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BIEN, MICHAEL JOSEPH

PD-0366-16 09/14/2016

State's

  1. "Did the Eleventh Court of Appeals err by holding that convictions for criminal solicitation and attempted capital murder violate double jeopardy when significant factors indicate a legislative intent to punish these offenses as separate steps in the continuum of a criminal transaction?"
  2. "Assuming a double jeopardy violation, who should determine what the most serious offense is? If this Court answers that question by deciding that a court of appeals should make that determination, what role should the parole consequences of Article 42.12 § 3g have in that analysis when the sentences, fine and restitution are all identical?"

Appellant's

  1. "The Court of Appeals erred when it held that parole eligibility may determine the "most serious" offense for purposes of double jeopardy."
  2.  "What is the proper remedy for multiple punishment when the 'most serious' offense cannot be determined?"

Bien was convicted of solicitation to commit capital murder and attempted capital murder and sentenced to life on both concurrently. He argued that punishment for both violates the Double Jeopardy Clause. The court of appeals held that, although the two offenses are not "the same" under Blockburger v. United States, 284 U.S. 299 (1932), application of the factors stated in Ervin v. State, 991 S.W.2d 804 (Tex. Crim. App. 1999), suggest the Legislature did not intend punishment for both. Because the degree of offense and sentence were the same, the court of appeals relied on parole eligibility to determine that solicitation, a "3g" offense, is the most serious and so vacated the attempt conviction.

Both parties argue that the Court of Criminal Appeals has explicitly prohibited consideration of parole eligibility and ask that it clarify what to do when the punishments are identical. Bien suggests that both convictions be reversed and the State be required to elect one offense to pursue.

The State also challenges the threshold determination that the Legislature did not intend punishment for each discrete step along the ultimate offense's continuum. In addition to the presumption that arises from being different under Blockburger, the renunciation defenses of each are different and both offenses provide that it is no defense that the underlying offense was committed. Although the punishments were the same in this case, the punishment ranges for each offense are different. Most importantly, the State challenges the court of appeals's lack of analysis of the gravamina of the offenses and its conclusion that both offenses are conduct-oriented.

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