Opinion
No. AP-75,659
Delivered: April 18, 2007. DO NOT PUBLISH
On Application for A Writ of Habeas Corpus Cause No. CR-16,516-A In the 35th District Court From Brown County.
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 was convicted of three counts of burglary of a habitation and received three concurrent sentences of twenty (20) years' imprisonment. Applicant contends that his convictions were obtained in violation of double jeopardy. We remanded this application to the trial court for findings of fact and conclusions of law. The trial court has determined that the convictions do not violate double jeopardy because the multiple underlying offenses rendered the burglary offense separate and distinct acts, each of which violated distinct statutory provisions. However, we disagree. Applicant received three burglary convictions for a single unlawful entry. While the underlying offenses may have constituted separate and distinct acts, each of which violated distinct statutory provisions, Applicant was not convicted of the underlying offenses. Rather, he was convicted of three burglaries. See Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex.Crim.App. 2006). When a defendant is convicted of multiple offenses that are the "same" for double jeopardy purposes, the conviction for the most serious offense should be retained and the other offense(s) should be set aside. Here, the degree of the offense and the punishment assessed are the same. We deny applicant's claim relating to his conviction for burglary of a habitation by attempting to commit felony kidnapping and grant his claim for relief from the jeopardy-barred convictions for burglary by committing unlawful restraint and burglary by committing felony violation of a protective order.