) per tion is “more than one criminal-attempt The text during son criminal transactions different an allowable unit of statute does define pursuant ... committed to the same nor it prosecution, change allow Thus, or for scheme course conduct.”26 prosecution able unit of of the offense at under Section murder tempted. attempt a criminal 19.03(a)(7)(B), Given that must that at allege state simply commit an is an act offense least two murders were committed: an amounting preparation to more than mere intentional murder under section 19.02(b)(1) offense, we at least mur of the intended find that crimi and one additional aggravating nal-attempt acquire der as the circumstance.27 offenses their allow- We is an assault that 24. id. 28. note murder 19.01(a) § in death. Tex. Penal Code results Saenz, 25. 272-73. 166 S.W.3d at (“A person criminal homicide if he commits intentionally, knowingly recklessly, or with 19.03(a)(7)(B); 26. Tex. see Penal Code negligence causes the death of an criminal Saenz, 166 at S.W.3d 19.01(b) individual''); Penal Code Tex. murder,_”). ("Criminal id. homicide is hearing from the offense able unit of House Committee on Crimi- revised, attempted.29 Jurisprudence33 The fact that several federal nal as sub- (A) statutes, make it a crime to commit section was meant to enable the state offense, attempt penalty to commit a certain to seek the against death mass murderers, unit prosecu- have the same allowable such as terrorist attacks or the once, of- attempted completed tion for the of a killing people number at while (B) principle.30 fense is indicative this subsection meant to do the same for serial murderers.34 Based statutory explained As Cor- intent, construction and legislative we con- (B) win, 19.03(a)(7)(A) sections were clude that allowable unit of prosecution drafted, presented, entered into the attempted capital murder under sec- together Code as Penal means 19.08(a)(7)(B) tions and 15.01 is the at- seek the murd penalty against death mass tempted per- murders of “more one than drafted, No originally erers.31 As as of son” in the same scheme or course of (H.B. vember Texas House Bill 8 conduct, attempted killing and the of more 8) did not differentiate between the person than one allows the to charge state simply made it a capital subsections single count of capital mur- offense murder more than one person der.35 The judge findings entered regardless killings of whether the occurred of fact and conclusions law.36 episode.32 the same criminal The spon Finding sors of the made it clear at the public bill Fact V. See, State, e.g., ly Cantu v. No. 13-04-490- entered into the Texas Penal as Code sub- CR, *10, Tex.App. 19.03(a)(6), 2006 WL at section and later renumbered as (Tex.App.-Corpus LEXIS *32-33 19.03(a)(7); Saenz, subsection see also ref’d) Christi-Edinburg pet. Dec. ("H.B. legislative at 8 was the (mem. (as op.) prosecution” "unit of response inability to the State’s seek 19.03(a)(7)(A) capital murder under section penalty punishment death for the concomi- person during the murder of more than nightclub patrons tant murders of six Dallas transaction, the same criminal "unit Belachheb.”). by Abdelkrim prosecution” attempted capital falling attempt same statute is the Corwin, at 28 n. 4. person during to murder more than one transaction). same criminal 5; Hearing at 28 n. see also on Tex. Comm., See, 8 before e.g., Reagan, H.B. the House Crim. Jur. United States F.3d *8 251, (5th (allowable 11, Cir.2010) (Feb. 1985); Leg., unit 69th R.S. also De- see 1344, prosecution § for 18 pun- U.S.C. which bate on H.B. 8 on Floor of the House of the "[wjhoever executes, knowingly ishes at- 11, or Leg., (March Representatives, 69th R.S. execute, tempts to to scheme or artifice ... 1985). institution,” defraud a financial is the over- arching scheme rather than the individual at 28 n. Dixon, taken); steps see also United States v. (5th Cir.2001) (allowable 273 F.3d complainants 35. Because here three unit of for 18 U.S.C. state, alleged by true were the as was in "whoever, punishes special which within the Saenz, we do not reach the issue of whether jurisdiction the maritime and territorial may the two valid if it state obtain convictions States, violence, by United intimidation, force and or alleges complainants. at least four attempts takes or to take from presence person anything the of another findings 36. These and conclusions were made value, ...,” taking attempted is the or the regard previous application to a for a taking person). the from challenged corpus that writ of these State, in In
31. Corwin v. convictions the At- 27-28 (Tex.Crim.App.1993). torney The statute was initial- General confessed error in the United unit prosecu- “allowable separate in three January abria/Hawkins
On court, tion.” defendant trials before respective three to each of
plead guilty
Saenz, applicant’s
in
two convictions
As
judicial
charges having duly executed
capital murder
resulted
attempted
separate
the three
in each of
confessions
involving the same three
allegations
from
incidents....
Garcia,
victim,
victims.37 The
Frankie
attempt
a victim in both of the
included as
Lawof
I.
