HARO, RUBEN ORTIZ v. the State of Texas ( 2023 )

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