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Click here for the full text of this decision FACTS:An indictment returned in 1992 charged applicant with two counts of burglary of a habitation. Both counts arose from the same incident, but involved different complainants. The first count charged applicant with burglary of a habitation with intent to commit theft, while the second count charged applicant with burglary of a habitation with intent to commit sexual assault. Applicant plead not guilty. The state presented evidence at the guilt phase of the trial that applicant entered the complainants’ home by removing a screen and climbing through an open window. Once inside, applicant stole money from one complainant and, in another room in the home, grabbed the leg of the other complainant while she slept and then fled the scene. A jury convicted applicant on both counts of burglary of a habitation. A habitual offender, applicant was sentenced to two concurrent terms of 25 years’ imprisonment. No appeal was taken. The Court of Criminal Appeals (CCA) filed and set applicant’s application for habeas corpus. The issue before the CCA was whether convicting applicant of two counts of burglary of a habitation, each with a different complainant but arising from a single unlawful entry, violates the double jeopardy clause of the U.S. Constitution. Applicant argued that the gravamen of the burglary offense is the unlawful entry of a habitation and that once such entry is made, the burglary offense is complete. Applicant concludes that his conviction on two counts of burglary of a habitation arising out of the same entry constitutes multiple punishments for the same offense and that such punishment is contrary to the legislative intent of the burglary statute and a violation of the U.S. Constitution. HOLDING:Habeas corpus relief was granted. The court found that burglary is not an assaultive offense; rather, it is a crime against property. Thus, the court stated, the allowable unit of prosecution in a burglary is the unlawful entry. The court then held that the two burglary convictions based on the same unlawful entry violated the double jeopardy clause of the U.S. Constitution and that, in this case, the burglary with intent to commit theft was the most serious offense. The court found the this offense more serious than the burglary with intent to commit sexual assault charge, because restitution of $122 was ordered in the judgment for the former offense (the jury assessed the same term of years for each conviction). As a result, the CCA denied applicant’s claim relating to his conviction for burglary with intent to commit theft and granted his claim for relief from the jeopardy-barred conviction for burglary with intent to commit sexual assault. OPINION:Johnson, J., delivered the opinion of the court, in which Price, Womack, Keasler, Hervey, Holcomb and Cochran, J.J., joined. CONCURRENCE:Keller, P.J., filed a concurring opinion. “The Court misstates the holding in [Landers v. State, 957 S.W.2d 558 (Tex. Crim. App. 1997)]. The Court says that Landers requires retaining “the most serious offense” while setting aside the other conviction. To the contrary . . . [Landers] requires retaining the offense with the most serious punishment and vacating any remaining offenses that are the same’ for double jeopardy purposes.” DISSENT:Meyers, J., dissents.

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