Conclusion
capital murder
for which
ed
convictions
of three
Applicant was not convicted
at
was convicted. Because each
applicant
separate
separate
trials and assessed
tempted capital murder conviction
criminal act.
punishments
the same
15.01(b)
19.03(a)(7)(B)
§§
Penal
and
Code
sep-
All
were based on
three convictions
included
at least two victims not
requires
facts and each convic-
arate and distinct
attempted
mur
as victims
other
own merit. While
tion stands
its
penal
under those same
der
continuing
they
all a
of one
part
were
sections, only
attempted
of these
code
eonduct[,]
each
scheme and course
uph
be
capital murder convictions
acts, the
separate
basis of
three
find
conviction
applicant’s
eld.38 We
that
convictions,
unique in
respective
were
jeopar
No. 2405 violates double
Cause
are not
contain elements which
each
dy.
necessary
prove
to
the other offenses.
scheme,
continuing
are
they
While
Conclusion
distinct, and
separate,
each said crime is
has
that his conviction
shown
necessary
prove
elements
unique
has
sentencing for
second
and
offense
it,
necessary
prove
are not
the Dou-
capital murder violates
respective
other
offenses.
of the Fifth Amend-
ble
Clause
ment
the Due Process Clause of the
and
indictments,
from
It
clear
Applicant has
Fourteenth Amendment.
convictions,
findings
trial court’s
meritorious double-
accompanied
also
his
law
all three
fact
conclusions of
prima
showing
jeopardy
claim with a
facie
charged
pursuant
offenses were committed
innocence in
No. 2405 and
of actual
and course of conduct
same scheme
art.
thereby
satisfied his burden under
and that
2404 and 2405 each
Cause Nos.
11.07, 4(a)(2).
record,
“On this
Texas Pe-
alleged a criminal offense under
be
of this offense.”39
not
15.01(b).'
19.08(a)(7)(B)
§§
nal Code
Thus,
first
grant applicant’s
we
and second
separate
stating
In
that “each of
for relief.
grounds
acts, ...,
in that each contain
unique
were
necessary
prove
are
judgment
elements which
of the 100th
We vacate
offenses,”
judge
County
in-
the other
the habeas
Judicial District Court of Carson
correctly analyzed
double-jeop-
remand the cause
in Cause No.
*9
Blockburger
to enter
ardy
by applying
the
to the trial court with instructions
claim
rather than the San-
acquittal.40 Copies
of this
judgment
“same-elements”
a
test
Appeals
for the Fifth Circuit
States Court
ap-
after the federal district court overturned
Knipp,
5H gateway exception might opinion Depart shall be sent to the not be met in a Justice-correctional insti ment of Criminal case that involved the Jeopardy Double tutions division. protection against pun- Clause’s multiple
ishments because a double-jeopardy viola-
KELLER, P.J.,
dissenting
filed a
tion
not
judgment
does
occur until
is ren-
WOMACK, J., joined.
opinion
offenses,
in which
on the multiple
dered
is
which
jury’s
after the
verdict.4 When a double-
KELLER, P.J.,
dissenting
filed a
violation
jeopardy
only
occurs
a ver-
after
WOMACK, J.,
opinion
joined.
in which
finding
dict or
guilt,
it
cannot
logically
subsequent
For
consider
applica-
us to
a
the
satisfy
innocence-gateway requirement
11.07,
article
the
tion under
defendant
that
juror”
“no rational
could have found
4,§
an
exception
must meet
applicant guilty.5
But the present case
innocence-gateway exception.1
is the
a
prosecutions”
involves
“successive
sce-
exception
The innocence-gateway
requires
nario, so the double-jeopardy violation
that
that
applicant
show
“but for
precede
findings
in
guilt
Constitution,
violation
the United States
subsequent plea proceedings.
juror
no rational
could have found the
But
there is
problem.
another
The
guilty
beyond
reasonable
grants
acquittal
charges
an
for the
agree
doubt.”2 I
that
double-
prosecuted in
subsequent
pro-
plea
jeopardy
exception
claims meet this
be-
ceedings,
charges
part
these
were
of a
cause each
his convictions was obtained
plea
agreement
that
these
included
separate proceeding.
Once he was
and the
charges
charge upon which he was
proceeding,
convicted in the first
he had a
convicted
the first
The
proceeding.
complete
defense to
to the re-
remedy
plea
usual
when a
agreement
is
maining charges on the
basis
Double
agree-
unenforceable is to
protection against
plea
suc-
undo
Clause’s
cessive
prosecutions.3
place
innocence- ment and
parties
position
decedent,
emphasize
may
tal
named the
murder
Frankie
that while the Government
Garcia,
sep-
the federal courts overturned the
multiple-count
seek a
indictment” for certain
arate conviction for the murder of the dece-
double-jeopardy
offenses
are the same for
dent.
overturn
We
the conviction in Cause
purposes,
"the accused
suffer
No.
for the same reason.
If
the state
convictions or sentences on that indictment.
allege,
example,
had
chosen
a murder
If,
trial,
upon
judge
the district
is satisfied
aggravated
deadly
and two
assaults with a
proof
go
jury
there
sufficient
weapon,
murder
and two
mur-
counts,
jury
on both
he should instruct the
ders,
attempted capital
an
an
to the elements of each offense. Should the
assault,
aggravated
it could have obtained
count,
jury
return
verdicts
each
more
one valid
than
conviction.
however,
judge
judg-
the district
should enter
offenses.").
statutory
ment on
one of the
11.07,
4,§
art.
