                           NUMBER 13-05-00397-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


HUMBERTO GARZA,                                                           Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 370th District Court
                         of Hidalgo County, Texas.


                        MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Yañez and Benavides
            Memorandum Opinion by Chief Justice Valdez

      Appellant Humberto Garza was indicted for two counts of capital murder. See TEX .

PENAL CODE ANN . §§ 19.02(b) (Vernon 2003), 19.03(a)(2) (Vernon Supp. 2007). In March

2005, a jury convicted Garza of the lesser-included offense of murder in Count One and

assessed a life sentence. The jury also convicted Garza of capital murder in Count Two,
and based on the jury’s answers to special issues set forth in the code of criminal

procedure, the trial court sentenced Garza to death for Count Two. See TEX . CODE CRIM .

PROC . ANN . art. 37.071 (Vernon 2006). Garza’s conviction for Count One was appealed

to this Court.

        Garza’s sentence for his conviction of Count Two was directly appealed to the court

of criminal appeals.1 Id. art. 37.071, § 2(h) (Vernon 2006). In his direct appeal to the court

of criminal appeals, Garza raised thirty-three points of error, including a contention that the

trial court violated the federal and state constitutional protections against double-jeopardy

by subjecting him to multiple prosecutions and multiple punishments for the same offense.

Garza v. State, No. AP-75,217, 2008 Tex. Crim. App. Unpub. LEXIS 340, at *1-4 (Tex.

Crim. App. Apr. 30, 2008). The Texas Court of Criminal Appeals sustained Garza’s

double-jeopardy point of error and held that “[i]t is clearly apparent from the face of the

record that appellant was subjected to multiple punishments for the same offense in

violation of the federal and state constitutional protections against double-jeopardy.” Id.

at *11. Additionally, the court of criminal appeals instructed us to consider reversing

Garza’s murder conviction for Count One. Id. at *11 n.21.

        When a defendant's double jeopardy rights are violated, the remedy is to vacate one

of the convictions. Ball v. United States, 470 U.S. 856, 864-65 (1985); Landers v. State,

957 S.W.2d 558, 559 (Tex. Crim. App. 1997). The court of criminal appeals retained “the

most serious offense” and affirmed the trial court’s judgment and sentence of death in




        1
         This Court abated Garza’s appeal of his conviction for Count One until the court of crim inal appeals
decided his appeal for the Count Two conviction.

                                                      2
Count Two. Because of the court of criminal appeals’ holding and the sentence in Count

Two, we hereby reverse and render an acquittal in Count One.



                                               ____________________
                                               ROGELIO VALDEZ
                                               Chief Justice

Do not publish.
TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and
filed this the 28th day of August, 2008.




                                           3
