



 





IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. AP-75,269



EX PARTE MANUEL CAVAZOS, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
FROM HIDALGO COUNTY



 Johnson, J., delivered the opinion of the Court, in which Price, Womack,
Keasler, Hervey, Holcomb, and Cochran, JJ., joined.  Keller, P.J., filed a concurring
opinion.  Meyers, J., dissents.

O P I N I O N


	An indictment returned in 1992 charged applicant with two counts of burglary of a habitation.
Tex. Penal Code § 30.02.  Both counts arose from the same incident, but involved different
complainants. (1)  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. (2)   A jury convicted applicant on both
counts of burglary of a habitation.  A habitual offender, applicant was sentenced to two concurrent
terms of twenty-five years' imprisonment in the Texas Department of Criminal Justice-Correctional
Institutions Division.  Tex. Penal Code § 12.42.  No appeal was taken.
	This Court filed and set applicant's application for habeas corpus. The issue before us is
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
United States Constitution. (3)  Applicant argues 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, (4) and that such punishment is
contrary to the legislative intent of the burglary statute and a violation of the United States
Constitution. 
	The Fifth Amendment provides that no person "shall . . . be subject for the same offence to
be twice put in jeopardy of life or limb . . .." U.S. Const. amend. V.  The United States Supreme
Court has concluded that the Fifth Amendment offers three separate constitutional protections: (1)
protection against a second prosecution for the same offense after acquittal; (2) protection against
a second prosecution for the same offense after conviction; and (3) protection against multiple
punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled
on other grounds by Alabama v. Smith, 490 U.S. 794 (1989); Lopez v. State, 108 S.W.3d 293, 295-96 (Tex. Crim. App. 2003).  The instant case, as applicant correctly claims, implicates the third of
these guarantees, protection against multiple punishments for the same offense.    	
	This Court has pointed out that "[a] defendant suffers multiple punishments in violation of
the Double Jeopardy Clause when he is convicted of more offenses than the legislature intended."
Ervin v. State, 991 S.W.2d 804, 807 (Tex. Crim. App. 1999)(citing Ball v. United States, 470 U.S.
856 (1985)).  However, the Double Jeopardy Clause imposes few, if any, limitations on the
legislative power to establish and define offenses. Ex parte Hawkins, 6 S.W.3d 554, 556 (Tex. Crim.
App. 1999)(citing Brown v. Ohio, 432 U.S. 161 (1977)).  The legislature, therefore, determines
whether offenses are the same for double-jeopardy purposes by defining the "allowable unit of
prosecution." Id. (citing Sanabria v. United States, 437 U.S. 54 (1978)).  The legislature also decides
whether a particular course of conduct involves one or more distinct offenses under a given statute.
Id.  Consequently, the scope of the Double Jeopardy Clause's protection against multiple
punishments under the burglary statute depends on ascertaining the allowable unit of prosecution.
	 Citing Ex parte Gonzalez, (5) the state distinguishes between "conduct-oriented" and
"possession-oriented" statutes in determining the allowable unit of prosecution in a burglary of a
habitation.  The state concludes, without citation to any specific authority, that burglary of a
habitation is a conduct-oriented statute, thereby making the complainant, rather than the unlawful
entry, the allowable unit of prosecution.  The state argues that double jeopardy is not implicated
because the offenses for which applicant was convicted occurred in separately occupied parts of the
same house and involved two different complainants.  The state's reliance on this position is
misplaced.  
	The plain meaning of the version of  Tex. Penal Code § 30.02(a) that was in effect at the
time applicant committed the offenses indicates that a person commits the offense of burglary of a
habitation if, without the effective consent of the owner, he:
(1) enters a habitation, or a building (or any portion of a building) not open to the
public, with intent to commit a felony or theft; or 

(2) remains concealed, with intent to commit a felony or theft, in a building or
habitation; or
 
