Denton v. State, 399 S.W.3d 540 (TX Ct. Crim. App. 2013)

State: Texas
Date: May 22, 2013
Defendant: Denton

Denton v. State, 399 S.W.3d 540 (TX Ct. Crim. App. 2013)

EX PARTE WILLIAM CHARLES DENTON, Applicant

NOS. AP-76,801 and AP-76,802

COURT OF CRIMINAL APPEALS OF TEXAS

399 S.W.3d 540; 2013 Tex. Crim. App. LEXIS 792

May 22, 2013, Delivered

COUNSEL: FOR APPELLANT:
Gena Bunn, Holmes & Moore, P.L.L.C., Longview, TX.

JUDGES: JOHNSON, J.,
delivered the opinion of the Court in which PRICE, WOMACK, KEASLER, HERVEY, COCHRAN, and ALCAL¡, JJ., joined. KELLER, P.J., filed a concurring opinion. MEYERS, J., filed a dissenting opinion.

OPINION BY: JOHNSON

In each of two causes, a grand jury indicted applicant for both aggravated robbery and aggravated assault of a named complainant. A petit jury convicted him of all counts and sentenced him to concurrent terms of twenty-five years’ imprisonment for each aggravated robbery and twenty years’ imprisonment for each aggravated assault.

Applicant asserts that convictions for both aggravated robbery and aggravated assault of each complainant violate the prohibition against double jeopardy. He also asserts that counsel provided ineffective assistance of counsel by failing to object to the double-jeopardy violation in the trial court or to raise it on direct appeal and for failing to preserve for appellate review a claim regarding the trial court’s denial of a self-defense instruction. We grant relief.

On May 16, 2012, we refused review of applicant’s claim regarding the self-defense instruction, but we ordered that the applications filed and set for submission on the remaining issues.

(1) Whether Applicant’s convictions in each cause for both aggravated robbery and aggravated assault against the same complainant during the same criminal episode constitutes a violation of the prohibition against double jeopardy;

(2) Whether the alleged violation may be remedied in this habeas proceeding or is procedurally defaulted because no objection was raised before the trial court; and

(3) Whether, if the claim is procedurally defaulted, trial counsel’s failure to object or appellate counsel’s failure to raise the claim constituted deficient representation resulting in harm to Applicant.

Pursuant to our order, applicant has filed a brief addressing these claims. The district attorney has submitted a letter that acknowledges receipt of applicant’s brief and states that “[t]he State of Texas does not intend to file a brief in this case.” We shall therefore address these claims without the benefit of a brief from the state.

The records from various proceedings below reflect that, in 2005, the two complainants went to applicant’s residence. While there, the complainants were assaulted and robbed by applicant and two other men. Denton v. State, Nos. 12-06-00003-CR and 12-06-00004-CR, 2007 Tex. App. LEXIS 1706 (Tex. App.–Tyler, pets. ref’d. Each of the two indictments at issue here charged applicant with one count of aggravated assault and one count of aggravated robbery. The jury found him guilty of all four charges, with the sentences to run concurrently. The court of appeals affirmed the trial court’s judgment. We refused applicant’s petitions for discretionary review. Denton v. State, PD-0779-10 and PD-0780-10, 2010 Tex. Crim. App. LEXIS 991, 2010 Tex. Crim. App. LEXIS 996 (Tex. Crim. App., pet. ref’d August 25, 2010).

In these applications for habeas corpus, applicant asserts that the convictions for both aggravated robbery of and aggravated assault on each complainant violated his constitutional protections against double jeopardy.1

Each indictment alleges, in different counts, two specific offenses. Indictment number B-13,723 alleges that applicant committed the offenses of aggravated robbery and aggravated assault against complainant “N. Moore,” while indictment number B-13,724 alleges that applicant committed the offenses of aggravated robbery and aggravated assault against complainant “H. Foster.” All of the offenses in both indictments were alleged to have been committed by applicant on or about the 18th day of March 2005.

The habeas court’s findings of fact, which are undisputed by the parties, reflect that on March 18, 2005, the complainants went to applicant’s residence. Applicant lived in a mobile home that sat in his mother’s backyard and which had an attached shed that was furnished and served as his bedroom.2 The complainants went to the shed to collect a debt owed to Moore by applicant from a previous sale of methamphetamine. Denton v. State, supra at 2007 Tex. App. LEXIS 1706 at *1. While they were inside the shed, the complainants were assaulted and robbed by applicant and two other men. Id. The opinion of the court of appeals noted that the complainants were strip-searched and told to turn over their belongings, that applicant fired a gun into a wall of the shed, and that Moore had been shot in the leg by one of the other two men. 2007 Tex. App. LEXIS 1706 at *18-19. After the complainants turned over their belongings, they were allowed to leave, with applicant escorting Moore out and warning him not to return. The complainants’ possessions were never returned to them. 2007 Tex. App. LEXIS 1706 at *19. See also Habeas Court’s Findings of Fact and Conclusion of Law. Neither indictment alleged that Moore had been shot, but each indictment alleges both (1) threatening or placing the named complainant in fear by using or exhibiting a firearm and (2) threatening the named complainant by firing a firearm in the room where each complainant was.3

The two indictments are identical except for the name of complainant. They allege in Count I that applicant did, “while in the course of committing theft of property and with intent to obtain or maintain control of said property, intentionally and knowingly, threaten or place [complainant] in fear of imminent bodily injury or death and the defendant did use or exhibit a deadly weapon, to-wit: a firearm.” In Count II, each indictment alleges that applicant did “intentionally and knowingly threaten [complainant] with imminent bodily injury by firing a firearm in the room where [complainant] was and the defendant did then and there use or exhibit a deadly weapon, to-wit: a firearm during the commission of said assault.” The trial court’s conclusions of law do not address the bone of contention in this case-whether the robbery alleged in Count I encompasses the aggravated assault alleged in Count II. Rather, the trial court concluded that there had been two assaults, close in time, but separate incidents. The findings of fact support that the fight and/or the shot into the wall and the shot into Moore’s leg were both intended to encourage the complainants to turn over their belongings, that is, as part of the robbery.

Applicant argues that his convictions for both aggravated robbery and aggravated assault of the same person during a single transaction constitute multiple punishments for the same offense, in violation of the constitutional prohibition against double jeopardy. He asserts that, since the double-jeopardy clause prohibits multiple punishments for the same offense, two of his convictions and resulting punishments are prohibited.

