*1 that should “return “[b]ecause eludes the resolution should be overruled —we by forth prong Supreme this third Peters the standard three-part [of [,]”9 fol any Kennedy does not dis ... in depend upon Oregon test] on3 jurisdictions.10 all other (Kennedy) by tinction between the federal lowed almost (Bauder) stan and state constitutional
dards, fifth we do not address the State’s re-adopt which
ground asks this Court to single standard articulated Kenne dy.” part The third test the Peterson prosecutor
asks: “Did the that engage
conduct with the intent to the defen goad into requesting (Kennedy dant a mistrial CAVAZOS, Manuel Parte standard) disregard or with for a conscious Applicant. substantial risk that the trial would court (Bauder required declare a mistrial No. AP-75269. standard)?”5 part Because the third Appeals the test includes the application Court of Criminal of Texas. standard, Bauder resolution 4, Oct. 2006. part depend third of thе Peterson test does on distinction between the federal and
state constitutional This is standards. from the majority’s
clear conclusion that say that judge
“We cannot the trial abused in finding
her discretion Ken neither
nedy nor Peterson would the defen bar retrial.”6 Perhaps majority
dant’s say
means because the outcome is standard, regardless
the same of which federal, applied,
state or there is no ground
need to address the State’s fifth however, rationale, pro That review. a weak excuse deci
vides for the Court’s
sion to adhere to the Bauder/Peterson
standard. So while I in the result concur majority, previ I have
reached
ously my concurring opinion maintained in Lee,7 in my State dissent Ex progeny Peterson8 Bauder and its (Tex.Crim.App.2003). (Tex.Crim.App.2003) at 820-21 3. 117 8. 117 S.W.3d J., (Keasler, dissenting); see also id. at 821-31 PJ., J., Keller, Ante, dissenting, joined by (Hervey, op. 4. at 325 n. 28. J.). Keasler, S.W.3d at 5. 117 817. Lee, (Keasler, J., con- 9. at 930-31 Ante, curring). op. at 331. J., (Keasler, concurring). (Tex.Crim.App.2000). 7. 15 S.W.3d Id. at 929-30 *2 Garza, McAllen, home, Rolando appellant. grabbed leg room the complainant slept, while she Hole, Cheryl D.A., D. Asst. Edinburg, jury then fled the scene.2 A convicted Paul, Austin, Matthew Attorney, State’s applicant on both counts of of a for state. offender, A applicant
habitation. habitual *3 was sentenced to two concurrent terms of OPINION twenty-five years’ in imprisonment JOHNSON, J., opinion delivered the of Department Texas of Criminal Justice- Court, PRICE, WOMACK, in which Correctional Institutions Division. Tex. KEASLER, HERVEY, HOLCOMB, and § appeal 12.42. No was taken. Penal Code COCHRAN, JJ., joined. applicant’s ap- This Court filed and set An indictment in charged returned plication corpus. for habeas Thе issue be- applicant with two counts burglary of of a convicting applicant fore us is whether of habitation. Tex. § 30.02. Both Penal Code habitation, burglary two counts of of a incident, counts arose from the same but each complainant with a different but aris- complainants.1 involved different The first ing from a charged applicant single entry, count unlawful violates burglary with of a theft, habitation with Jeopardy intent to commit the Double Clause of the United while the second charged applicant count Applicant States Constitution.3 argues with burglary of a habitation with intent to gravamen that the burglary offense commit sexual Applicant assault. plead entry is the unlawful of a habitation and guilty. made, that once entry burglary such complete. Applicant offense is concludes presented state evidence at the guilt thаt his conviction on burgla- two counts of phase of the trial that applicant entered ry of a arising habitation out of the complainants’ same home removing entry screen constitutes climbing multiple punishments for through open an win- inside, offense,4 dow. applicant Once money stole the same and that punish- such and, from one complainant contrary another ment is legislative to the intent of states, 1. The first count of the indictment Applicant alleges "... that the state tried him that styled Manuel Cavazos hereinafter twice for the burglary Defen- same offense of of a dant, day on or about the habitation in count one September 27th and in count two of A.D., indictment, and that 1992 ... did this constitutes a then and there intentional- Jeopardy habitation, violation of the Double Clause ly knowingly enter a without the effective consent Rega- of Maria Minerva Applicant