EDWIN GLEN BIGON v. THE STATE OF TEXAS ON APELLANT'S AND STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE THIRD COURT OF APPEALS LAMPASAS COUNTY Keller, P.J., filed a (dissenting)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1769-06, 1770-06

EDWIN GLEN BIGON, Appellant

v.

THE STATE OF TEXAS

ON APELLANT'S AND STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE THIRD COURT OF APPEALS

LAMPASAS COUNTY

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

When the sentences are different, "the most serious punishment" (or "offense") seems obvious: the greater term of years (or fine, as the case may be). That was the scenario confronted by this Court in Landers v. State, where the term of confinement was sixty-two years for one offense and nine months for the other. (1) But what should a court do when the sentences are identical and each offense could be characterized as the "most serious" depending on what factors are examined? Such a case is now before us.

Felony murder is a first-degree felony while intoxication manslaughter is a second-degree felony. That difference makes felony murder seem worse, but at present, that difference creates no practical consequence for the convicted person. A felony-murder conviction may have a practical consequence on the convicted person's early release prospects because the offense is included under provisions that adversely affect an inmate's eligibility for parole and mandatory supervision. (2) However, those same consequences would attach to intoxication manslaughter if a deadly weapon finding is made. (3) Moreover, a conviction for intoxication manslaughter can be used for enhancement under Chapter 49 of the Penal Code while a conviction for felony murder could not, (4) but convictions for both types of offenses can be used for enhancement purposes under Chapter 12. (5)

This Court has struggled with how to determine whether a particular offense is the "most serious" for the purpose of determining which offenses to discard and which to retain. In Ex parte Cavazos, this Court recognized that "[d]etermining which offense is 'most serious' may be difficult and may not always be objective." (6) In both Landers and Cavazos, we explained that we should look first to the greatest sentence, (7) but we seemed to have expressed some confusion about what to do if the sentences are the same. In Landers, we suggested that "rules of parole eligibility and good time" could serve "as a tie-breaker," (8) while Cavazos overruled Landers to the extent it 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, shall be used in that determination." (9) Nevertheless, in this case, the Court uses "degree of felony" as a "tie-breaker" even though it disavowed such use in Cavazos.

This issue has not been raised before. Although I authored Landers, the practical impossibility of determining in some cases which offense is really the most serious has convinced me that it would be preferable to simply give the local prosecutor the option to choose which conviction to retain. Making the matter a function of prosecutorial discretion seems to be most consistent with our prior recognition that a prosecutor in this type of situation is entitled to "submit both offenses to the jury for consideration" and receive "the benefit of the most serious punishment obtained." (10) If a subjective decision is to be made, let the local prosecutor who exercised the decision to bring the case make it. Indeed, doing so would be consistent with at least one of our decisions - Ex parte Ervin, the very case relied upon to find a double-jeopardy violation here. (11)

Although I agree with the Court's double-jeopardy finding, I disagree with its decision to choose which convictions to retain. Instead, I would remand this case to the trial court for the local prosecutor's office to decide which convictions should be retained. Accordingly, I respectfully dissent.

Filed: January 16, 2008

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1. 957 S.W.2d 558 (Tex. Crim. App. 1997).

2. See Tex. Code Crim. Proc. art. 42.12, §3g(a)(1)(A); Tex. Gov't Code §§508.145(d), 508.149(a)(2).

3. Art. 42.12, §3g(a)(2); §§508.145(d), 508.149(a)(1).

4. See Tex. Pen. Code §49.09.

5. See id., §12.42.

6. 203 S.W.3d 333, 338 (Tex. Crim. App. 2006).

7. Cavazos, 203 S.W.3d at 338 ("greatest sentenced . . . assessed"); Landers, 957 S.W.2d at 560 ("the longest sentence imposed").

8. Landers, 957 S.W.2d at 560.

9. Cavazos, 203 S.W.3d at 338.

10. Landers, 957 S.W.2d at 560-61.

11. 991 S.W.2d 804, 817 (Tex. Crim. App. 1999)(agreeing with State's suggestion to vacate manslaughter conviction and retain conviction for intoxication manslaughter).