Applicant asserts that the evidence shows that taking Moore’s and Foster’s belongings was his sole objective and that his assault of Moore and Foster was in furtherance of that single objective, with the firing of a weapon simply being “just a step along the way.” He maintains that the state “parsed what was in reality a single aggravated robbery into two separate crimes,” resulting in two punishments for a single assaultive event and a double-jeopardy violation because jeopardy principles permit only one punishment per complainant. Brief of Applicant at 15.

I. Cognizability

We begin by addressing the second of the issues that we filed and set for submission, which asks whether the alleged violation may be remedied in a habeas proceeding or is procedurally defaulted because no objection was raised in the trial court.

We have previously addressed such claims via writ of habeas corpus application. See, e.g., Ex parte Cavazos, 203 S.W.3d 333 (Tex. Crim. App. 2006); Ex parte Hawkins, 6 S.W.3d 554 (Tex. Crim. App. 1999); Ex parte Ervin, 991 S.W.2d 804 (Tex. Crim. App. 1999). Because of the fundamental nature of the double-jeopardy protections, a double-jeopardy claim may be raised for the first time on appeal or on collateral attack if two conditions are met: 1) the undisputed facts show that the double-jeopardy violation is clearly apparent on the face of the record; and 2) when enforcement of the usual rules of procedural default serves no legitimate state interest. Langs v. State, 183 S.W.3d 680, 687 (Tex. Crim. App. 2006); Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000).

A double-jeopardy claim is apparent on the face of the trial record if resolution of the claim does not require further proceedings for the purpose of introducing additional evidence in support of the double-jeopardy claim. Ex parte Knipp, 236 S.W.3d 214, 216, n.3 (Tex. Crim. App. 2007); Gonzalez v. State, 8 S.W.3d at 643. In this case, there is no need for such expansion of the record because the writ record contains all of the information needed to address the merits of the double-jeopardy claim. If we find that there is a double-jeopardy violation, the remedy will be to vacate one of the convictions; no additional proceedings will be required. Ex parte Cavazos, 203 S.W.3d at 337. While the state may have an interest in maintaining the finality of a conviction, we perceive no legitimate interest in maintaining a conviction when it is clear on the face of the record that the conviction was obtained in contravention of constitutional double-jeopardy protections. “Society’s interest, of course, is not simply to convict the guilty. Rather its interest is ‘in fair trials designed to end in just judgments.'” Oregon v. Kennedy, 456 U.S. 667, 682, n.7, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982) (quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S. Ct. 834, 93 L. Ed. 974 (1949)). See also, United States v. Broce, 488 U.S. 563, 589, 109 S. Ct. 757, 102 L. Ed. 2d 927 (1989) (Blackmun, J., dissenting) (no legitimate interest in punishing defendants twice for the same conduct); Green v. Ohio, 455 U.S. 976, 979, 102 S. Ct. 1486, 71 L. Ed. 2d 688 (1982) (White, J., dissenting) (“The interests served by the finality requirement, though important, do not outweigh petitioner’s interest in receiving the full protection afforded by the Double Jeopardy Clause and avoiding the irreparable injury of a second trial.”)

We recently held that, “[w]hen a double-jeopardy violation has occurred, a writ of habeas corpus is a proper venue through which to challenge the error.” Ex parte Milner, No. AP-76,481, 394 S.W.3d 502, 2013 Tex. Crim. App. LEXIS 418, *9 (Tex. Crim. App. 2013). We likewise hold here that applicant’s claim of a double-jeopardy violation may be addressed and remedied in a habeas corpus proceeding.

II. Double Jeopardy

The Fifth Amendment’s Double Jeopardy Clause provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. The Double Jeopardy Clause of the Fifth Amendment, applicable to the states through the Fourteenth Amendment, protects an accused against 1) a second prosecution for the same offense after acquittal, 2) a second prosecution for the same offense after conviction, and 3) multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977); Ex parte Amador, 326 S.W.3d 202, 205 (Tex. Crim. App. 2010). There are two variations of a multiple-punishments claim: 1) where there are both a greater and a lesser-included offense and the same conduct is punished twice-once for the basic conduct and a second time for that conduct plus more; and 2) where the same criminal act is punished under two distinct statutes and the legislature intended the conduct to be punished only once-such as causing a single death and being charged with both intoxication manslaughter and involuntary manslaughter. Langs v. State, 183 S.W.3d at 685. Aggravated assault may be a lesser-included offense of aggravated robbery, depending upon the facts proved. Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App. 1981); Watson v. State, 605 S.W.2d 877, 884 (Tex. Crim. App. 1979).

To determine whether there have been multiple punishments for the same offense, we apply the “same elements” test from Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). “[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.” Id. The Blockburger test is the starting point in the analysis of a multiple-punishments double-jeopardy claim. Bigon v. State, 252 S.W.3d 360, 370 (Tex. Crim. App. 2008). The analysis in Blockburger was based “upon the face of the statute” at issue. Blockburger, 284 U.S. at 304. “But in Texas, when resolving whether two crimes are the same for double-jeopardy purposes, we focus on the elements alleged in the charging instrument.” Bigon, 252 S.W.3d at 370, citing Parrish v. State, 869 S.W.2d 352, 354 (Tex. Crim. App. 1994). “Under the cognate-pleadings approach adopted by this Court, double-jeopardy challenges should be made even to offenses that have differing elements under Blockburger, if the same ‘facts required’ are alleged in the indictment.” Id., citing Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007). “Application of Blockburger does not serve, however, to negate otherwise clearly expressed legislative intent.” Villanueva v. State, 227 S.W.3d 744, 747 (Tex. Crim. App. 2007). “In the multiple punishments context, [T]he Blockburger test is no more than a rule of statutory construction, useful in discerning the legislative intent as to the scope of punishment where the intent is not otherwise manifested. The Blockburger test does not operate, however, to trump ‘clearly expressed legislative intent.'” Garza v. State, 213 S.W.3d 338, 351-52 (Tex. Crim. App. 2007), citing Ex parte Kopecky, 821 S.W.2d 957, 959 (Tex. Crim. App. 1992) (quoting Missouri v. Hunter, 459 U.S. 359, 368, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983)).

