Is anyone aware of the case citation that establishes that the proper remedy if a jury convicts a defendant twice for the same offense is to have the trial court immediately vacate the lesser conviction? I've seen that case before, so I know it is out there, but I can't remember its name and am having trouble relocating it. (I've found lots of cases that say the remedy is to vacate the lesser conviction, but I am needing the specific case that says exactly at what stage in the proceedings the trial court should do that.)
I'm not sure Texas law is entirely settled on this point. This unpublished Austin Court of Appeals case gets closest to articulating how far along in the proceedings both charges remain in play without there being a multiple-punishments type of double jeopardy violation: Hofer v. State, No. 03-04-00252-CR, 2005 WL 3499454, at *7 (Tex. App.—Austin Dec. 22, 2005, no pet.) It also cites the Supreme Court case in Ball v. United States, 470 U.S. 856 (1985), which has some good footnotes, if not a holding directly on point.
We find no legal reason that the trial court, when made aware of the violation of the rule against multiple punishments for the same conduct, cannot affect the same result by granting a motion for new trial.
