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

OPINION

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant plead guilty to two counts of attempted capital murder and one count of murder. The trial court imposed separate and cumulative life sentences for each conviction. Applicant did not appeal.

In a subsequent writ of habeas corpus, applicant's murder conviction was determined to be barred by double jeopardy.*fn1 He now contends that he can be guilty of only one of the two alleged attempted capital murders because the second conviction violates the Double Jeopardy Clause of the Fifth Amendment and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The trial court entered findings of fact and conclusions of law on a previous application for writ of habeas corpus that challenged the same capital-murder conviction, but did not hold a hearing or enter findings for the current application. We filed and set this writ application for submission to determine:

1) whether applicant is actually innocent of having twice violated the applicable penal code statute because of a violation of the Double Jeopardy protection and guarantee of the United States Constitution, and therefore, absent a violation of the Constitution, no rational juror could have found applicant guilty beyond a reasonable doubt of having twice violated the applicable penal code statute; and

2) whether the legal basis for applicant's double-jeopardy claim was available to applicant in his three previous writ applications;*fn2 and

3) whether the provisions of art. 11.07, § 4, as applied to this particular case, are unconstitutional.

After review, we sustain the first ground and do not reach the second and third grounds and hold that applicant's conviction for attempted capital murder in Cause No. 2405 violates the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution. Applicant has proven that he is actually innocent of the second conviction for attempted capital murder, and that, but for a violation of the United States Constitution, no rational juror could have found him guilty beyond a reasonable doubt. Therefore, we grant relief.Procedural History In Cause No. 2379, applicant was indicted for one count of murder (Count 3)*fn3 that alleged that applicant knowingly and intentionally caused the death of Frankie Garcia by shooting him with a firearm. In Cause No. 2404, applicant was indicted for attempted capital murder, alleging that he attempted to murder Jimmy Britten and that, in the same scheme and course of conduct, applicant caused the death of Frankie Garcia. In Cause No. 2405, applicant was indicted for attempted capital murder, alleging that he attempted to murder Kenneth Williams and, in the same scheme and course of conduct, applicant caused the death of Frankie Garcia.

Pursuant to a plea bargain, applicant plead guilty to the attempted capital murders in Cause Nos. 2404 and 2405 and to murder (Count 3) in Cause No. 2379 and was assessed consecutive life sentences in each cause. The three pleas were entered in separate proceedings conducted consecutively on the same day. Applicant did not appeal his convictions.

Applicant filed the current application, his sixth, in the trial court on December 1, 2010. It was transmitted to this Court on January 3, 2011, and set for submission on January 26, 2011. In this application, applicant raises a double-jeopardy claim, arguing that, in Cause No. 2405, he was subjected to a second prosecution for a single violation of the same penal statute (attempted capital murder) and consequently assessed two separate and cumulative terms of imprisonment for the same offense. Applicant contends that this is contrary to the legislative intent for this offense and that, instead of applying the proper standard of review for applicant's initial double-jeopardy claim--"allowable units of prosecution"*fn4--the habeas court incorrectly applied the Blockburger*fn5 "same-elements" test, which does not apply in cases that charge two violations of the same statutory provision.

This Court's Authority to Consider Applicant's Subsequent Writ

Applicant argues that, although this is a subsequent application for writ of habeas corpus, it should not be procedurally barred by Texas Code Criminal Procedure art. 11.07, § 4, because the legal basis for relief was not yet recognized by this Court when the previously considered habeas applications were filed. He alternatively challenges the constitutionality of that article if we determine that it precludes consideration of this subsequent writ. We need not reach these questions because we conclude that applicant has shown that this court has jurisdiction to consider his subsequent writ on the basis of evidence that he is actually innocent of the offense.

Article 11.07, § 4(a) states that

(a) If a subsequent application for writ of habeas corpus is filed after final disposition of an initial application challenging the same conviction, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that:

(1) the current claims and issues have not been and could not have been presented previously in an original application or in a previously considered application filed under this article because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous claim; or

(2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt.

