Ramos, Ex Parte Miguel

• Court: Court of Criminal Appeals of Texas
• Decided: July 2, 2008
• Docket: AP-75,962
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-75,962

EX PARTE MIGUEL RAMOS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2005CR4857 IN THE 290TH DISTRICT COURT FROM BEXAR COUNTY

Per curiam.

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 writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was charged with burglary of

habitation with intent to commit a felony in count one of the indictment and burglary of habitation

with intent to commit theft in count two of the indictment. The jury convicted him of both counts

and the trial judge assessed punishment of sixty (60) years’ confinement for each count and

restitution in the amount of $7,585.00 for count two. The Fourth Court of Appeals affirmed his

convictions. Ramos v. State, No AP-04-05-00543-CR, (Tex. App. — San Antonio, 2005, pet. ref’d) RAMOS -- 2

(Not designated for publication).

Applicant contends that his conviction for two counts of burglary of habitation against two

different complainants during one unlawful entry violates the Double Jeopardy Clause of the United

States Constitution.

The trial judge thoroughly reviewed the record and concluded that Applicant’s conviction

for two counts of burglary of habitation against two different complaints violates the constitutional

prohibition against double jeopardy because there was only one unlawful entry. See Ex parte

Cavazos, 203 S.W.3d 333 (Tex. Crim. App. 2006). The trial judge observed that when a double

jeopardy violation has occurred, the most serious offense is retained, and the less serious offense is

set aside. Id. at 337-339. The trial judge concluded that the most serious offense in this case was

the burglary of habitation with intent to commit a felony alleged in count one of the indictment as

this was a first degree felony whereas the burglary of habitation with intent to commit theft alleged

in count two of the indictment was a second degree felony. The trial judge therefore recommended

that count two of the indictment be set aside. We agree.

We grant Applicant partial relief. We find that Applicant is entitled to relief as to count two

of the indictment only. The judgment and sentence imposed under count two of the indictment in

Cause No. 2005CR4857 from the 290th Judicial District Court of Bexar County is set aside. The

judgment, as reformed, shall reflect only one conviction for the offense of burglary of habitation as

alleged in count one of the indictment.

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

Institutions Division and Pardons and Paroles Division. RAMOS -- 3

Delivered: July 2, 2008 Do Not Publish