(3) enters a building or habitation and commits or attempts to commit a felony or
theft. (6) 
	Chapter 30 of the Penal Code is titled "Burglary and Criminal Trespass."  Chapter 30 is part
of Title 7 of the Penal Code, "Offenses Against Property."  As applicant suggests, the gravamen of
a burglary is the entry without the effective consent of the owner and with the requisite mental state. 
DeVaughn v. State, 749 S.W.2d 62, 65 (Tex. Crim. App. 1988).  This Court has found that, when
a burglary is committed, the harm results from the entry itself. Richardson v. State, 888 S.W.2d 822,
824 (Tex. Crim. App. 1994).  The offense is complete once the unlawful entry is made, without
regard to whether the intended theft or felony is also completed. Id.  
	The allowable unit of prosecution for an assaultive offense is each complainant. 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).  Burglary, however, is not an assaultive
offense; rather, its placement within Title 7 indicates that the legislature determined burglary to be
a crime against property.  Thus, the complainant is not the appropriate allowable unit of prosecution
in a burglary, rather, the allowable unit of prosecution in a burglary is the unlawful entry. 
Applicant's convictions violate double jeopardy because he was punished multiple times for a single
unlawful entry.   
	When a defendant is convicted of two offenses that are the "same" for double-jeopardy
purposes, our case law tells us that the conviction for the "most serious" offense is retained and the
other conviction is set aside. Landers v. State, 957 S.W.2d 558, 559-60 (Tex. Crim. App. 1997). 
Landers states that the "most serious" offense is determined by the degree of the felony, range of
punishment and sentence imposed, with rules of parole eligibility and good-conduct time as a tie-breaker.  Id.  These criteria were taken from an older case involving such a choice in a case of
misjoinder (Penal Code § 3.01 before September 1, 1987).   Ex parte Peña, 820 S.W.2d 806
(Tex.Crim.App. 1991).  Misjoinder is no longer an issue because of legislative action. 
	At issue in Landers, however, was not misjoinder, but the choice between convictions when
one charged offense is a lesser- included offense of the other charged offense.  The facts of Landers
further complicated the issue, as the appellant had been charged with a second-degree felony, theft
of a vehicle, and a lesser-included third-degree felony, unauthorized use of a vehicle (UUMV), but
was convicted of Class A misdemeanor theft and UUMV.  
	There is significant overlap in the Landers criteria; in general, if the degree of felony is the
same, the range of punishment will be the same.   Too, rules of parole eligibility and good-conduct
time are outside the purview of this court and tend to be fluid.  Are we to consider the rules as they
were promulgated at the time of the offense, the time of sentencing, or the time of our review?  In
addition, the grant (and loss) of good-conduct time is discretionary and is more related to the conduct
of the inmate while incarcerated than the seriousness of the offense of conviction.
	Determining which offense is "most serious"may be difficult and may not always be
objective.  Both murder and burglary of a habitation with intent to commit a felony other than a theft
are first-degree felonies and have the same range of punishment, yet many, if not all, citizens would
say that murder is a more serious offense than burglary.  The range of punishment may be enhanced
with proof of prior convictions, and such enhancements can be applied to all non-state-jail felonies. 
If the indictment alleges aggravated robbery and felony driving while intoxicated with an allegation
that a deadly weapon was used, and both are subject to an enhanced punishment of 25 to 99 years
or life, which is the "most serious"?  Is the "most serious" offense to be judged by the offenses
alleged or by the offenses of conviction?  Who determines the seriousness of the offense?  Judges
may look at the indictment and conclude that the charged second-degree felony is more serious than
the charged third-degree felony, then be faced with a jury punishment verdict of 2 years'
incarceration on the second-degree felony and 10 years' on the third-degree felony.  Such a verdict
would seem to indicate that the jury found the third-degree felony to be the "most serious."
	Our case law grants great discretion to the finder of fact.  See e.g., Swain v. State, 181 S.W.3d
359, 365 (Tex. Crim. App. 2005)(suppression motion); Ex parte Patterson, 117 S.W.3d 804, 819
(Tex. Crim. App. 2003)(application for writ of habeas corpus); Morales v. State, 32 S.W.3d 862,
865-66 (Tex. Crim. App. 2000)(decision to admit of exclude scientific evidence).  We now extend
that discretion to the determination of the "most serious" offense and hold that the "most serious"
offense is the offense of conviction for which the greatest sentence was assessed.  To the extent that
Landers holds 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,
it is overruled.
	The remaining question is the determination of the "most serious" offense when, as here, the
degree of the offense of conviction and the term of years assessed by the fact finder are the same. 
At the time of the offenses in this case, both offenses of conviction were first-degree felonies.  The
jury assessed the same term of years for each conviction and assessed no fines, but restitution of
$122.00 was ordered in the judgment for the burglary with intent to commit theft.  We have held that
restitution is punishment: "As punishment, restitution attempts to redress the wrongs for which a
defendant has been charged and convicted in court."  Cabla v. State, 6 S.W.3d 543, 546 (Tex. Crim.
App 1999)(citing Martin v. State, 874 S.W.2d 674, 678 (Tex. Crim. App. 1994)). (7)  In these
circumstances, the punishment assessed makes the burglary with intent to commit theft the "most
serious" offense. (8)
	Having found that two burglary convictions based on the same unlawful entry violates the
Double Jeopardy Clause of the United States Constitution and that, in this case, the burglary with
intent to commit theft is the "most serious" offense, we deny applicant's claim relating to his
conviction for burglary with intent to commit theft and grant his claim for relief from the jeopardy-barred conviction for burglary with intent to commit sexual assault.