This Court has recognized that, even if an application does not meet the requirements of § 4(a)(1), a subsequent application for writ of habeas corpus may overcome the procedural bar of art. 11.07, § 4, if an applicant can show a constitutional violation that fulfills the requirements of § (4)(a)(2).*fn6 In order to show that the constitutional violation satisfies the requirements of subsection (a)(2), an applicant must accompany the constitutional-violation claim with a prima facie claim of actual innocence.*fn7 In cases claiming double-jeopardy violations, an applicant may prove actual innocence by providing facts sufficient to establish by a preponderance of the evidence that, but for a double-jeopardy violation, no rational juror could have found the applicant guilty of the challenged offense beyond a reasonable doubt.*fn8 As we explain in detail below, applicant has established that his conviction in Cause No. 2405 is barred by double jeopardy in light of his conviction in Cause No. 2404. Because he has shown that no rational juror could have found him guilty of both offenses without violating the federal constitutional prohibition against double jeopardy, applicant has made a prima facie case that, but for a violation of the United States Constitution, no rational juror could have found the applicant guilty beyond a reasonable doubt. Therefore, this subsequent writ meets the jurisdictional requirements in art. 11.07, § 4(a)(2).

Standard of Review

The protections afforded by the Double Jeopardy Clause of the Fifth Amendment were extended to state criminal prosecutions through the Due Process Clause of the Fourteenth Amendment.*fn9 The Double Jeopardy Clause protects criminal defendants from three things: 1) a second prosecution for the same offense after acquittal; 2) a second prosecution for the same offense after conviction; and 3) multiple punishments for the same offense.*fn10 When a double-jeopardy violation has occurred, a writ of habeas corpus is a proper venue through which to challenge the error.*fn11 Here, applicant claims that his second conviction for Cause No. 2405 violates both the second and third protections; he was convicted in two separate criminal trials for a single violation of the same penal statute and was assessed two separate and cumulative terms of life imprisonment.*fn12 Applicant asserts that the two convictions offend the prohibition against convicting a defendant "of more offenses than the legislature intended."

This Court must determine whether applicant's acts constitute a single violation of the charged offense or two separate violations of the same criminal statute. The protection against double jeopardy does not apply to separate and distinct offenses that occur during the same transaction.*fn13 If a criminal act involves separate victims and distinct offenses--rather than multiple victims for a single offense--separate prosecutions are not barred.*fn14

In order to determine if the Double Jeopardy Clause's prohibition against multiple punishments for the same offense has been violated, we assess whether a defendant "is convicted of more offenses than the legislature intended."*fn15 To determine if the legislature intended to treat applicant's acts as a single offense or multiple offenses, we must ascertain the "allowable unit of prosecution" from the statutory text and any available legislative history.*fn16 Any ambiguity will be resolved in favor of lenity.*fn17

Analysis

In Cause Nos. 2404 and 2405, applicant was convicted of attempted capital murder under Texas Penal Code §§ 15.01 (criminal attempt) and 19.03(a)(7)(B) (capital murder). A plain reading of the capital-murder statute shows that, in order to be convicted pursuant to section 19.03(a)(7)(B), a defendant must commit both a murder under Texas Penal Code § 19.02(b)(1) and at least one additional murder during different criminal transactions, but pursuant to the same scheme or course of conduct. Similarly, a charge of capital murder pursuant to section 19.03(a)(7)(A) requires multiple homicides in the same criminal transaction.*fn18 Therefore, in order to be convicted of capital murder under section 19.03(a)(7), a defendant must kill "more than one person."*fn19 While all other cases of capital murder allow for a prosecution for each individual victim, these two provisions of the capital-murder statute require a minimum of two victims.*fn20

