










IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-61-04


JOHN ANTHONY SAENZ, Appellant

v.


THE STATE OF TEXAS




ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTH COURT OF APPEALS

BEXAR COUNTY



 Holcomb, J., delivered the opinion of the Court, in which Keller, P.J.,
and Meyers, Price, Womack, Johnson, Keasler, and Cochran, JJ., joined. 
Hervey, J., did not participate. 

O P I N I O N

 
	Appellant had agreed to sell an amount of cocaine for a supplier but ended up
consuming most of it in a three-day drug binge.  When appellant's supplier found out that
appellant had consumed most of the cocaine, he went to appellant's house with two
companions.  Anticipating trouble, appellant had two armed cohorts laying in wait. 
Appellant allowed the supplier and his companions into the home.  The supplier demanded
either the money for the cocaine or the cocaine.  Appellant gave him what was left of the
cocaine.  Believing that the supplier had given a signal to his companion, appellant then
alerted his two cohorts, and they shot and killed all three victims--appellant shot the
supplier, and appellant's cohorts shot the supplier's companions.
	Appellant was charged with capital murder in a three count indictment.  Each count
alleged the murder of a different victim, and each count alleged the murder of the two other
victims as aggravating circumstances.  The jury convicted appellant of three counts of capital
murder.  Under each count, the jury found that appellant would not be a future danger and
imposed life imprisonment for each count.  
	On direct appeal, appellant complained that the three convictions of capital murder
violated his right against the imposition of multiple punishments under the Fifth
Amendment's double jeopardy clause.  The court of appeals agreed and acquitted appellant
of the two capital murders based on party liability (the capital murder convictions of the
supplier's companions) but upheld appellant's conviction of the capital murder of the
supplier, whom appellant himself had shot to death.  Saenz v. State, 131 S.W.3d 43, 53 (Tex.
App.--San Antonio 2003).  We granted the State's petition for discretionary review on the
following single question: "Did the Court of Appeals err in holding that the appellant had
been subjected to multiple punishments for the same offense in violation of the Double
Jeopardy clause, when separate judgments for the offense of capital murder were entered for
each victim of a multiple murder committed in the same criminal transaction?"  We hold that
the court of appeals did not err.  
Discussion
	The Double Jeopardy Clause protects against multiple punishments for the same
offense.  U.S. Const. amend. V; North Carolina v. Pearce, 395 U.S. 711, 717 (1969),
overruled in part on other grounds by, Alabama v. Smith, 490 U.S. 794(1989).  The Fifth
Amendment's multiple punishments prohibition is violated when a defendant "is convicted
of more offenses than the legislature intended."  Ex Parte Ervin, 991 S.W.2d 804, 807 (Tex.
Crim. App. 1999) (citing Ball v. United States, 470 U.S. 856(1985)).  
	The Legislature is endowed with the power to establish and define criminal offenses. 
Ex parte Hawkins, 6 S.W.3d 554, 556 (Tex. Crim. App. 1999).  The Double Jeopardy Clause
puts little, if any, limitation on this power.  Id.  In determining whether a particular course
of conduct involves one or more distinct offenses under a single statute, we must ascertain
the "allowable unit of prosecution" under the statute.  See Sanabria v. United States, 437
U.S. 54 (1978); Hawkins, 6 S.W.3d at 556.  Thus, our task here is to decide whether the
Legislature intended that three "units of prosecution" be charged under the capital murder
statute.  See Hawkins, 6 S.W.3d at 556-57. 
	The relevant factors to be considered in determining the legislative intent concerning
the allowable unit of prosecution are statutory construction, see id. at 559, and whether the
statute's legislative history expresses an intent to treat the crimes as the same offense rather
than separate and severally punishable offenses.  See Ervin, 991 S.W.2d. at 814.  
Statutory Construction
	A plain reading of Penal Code § 19.03(a)(7)(A) shows that, at a minimum, one
intentional or knowing murder is required under Penal Code §19.02(b)(1), and that one
additional murder be committed during the same criminal transaction.  Tex. Pen. Code Ann.
§ 19.03(a)(7)(a).  Thus, in order to violate Section 19.03(a)(7)(A) and be subject to capital
punishment, a defendant must kill "more than one person."  Id.  Unlike other violent
offenses, for which the allowable unit of prosecution is each individual victim, see Phillips
v. State, 787 S.W.2d 391, 394-95 (Tex. Crim. App. 1990)(assault), ex Parte Rathmell, 717
S.W.2d 33, 36 (Tex. Crim. App. 1986)(voluntary manslaughter), the capital murder statute
under subsection (a)(7)(A) requires, at minimum, two victims.  Thus, an accused may not be
charged under the capital murder statute absent "more than one" homicide.
	We have said, "[a]s a predicate to charging capital murder, the Penal Code requires
that a defendant commit murder as defined under Section 19.02(b)(1)."  Graham v. State, 19
S.W.3d 851, 853 (Tex. Crim. App. 2000).  "The predicate murder is then aggravated to
capital murder where any one of eight additional circumstances are [sic] present."  See id. 
With the exception of the circumstance listed in Section 19.03(a)(7)(b) (multiple murders
committed during different transactions but as part of the same course of conduct), which
was added to the Code along with Section 19.03(a)(7)(A), all other cases in which capital
murder may be charged allow for the charging of a single capital murder per circumstance,
as they all may apply in situations where only one victim has been killed.  (1)  The aggravating
circumstance for a capital murder prosecution under Section 19.03(a)(7)(A), however, is the
murder of "more than one person during the same criminal transaction."  Tex. Pen. Code
Ann. § 19.03(a)(7)(A).  Thus, in order to invoke Section 19.03(a)(7)(A) at all, two murders
must have been committed.  The commission of at least one murder, then, which is in
addition to the predicate murder, is the aggravating circumstance required by Section
19.03(a)(7)(A).  Just as the clear allowable unit of prosecution under Section 19.03(a)(8) is
the murder of one individual under six years of age, the allowable unit of prosecution for
Section 19.03(a)(7)(A) is the commission of any additional murders.  Thus, we conclude the
statute reflects that the killing of at least two persons allows the State to charge a single count
of capital murder under Section 19.03(a)(7)(A). 
Legislative History
	The present version of Section 19.07(a)(7)(A) is the result of Texas House Bill 8, 69th
Leg., R.S. (1985) [hereinafter H.B. 8].  H.B. 8 was the legislative response to the State's
inability to seek the death penalty as punishment for the concomitant murders of six Dallas
nightclub patrons by Abdelkrim Belachheb.  (2) See Hearing on Tex. H.B. 8 before the House
Crim. Jur. Comm., 69th Leg., R.S. (Feb. 11, 1985).  (3)  The "glaring loophole" in the Penal
Code sought to be closed by H.B. 8, was the inability of the State to seek the death penalty
against Belachheb and other mass murderers.  See id. (4)
	The legislative record does not suggest that, in addition to creating a means for the
State to seek the death penalty against mass murderers, H.B. 8's authors intended to create
a means for the State to seek multiple death penalties against mass murderers.  Rather, much
of the legislative commentary on the bill focused on the Legislature's goal of making it
possible for the State to execute mass murderers.  (5) 
	In their discussion of the bill's purpose, its authors and supporters also shed light on
their view of the allowable unit of prosecution under the statutory change to be enacted by
H.B. 8.  Throughout House and Senate floor debates and committee hearings, the rhetoric of
H.B. 8's co-authors and supporters belies an understanding that the statute would allow for
more than one capital murder charge per criminal transaction, regardless of the number of
victims killed.  For example, during a Senate floor debate, an unidentified Senator
characterized the bill as an "attempt to punish the very serious offense of multiple killings." 
See Senate Floor Debate on H.B. 8, April 1, 1985. (6)  Clearly then, H.B. 8's supporters
understood the statute to allow for a single capital murder prosecution when the allowable
unit of prosecution of "more than one" murder was met.
Holding
	The most reasonable interpretation of the statute and its legislative intent is that, under
the circumstances presented here, the statute allows only a single capital murder conviction. 
Accordingly, we hold that the Double Jeopardy Clause of the Fifth Amendment was violated
when the State charged appellant with three separate counts of capital murder under Section
19.03(a)(7)(A) because the charges rely on the same three murders for each charge.  We
affirm the judgment of the court of appeals.
DELIVERED: June 29, 2005.
PUBLISH.		
 


