Opinion
No. 58181.
February 21, 1979.
Appeal from the 180th Judicial District Court, Harris County, Fred M. Hooey, J.
Carol S. Vance, Dist. Atty. and Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, for the State.
Before DALLY, W. C. DAVIS and CLINTON, JJ.
OPINION
This is an application for post-conviction writ of habeas corpus pursuant to Article 11.07, V.A.C.C.P. Petitioner was convicted on September 12, 1966 of murder and robbery by firearms. Punishment was assessed at 45 years on each offense to run concurrently. Petitioner's original habeas corpus application was held in abeyance and remanded to the trial court for additional fact determinations in an unpublished opinion delivered October 11, 1978, 571 S.W.2d 197. Those factual determinations are now before us, supported by evidence in the record. The State has filed a response in which it confesses error.
Petitioner was indicted for the offenses of murder and robbery by firearms arising out of the same transaction and involving the same victim, Leonard Pushton. Upon motion of the State the robbery by firearms count of the indictment was abandoned and dismissed, and the trial court convicted petitioner of the offense of murder. Petitioner was subsequently convicted by the same trial judge on the same date, September 12, 1966, of the offense of robbery arising out of the same transaction. No appeal was perfected in either case.
The petitioner's second conviction for robbery by firearms was obtained in violation of the double jeopardy provisions of the State and Federal Constitutions. The conviction must therefore be set aside. Ex Parte Jewel, 535 S.W.2d 362 (Tex.Cr.App. 1976); Ex Parte Scelles, 511 S.W.2d 300 (Tex.Cr.App. 1974).
No objection was made at trial on the above grounds, nor was any special plea filed. However, the right to raise this issue on post-conviction habeas corpus is not waived by such inaction. Ex Parte Jewel, supra; Ex Parte Scelles, supra.
It is therefore ordered that the conviction for robbery by firearms be set aside.