HARO, RUBEN ORTIZ v. the State of Texas

• Court: Court of Criminal Appeals of Texas
• Decided: September 27, 2023
• Docket: PD-0233-22
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. PD-0233-22

RUBEN ORTIZ HARO, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE THIRD COURT OF APPEALS TOM GREEN COUNTY

Per curiam.

OPINION

Following his open plea of guilty, Appellant was convicted of one count of

possession of child pornography and one count of promotion of child pornography. See

TEX. PENAL CODE § 43.26(a), (e). He was sentenced to 10 and 15 years in prison,

respectively, with the sentences to run concurrently. On appeal, the court of appeals found

the convictions violated double jeopardy because they imposed multiple punishments for Haro - 2

the same offense, and it reversed the possession conviction. Haro v. State, No. 03-20-

00128-CR, 2022 WL 1019564, 2022 Tex. App. LEXIS 2211 (Tex. App.—Austin Apr. 6,

2022) (mem. op., not designated for publication). The sole basis for the court’s conclusion

was its application of the “same elements” test under Blockburger v. United States. Id. at

*2 (citing 284 U.S. 299, 304 (1932)); see also id. at *5 (holding that, “[w]ithout a clear

expression by the Legislature that it intended multiple punishments when a defendant both

promotes and possesses unspecified proscribed visual material, Haro’s two offenses are the

same for double-jeopardy purposes”).

The State filed a petition for discretionary review challenging the court of appeals’

failure to conduct a “units” analysis before finding a double-jeopardy violation here. We

granted the State’s petition, and the parties briefed the issue. After reviewing the court of

appeals’ opinion and the parties’ arguments, we agree with the State that the court of

appeals erred in this respect. When two distinct statutory provisions are at issue, the

offenses must be considered the same under both an “elements” analysis and a “units”

analysis for a double-jeopardy violation to occur. Ex parte Benson, 459 S.W.3d 67, 73

(Tex. Crim. App. 2015) (“Even when the offenses in question are proscribed by a single

statute or are otherwise the same under an ‘elements’ analysis, the protection against

double jeopardy is not violated if the offenses constitute separate allowable units of

prosecution.”). While the court of appeals cited Benson in passing in the course of

conducting its Blockburger analysis, it did not reference the pertinent holding from Benson

and ultimately failed to conduct a “units” analysis under the framework set forth in that

decision. Haro, 2022 WL 1019564, at *2, *5. Haro - 3

Having granted review in this case, upon further consideration, we believe the most

appropriate course is to vacate the court of appeals’ judgment and remand so that the court

of appeals may conduct the proper analysis in the first instance. See, e.g., Benavidez v.

State, 323 S.W.3d 179, 183 & n.20 (Tex. Crim. App. 2010) (stating that, in our

discretionary review capacity, this Court reviews “decisions” of the courts of appeals, and

an issue that the lower court did not pass upon is ordinarily not ripe for our review).

Therefore, we vacate the lower court’s judgment, and we remand this case to the court of

appeals to conduct a “units” analysis and for further proceedings consistent with this

opinion.

DELIVERED: September 27, 2023

DO NOT PUBLISH