In Saenz, appellant was charged with and convicted of three counts of capital murder under Texas Penal Code § 19.03(a)(7)(A). Saenz shot and killed three people during a single transaction. Each count alleged a different victim and each count alleged the murder of the two other victims as aggravating circumstances.*fn21 On direct appeal, appellant argued that his multiple convictions violated the double-jeopardy prohibition against multiple punishments for the same offense. The court of appeals agreed and rendered judgments of acquittal for two of his convictions. This Court affirmed the court of appeals and noted that the aggravating circumstance that raises the murder charge to capital murder under section 19.03(a)(7)(A) is killing "more than one person during the same criminal transaction."*fn22 We examined the legislative history of this portion of the capital murder statute and noted that legislators "understood the statute to allow for a single capital murder when the allowable unit of prosecution of 'more than one' murder was met."*fn23 We concluded that the allowable unit of prosecution for capital murder under section 19.03(a)(7)(A) is the killing of two or more persons. We held that only one of Saenz's capital-murder convictions could be sustained because two murders had to be shown to establish capital murder under section 19.03(a)(7)(A); the State could not use the same three murders to establish three capital-murder convictions.*fn24

The state argues that Saenz was specifically tailored to section 19.03(a)(7)(A) (multiple murders during same transaction) and notes a difference between that section and section 19.03(a)(7)(B) (multiple murders as part of a continuing scheme or course of conduct); like other assault offenses, the allowable unit of prosecution for subsection (B) is each individual victim. We fail to find the differentiation in Saenz to which the state refers. The only mention of section 19.03(a)(7)(B) in Saenz notes the similarity between the two subsections: unlike all other capital murders, which require only one victim, both of these two capital-murder subsections require at least two murders to constitute a single offense. We stated, "With the exception of . . . Section 19.03(a)(7)(B) (multiple murders committed during different transactions but as part of the same course of conduct), . . ., all other cases in which capital murder may be charged . . . all may apply in situations where only one victim has been killed."*fn25 The aggravating element of section 19.03(a)(7)(B) is "more than one person during different criminal transactions but . . . committed pursuant to the same scheme or course of conduct."*fn26 Thus, for capital murder under Section 19.03(a)(7)(B), the state must allege that at least two murders were committed: an intentional murder under section 19.02(b)(1) and at least one additional murder as the aggravating circumstance.*fn27 Because the killing of at least two people allows the state to charge a single count of capital murder under section 19.03(a)(7)(B), the allowable unit of prosecution for this statute is not each individual, but the killing of more than one individual. The state argues that the attempted murders in Cause Nos. 2404 and 2405--unlike completed murders--were assaultive in nature. It contends that, therefore, the allowable unit of prosecution should be the same as other assault offenses.*fn28

The state chose to charge applicant with attempted capital murder under sections 19.03(a)(7)(B) and 15.01. The statutory text for criminal attempt, Texas Penal Code § 15.01, states that

(a) A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.

(b) If a person attempts an offense that may be aggravated, his conduct constitutes an attempt to commit the aggravated offense if an element that aggravates the offense accompanies the attempt.

The text of the criminal-attempt statute does not define an allowable unit of prosecution, nor does it change the allowable unit of prosecution of the offense attempted. Given that a criminal attempt to commit an offense is simply an act amounting to more than mere preparation of the intended offense, we find that criminal-attempt offenses acquire their allowable unit of prosecution from the offense attempted.*fn29 The fact that several federal statutes, which make it a crime to commit or attempt to commit a certain offense, have the same allowable unit of prosecution for the attempted and completed offense is indicative of this principle.*fn30

As this Court explained in Corwin, sections 19.03(a)(7)(A) and (B) were drafted, presented, and entered into the Texas Penal Code together as means to seek the death penalty against mass murderers.*fn31 As originally drafted, as of November 12, 1984, Texas House Bill 8 (HB 8) did not differentiate between the two subsections and simply made it a capital offense to murder more than one person regardless of whether the killings occurred in the same criminal episode.*fn32 The sponsors of the bill made it clear at the public hearing of the House Committee on Criminal Jurisprudence*fn33 that, as revised, subsection (A) was meant to enable the state to seek the death penalty against mass murderers, such as terrorist attacks or the killing of a number of people at once, while subsection (B) was meant to do the same for serial murderers.*fn34 Based on statutory construction and legislative intent, we conclude that the allowable unit of prosecution for attempted capital murder under sections 19.03(a)(7)(B) and 15.01 is the attempted murders of "more than one person" in the same scheme or course of conduct, and the attempted killing of more than one person allows the state to charge a single count of attempted capital murder.*fn35 The habeas judge entered findings of fact and conclusions of law.*fn36

Finding of Fact V.