 

1.   See Tex. Pen. Code §§19.03(a)(1-6, 8) (defining eight other aggravating circumstances
that would otherwise constitute intentional or knowing murder under Section 19.02(b)(1), but
may be charged as capital murder; i.e., murder of an on-duty peace officer or firefighter, murder
committed in the course of the commission of certain other offenses, murder for hire, murder
during escape from prison, murder by a prisoner of a prison employee or as part of the activities
of a prison gang, murder of a prisoner by certain other prisoners, and murder of a child under six
years of age).  
2.   See Belachheb v. State, 699 S.W.2d 709 (Tex. App.-Dallas 1985)(pet. ref'd).
3.   Testifying before the House Committee on Criminal Jurisprudence in support of H.B. 8,
the Belachheb trial prosecutor explained that the citizens of Dallas were dissatisfied with
Belachheb's life sentences because they had "wanted to see the price paid" for Belachheb's
crimes.  Hearing on Tex. H.B. 8 before the House Crim. Jur. Comm., 69th Leg., R.S. (Feb. 11,
1985)(testimony of Dallas County Assistant District Attorney Rider Scott). 
4.  (bill introduction by Committee Chair Rep. Terral Smith).
5.  Senator Parmer, the bill's co-sponsor, told his colleagues on the Senate Criminal
Justice Committee that "it makes no sense at all to have capital punishment for anybody unless
you're going to apply that supreme penalty for the person who takes multiple lives."  See Hearing
on Tex. H.B. 8 before the Senate Comm. on Crim. Justice, 69th Leg. (March 26, 1985).  Also,
when H.B. 8's co-author presented his bill to the House Criminal Jurisprudence Committee, he
emphasized that the goal of the legislation was to insure that "if a person murders more than one
person, they at least ought to be eligible for the death penalty."  See Hearing on H.B. 8 before the
House Crim. Jur. Comm., 69th Leg., R.S. (Feb. 11, 1985)(speech of Rep. Tony Polumbo); see
also, Debate on H.B. 8 on the Floor of the House of Representatives, 69th Leg., R.S. (March 11,
1985) ("All we simply do with House Bill 8 is say that any person that's committed of [sic] a
multiple murder such as mass murders...should at least be eligible for the death penalty.")
(speech of Rep. Tony Polumbo).  
6.   Similarly, testifying before the House Criminal Jurisprudence Committee, George
Lambright, a Harris County Assistant District Attorney, spoke of a case in Houston in which four
members of a family were murdered during the same incident.  According to Lambright, "that
murder does not fit within one of the enumerated sections within our current capital murder
statute that would elevate that offense to capital murder."  Hearing on Tex. H.B. 8 before the
House Crim. Jur. Comm., 69th Leg., R.S. (Feb. 11, 1985) (testimony of Harris County Assistant
District Attorney George Lambright). 
