Carle, Ex Parte Lee Robert ( 2012 )

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
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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
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