Ex Parte Hernandez , 1997 Tex. Crim. App. LEXIS 68 ( 1997 )

KELLER, Judge,

concurring.

The Court of Appeals opinion states that Art. I, Sec. 14, of the Texas Constitution and the Fifth Amendment to the United States Constitution generally afford the same protections. On this basis, and after further analysis, the Fourth Court overruled appellant’s state constitutional claim. This Court concludes that the Court of Appeals erred in finding the constitutional provisions to be comparable. Then, finding that appellant failed to brief the state constitutional claim adequately, the majority refuses to consider it.

I agree with the Court of Appeals regarding the similarity of the two constitutional provisions. As the Court of Appeals noted, this Court has said that, conceptually, the State and Federal double jeopardy provisions are identical. Stephens v. State, 806 S.W.2d 812, 815 (Tex.Crim.App.1990), cert. denied, 502 U.S. 929, 112 S.Ct. 350, 116 L.Ed.2d 289 (1991) (citing Phillips v. State, 787 S.W.2d 391, at 393 n. 2 (Tex.Crim.App.1990)).

Furthermore, I would address appellant’s claim under the Texas Constitution and hold, as the Court of Appeals did, that “the Texas Constitution does not preclude the State from trying an inmate even though he has been the subject of disciplinary proceedings in prison for the same conduct.” Because the majority does not, I concur in the disposition of appellant’s second ground for review.

McCORMICK, P.J., joins this opinion.