We have held that robbery is an assaultive offense. Young v. State, 283 S.W.3d 854, 862 (Tex. Crim. App. 2009). We have also held that the unit of prosecution of the offense of robbery is the victim. Byrd v. State, 336 S.W.3d 242, 251, n.43 (Tex. Crim. App. 2011). Therefore the gravamen of robbery offenses, including aggravated robbery, is the defendant’s assaultive conduct against each victim. Jones v. State, 323 S.W.3d 885, 889 (Tex. Crim. App. 2010). We have also held that “[t]he gravamen of the offense of aggravated assault is the specific type of assault defined in [Tex. Penal Code] Section 22.01 [Assault].” Landrian v. State, 268 S.W.3d 532, 537 (Tex. Crim. App. 2008).

A multiple-punishments double-jeopardy violation occurs if both a greater and a lesser-included offense are alleged and the same conduct is punished once for the greater offense and a second time for lesser. Langs v. State, 183 S.W.3d at 685. A lesser-included offense is one that “is established by proof of the same or less than all the facts required to establish the commission of the offense charged[.]” Tex. Code Crim. Proc. art. 37.09(1).

The Penal Code defines the elements of aggravated assault in Section 22.02. We note the pertinent subsections:

(a) A person commits an offense if the person commits assault as defined in Section 22.014 and the person:

(1) . . .

(2) uses or exhibits a deadly weapon during the commission of the assault.

The Penal Code defines the elements of aggravated robbery in Section 29.03. We note the pertinent subsections:

(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 and with intent to obtain or maintain control of the property, he:

(1) . . .;

(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.

Here, the indictments alleged both threatening with a firearm and threatening with the firearm while committing theft, both offenses based on the same continuous transaction. Neither indictment alleged bodily injury.

As plead in the indictments, the counts for both aggravated robbery and aggravated assault assert that applicant intentionally or knowingly threatened another person with imminent bodily injury and used or exhibited a deadly weapon during the commission of that offense. The counts for aggravated robbery further allege that applicant committed theft. Thus, as plead, aggravated assault is a lesser-included offense of aggravated robbery because “it is established by proof of the same or less than all the facts required to establish the commission of the offense charged[.]” Tex. Code Crim. Proc. art. 37.09(1). “If . . . the prosecution, in proving the elements of one charged offense, also necessarily proves another charged offense, then that other offense is a lesser-included offense.” Girdy v. State, 213 S.W.3d 315, 319 (Tex. Crim. App. 2006). If there is no clear legislative intent to punish the offenses separately, multiple punishments for the criminal act that is the subject of the prosecution is barred. Id. No such intent has been shown here. We conclude that applicant has shown that two of his four convictions are in violation of his constitutional double-jeopardy protections that preclude multiple punishments for the same offense.

When a defendant is convicted of two offenses and those convictions violate double-jeopardy protections, the conviction for the more serious offense is retained, and the other conviction is set aside. Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex. Crim. App. 2006). The most serious offense is the offense of conviction for which the greatest sentence was assessed. Id. at 338. Applicant’s aggravated-robbery convictions, for which he received sentences of twenty-five years’ incarceration, are the more serious offenses because he received lesser sentences for the aggravated-assault convictions. We therefore retain the aggravated-robbery convictions and set aside the aggravated-assault convictions.5

We grant relief and set aside the aggravated-assault convictions. Copies of this opinion shall be sent to the Texas Department of Criminal Justice-correctional institutions division and Pardons and Paroles Division.

CONCUR BY: KELLER

Keller, P.J., filed a concurring opinion.

The present case involves an exceedingly complex double-jeopardy question, with only limited, neutral briefing from the State. Many of the significant issues and authorities relevant to the question are not addressed in the Court’s opinion. When complex issues are not subjected to adversarial testing, and when the relevant issues have not been sufficiently aired out, there is a danger in granting relief in anything other than a brief, unpublished opinion. I believe that that danger manifests itself in the Court’s opinion. Under the circumstances, I agree with granting applicant relief but do not join the Court’s opinion.

A. General Double Jeopardy Principles

To understand the complexity of the issue before us, we must first review some general double-jeopardy principles. There are two ways in which offenses can be the same or different under double-jeopardy law when two statutes are involved: (1) by elements, and (2) by units.1 For a double-jeopardy violation to occur, the offenses at issue must be the “same” in both respects.2

1. Elements

An elements inquiry is limited to the law and the charging instrument.3 In determining whether offenses are the same or different under such an inquiry, the Blockburger4 test sets out the starting presumption, but, at least in the multiple-punishments context, that presumption can be rebutted by other indicia clearly manifesting a legislative intent to the contrary.5 Under Blockburger, “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”6 In the multiple punishments context, if the offenses have the same elements under Blockburger, then an analysis can occur under Missouri v. Hunter7 to determine whether the Legislature nevertheless intended to allow multiple punishments.8 Conversely, if the offenses have different elements under Blockburger, then an analysis can occur under Ex parte Ervin to determine whether the Legislature nevertheless intended the offenses to be treated as the same.9 The Hunter/Ervin analysis is part of the elements aspect of Double Jeopardy law.10 The allowable unit of prosecution prescribed for the offenses is a relevant consideration under an Ervin analysis,11 but only in the abstract, in an effort to determine whether, under the law and the charging instrument, the offenses are considered to be the same elementally.

2. Units

A units (or “allowable unit of prosecution”) inquiry is separate, designed to determine whether a single legally proscribed offense has been committed more than once.12 A units inquiry can also be divided into two parts: (1) what the unit is,13 and (2) whether the requisite number of units have been shown.14 This inquiry involves determining such things as whether there were two murder victims, whether a victim who was assaulted on Monday was assaulted again on Tuesday, or whether multiple kinds of sex acts were committed against a victim. Evidence at trial can be considered in determining whether the requisite number of units has been shown.15 A units inquiry might more commonly arise when a single statute is involved16 and a court is trying to discern how to divide conduct (e.g., a sexual assault with multiple manners and means) into units.17 Parsing a single statute “is unlike a situation involving different statutes, which, by itself, is some indication of legislative intent to authorize multiple prosecutions simply because the offenses are separately defined in different statutes.”18 So, while a determination that the elements are different under the Blockburger test sets up a presumption in a multiple-statute elements inquiry, no such presumption is created in a single-statute units inquiry.19 Nevertheless, if offenses under different statutes are the “same” elementally, then a units analysis could be appropriate if, for example, the pleadings or the evidence indicates that there are different victims.20

B. Aggravated Robbery and Aggravated Assault

1. The State’s Briefing and the Habeas Court’s Findings

The State did not file a brief after we filed and set the instant habeas applications, but the State had earlier filed a response to the applications with the trial court. The State’s response was essentially neutral with respect to whether relief should be granted. The State conceded that the offenses are the same by their elements: “If the Court were to find that the actions taken by the defendants constituted a single transaction, then the only conclusion is that a double jeopardy violation has occurred.” But the State suggested that the offenses might be different by their units. According to the State, applicant’s act of firing into the wall during the process of attempting to take the victims’ money could be viewed as the aggravated robbery, while a co-defendant’s act of shooting one of the victims could be viewed as a separate offense of aggravated assault. The State acknowledged that “the issue is debatable.”

