             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                           NO. AP-76,825



                         Ex parte LEE ROBERT CARLE, Applicant

               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                         FROM ARANSAS COUNTY


K ELLER, P.J., filed a dissenting opinion in which K EASLER and H ERVEY, JJ., joined.


        Pursuant to a plea agreement, applicant pled guilty in 1999 to a two-count indictment alleging

attempted capital murder and aggravated robbery. The attempted capital murder count provided that

applicant, “with the specific intent to commit the offense of Capital Murder, did then and there

attempt to intentionally cause the death of an individual by cutting and stabbing . . . with a knife

while in the course of committing or attempting to commit robbery.” The aggravated robbery count

provided that applicant did, “while in the course of committing theft . . . intentionally or knowing

cause serious bodily injury . . . by cutting or stabbing . . . with a knife.”

        In September 2011, applicant filed the instant habeas application alleging, among other

things, that conviction on both counts violated double jeopardy. With no response from the State
                                                                                        CARLE — 2

and no findings from the trial court, we remanded the case to the trial court for findings. Pursuant

to our remand order, the trial court issued findings, which included the following: “Although

Attempted Capital Murder requires proof of an element that is not required to prove Aggravated

Robbery, based upon the allegations as set out in the indictment in this cause, the charge of

Aggravated Robbery in the Second Count would have been a lesser included offense of the charge

of Attempted Capital Murder as set forth in the First Count.” The trial court recommends vacating

conviction on the second count.

       Even under the indictment, each of the counts required proof of at least one fact that the other

did not: Attempted capital murder required proof of intent to kill but did not require proof that

serious bodily injury was actually inflicted,1 while aggravated robbery required proof that serious

bodily injury was inflicted without requiring proof of intent to kill. But a finding of different

elements under Blockburger does not necessarily end a double-jeopardy inquiry—the offense could

be considered the same “if other indicia manifest a legislative intent that an accused not be punished

for both offenses if they occur in the course of a single transaction.”2

       The offenses of aggravated robbery and attempted capital murder could have been alleged

in such a way that the aggravated robbery would clearly have been a lesser-included offense of the

attempted capital murder. The language of the indictment in this case appears, however, to have

been crafted with the purpose of avoiding a double jeopardy problem, and appellant pled guilty

pursuant to a plea agreement. I am unaware of any published decision from this Court addressing

a double-jeopardy claim under these types of facts.


       1
           The allegations of cutting or stabbing with a knife implicitly allege bodily injury.
       2
           Gonzales v. State, 304 S.W.3d 838, 845-46 (Tex. Crim. App. 2010).
                                                                                          CARLE — 3

       Appellant is pro se, and we have no response from the State. I would file and set this case

to seek input from appellant3 and the State and to consider this matter further. Because the Court

grants relief without doing so, I respectfully dissent.


Filed: June 27, 2012
Publish




       3
           If appellant is indigent, he should be appointed counsel to brief the issue.
