Opinion
Nos. 169-99 and 170-99
May 12, 1999
Affirmed and Opinion Filed May 11, 1999
On Appellant's Petition For Discretionary Review Fourteenth Court Of Appeals, Harris County.
The opinion of the Court was delivered per curiam.
Kristine C. Woldy, for appellant.
William J. Delmore, III, Assist. DA, Matthew Paul, State's Atty., for the State.
OPINION
Appellant was convicted in a single trial of attempted capital murder and aggravated assault. His punishment was assessed at confinement for thirty years and fourteen years, respectively. The convictions were affirmed. Johnson v. State, ___ S.W.2d ___ Nos. 14-96-1170-CR and 14-96-1171-CR (Tex. App. — Houston [14th Dist.] delivered December 3, 1998). Appellant filed a petition for discretionary review, raising two grounds for review.
The Court of Appeals held that aggravated assault is a lesser included offense of attempted capital murder, and these offenses are the same for double jeopardy purposes. It pointed out that the double jeopardy clause protects 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. It agreed that a jeopardy violation would occur if Appellant had been prosecuted for these offenses in separate trials, but held, "[T]he State would not violate the Double Jeopardy Clause by prosecuting Johnson for both offenses in the same trial and imposing concurrent sentences for the offenses. See Ex parte Herron, 790 S.W.2d 623 625 (Tex.Crim. App. 1990)." Johnson, slip op. at 3-4.
At the time the Court of Appeals decided this case, it did not have the benefit of our opinion in Ex parte Ervin, ___ S.W.2d ___ No. 73,137 (Tex.Crim. App., delivered January 13, 1999) (not yet reported),where this Court determined that two offenses were the same for double jeopardy purposes. These offenses had been tried in one proceeding, and this Court held, "A double jeopardy violation occurs even when as in this case, the sentences are concurrent. Ball v. United States, 470 U.S. 856 864-865 (1985)."Ervin, slip op. at 23.
Accordingly, we grant ground one of Appellant's petition, vacate the Court of Appeals' judgment, and remand for reconsideration in light of Ervin. Appellant's second ground for review is refused without prejudice.