In its findings of fact and conclusions of law, the habeas court accepted the State’s suggestion that these were different offenses by their units. According to the habeas court, “The first assault occurred when William Denton fired a shot into the wall, and the second assault occurred when Michael Wainionpa shot Nicholas Moore in the leg. Even though the two crimes occurred close in time, there were two separate incidents, with a break in the action between the two events.” The habeas court did not say which assault was part of the aggravated robbery and which assault constituted the separate crime of aggravated assault.

2. Elements

a. Comparing the Statutes

Aggravated robbery and aggravated assault are defined in different sections–in fact, in different chapters–of the Penal Code. As explained above, the fact that the offenses involved are defined in different statutes is some indication that the Legislature intended multiple punishments. The aggravated-robbery and aggravated-assault statutes do contain a number of parallel elements. Both allow an underlying lesser offense to be aggravated by the use of a deadly weapon (the aggravating factor alleged in the indictment in this case) or by the infliction of serious bodily injury.21 The underlying lesser offenses of assault and robbery both contain alternative manners and means involving “bodily injury” and a “threat.”22

For the purpose of determining a lesser-included offense under ß 37.09 of the Code of Criminal Procedure, we have recognized that assault may or may not be a lesser-included offense of robbery depending upon which alternative manners and means are alleged:

For example, robbery may be committed either by causing bodily injury or by threatening imminent bodily injury. Each of these forms of robbery includes, as a lesser offense, a form of assault that the other does not include. An allegation of robbery by threat includes the lesser offense of assault by threat; it does not include the offense of assault by causing bodily injury. Conversely, an allegation of robbery by causing bodily injury would include the lesser offense of assault by causing bodily injury, but it would not include the offense of assault by threats.23

b. The Williams Construction

There is at least one substantial difference between the underlying assault and robbery statutes that relates to the case hand. The “threat” portion of the assault statute provides that a person commits an offense if he “intentionally or knowingly threatens another with imminent bodily injury.”24 The counterpart provision in the robbery statute provides that a person commits an offense if he “intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.”25 As can be seen, the robbery statute contains the phrase “places . . . in fear of” that is not contained in the assault statute. In Williams v. State, the First Court of Appeals indicated that this difference in language results in a significant difference in the meaning of the two statutes, because a threat is not actually required to establish robbery:

We note that an element of the crime of robbery, “places another in fear of imminent bodily injury,” Tex. Penal Code Ann. ß 29.02(a)(2) (Vernon 1989) (emphasis added), differs from an often compared, but vastly dissimilar element for the crime of assault, “threatens another with imminent bodily Injury,” Tex. Penal Code Ann. ß 22.01(a)(2) (Vernon 1989) (emphasis added). The general, passive requirement that another be “placed in fear” cannot be equated with the specific, active requirement that the actor “threaten another with imminent bodily injury.” Under the “placed in fear” language in section 29.02 of the Texas Penal Code, the factfinder may conclude that an individual perceived fear or was “placed in fear,” in circumstances where no actual threats were conveyed by the accused.26

In published opinions, the Third, Sixth, and Fourteenth courts of appeals have followed Williams.27 In Wilmeth v. State, the Twelfth Court of Appeals indicated that “a menacing glance” could be sufficient to show that the defendant placed a victim in fear of imminent bodily injury.28 A review of recent unpublished opinions shows other courts of appeals citing Williams or its progeny for the proposition that the “places in fear” element means that a threat is not required to establish a robbery.29 If both published and unpublished opinions are considered, the Williams case articulates the near-unanimous view of the courts of appeals, excepting only (possibly) the court in El Paso. We cannot consider the unpublished decisions as authority, but they demonstrate that the Williams holding is an issue of law circulating in the courts of appeals that we need to address in an appropriate case.30

c. Application of Blockburger

If the Williams decision is correct, then “threatens” and “places in fear” are alternative statutory methods of committing the offense of robbery and the “places in fear” variant of robbery is different under the Blockburger test than the offense of aggravated assault by threat. The next question would be whether an aggravating element that raises a robbery to aggravated robbery would necessarily entail a threat element not otherwise found in the “places in fear” variant of robbery. If that aggravating element would necessarily entail a threat, by itself or in conjunction with the other elements of robbery, then aggravated assault by threat could be a lesser-included offense of the “places in fear” variant of aggravated robbery. The aggravating element for robbery in applicant’s indictments is “use or exhibit a deadly weapon.” Although the aggravated-assault count alleges how the deadly weapon was used–“firing a firearm”–the aggravated-robbery count does not.31 Given the broad meaning assigned to “use” of a deadly weapon in our caselaw, it seems likely that such use could occur in a robbery offense (assuming Williams is correct) without requiring a threat.32

d. Ervin Analysis

If we determine that the offenses of “aggravated robbery by placing in fear” and “aggravated assault by threat” are different under Blockburger, we must then conduct an Ervin analysis to determine whether other factors persuade us that the legislature nevertheless intended that the offenses be treated as the same. We have33 held that “robbery is a form of assault” and that “the allowable unit of prosecution for robbery should be the same as that for an assault.”34 But, as explained above, assault is not always a lesser-included offense of robbery,35 and though the aggravated-robbery and aggravated-assault statutes contain significant parallels, there are some notable non-parallel elements.36 Recently, the Second Court of Appeals held, under an Ervin analysis, that aggravated assault and aggravated robbery are the same offense.37

e. Preservation – Face of the Record

If we determine that “aggravated robbery by placing in fear” and “aggravated assault by threat” are different offenses under Blockburger and Ervin, then applicant has a preservation-of-error problem. His indictments pled both the “threat” and “placing in fear” variants of aggravated robbery, presenting a situation in which one of the variants (threat) is the same offense as aggravated assault by threat but the other variant (placing in fear) is different. Because the two variants of aggravated robbery were part of the same general verdict, we do not know which theory the jury relied upon in finding applicant guilty. Under those circumstances and assumptions, and assuming that the evidence is sufficient to support the “placing in fear” variant of aggravated robbery, a double-jeopardy violation would not be clearly apparent on the face of the record and would thus be procedurally defaulted.38

