Martin, Ex parte Bessie

Martin was charged with credit card abuse cases in Parker County. In a pretrial writ, she alleged that double jeopardy precluded these cases because they had already been factored into punishment (through Penal Code § 12.44 or 12.45) as part of a Tarrant County plea.  The trial court held a hearing on the writ. The judge cited several deficiencies of proof (like whether the Tarrant County judge actually took the Parker County cases into account) and denied relief.

Martin appealed. The court of appeals recognized Martin had the burden of proof. It nonetheless held that she “left so many gaps in the proof that we do not know if there are facts that support the theories raised in her habeas application.” It remanded to the trial court for another hearing. While it ordinarily couldn’t remand without first finding the trial court erred, as a habeas appeal, the case was governed by the “Orders on Appeal” rule (Tex. R. App. P. 31.3), which provides that “[t]he appellate court will render whatever judgment and make whatever orders the law and the nature of the case require.” It reasoned that, because Martin presented legal arguments that should be answered if supported by the facts, the case should be remanded to give her an opportunity to present those facts.

The State argues that this is a second bite at the apple. It contends Rule 31.3 permits remand for an evidentiary hearing when the trial court erred by restricting evidence or failing to hold a hearing but shouldn’t be used this way. It argues remand doesn’t comport with any of the six options for judgments listed in Tex. R. App. P. 43.2, and is really an abatement without calling it that. Abatement, too, is improper since that remedy requires the trial court to have been responsible for the problem.