¶1concurring and dissenting.
¶2I agree that, based on precedent, Applicant is entitled to relief, but I respectfully disagree with the majority’s adoption of this strange “most serious offense” rule. Oddly, the majority has given no explanation for its adoption of this rule, a rule we implicitly rejected in Callins v. State, 780 S.W.2d 176 (Tex.Cr.App.1986), and I believe the rationale for the rule suggested by the concurring opinion in Callinsis flawed. I also believe that, oftentimes, there will be no reliable method for determining which offense is “most serious”.
¶3In the concurring opinion in Callins, it was claimed that the most serious offense rule was sound because “it assumes that if the State had been made to elect an offense, it would have chosen the most serious one.” Callins, 780 S.W.2d at 197-198. With all due respect, the validity of such an assumption is questionable. A prosecutor might very well have other reasons for choosing one offense to prosecute over another, e.g., the strength of the available evidence.
¶4A more basic flaw in the “most serious offense” rule is that there is no reliable way to determine in every case which offense is truly “most serious”. Basing a decision on the sentence imposed is questionable because there is no way to really know why a particular sentence was imposed. Also, the “seriousness” of an offense would seem to depend largely on the facts of its commission, but, because of the rules of evidence, the punishment-assessor — and this Court — may very well be unaware of some of those facts.
¶5I think we should, as a matter of practicality arid stare decisis, continue with the rule adopted just three years ago in Holcomb v. State, 745 S.W.2d 903 (Tex.Cr.App.1988), and Ex parte Siller, 686 S.W.2d 617 (Tex.Cr.App.1985), i.e., we should uphold the conviction listed first in the trial court’s judgment. We should do so because the first conviction listed in the judgment is the only one authorized by law. Ex parte Broyles, 759 S.W.2d 674, 675 (Tex.Cr.App.1988); Drake v. State, 686 S.W.2d 935, 944 (Tex.Cr.App.1985). If there is more than one judgment, which is the situation extant in the case at bar, then we can uphold the conviction for the first offense listed in the indictment. And if there are multiple indictments and multiple judgments, then, out of absolute necessity, we could resort to the sort of rule espoused by the majority. In the instant case, there are multiple judgments but only one relevant indictment, which alleges burglary of a habitation (count one) and aggravated robbery (count two). I would therefore leave the burglary conviction intact and set aside the robbery conviction.
¶6In sum, while I concur in the notion that Applicant is entitled to relief, I dissent to the setting aside of the burglary conviction in cause number CR-555-87-C.