A colorable sufficiency-of-the-evidence claim might perhaps be made in connection with the aggravated robbery committed against Moore. Moore testified that he did not believe that applicant or his cohorts would shoot him, even after applicant shot into the wall.39 On the basis of this testimony, it might be argued that Moore was not, in fact, placed in fear of imminent bodily injury or death after this first shot. No such argument can be made with respect victim Foster, who testified that she was in fear after the first shot was fired.40 And although the State in its response posited the first shot (into the wall) as the assault part of the aggravated robbery, one could reasonably argue that the second shot (in which Moore was injured) was part of the aggravated robbery, and the question would then be whether Moore was placed in fear of imminent bodily injury or death after he was in fact injured.

f. Absence of Briefing and Analysis

The Court addresses only some of the issues discussed above and addresses those in only a cursory manner. This is perhaps understandable, given that the State conceded the elements aspect of the double-jeopardy claim in its response and did not submit any further briefing when we filed and set the case. And the State’s actions are also perhaps understandable, given that granting relief simply sets aside twenty-year concurrent sentences, and that applicant will continue to serve twenty-five-year sentences in two cases. In its pleadings, the State also explicitly relied on its interest in seeing justice done. Out of deference to a defendant’s right against double jeopardy, we might perhaps accept a State’s concession with respect to a particular case when the double-jeopardy issue is inordinately complex. But we should not enshrine such a concession in the law, because in a future case, the issues might be more thoroughly debated in the crucible of adversarial testing.

3. Units

As discussed earlier, in a multiple-statutes case, an elements analysis is only half the battle: Even if the offenses proscribed by multiple statutory provisions are considered to be the “same” under Blockburger or Ervin, it is possible to have the repeated commission of the same offense. Murder and manslaughter, though proscribed in different statutes, are the same offense by their elements under Blockburger. But if the murder is of Mary and the manslaughter is of John, then the offenses are different by their units.

The present case contains an obvious and uncontested example of multiple units. The offenses were separately indicted based upon the separate victims. So there are four indicted offenses: an aggravated robbery against Moore, an aggravated assault against Moore, an aggravated robbery against Foster, and an aggravated assault against Foster. No one disputes that the State may receive at least one separate conviction per victim.41 However, the State suggested in its response, and the habeas court concluded, that each gunshot could also be the basis for a separate conviction.

Whether that is so depends upon how the legislature divides units in the aggravated-robbery and aggravated-assault statutes and it is purely a question of statutory construction.42 Generally, the best indicator of legislative intent with respect to the unit of prosecution is the focus or gravamen of the offense.43 We know that, for both aggravated robbery and aggravated assault, the focus or gravamen of the offense includes the victim. Does it also include the assaultive act? Is each assaultive act a separate offense? Or is each “transaction” the relevant unit of prosecution? Clearly if a defendant robs (or assaults) the victim on Monday and then robs (or assaults) the victim again on Tuesday, separate robberies (or assaults) have occurred. But can separate robberies or assaults occur against the same victim in the same transaction?

We must decide whether the applicable unit is act or transaction because the present case involves multiple acts in a single transaction. Although the habeas judge found a “break in the action between the two events,” he acknowledged that the incidents occurred close in time, so I do not think he was saying that the incidents occurred in separate transactions. In any event, the record does not support the notion that there were multiple transactions. The evidence shows that applicant and his cohorts demanded money and property, that Moore refused to cooperate, that applicant shot into the wall to procure Moore’s cooperation, that Moore continued to refuse to cooperate and told the robbers that they would have to shoot him, and that one of applicant’s cohorts then shot Moore in the leg. Nothing in the record suggests anything but an unbroken chain of events between the first and second shots fired.

So, can two gunshots occurring in the same transaction constitute separate assaults with respect to the same victim? Do they constitute multiple threats that can be punished separately? I am unaware of any published cases from this Court that have addressed the question. In its holding in a case involving the prosecution of both an aggravated robbery and an aggravated assault, the Second Court of Appeals has suggested that multiple assaults against the same victim in the same transaction can constitute only one offense.44 Although I do not necessarily agree with all of the reasoning in the Second Court’s opinion, I agree with the implication that the legislature did not contemplate separately punishing multiple assaults against the same victim in the same transaction.

4. Preservation – Legitimate State Interests

Even if, after addressing all of the prior issues, we concluded that a double-jeopardy violation is apparent on the face of the record, there would remain the second prong of the preservation analysis: whether the enforcement of the usual rules of procedural default serves no legitimate state interests.45 The Court writes this second “no legitimate state interest” prong out of the law when it says that it perceives no legitimate state interest in maintaining convictions where it is clearly apparent from the face of the record that they are in contravention of double-jeopardy protections. This is directly contrary to our decision in Gonzalez, which espoused the above two-part test after noting that our caselaw on preservation of double-jeopardy claims was “not a model of clarity.”46 We reaffirmed the two-part test in Langs, where we said that requiring a defendant to raise his double-jeopardy claims in the trial court does serve legitimate state interests.47 What the “serves no legitimate state interests” prong really means is that granting the defendant double-jeopardy relief places the State in no worse a position than it would have been in had a timely objection been made. The issue in the present case would be the possibility that the State might have pursued multiple prosecutions for lesser-included offenses that might have survived a double-jeopardy analysis. I will not, at this time, attempt to determine whether the State could or should have been allowed to pursue such a strategy. In its neutral response to the habeas application, the State addresses the second prong of the preservation test by saying, “[T]he State does not have any overriding interests at stake. The State was not required to go through additional trials, as both cases were tried as one. Additionally, the State certainly has an interest in seeing that justice is done, and in this case, if a double jeopardy violation is deemed valid, the State has an interest in seeing that relief is granted.” Given that response, I conclude that the State does not believe that applicant’s tardiness in raising a double-jeopardy claim has prejudiced its interests.