Crim.
Tex.Code
Proc.
4(a)(2).
AP-76,947,
parte Sledge,
5.See Ex
No.
Id.,
4(a)(2).
(Tex.
Tex.Crim.App.
at 16-17
LEXIS
16, 2013) ("Thus,
Crim.App. January
at the
Amador,
See Ex
statutory
contemplates
time the
that a
scheme
(Double
(Tex.Crim.App.2010)
Jeopardy Clause
(albeit
guilt
finding must be made
not acted
prohibits
prosecution for
successive
offenses
upon
adjudication),
in a formal
the fact-finder
same).
that are
considered
*10
clearly
applicant guilty
'could have found the
States,
v.
United
470 U.S.
Ball
”)
beyond a reasonable doubt.'
1668,
(1985) ("We
105 S.Ct.
512 is Circuit did vacate pleas.6 the This they were in before said, Rather, judgment attacks the sen- it “The a defendant conviction. because when for he bar- Mil- denying tence he received and court the district [federal] here —he is at- gained appellant and petition habeas is VACATED ner’s —as of conviction. tacking judgment the entire to this REMANDED the district case is in this situation is resentencing permit “To grant to Milner’s instructions agreement. the party bind one to to petition corpus.”10 for writ of logical nor fair.”7 This is neither order, to remand United Pursuant made recommen- Magistrate Judge States that, double-jeopardy have held for We The the district court.11 dations to federal violations, to waive an the State can choose that the murder agreement magistrate and recommended portion plea illegal remaining, legal con- enforcing the conviction be vacated while the other settle for But, Consequently, we re- portion.8 significantly, should victions remain intact.12 proceedings for to deter- mand this case magistrate the added: the State wishes waive mine whether undersigned petitioner’s con- *11 court ordered that the conviction
be and the sentence set aside life
conviction The dis- be vacated.15 federal
trict court stated that “Petitioner’s other ...
convictions and life are not sentences affected remain in ef- Order and
fect.”
The federal district court did not dispose by rendering murder conviction
judgment acquittal dismissal with
prejudice. simply con- set the aside, explicitly
viction while acknowl-
edging possibility undoing plea
bargain parties returning
position they pleas. were in before the respectfully
I dissent.
Jeffrey Gelb, Galveston, Roslyn Ma- rie Turner.
OPINION PER CURIAM. Pursuant to the of Article Roslyn TURNER,
Ex Parte Marie 11.07 of the Texas Code Criminal Proce- Applicant. dure, the clerk of the trial court transmit- application ted to this Court this for writ No. AP-76973. corpus. parte Young, Court of Criminal Appeals Texas. (Tex.Crim.App.1967). Ap- plicant pleaded guilty, was convicted of
Feb. substance, possession of a controlled years’ imprisonment.
sentenced She her appeal did conviction. process contends that her due rights were violated forensic because a accepted scientist did not follow standards analyzing when evidence and therefore of his are analyses results unreliable. The State agreed trial court that relief remand, warranted before rec- ord was insufficient decide the ease at appli- that time. This Court remanded the Id. at 1-2. at The notes or to undo the jeopardy-barred the counts in No. 2379 was obtained viction Cause if the plea. proceeds entire The Court as pursuant bargain agreement to a plea an intent to waive the expressed State has whereby petitioner plead guilty was to counts, nothing I in the illegal see prosecutions in three separate the the case. Ab- showing record that to be (3) life sen- accept consecutive State, the proper sent a waiver the agree- for the State’s exchange tences agreement, remedy undo the entire is to penalty ment not to seek the death vacating which in case entail all would undersigned The No. parties to pleas returning of the regard makes no recommendation with position they prior plea were in to, bargain the plea the issue whether proceedings. subject being set agreement is now says Fifth The Court because the to re- permitted and the State aside already vacated Circuit has if no prosecute petitioner plea agree- agreement,9 part plea cases that was had been reached.13 ment “nothing original we do here can undo adopted federal district court parties plea agreement place magistrate’s report and recommenda- position they pleas in before the were district Consequently, I federal disagree. were entered.” The Fifth tions.14 Johnson, State, 850, (Tex. 2: 11. Milner v. No. 94-CV-0207 v. 852 Shannon State, 1986); 21, 2000) (not 240 Crim.App. July S.W.3d (Magistrate, Rhodes des- N.D.Tex. ("State (Tex.Crim.App.2007) correct ignated publication). ly argued there Shannon because [in ] plea bargain, proper remedy was at 3. plea.”). undo the entire 13. Id. Shannon, 708 S.W.2d at Ervin, (Tex. 8. Ex 94-CV-0207, Johnson, at 2: 14. Milner v. No. 1999). Crim.App. 2000) (not (N.D.Tex. designated July ("The publication) Judge District Johnson, 99-10461, 2000 9. See Milner v. No. Judge’s Report and Magistrate opinion the (5th 2000) (not February WL Cir. is, be, hereby Recommendation should designated publication). ADOPTED.”). 10. Id.