Delivered: October 4, 2006
Publish
1.  The first count of the indictment states, ". . . that Manuel Cavazos hereinafter styled Defendant, on or
about the 27th day of September A.D., 1992 . . . did then and there intentionally and knowingly enter a habitation,
without the effective consent of Maria Minerva Regalado, the owner thereof, with intent to commit theft; . . ." 

	The second count of the indictment states, ". . . that Manuel Cavazos hereinafter styled Defendant, on or
about the 27th day of September A.D., 1992 . . . did then and there intentionally and knowingly enter a habitation,
without the effective consent of Norma Regalado, the owner thereof, with intent to commit sexual assault; . . . ."
2.   The order in which the theft and assault took place is not ascertainable from the record.
3.   Applicant alleges that the state tried him twice for the same offense of burglary of a habitation in count
one and in count two of the indictment, and that this constitutes a violation of the Double Jeopardy Clause.
4.   Applicant submitted four additional complaints; the state charged the applicant with a fatally defective
indictment; the state used the same prior convictions to enhance the punishment range of both count one and count
two of the indictment to the habitual-offender range; his court-appointed counsel was ineffective, causing applicant's
constitutional rights to be violated because he failed to object to the errors applicant now complains of and failed to
file a notice of appeal as requested by applicant in open court; and the state convicted and sentenced the applicant
with insufficient evidence to support either count of the burglary of a habitation.
5.  147 S.W.3d 474 (Tex. App .- San Antonio 2004).
6.  Tex. Penal Code § 30.01 Definitions
		In this chapter:
		(1) "Habitation" means a structure or vehicle that is adapted for the overnight accommodation of
persons, and includes:
			(A) each separately secured or occupied portion of the structure or vehicle; and
			(B) each structure appurtenant to or connected with the structure or vehicle.
		* * * *
	Tex. Penal Code § 1.07 Definitions
		(a) In this code:
		* * * *
		(24) "Owner" means a person who:
			(A) has title to the property, possession of the property, whether lawful or not, or a greater
right to possession of the property than the actor; . . . 

	Tex. Penal Code § 30.02 Burglary
		* * * *
		(b) For purposes of this section, "enter" means to intrude:
			(1) any part of the body; or
			(2) any physical object connected with the body. 
7.   In contrast, we have held that sex-offender registration is remedial, not punitive.  Mitschke v. State, 129
S.W.3d 130  (Tex. Crim. App. 2004); Rodriguez v. State, 93 S.W.3d 60 (Tex. Crim. App. 2002).
8.   Some of our case law suggests that, all other factors being equal, the conviction that should be affirmed is
the offense named in the first verdict form.  See, e.g., Ex parte Cravens, 805 S.W.2d 790 (Tex.Crim.App 1991);
McIntire v. State, 698 S.W.2d 652 (Tex.Crim.App 1985); Ex parte Siller, 686 S.W.2d 617 (Tex.Crim.App 1985). 
Generally, this will be the offense described in Count I of the indictment.  We do not address that question today.       
        