I respectfully concur in the Court’s judgment.
Filed: May 22, 2013
Publish

DISSENT BY: MEYERS

DISSENT
Meyers, J., filed a dissenting opinion.

DISSENTING OPINION

On January 9, 2013 in Ex Parte Parrott,1 the majority inexplicably decided that an Applicant must prove harm to obtain relief in a writ of habeas corpus premised on an illegal-sentence claim. However, less than three months later, this Court has already decided to abandon this requirement.2 It does not surprise me that this Court’s jurisprudence can change from month to month.3 As I have already emphasized in my dissenting opinion in Parrott, harm is not the correct measure for determining illegality. Similar to Parrott, the Applicant in this case cannot show harm because the other sentence is running concurrently with the first and based on the new requirement we should have denied the writ instead of setting aside the aggravated-assault convictions. By failing to conduct a harm analysis in this case, this Court has not only disregarded its own precedent, but also indicated that our opinion in Parrott was erroneous.

Keller, P.J., concurring opinion at *1.
With these comments, I respectfully dissent.
Meyers, J.

Footnotes:

1 Ex parte Parrott, No. AP-76,647, 396 S.W.3d 531, 2013 Tex. Crim. App. LEXIS 637 (January 9, 2013), is inapplicable to the issues raised in this review because it concerned an illegal sentence, while this case raises that issue of double jeopardy.

2 Denton v. State, supra 2007 Tex. App. LEXIS 1706 at *1.

3 The trial court’s conclusions of law are not supported by the record. The undisputed findings of fact note that “William Denton fired a gun into a wall of the shed, either to break up the fight [between Moore and Denton’s co-defendant] or to encourage Moore and Foster to turn over their belongings. There were further discussions, and Nicholas Moore attempted to pick up his belongings from the floor. After additional arguing, [co-defendant] shot Nicholas Moore in the leg with a handgun.”

4 Sec. 22.01 Assault. (a) A person commits an offense if the person: (1) . . .; (2) intentionally or knowingly threatens another with imminent bodily injury . . .; (3) . . ..

5 Because we grant relief on the first and second issues, the third issue that we filed and
set for submission is rendered moot, and we dismiss that issue.

Footnotes (Keller, concurrence):

1 Ex parte Hawkins, 6 S.W.3d 554, 557 n.8 (Tex. Crim. App. 1999) (discussing legal elements versus units of prosecution).

2 Id. (quoting Akhil Reed Amar, Double Jeopardy Law Made Simple, Yale L.J. 1807, 1817-18 (1997) (“[A]n offense must not only be the same in law–it must also be the same in fact.”)).

3 Bigon v. State, 252 S.W.3d 360, 370 (Tex. Crim. App. 2008); Hall v. State, 225 S.W.3d 524, 532-33 (Tex. Crim. App. 2007).

4 Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).

5 Littrell v. State, 271 S.W.3d 273, 276 (Tex. Crim. App. 2008) (If one offense “is a lesser-included” of the other under Blockburger, “the judicial presumption is that they are the same for double-jeopardy purposes” and the “second question, in that event, is whether the Legislature has clearly expressed a contrary intention that the accused should in fact be punished for both the greater and the lesser-included offenses.”); id. at 277 n.23 (“Of course, even when two statutorily defined offenses are clearly not the same under a Blockburger analysis, other considerations might make it clear that the Legislature nevertheless intended that an accused not be punished under both provisions.”). See also Bigon, 252 S.W.3d at 370 (“When multiple punishments arise out of one trial, the Blockburger test is the starting point in analyzing the two offenses.”); Ex parte Ervin, 991 S.W.2d 804, 807 (Tex. Crim. App. 1999) (“[T]he Blockburger test cannot authorize two punishments where the legislature clearly intended only one.”); Gonzales v. State, 304 S.W.3d 838, 845-46 (Tex. Crim. App. 2010) (“The traditional indicium of . . . legislative intent is the so-called ‘same elements’ test of Blockburger,” but “even if a straightforward application of the Blockburger test would suggest that two offenses are not the ‘same’ for double jeopardy purposes,” the offenses are nevertheless considered the same, “if other indicia manifest a legislative intent that an accused not be punished for both offenses”).

6 284 U.S. at 304.

7 459 U.S. 359, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983).

8 See id.; Ervin, 991 S.W.2d at 807. A Missouri v. Hunter inquiry may not be allowed in the multiple-prosecution context due to finality concerns. See State v. Perez, 947 S.W.2d 268, 270 n.3 (Tex. Crim. App. 1997).

9 See Gonzales, 304 S.W.3d at 845-46 (discussing Ervin). This analysis can occur in both the multiple prosecution and the multiple punishment contexts.

10 See Hall, 225 S.W.3d at 533 n.39 (recognizing that Hunter involved a cognate-pleadings analysis); Bigon, 252 S.W.3d at 372 (under an Ervin analysis, looking at charging instrument allegations to determine the underlying felony in felony-murder prosecution); Ervin, 991 S.W.2d at 807 (recognizing “the inverse conclusion” from Hunter).

11 Bigon, 252 S.W.3d at 371-72.

12 See Sanabria v. United States, 437 U.S. 54, 69-70, 69 n.24, 98 S. Ct. 2170, 57 L. Ed. 2d 43 (1978); Saenz v. State, 166 S.W.3d 270, 272-74 (Tex. Crim. App. 2005).

13 See e.g. Vick v. State, 991 S.W.2d 830, 832-34 (Tex. Crim. App. 1999) (Penetration of anus and sexual organ are different units in aggravated sexual assault.); Hawkins, 6 S.W.3d at 556 (Different victims are different units in a robbery.); Ex parte Cavazos, 203 S.W.3d 333, 335-37 (Tex. Crim. App. 2006)(Entry is the unit in a burglary.).

14 Blockburger, 284 U.S. at 303 (Second drug sale was a separate offense because it “was not the result of the original impulse, but of a fresh one.”); Ex parte Goodbread, 967 S.W.2d 859, 860-61 (Tex. Crim. App. 1998) (can have multiple prosecutions for different incidents of the same type of sexual assault).

