holding that convictions for burglary of habitation with intent to commit theft and burglary of habitation with intent to commit sexual assault for same entry violated double jeopardy because the allowable unit of prosecution was the unlawful entry
How later courts described this case
- holding that convictions for burglary of habitation with intent to commit theft and burglary of habitation with intent to commit sexual assault for same entry violated double jeopardy because the allowable unit of prosecution was the unlawful entry
- stating that the Legislature defines whether offenses are the same by prescribing the allowable unit of prosecution, which is "a distinguishable discrete act that is a separate violation of the statute.”
- overruling Landers v. State, 957 S.W.2d 558 , 559–60 (Tex. Crim. App. 1997), which held that other factors—such as the degree of the felony, range of 5 punishment, and rules governing parole eligibility and awarding of good-conduct time—should be used in that determination
- overruling Landers v. State, 957 S.W.2d 558, 559-60 (Tex.Crim.App.1997), which held that other factors— such as the degree of the felony, range of punishment, and rules governing parole eligibility and awarding of good-conduct time — should be used in that determination
Written by the judges who cited it.
The opinion
KELLER, P.J.,
filed a concurring opinion.
The Court misstates the holding in Lan-ders. 1 The Court says that Landers requires retaining “the most serious offense” while setting aside the other conviction. 2 The Court also says that Landers requires that the most serious offense be determined “by the degree of the felony, range of punishment and sentence imposed, with rules of parole eligibility and good-conduct time as a tie-breaker.” 3 The Court then states that these criteria were taken from Ex parte Peña, a case involving misjoin-der. 4
In making all of these statements, the Court cites pages 559-560 of the Landers opinion. 5 But the discussion on those pages was about the holding in Peña. It was simply background, discussing what factors this Court had relied upon to formulate a rule for misjoinder. We did not apply the misjoinder rule to the double jeopardy context.
To the contrary, after discussing Peña, we set forth a different rule: “the ‘most serious punishment’ test.” 6 According to Landers, “That test requires retaining the offense with the most serious punishment and vacating any remaining offenses that are the ‘same’ for double jeopardy purposes. The ‘most serious punishment’ is the longest sentence imposed, with rules of parole eligibility and good time serving as a tie-breaker.” 7 In fact, Landers explicitly distinguished Peña, explaining why the factors used in Peña supported a different rule for double jeopardy violations than for misjoinder:
The third reason applies somewhat differently to the double jeopardy context than the misjoinder context and explains the difference in the judicially-made rules. In the misjoinder context, we fashioned a rule designed to best ascertain what offense the State would have elected to proceed on at trial. We did so because, in the misjoinder context, the State is not permitted to prosecute both offenses at the same time. Hence, our evaluation, in the misjoinder context, *340 is a prospective evaluation of the seriousness of the offense, with the sentence coming into play only when the range of punishment and the degree of offense are the same. In the type of double jeopardy context before us, however, the State is permitted to prosecute both offenses and submit both offenses to the jury for consideration. Because pursuing both offenses is proper in this context, the State should have the benefit of the most serious punishment obtained. 8
And in the case before it, the Landers Court made no attempt whatsoever to determine which offense was the most serious, but instead, addressed which imposed the most serious punishment: “Application of the most serious punishment test shows that the Court of Appeals correctly decided which conviction to dismiss. The UUMV conviction carries a 62 year sentence while the theft conviction carried a sentence of only 9 months.” 9 That two-sentence passage was the entirety of the analysis in which the Landers Court applied its newly-articulated standard to the facts of the case before it.
The Court makes a good point when it criticizes the Peña test as difficult to apply, because apart from the ultimate punishment assessed, it may often be difficult to determine which offense is the “most serious.” 10 But that criticism does not apply to Landers, which explicitly focused the double jeopardy rule on the punishment assessed and further explained that the most serious punishment was the longest sentence. The Landers Court recognized that sometimes the sentences may be identical, in which case other factors, such as parole eligibility and good time, would have to be considered.
Although purporting to disavow Lan-ders, the Court’s standard is identical to the one formulated in Landers except in one respect: the court categorically rejects ever using parole and good time consequences as a tie-breaker. But surely the Court cannot really mean that. What will the Court do (or recommend that trial courts and lower appellate courts do) if the sentences are identical, the fine and restitution imposed are identical, and the only distinction involves parole consequences, e.g. when one of the offenses is covered by Article 42.12, § 3g while the other is not? Do we look instead to the order in which the jury’s verdict forms are submitted, the order in which the offenses appear in the penal code, or the cause numbers? Perhaps parole and good time consequences should not be the first tie-breaker, but it should be an available tie-breaker when the punishment is otherwise identical.
At any rate, the Court does not suggest that the use of parole and good time consequences as a tie-breaker is an issue in the present case, and the Court’s analysis of the facts seems to conform exactly to the Landers holding: The Court first looked to the length of the sentences, and after discovering they were identical, looked to a collateral factor, restitution, to serve as a tie-breaker. So, I agree with the Court’s method of resolving the present case and with the result. But, instead of engaging in an extended discussion of the Peña approach, and unnecessarily reaching out to comment on the tie-breaking status of good time and parole, all the Court had to *341 do was cite Landers for the desired rule and then apply it.
I respectfully concur in the Court’s judgment.
. Landers v. State, 957 S.W.2d 558 (Tex.Crim.App.1997).
. Court’s op. at 337.
. Id. at 337-38.
. Id. at 339 (citing Peña, 820 S.W.2d 806 (Tex.Crim.App.1991)).
. Id. at 337-38.
. Landers, 957 S.W.2d at 560 .
.Id.
. Id. at 560-561
. Id. at 561 .
. Of course, the Peña court’s assessment was that the most serious offense had to be judged prospectively in the misjoinder context because the State was not allowed to pursue both offenses at trial. The correctness of that holding is not at issue here.