submitted four additional com- lado, thereof, the owner with intent to commit plaints; charged applicant the state awith theft; ...” indictment; fatally defective the state used the states, The second count of the indictment prior punish- same convictions to enhance the "... styled that Manuel Cavazos hereinafter ment both count one and count two Defendant, dаy on or about Sep- the 27th of the indictment to the habitual-offender A.D., tember 1992 ... did then and there range; court-appointed his counsel was inef- intentionally knowingly fective, enter a habi- causing applicant’s constitutional tation, without the rights effective consent of Norma to be violated because he failed to ob- thereof, Regalado, ject applicant owner complains with intent to the errors now assault;...." appeal request- commit sexual failed file notice of court; by applicant open ed and the state 2. The order in which the theft and assault applicant convicted and sentenced the with place took is not ascertainable from the rec- support insufficient evidence to either count ord. of a habitation. States, 437 and a violation of the United U.S. S.Ct. statutе (1978)). The legislature Constitution. United States 57 L.Ed.2d course particular also decides whether a provides Fifth Amendment no of- or more distinct conduct involves one subject ... person “shall same given Id. Conse- fenses under statute. put life offence to be twice ” Jeopardy Double quently, scope Const, or limb.... U.S. amend. V. The against multiple protection Clause’s Supreme Court has conclud- United States de- ishments under statutе ed the Fifth Amendment offers three unit of (1) pends ascertaining on the allowable protections: separate constitutional prosecution prosecution. protection against a second (2) acquittal; pro- the same offense after *4 Gonzalez,5 Citing parte Ex prosecution a for against
tection
second
(3)
conviction; and
distinguishes
the same offense after
state
between “conduct-ori
against multiple
protection
punishments
“possession-oriented” statutes
ented” and
North
v.
for the same offense.
Carolina
determining
prose
the allowable unit of
Pearce,
711, 717,
2072,
395 U.S.
89 S.Ct.
23
The
burglary
cution in a
of a habitation.
(1969),
656
on other
L.Ed.2d
overruled
concludes,
any
citation to
state
without
Smith,
by
v.
490 U.S.
grounds
Alabama
authority,
burglary of a habi
specific
794,
2201,
This Court has out that this The reliance on complainants. state’s punish multiple defendant suffers “[a] position misplaced. is Jeopardy ments in violation Double he convicted of more of Clause when is meaning of the version plain Er than the intended.” legislature
fenses 30.02(a) § of Tex. Penal Code that was State, 804, vin v. 807 committed the applicant effect at the time (Tex.Crim.App.1999)(citing Ball v. United person offenses indicates that a commits 856, 1668, States, 470 U.S. 105 84 S.Ct. if, (1985)). However, the offense of habitation L.Ed.2d 740 the Double owner, few, Jeopardy imposes any, if limi without the effective consent Clause legislative power establish tations on the he: Hawkins, 6 define offenses. (or (1) habitation, building or a enters 554, (Tex.Crim.App.1999)(cit S.W.3d any portion building) open of a Ohio, 161, 97 S.Ct.
ing
v.
432 U.S.
Brown
to commit a felo-
public,
with intent
(1977)).
2221,
legisla
(3) enters a building or habitation
ble
he
punished
because was
mul-
commits or attempts to
felony tiple
single
commit a
times for a
entry.
unlawful
or theft.6
When a defendаnt is convicted of
Chapter
two offenses that
30 of the Penal
are the “same” for dou
Code is titled
“Burglary
ble-jeopardy purposes,
our
Trespass.”
Criminal
case law tells
Chap-
part
Code,
ter 30 is
us that the conviction for
Title 7 of the
the “most seri
Penal
“Offenses
ous”
Against Property.”
offense is retained and the
appli-
As
other con
State,
suggests,
cant
viction is set
gravamen
of a
aside. Landers v.
558,
is the entry withоut
S.W.2d
559-60 (Tex.Crim.App.1997).
the effective consent
of the owner and with
Landers states that
the “most
requisite
mental
serious”
DeVaughn
state.
offense is determined
S.W.2d
65 (Tex.Crim.App.1988).
felony, range
This
and sentence
Court has
that,
found
committed,
imposed,
parole
when a
with rules of
eligibility
is
good-conduct
the harm results from
time as a
entry
tie-breaker.
Id.
itself.
Richardson v.
These criteria
were taken from an
older
(Tex.Crim.App.1994).
involving
case
such a
The offense is com-
choice
case
(Penal
plete
made,
§
once the
entry
unlawful
Code 3.01
Sep
before
*5
1987).