On January 11, 1991, in three separate trials before the court, the defendant plead guilty to each of three respective charges having duly executed judicial confessions in each of the three separate incidents.

Conclusion of Law I.

Applicant was not convicted of three separate trials and assessed separate punishments for the same criminal act. All three convictions were based on separate and distinct facts and each conviction stands on its own merit. While they were all a part of one continuing scheme and course of conduct[,] each of the three separate acts, the basis of the respective convictions, were unique in that each contain elements which are not necessary to prove the other offenses. While they are continuing in scheme, each said crime is separate, distinct, and has unique elements necessary to prove it, which are not necessary to prove the other two respective offenses.

It is clear from the indictments, the convictions, and the trial court's findings of fact and conclusions of law that all three charged offenses were committed pursuant to the same scheme and course of conduct and that Cause Nos. 2404 and 2405 each alleged a criminal offense under Texas Penal Code §§ 19.03(a)(7)(B) and 15.01(b). In stating that "each of the three separate acts, . . ., were unique in that each contain elements which are not necessary to prove the other offenses," the habeas judge incorrectly analyzed applicant's double-jeopardy claim by applying the Blockburger "same-elements" test rather than the Sanabria/Hawkins "allowable unit of prosecution."

As in Saenz, applicant's two convictions for attempted capital murder resulted from allegations involving the same three victims.*fn37 The victim, Frankie Garcia, was included as a victim in both of the attempted capital murder convictions for which applicant was convicted. Because each attempted capital murder conviction under Penal Code §§ 19.03(a)(7)(B) and 15.01(b) requires at least two victims not included as victims in other attempted capital murder provisions under those same penal code sections, only one of these attempted capital murder convictions may be upheld.*fn38 We find that applicant's conviction in Cause No. 2405 violates double jeopardy.

Conclusion

Applicant has shown that his conviction and sentencing for a second offense of attempted capital murder violates the Double Jeopardy Clause of the Fifth Amendment and the Due Process Clause of the Fourteenth Amendment. Applicant has also accompanied his meritorious double-jeopardy claim with a prima facie showing of actual innocence in Cause No. 2405 and has thereby satisfied his burden under art. 11.07, § 4(a)(2). "On this record, applicant could not be guilty of this offense."*fn39 Thus, we grant applicant's first and second grounds for relief.

We vacate the judgment of the 100th Judicial District Court of Carson County in Cause No. 2405 and remand the cause to the trial court with instructions to enter a judgment of acquittal.*fn40 Copies of this opinion shall be sent to the Texas Department of Criminal Justice-correctional institutions division.

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IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. AP-76,481

Ex Parte KENNETH GLENN MILNER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS FROM CAUSE NO. 2405 IN THE 100TH DISTRICT COURT CARSON COUNTY

Keller, P.J., filed a dissenting opinion in which Womack, J., joined.

For us to consider a subsequent application under article 11.07, the defendant must meet an exception under § 4, one of which is the innocence-gateway exception.*fn41 The innocence-gateway exception requires that the applicant show that "but for a violation of the United States Constitution, no rational juror could have found the applicant guilty beyond a reasonable doubt."*fn42 I agree that applicant's double-jeopardy claims meet this exception because each of his convictions was obtained in a separate proceeding. Once he was convicted in the first proceeding, he had a complete defense to prosecution to the remaining charges on the basis of the Double Jeopardy Clause's protection against successive prosecutions.*fn43 The innocence-gateway exception might not be met in a case that involved the Double Jeopardy Clause's protection against multiple punishments because a double-jeopardy violation does not occur until judgment is rendered on the multiple offenses, which is after the jury's verdict.*fn44 When a double-jeopardy violation occurs only after a verdict or finding of guilt, it logically cannot satisfy the innocence-gateway requirement that "no rational juror" could have found the applicant guilty.*fn45 But the present case involves a "successive prosecutions" scenario, so the double-jeopardy violation does precede the findings of guilt in the subsequent plea proceedings.

