ST. AUBIN, KEITH MICHAEL Appeal from 10th District Court of Galveston County (dissenting by judge newell)
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IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-49,980-12; WR-49,980-13; WR-49,980-14; WR-49,980-15; WR-49,980-16 EX PARTE KEITH MICHAEL ST. AUBIN, Applicant ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. 98CR0360; 98CR0362; 98CR0358; 98CR0359; 98CR0361 IN THE 10TH DISTRICT COURT OF GALVESTON COUNTY N EWELL, J., filed a dissenting opinion in which ALCALA, RICHARDSON AND WALKER, JJ., joined. Applicant was convicted of one count of murder, and four counts of attempted capital murder. In these post-conviction applications, Applicant contends that he has received multiple punishments for the same conduct in violation of the Double Jeopardy Clause. The State and the trial court agree. The State asks that we vacate and set aside Applicant’s attempted capital murder convictions and leave the murder conviction, and its attendant life sentence, in place. That is also what the trial court recommends. But we are not granting Applicant relief. Instead, we reject the State’s waiver of procedural default.1 Then, we treat Applicant’s doublejeopardy claim as punishment error even though the constitutional error occurred when Applicant was convicted rather than when he was punished. Evans v. State, 299 S.W.3d 138, 141 (Tex. Crim. App. 2009) ("A double jeopardy violation occurs even when, as in the case before us, the sentences are concurrent and the impermissible conviction does not result in a greater sentence."). We should just do what the State and the trial court ask us to do; reform the judgment to reflect a single conviction for murder with a life sentence. Bigon v. State, 252 S.W.3d 360, 372 (Tex. Crim. App. 2008) ("When a defendant is subjected to multiple punishments for the same conduct, the remedy is to affirm the conviction for the most serious offense and vacate the other convictions."). Because we do not, I dissent. 1 In its brief, the State agreed that denying relief in this case would serve no legitim ate state interests. In Ex parte Knipp, we construed a sim ilar concession by the State as a waiver of procedural default. 236 S.W .3d 214, 216 n. 3 (Tex. Crim . App. 2007) (“[T]he State has indicated its willingness to forego its substantial interest in the finality of applicant’s plea, and it would serve no legitim ate state interests to enforce usual rules of procedural default.”). Filed: September 20, 2017 Publish
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