The defendant can be guilty of only one of the two alleged attempted capital murders because the second conviction violates double jeopardy and due process. Each attempted capital murder conviction required at least two victims not included in the other attempted capital murders, and the defendant's two convictions involved the same three victims. Ex parte Milner, No. AP-76,481 (Tex.Crim.App. Feb 13, 2013).
The defendant pleaded guilty to two counts of attempted capital murder and one count of murder. In a habeas corpus application, the defendant raised a double-jeopardy claim, arguing that he was subjected to a second prosecution for a single violation of the same penal statute (attempted capital murder) and assessed two separate imprisonment terms for the same offense. The Texas Court of Criminal Appeals vacated the trial court's judgment as to the defendant's second conviction for attempted capital murder and remanded to the trial court with instructions to enter an acquittal.
Only one of the defendant's attempted capital murder convictions could be upheld because each attempted capital murder conviction under Tex. Penal Code §§ 19.03(a)(7)(B) and 15.01(b) required at least two victims not included as victims in other attempted capital murder provisions under those same penal code sections, and the defendant's two convictions had resulted from allegations involving the same three victims.
The defendant had thus shown that his conviction and sentencing for the second offense of attempted capital murder violated the Double Jeopardy Clause of the Fifth Amendment and the Due Process Clause of the Fourteenth Amendment. He also accompanied his meritorious double-jeopardy claim with a prima facie showing of actual innocence as to the second attempted capital murder conviction and had thereby satisfied his burden under Tex. Code Crim. Proc. art. 11.07, § 4(a)(2).
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