But there is another problem. The Court grants an acquittal for the charges prosecuted in the subsequent plea proceedings, but these charges were part of a plea agreement that included these charges and the charge upon which he was convicted in the first proceeding. The usual remedy when a plea agreement is unenforceable is to undo the plea agreement and place the parties in the position they were in before the pleas.*fn46 This is because when a defendant attacks the sentence he received and for which he bargained-as appellant does here-he is attacking the entire judgment of conviction. "To permit resentencing in this situation is to bind only one party to the agreement. This is neither logical nor fair."*fn47

We have held that, for double-jeopardy violations, the State can choose to waive an illegal portion of a plea agreement and settle for enforcing the remaining, legal portion.*fn48 Consequently, we should remand this case for proceedings to determine whether the State wishes to waive the jeopardy-barred counts or to undo the entire plea. The Court proceeds as if the State has expressed an intent to waive the illegal counts, but I see nothing in the record showing that to be the case. Absent a waiver by the State, the proper remedy is to undo the entire agreement, which in this case would entail vacating all of the pleas and returning the parties to the position they were in prior to the plea proceedings.

The Court says that, because the Fifth Circuit has already vacated one of the cases that was part of the plea agreement,*fn49 "nothing we do here can undo the original plea agreement and place the parties in the position they were in before the pleas were entered." I disagree. The Fifth Circuit did not vacate applicant's murder conviction. Rather, it said, "The judgment of the [federal] district court denying Milner's habeas petition is VACATED and this case is REMANDED to the district court with instructions to grant Milner's petition for a writ of habeas corpus."*fn50 Pursuant to that remand order, a United States Magistrate Judge made recommendations to the federal district court.*fn51 The magistrate recommended that the murder conviction be vacated while the other convictions remain intact.*fn52 But, significantly, the magistrate added:

The undersigned notes petitioner's conviction in Cause No. 2379 was obtained pursuant to a plea bargain agreement whereby petitioner was to plead guilty in the three separate prosecutions and accept three (3) consecutive life sentences in exchange for the State's agreement not to seek the death penalty in Cause No. 2379. The undersigned makes no recommendation with regard to, the issue of whether the plea bargain agreement is now subject to being set aside and the State permitted to re-prosecute petitioner as if no plea agreement had been reached.*fn53

The federal district court adopted the magistrate's report and recommendations.*fn54 Consequently, the federal district court ordered that the murder conviction be set aside and the life sentence on that conviction be vacated.*fn55 The federal district court stated that "Petitioner's other convictions and life sentences . . . are not affected by this Order and remain in effect."*fn56

The federal district court did not dispose of the murder conviction by rendering a judgment of acquittal or a dismissal with prejudice. The court simply set the conviction aside, while explicitly acknowledging the possibility of undoing the plea bargain and returning the parties to the position they were in before the pleas.

I respectfully dissent.

Filed: February 13, 2013

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Opinion Footnotes

*fn1 On February 17, 2000, the United States Court of Appeals for the Fifth Circuit vacated applicant's murder conviction in Cause No. 2379, holding that the conviction violated the Fifth Amendment's Double Jeopardy Clause, as interpreted in United States v. Dixon, because the murder was the aggravating element in Cause Nos. 2404 and 2405. The federal court also held that the double-jeopardy violation was not waived by applicant's guilty plea. Milner v. Johnson, No. 99-10461 (5th Cir. 2000). Because the federal court has already vacated part of the plea agreement, nothing we do here can undo the original plea agreement and place the parties in the position they were in before pleas were entered.

*fn2 Although applicant concedes three prior applications, the records of this Court indicate that he has filed five previous applications.

*fn3 This indictment also included two counts of capital murder (Counts 1 and 2), but the state dismissed count 1, and the trial court quashed count 2. Counts 1 and 2 alleged that applicant committed capital murder by killing Frankie Garcia in the course of committing or attempting to commit kidnapping and burglary.

