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Click here for the full text of this decision FACTS:Teresita Gonzalez was found on the premises of an establishment licensed to sell alcohol. She and a co-defendant had a knife and two handguns, in violation of Penal Code �46.02. Subsection (a) of that section says that “a person commits an offense if he intentionally, knowingly, or recklessly carries on or about his person a handgun, illegal knife, or club.” Gonzalez pleaded no contendere to a misdemeanor offense of unlawfully carrying an illegal knife. She was subsequently charged with a felony offense of unlawfully carrying a handgun on licensed premises. On appeal, Gonzalez says her second prosecution violates double jeopardy principles in the federal and state constitutions. HOLDING:Affirmed. The court notes that a second prosecution is permitted when each offense requires proof of an element that the other offense does not, but that is not the case when there are multiple violations of a single statutory provision. Whether or not the two charges in this case are multiple violations of a single statutory provision depends on what the statute’s “allowable unit of prosecution” is. The distinction of allowable units is based conduct-oriented statutes and possession-oriented statutes. In conduct-oriented statutes, such as murder statutes, each victim is the allowable unit of prosecution. In possession-oriented statutes, such as drug statutes, the proscribed item is the allowable unit of prosecution. Under �46.02, the operative action is the possession of one of three types of weapons: a handgun, an illegal knife or a club. Subsection (a) creates the offense of unlawfully carrying of a weapon. Another subsection does not create a separate offense but merely raises the penalty from a misdemeanor to a felony when the offense is committed in a designated place. “We hold that the allowable unit of prosecution under section 46.02 is the weapon. Therefore, the unlawful carrying of a knife and the unlawful carrying of a gun are two separate and distinct offenses for which defendant may be prosecuted.” The court adds that the Texas Constitution does not afford any different or greater protections for successive prosecutions following a conviction than the U.S. Constitution. OPINION:Marion, J.; Green, Duncan and Marion, JJ.

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