Carle, Ex Parte Lee Robert

Opinion

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 CAUSE NO. A-99-0085-1-CR IN THE 36TH DISTRICT COURT FROM ARANSAS COUNTY

Per Curiam. KELLER , P.J., filed a dissenting opinion in which KEASLER and HERVEY , JJ., 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 was convicted of attempted capital

murder and aggravated robbery, which were alleged as separate counts in a single indictment, and

he was sentenced to imprisonment in accordance with a plea agreement. He did not appeal the

convictions.

Applicant contends the convictions for both offenses violate the prohibition against double

jeopardy. The trial court has entered findings stating the aggravated robbery count was a lesser 2

included offense of the attempted capital murder count, meaning there cannot be convictions for both

under the facts of Applicant’s case. See Blockburger v. United States, 284 U.S. 299 (1932); Whalen

v. United States, 445 U.S. 684 (1980); Littrell v. State, 271 S.W.3d 273 (Tex. Crim. App. 2008).

Relief is therefore granted. The judgment of conviction as to the aggravated robbery count

only in Cause No. A-99-0085-1-CR in the 36th District Court of Aransas County is vacated. The

conviction and thirty-year sentence for the attempted capital murder count in the same cause remains

intact and is not altered by this opinion.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional

Institutions Division and Pardons and Paroles Division.

Delivered: June 27, 2012 Publish