*fn4 Sanabria v. United States, 437 U.S. 54, 69-70 (1978); Ex parte Hawkins, 6 S.W.3d 554, 556 (Tex. Crim. App. 1999).

*fn5 Blockburger v. United States, 284 U.S. 299 (1932).

*fn6 Ex parte Knipp, 236 S.W.3d 214 (Tex. Crim. App. 2007)(a meritorious double-jeopardy claim in a subsequent writ, along with a prima facie showing of actual innocence, overcomes a §4(a)(1) procedural bar).

*fn7 Ex parte Brooks, 219 S.W.3d 396, 398-401 (Tex. Crim. App. 2007).

*fn8 See Knipp, 236 S.W.3d at 217.

*fn9 Benton v. Maryland, 395 U.S. 784, 794 (1969); Haight v. State, 137 S.W.3d 48, 49 n.1 (Tex. Crim. App. 2004).

*fn10 Brown v. Ohio, 432 U.S. 161, 164-65 (1977).

*fn11 Ex parte Evans, 530 S.W.2d 589, 591 (Tex. Crim. App. 1975).

*fn12 Saenz v. State, 166 S.W.3d 270, 272 (Tex. Crim. App. 2005)(quoting Ex parte Ervin, 991 S.W.2d 804, 807 (Tex. Crim. App. 1999)).

*fn13 Spradling v. State, 773 S.W.2d 553, 556 (Tex. Crim. App. 1989).

*fn14 Id.

*fn15 Ex parte Ervin, 991 S.W.2d 804, 807 (Tex. Crim. App. 1999); see Ball v. United States, 470 U.S. 856, 861 (1985).

*fn16 See Sanabria, 437 U.S. at 57; Ex parte Hawkins, 6 S.W.3d at 556.

*fn17 Bell v. United States, 349 U.S. 81, 83 (1955).

*fn18 Saenz, 166 S.W.3d at 272-73.

*fn19 Tex. Penal Code § 19.03(a)(7).

*fn20 Id.

*fn21 Saenz, 166 S.W.3d at 271.

*fn22 Id. at 273.

*fn23 Id.

*fn24 Id.

*fn25 Saenz, 166 S.W.3d at 272-73.

*fn26 Tex. Penal Code §19.03(a)(7)(B); see Saenz, 166 S.W.3d at 273.

*fn27 See id.

*fn28 We note that murder is an assault that results in death. Tex. Penal Code § 19.01(a) ("A person commits criminal homicide if he intentionally, knowingly recklessly, or with criminal negligence causes the death of an individual"; Tex. Penal Code § 19.01(b) ("Criminal homicide is murder, . . ..").

*fn29 See, e.g., Cantu v. State, No. 13-04-490-CR, 2006 Tex. App. LEXIS 10906, *32-33 (Tex. App.--Corpus Christi-Edinburg Dec. 21, 2006, pet. ref'd) (mem. op.) (as the "unit of prosecution" for capital murder under section 19.03(a)(7)(A) is the murder of more than one person during the same criminal transaction, the "unit of prosecution" for attempted capital murder falling under the same statute is the attempt to murder more than one person during the same criminal transaction).

*fn30 See, e.g., United States v. Reagan, 596 F.3d 251, 254 (5th Cir. 2010) (allowable unit of prosecution for 18 U.S.C. §1344, which punishes "[w]hoever knowingly executes, or attempts to execute, a scheme or artifice . . . to defraud a financial institution," is the overarching scheme rather than the individual steps taken); see also United States v. Dixon, 273 F.3d 636, 642 (5th Cir. 2001) (allowable unit of prosecution for 18 U.S.C. §2111, which punishes "whoever, within the special maritime and territorial jurisdiction of the United States, by force and violence, or by intimidation, takes or attempts to take from the person or presence of another anything of value, . . .," is the taking or the attempted taking from the person).

*fn31 Corwin v. State, 870 S.W.2d 23, 27-28 (Tex. Crim. App. 1993). The statute was initially entered into the Texas Penal Code as subsection 19.03(a)(6), and later renumbered as subsection 19.03(a)(7); see also Saenz, 166 S.W.3d at 273 ("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.").