15 Blockburger, 284 U.S. at 303; Goodbread, 967 S.W.2d at 860 (“For Double Jeopardy purposes, the same offense means the identical criminal act, not the same offense by name . . . . [W]hen one cannot determine from the State’s pleadings whether the offenses prosecuted are the same, the court must look to the proof offered at trial.”) (citing and quoting favorably from Luna v. State, 493 S.W.2d 854 (Tex. Crim. App. 1973)); id. at 861 (We look to evidence at trial to determine what instances of conduct conforming to the indictment are jeopardy-barred.); see also Quintano v. People, 105 P.3d 585, 592, 595 (Colo. 2005) (“[W]hile we do not adopt any specific list of factors to determine whether the defendant’s acts constitute factually distinct offenses, we look to all the evidence introduced at trial to determine whether the evidence on which the jury relied for conviction was sufficient to support distinct and separate offenses.”).

16 See Bigon, 252 S.W.3d at 371-72 (“Usually, analysis of an allowable unit of prosecution involves a situation in which two offenses from the same statutory section are charged.”).

17 See Vick, 991 S.W.2d at 833 n.1 (arriving at the same result under either the Blockburger test or an inquiry regarding how to divide the offense into separate prosecutable acts).

18 Id. at 832.

19 See Vineyard v. State, 958 S.W.2d 834, 836 n.5 (Tex. Crim. App. 1998) (“We also note this Court has stated the Blockburger test is not ‘precisely applicable’ to cases like this where a defendant’s conduct violates one statutory provision more than once.”

20 See Hawkins, 6 S.W.3d at 557 n.8.

21 Compare Tex. Penal Code ß 22.02(a)(1), (2) with id. ß 29.03(a)(1), (2).

22 Compare id. ß 22.01(a)(1), (2) with id. ß 29.02(a)(1), (2).

23 Bell v. State, 693 S.W.2d 434, 436 n.3 (Tex. Crim. App. 1985) (citation omitted, citing Martinez v. State, 599 S.W.2d 622, 624 (Tex. Crim. App. 1980) (in turn, citing Mitchell v. State 543 S.W.2d 637 (Tex. Crim. App. 1976) (holding that aggravated robbery by threat does not include aggravated assault by causing bodily injury)).

24 Tex. Penal Code ß 22.01(a)(2) (emphasis added).

25 Id. ß 29.02(a)(2) (emphasis added).

26 827 S.W.2d 614, 616 (Tex. App.–Houston [1st Dist.] 1992) (emphasis in original).

27 Welch v. State, 880 S.W.2d 225, 227 (Tex. App.–Austin 1994); Howard v. State, 306 S.W.3d 407, 410-11 (Tex. App.–Texarkana 2010); Burton v. State, 230 S.W.3d 846, 852 (Tex. App.–Houston [14th Dist.] 2007). See also Boston v. State, 373 S.W.3d 832, 840 (Tex. App.–Austin 2012) (“Moreover, ‘[b]y defining robbery to be theft plus either threatening or placing another in fear, [the robbery] statute demonstrates that the term “threaten” means something other than placing a person “in fear of imminent bodily injury or death.”‘”) (quoting from Olivas v. State, 203 S.W.3d 341, 345-46 (Tex. Crim. App. 2006), emphasis in Olivas and Boston, brackets in Boston).

28 808 S.W.2d 703, 706 (Tex. App.–Tyler 1991).

29 Ross v. State, 2012 Tex. App. LEXIS 7068 (Tex. App.–Fort Worth August 23, 2012) (not designated for publication) (citing Burton for the proposition that the defendant’s informing teller that this is a “holdup” and demanding money reasonably placed the teller in fear of bodily injury); Reed v. State, 2012 Tex. App. LEXIS 1650, *11 (Tex. App.–Waco February 29, 2012) (not designated for publication) (“Under the ‘placed in fear’ language of section 29.02, the fact-finder may conclude that an individual was ‘placed in fear’ in circumstances where no actual threats are conveyed.”); Britton v. State, 2011 Tex. App. LEXIS 5421, *3 (Tex. App.–Dallas July 15, 2011) (not designated for publication) (“If no actual threats were conveyed by the defendant, the factfinder must conclude the victim ‘perceived fear’ or was ‘placed in fear’ by the circumstances, including the defendant’s words and actions.”); Hines v. State, 2010 Tex. App. LEXIS 6739, 12 (Tex. App.–Corpus Christi August 19, 2010) (not designated for publication) (“Under the ‘placed in fear’ language contained in penal code section 29.02, the factfinder may conclude that an individual was ‘placed in fear’ in circumstances when no actual threats are conveyed.”); Barrow v. State, 2010 Tex. App. LEXIS 4128, *7 (Tex. App.–Amarillo May 28, 2010) (not designated for publication) (“Under the ‘placed in fear’ language in section 29.02 of the Penal Code, the factfinder may conclude that an individual perceived fear or was ‘placed in fear,’ in circumstances where no actual threats were conveyed by the accused.”); Mesquiti v. State, 2005 Tex. App. LEXIS 39, *2-3 (Tex. App.–San Antonio January 5, 2005) (not designated for publication) (“The general, passive requirement that another be ‘placed in fear’ cannot be equated with the specific, active requirement that the actor ‘threaten another with imminent bodily injury.’ Under the ‘placed in fear’ language, the factfinder may conclude that an individual perceived fear or was ‘placed in fear,’ in circumstances where no actual threats were conveyed by the accused.”) (citations omitted); Bradley v. State, 2004 Tex. App. LEXIS 866. *3 (Tex. App.–Beaumont January 28, 2004) (not designated for publication) (“Under the ‘placed in fear’ language, the factfinder may find that an individual perceived fear in a situation where the accused made no actual threats.”); Lavender v. State, 2003 Tex. App. LEXIS 8367, *6 (Tex. App.–Eastland Sept. 25, 2003) (not designated for publication) (“The accused need not expressly threaten another or display a weapon to commit robbery. It is sufficient to constitute robbery if the accused places the complainant in fear of bodily injury or death to the degree that ‘reason and common experience’ will likely induce the complainant to part with his property against his will.”) (citations to Williams and other cases omitted); Adkins v. State, 2003 Tex. App. LEXIS 2644 (Tex. App.–Fort Worth March 24, 2003) (not designated for publication) (Under assault statute, “there must at least be evidence of some overt conduct by the defendant that suggests he acted with an intent to threaten”–citing Williams as “comparing robbery statute that requires ‘placing’ another in fear with the assault statute.”).

30 See Alford v. State, 358 S.W.3d 647, 657 & n.21 (Tex. Crim. App. 2012) (Unpublished opinions cannot be cited as authority but can be cited to demonstrate conflict among the courts of appeals or to demonstrate how this Court and other courts have interpreted and applied constitutional law.). See also Tex. R. App. P. 77.3.

