      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-06-00039-CR



                                   Marcus Williams, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
      NO. D-1-DC-05-904127, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING



              C O N C U R R I N G AND D I S S E N T I N G O P I N I O N


               The majority is correct that the double jeopardy issue raised by these facts is

unaddressed in Cavazos. This determination is guided instead by Landers, which specifically

concerned double jeopardy in the context of a lesser-included offense. Because under the authority

of Landers, I would affirm the conviction for aggravated robbery, which is a first-degree felony, and

vacate the conviction for robbery, which is a second-degree felony and a lesser-included offense, I

respectfully dissent.

               Although I would hold that we vacate the robbery conviction and affirm the

aggravated robbery conviction, in the alternative, I would remand for further proceedings. Because

(i) this issue was not raised by appellant on appeal and was raised instead by the State when it filed

a supplemental brief recognizing its responsibility to raise the issue and requesting that we “abandon

the lesser charge” of robbery, and (ii) appellant did not respond, rather than fall back on the
randomness of the offense specified in the first verdict form as the majority does here—a result

which may be appropriate in certain circumstances—I would invite the considered views of the

parties and the trial court who can better ventilate and evaluate the factors to be taken into account.




                                               __________________________________________

                                               Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Pemberton

Filed: June 1, 2007

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