*fn32 Corwin, 870 S.W.2d at 28 n.4.

*fn33 Id. at 28 n.5; see also Hearing on Tex. H.B. 8 before the House Crim. Jur. Comm., 69th Leg., R.S. (Feb. 11, 1985); see also Debate on H.B. 8 on the Floor of the House of Representatives, 69th Leg., R.S. (March 11, 1985).

*fn34 Id. at 28 n.5.

*fn35 Because here only three complainants were alleged by the state, as was true in Saenz, we do not reach the issue of whether the state may obtain two valid convictions if it alleges at least four complainants.

*fn36 These findings and conclusions were made with regard to a previous application for a writ of habeas corpus that challenged these convictions in 1992. In 1999, the Texas Attorney General confessed error in the United States Court of Appeals for the Fifth Circuit after the federal district court overturned applicant's conviction for the murder of Frankie Garcia as a violation of double jeopardy.

*fn37 Saenz, 166 S.W.3d at 271.

*fn38 Id.

*fn39 Knipp, 236 S.W.3d at 217.

*fn40 We reach this result based on the ways in which the state chose to charge applicant. Because both indictments for attempted capital murder named the same decedent, Frankie Garcia, the federal courts overturned the separate conviction for the murder of the decedent. We overturn the conviction in Cause No. 2405 for the same reason. If the state had chosen to allege, for example, a murder and two aggravated assaults with a deadly weapon, a murder and two attempted murders, or an attempted capital murder and an aggravated assault, it could have obtained more than one valid conviction.

*fn41 See Tex. Code Crim. Proc. art. 11.07, § 4, § 4(a)(2).

*fn42 Id., § 4(a)(2).

*fn43 See Ex parte Amador, 326 S.W.3d 202, 205 (Tex. Crim. App. 2010) (Double Jeopardy Clause prohibits successive prosecution for offenses that are considered the same).

*fn44 See Ball v. United States, 470 U.S. 856, 865 (1985) ("We emphasize that while the Government may seek a multiple-count indictment" for certain offenses that are the same for double-jeopardy purposes, "the accused may not suffer two convictions or sentences on that indictment. If, upon the trial, the district judge is satisfied that there is sufficient proof to go to the jury on both counts, he should instruct the jury as to the elements of each offense. Should the jury return guilty verdicts for each count, however, the district judge should enter judgment on only one of the statutory offenses.").

*fn45 See Ex parte Sledge, No. AP-76,947, 2013 Tex. Crim. App. LEXIS 156, at 16-17 (Tex. Crim. App. January 16, 2013) ("Thus, at the time the statutory scheme contemplates that a finding of guilt must be made (albeit not acted upon in a formal adjudication), the fact-finder clearly 'could have found the applicant guilty beyond a reasonable doubt.'")

*fn46 Shannon v. State, 708 S.W.2d 850, 852 (Tex. Crim. App. 1986); Rhodes v. State, 240 S.W.3d 882, 890 (Tex. Crim. App. 2007) ("State correctly argued [in Shannon] that because there was a plea bargain, the proper remedy was to undo the entire plea.").

*fn47 Shannon, 708 S.W.2d at 852.

*fn48 Ex parte Ervin, 991 S.W.2d 804, 817 (Tex. Crim. App. 1999).

*fn49 See Milner v. Johnson, No. 99-10461, 2000 WL 293963 (5th Cir. February 17, 2000) (not designated for publication).

*fn50 Id.

*fn51 Milner v. Johnson, No. 2: 94-CV-0207 (Magistrate, N.D. Tex. July 21, 2000) (not designated for publication).

*fn52 Id. at 3.

*fn53 Id.

*fn54 Milner v. Johnson, No. 2: 94-CV-0207, at 1 (N.D. Tex. July 24, 2000) (not designated for publication) ("The District Judge is of the opinion the Magistrate Judge's Report and Recommendation should be, and hereby is, ADOPTED.").

*fn55 Id. at 1-2.

*fn56 Id. at 2.