1,
regard
Peña,
without
parte
to
tember
Ex
whether the intended
820
theft or felony is
S.W.2d
completed.
(Tex.Crim.App.1991). Misjoin-
also
806
Id.
der
longer
is no
an issue
legis
because of
The allowable
prosecution
unit of
for an
lative action.
assaultive offense is each complainant.
Landers, however,
At issue in
was not
State,
Phillips
391,
See
v.
787 S.W.2d
394-95
misjoinder, but the choice between convic-
( Tex.Crim.App.1990)(assault);
parte
Ex
tions when
charged
one
offense is a less-
Rathmell,
33,
S.W.2d
er—included offense of the other charged
(Tex.Crim.App.1986)(voluntary manslaugh
offense. The facts of Landers
further
ter).
however,
Burglary,
is not an assaul-
issue,
complicated the
as
appellant
the
had
offense; rather,
tive
plaсement
its
within
charged
been
second-degree felony,
with a
Title 7 indicates that
legislature
the
deter
vehicle,
theft of a
and a lesser-included
mined
to be a
against prop
crime
third-degree felony, unauthorized
a
use of
erty. Thus,
complainant
the
is not the
(UUMV),
vehicle
but was convicted of
appropriate allowable unit
prosecution
of
Class A misdemeanor theft and UUMV.
in burglary, rather,
a
the allowable unit of
prosecution in
is the unlawful
significant
There is
overlap in the Lan-
entry. Applicant’s convictions
criteria;
violate dou-
general,
ders
if
the
of
(24)
§
6. Tex. Penal Code 30.01
person
Definitions
"Owner” means a
who:
(A)
chapter:
In this
property, possession
has title to the
of
(1)
not,
“Habitation” means a structure or
property,
vehi-
whether lawful or
or a
adapted
cle that is
overnight
for the
accom-
greater right
possession
property
to
of the
persons,
modation of
and includes:
actor;
than the
...
(A)
separately
occupied
each
secured or
Burglary
§
Tex. Penal Code 30.02
portion
vehicle;
of the structure or
(B)
appurtenant
each structure
to or con-
(b)
section,
purposes
For
of this
"enter”
nected with the structure or vehicle.
means to intrude:
(1) any part
body;
or
§
Tex. Penal Code 1.07 Definitions
(2) any physical object connected with
(a) In this code:
body.
great
same,
discre
felony
range
punish-
grants
of
case law
is the
Our
Too,
pa-
of
ment
be the same.
rules
e.g.,
will
to
finder of fact. See
Swain
tion
eligibility
good-conduct
role
are
S.W.3d
this court and
purview
outside the
of
tend
motion);
(Tex.Crim.App.2005)(suppression
be
Are
to
the rules
fluid.
we
consider
Peterson,
804, 819
they
at
time of
promulgated
were
writ of
(Tex.Crim.App.2003)(application for
offense,
sentencing,
the time of
corpus);
habeas
Morales
addition,
grant
time of our review? In
865-66
(and loss)
good-conduct
of
time is discre-
admit of
(Tex.Crim.App.2000)(decision to
tionary
and is more related
the conduct
evidence).
ex-
now
exclude scientific
We
of the inmate while incarcerated than the
tend that discretion to
determination
of conviction.
seriousness of the offense
offense and hold that
“most serious”
Determining which offense is “most seri-
offense
the “most serious” offense
always
may not
may
ous”
be difficult and
greatest
for which the
sentence
conviction
objective.
Both murder and
Landers
To the extent that
was assessed.
intent
commit a
habitation with
factors,
de-
such as the
holds that other
felony
first-degree
than
theft are
felony,
range
punishment,
gree
and have the same
felonies
governing parole eligibility and
and rules
all,
ishment,
many,
yet
if not
citizens would
time,
good-conduct
shall be
awarding
say
murder
more
offense
is a
serious
determination,
it
is overruled.
used
range of
burglary.
than
may
proof
prior con-
be enhanced with
question is
remaining
victions,
such
can be
enhancements
“most
of
determination of the
serious”
non-state-jail
If the
applied to all
felonies.