31 Thus, the aggravated-robbery count does not expand the deadly-weapon allegation beyond the statutory language under the cognate-pleadings test in Hall. See Hall, 225 S.W.3d at 526, 533-35.

32 See Clinton v. State, 354 S.W.3d 795, 802-03 (Tex. Crim. App. 2011); id. at 807 (Price, J., concurring); Patterson v. State, 769 S.W.2d 938, 940-42 (Tex. Crim. App. 1989).

33 If the offenses are determined to be the same under Blockburger, then a Hunter analysis would be conducted to determine if the “clearly expressed legislative intent” was to allow punishment for both offenses. See Hunter, 459 U.S. at 368. I do not contend that there is any possibility that State would prevail under a Hunter analysis.

34 Hawkins, 6 S.W.3d at 560.

35 Bell v. State, 693 S.W.2d at 436 n.3.

36 In addition to the fact that the robbery statute contains the “places . . . in fear of” language not present in the assault statute, the robbery statute contains the word “death” not found in the assault statute, and the assault statute contains the phrase “including the person’s spouse” not contained in the robbery statute. Compare Tex. Penal Code ß 22.01(a)(2) with id. ß 29.02(a)(2). Whether the latter two differences have any substantive effect is unclear.

37 Garfias v. State, 381 S.W.3d 626, 630-35 (Tex. App.–Fort Worth 2012).

38 Langs v. State, 183 S.W.3d 680, 686-87 (Tex. Crim. App. 2006) (“In this case, appellant’s two convictions may or may not violate the double jeopardy clause. Because of the jury charge and structure of the verdict form, we cannot be certain whether the jury relied upon the first (entry with intent to commit a felony) or second (entry and then commission of a felony) burglary theory . . . . When offenses, one of which could give rise to a multiple-punishment double-jeopardy violation, are listed disjunctively in a jury charge, the burden is upon the defendant to ‘preserve, in some fashion a double jeopardy objection at or before the time the charge is submitted to the jury.’ . . . . [W]hen separate theories for an offense are issued to the jury disjunctively, a double jeopardy violation is not clearly apparent on the face of the record if one of the theories charged would not constitute a double jeopardy violation and there is sufficient evidence to support that valid theory.”); Gonzalez v. State, 8 S.W.3d 640 (Tex. Crim. App. 2000).

39 Moore testified that he was uncooperative in the robbery because, “I’ve been around these guys a long period of time, and I never would have dreamed they’d actually shoot me.” The prosecutor responded, “Okay. So you still didn’t think so after the first shot was fired?” Moore answered, “Not a doubt in my mind.” Then the prosecutor asked, “So after you said, You’re going to have to shoot me, what happened next?” Moore responded, “Michael shot me.”

40 At various times Foster testified to her fear, including:

Q. Did the defendant say anything to . . . Moore about his personal effects?
* * *
A. I’m not real clear on whether it was him or someone else at this point. I really — I don’t remember. I was scared. I still am.
***
Q. [W]ere you in fear of injury during this robbery?
A. Yes, sir.
***
Q. And describe how this defendant–
A. He asked him to take the watch off and [Moore] refused. And that’s when him and Israel had his gun come out and everybody was pointing guns and he asked if he thought they were playing and he pointed-he turned his pistol to the side and shot through the wall.
Q. Were you in fear of injury at that point?
A. Yes, sir.

41 See Jones v. State, 323 S.W.3d 885, 889 (Tex. Crim. App. 2010) (discussing Hawkins); Hawkins, 6 S.W.3d at 560.

42 See Jones, 323 S.W.3d at 888.

43 Id. at 889.

44 Garfias, 381 S.W.3d at 633 (In a case where the defendant shot a store clerk four times in a single transaction: “We cannot fathom, however, that under the circumstances of this case, the legislature would intend to punish one continuous assaultive act under multiple assault-related offenses. For example, we cannot imagine that if a person committed one uninterrupted act of slowly rearing back with a closed fist and punching someone, the legislature would intend for the person to be convicted of both causing-bodily-injury assault, which is typically a Class A misdemeanor under section 22.01(a)(1) of the penal code, and threatening-another-with–imminent-bodily-injury assault, which is typically a Class C misdemeanor under section 22.01(a)(2).”).

45 See Langs, 183 S.W.3d at 687.

46 Gonzalez, 8 S.W.3d at 642-43.

47 See Langs, 183 S.W.3d at 686 n. 22.

Footnotes (Myers dissent):

1 Ex Parte Parrott, No. AP-76,647, 396 S.W.3d 531, 2013 Tex. Crim. App. LEXIS 637.

2 The majority has attempted to distance themselves from the ruling in Parrott by claiming that it pertains only to illegal sentence claims and is inapplicable to double jeopardy claims. However, it is inescapable that a valid double jeopardy claim renders a sentence illegal. Therefore, a double jeopardy violation is certainly an illegal sentence. It seems predictable that the majority makes the proclamation that a harm analysis is not the correct measure for double jeopardy claims (albeit in a footnote), as it is obvious how easily they disregard relevant standards that have been elicited in recent opinions. This is exactly what I predicted would happen in our dissenting statement on motion for rehearing in Parrott when I made it clear that it is entirely inappropriate to use a harm analysis for double-jeopardy claims. While it seems that the majority now all of a sudden agrees that the harm-analysis requirement created in Parrott is inappropriate, it is also inappropriate to side-step the issue by stating that the new requirement does not apply (does this opinion in effect overrule Parrott?).

3 Apparently Judge Keller has also decided to quickly abandon the method that the majority established in Parrott for analyzing illegal sentences such as we have here. However, her concurring opinion makes clear that she wants nothing to do with the majority’s analysis (I am not voting for the majority opinion, but I believe it was well reasoned under the old double-jeopardy standard). She dismissively states:

The present case involves an exceedingly complex double-jeopardy question, with only limited, neutral briefing from the State. Many of the significant issues and authorities relevant to the question are not addressed in the Court’s opinion. When complex issues are not subjected to adversarial testing, and when the relevant issues have not been sufficiently aired out, there is a danger in granting relief in anything other than a brief, unpublished opinion. I believe that that danger manifests itself in the Court’s opinion. Under the circumstances, I agree with granting applicant relief but do not join the Court’s opinion.