*6
when,
here,
degree
as
the
of the
fense
robbery
alleges aggravated
indictment
and
years
the term of
offense of conviction and
felony driving
with an
while intoxicated
same.
by the fact finder are the
assessed
used,
weapon
a
allegation
deadly
that
was
case,
offenses in this
At the time
the
subject
to an enhanced
both are
first-de
offenses
conviction were
both
life,
to
or
which is
years
ishment of 25
99
The
the same
gree
jury
felonies.
assessed
the
Is the “most serious”
“most serious”?
and as
for each conviction
years
term
al-
judged by
offense to be
the offenses
fines, but restitution of
sessed no
$122.00
leged
by the offenses of conviction?
the bur
judgment
in the
for
was ordered
Who determines the seriousness
intent
to commit theft. We
glary with
Judges
look
the indict-
may
offense?
at
is punishment:
have
that restitution
held
charged
ment and conclude that thе
sec-
attempts to
punishment,
restitution
“As
felony
than
ond-degree
is more serious
the
wrongs
a defendant
for which
redress the
charged third-degree felony,
faced
then be
court.”
in
charged and convicted
has been
2
punishment
years’
a
jury
with
verdict
State,
Cabla v.
felony
second-degree
on the
incarceration
v.
Martin
(Tex.Crim.App.1999)(citing
felony.
years’
third-degree
and 10
on the
State,
(Tex.Crim.App.1
to
that
a verdict wоuld seem indicate
Such
994)).7
circumstances,
pun
the
In these
third-degree felony
found
jury
burglary with
makes the
ishment assessed
be the “most serious.”
contrast,
App.2004); Rodriguez
S.W.3d 60
In
we
held that sex-offender
have
remedial,
registration
punitive.
(Tex.Crim.App.2002).
is
not
(Tex.Crim.
is a evaluation the suсh offense, have to be considered. of with the sentence would ousness the only into the coming play when Lan- Although purporting to disavow punishment the of offense and ders, to the standard is identical Court’s type are In the of double the same. except formulated in Landers the one us, however, the jeopardy context before categorically rejects respect: the court one of- рermitted prosecute is to both State using good time conse- parole ever and both offenses to the fenses submit surely But the as a tie-breaker. quences pursu- jury for consideration. Because really that. will Court cannot mean What ing is in this con- proper both offenses (or trial the Court do recommend text, the should have the benefit State do) appellate if the courts and lower courts punishment thе obtained.8 most serious identical, the fine and resti- sentences are identical, only it, imposed are and the in the before the Landers tution And case consequences, attempt made no whatsoever to de- involves parole Court distinction is of the offenses covered e.g. was the most seri- when one termine which offense ous, 42.12, 3g§ the is not? instead, imposed Article while but addressed which in which we look instеad to the order punishment: “Applica- the most serious Do submitted, are jury’s tion test verdict forms punishment of the most serious appear in the correctly in which the offenses Appeals that the order shows code, Per- penal the cause numbers? decided which conviction to dismiss. good consequences year haps parole a 62 sen- UUMV conviction carries tie-breaker, but it carried a should tеnce while the theft conviction first tie-breaker when That two- should be an available only sentence months.”9 entirety identical. was otherwise passage sentence analysis ap- the Landers Court which any rate, suggest the Court does not At newly-articulated to the plied its standard good time conse- parole that the use of facts it. case before as tie-breaker is an issue quences case, аnalysis of good present it and the Court’s point
The Court makes when exactly to the ap- the facts seems to conform criticizes Peña test as difficult first looked apart holding: from ultimate Landers The Court ply, because sentences, after assessed, may length of the it often be difficult to the ishment identical, discovering they were looked to a is the “most to determine which offense restitution, factor, serve But that criticism does not collateral serious.”10 Landers, So, I agree with the Court’s apply explicitly which focused tie-breaker. resolving present case and method punish- rule on double But, engaging instead explained ment that with the result. assessed and further *8 ap- Peña long- in an extended discussion the most was the serious reaching out unnecessarily recog- proach, Court est sentence. The Landers tie-brеaking may status the sentences comment on nized that sometimes identical, factors, had to parole, all Court good which case be- prospectively in the context 8. Id. at 560-561 pursue was allowed to cause the State at 561. Id. of that at trial. The correctness both offenses holding is issue not at here. course, was Peña court’s assessment 10. Of judged most offense had to be that the serious Landers do cite was desired rule apply
and then it. respectfully
I concur the Court’s
judgment.
Raymond OLIVAS, Appellant
The STATE of Texas.
No. PD-1936-04. Appeals Criminal of Texas.
4,Oct. Gustitis,
Stephen Bryan, appellant. *9 III, Howell, D.A., Douglas Bryan, Asst. Austin, Paul, Attorney, Matthew State’s for state.