CONCURRING OPINION
RICHARDSON, J.,filed a concurring opinion in which JOHNSON, J., joined.
I agree with the Court’s conclusion that the jury’s guilty verdict in Count I (burglary of a habitation) does not support a deadly weapon finding.1 And, I agree that the conviction in Count II (aggravated assault) should have' been vacated by the court of appeals, leaving a judgment of conviction only on Count L I also agree that the deadly weapon finding should be deleted from the judgment. The State’s abandonment of Count II was tantamount to an acquittal of that offense. Once the State abandoned Count II, it.was gone for aMintents and purposes. I concur in the Court’s decision that affirms in part2 and *751reverses in part, and further modifies the trial court judgment to delete both the aggravated assault conviction in Count II and the deadly weapon finding.
The Two-Count Indictment
Appellant was indicted' in Count I of first degree burglary of a habitation (with the" underlying felony of aggravated assault) and in Count II of second degree aggravated assault with a deadly weapon:
COUNT I
Francisco Duran, Jr., ... on or about the 10th day of December, 2010, ... did then and there intentionally or knowing- ' ly enter a habitation, without the effective consent of Gonzalo Gonzalez, the owner thereof, and attempted to commit or committed the felony offense of aggravated assault.
COUNT II
Francisco Duran, Jr., ... on or about the 10th day of December, 2010, ... did then and there intentionally, knowingly, or recklessly cause bodily injury to Gonzalo Gonzalez by striking Gonzalo Gonzalez about the head and/or body, and the defendant did then and there use or exhibit a deadly weapon, to-wit: electronic equipment or an object unknown to the Grand Jury, during the commission of said assault.
The indictment also included an enhancement allegation of a prior felony, which elevated the punishment range for Count I to a possible 16-99 years, or life, and the punishment range for Count II to that of a first degree felony (a possible 6-99 years, or life). . •
The Jury Charge On Guiltllnnocence
After both sides rested, defense counsel objected to the jury being charged on both counts:
DEFENSE COUNSEL: We object that number five — or paragraph number five — these two paragraphs in the indictment which are not in the Charge should be in the alternative. You cannot be found guilty of both charges because they’re both based on an ag- • gravated assault_
STATE: Your Honor, that’s the incorrect analysis. The courts do not apply that. As a matter of fact, he can be found guilty on both, but once he’s found guilty on both, the Court would have to vacate one charge. He cannot be sentenced on both charges. He can, in fact, be. found guilty. Double jeopardy prevents the sentencing of both not ivith regards to the guilty/innocence [sic] phase of the proceeding.3
* ⅜ ⅜
THE COURT: ... The objection is overruled. Both five and six will remain in place as currently stated.
The Jury Charge on Punishment
After the jury found Duran guilty of both counts, the State chose to . abandon the aggravated assault count out of double jeopardy concerns, and appellant did not object:
*752THE STATE: At this time the State is abandoning the second charge of aggravated assault with a deadly weapon due to the fact that the Defendant cannot be punished on both charges. It is double jeopardy, so we are going forward solely on the burglary of a habitation.
THE COURT: All right.4
The jury found the enhancement paragraph “true” and sentenced Duran to 25 years.
Both The Aggravated Assault Conviction And The Deadly Weapon Finding Should Be Deleted From The Judgment
On direct appeal, among other things, Duran complained that the judgment should not have reflected that he was convicted of Count II. In overruling this issue, the court of appeals held that it was unnecessary to delete Count II from the judgment “because appellant was, in fact, convicted of it.” The court of appeals concluded that “the judgment should be modified to reflect that the State abandoned Count II before the punishment phase and to affirmatively state that punishment was assessed only on Count I. This conclusion is not supported by case law.5 I am in complete agreement with the Court’s conclusion that the court of appeals should have vacated the conviction for Count II (aggravated assault), rather than leave it in the judgment.
In Ex parte Cavazos, this Court departed from its earlier decision in Landers v. State regarding how to remedy the situation when a defendant is convicted of more than one offense in violation of double jeopardy:
This Court has pointed out that “[a] defendant suffers multiple punishments in violation of the Double Jeopardy Clause when he is convicted of more offenses than the legislature intended.” Ervin v. State, 991 S.W.2d 804, 807 (Tex. Crim.App.1999) (citing Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985)).
⅜ ⅜ ⅜
When a defendant is convicted of two offenses that are the “same” for double-*753jeopardy purposes, our case law tells us that the conviction for the “most serious” offense is retained and the other conviction is set aside. Landers v. State, 957 S.W.2d 558, 559-60 (Tex. Crim.App.1997). Landers states that the “most serious” offense is determined by the degree of the felony, range of punishment and sentence imposed, with rules of parole eligibility and good-conduct time as a tie-breaker: Id.
* * *
Our case law grants great discretion to the finder of fact. See e.g., Swain v. State, 181 S.W.3d 359, 365 (Tex.Crim. App.2005) (suppression motion); Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App.2003) (application for writ of habeas corpus); Morales v. State, 32 S.W.3d 862, 865-66 (Tex.Crim. App.2000) (decision to admit of [sic ] exclude scientific evidence). We now extend that discretion to the determination of the “most serious” offense and hold ■ that the “most serious” offense is the offense of conviction for which the greatest sentence was assessed. To the extent that Landers holds that other factors, such as the degree of the felony, range of punishment, and rules governing parole' eligibility and awarding of good-conduct time, shall be used in that determination, it is overruled.6
Consistent with Presiding Judge Keller’s concurring opinion in Cavazos, it appears that this Court has since relaxed its “overruling” of Landers and will look to these other factors in the event that the finder of fact assesses the same sentence.7
In this case, if the State had chosen not to abandon Count II, or if the defense had objected to the abandonment of Count II, the trial court would have had to submit both offenses to the jury for punishment.8 And, if both offenses had been submitted to the jury to assess punishment, the offense given the- greater sentence by the jury would have been the one retained, even though one was a first degree felony and the other was a second degree felony.9 But, if the jury had assessed the same punishment for both offenses, the deadly weapon allegation in Count II of the indictment would likely have been the deciding factor in determining the “most serious” offense, since the aggravated assault allegations in Couíit II would have supported a deadly weapon finding, and the burglary allegations in Count I would not have.10
*754In that instance, even though a lesser degree of felony; Count II would have been retained, not- Count I.
Nevertheless, in this case, the jury did not have the opportunity to assess punishment for both offenses. .Rather, the State made the decision of which offense to retain and which to set aside when it abandoned Count. II prior to the punishment phase of the trial, leaving only Count I— the burglary offense — to, be submitted to the jury for punishment. Once the State chose to abandon Count II, the trial court should have set aside that jury verdict.
Abandonment of a charge after jeopardy attaches is tantamount to an acquittal because a defendant -may not be retried for that charge.11 So it stands to reason that, because the State cannot retry Duran for this aggravated assault offens,e since it abandoned Count II after jeopardy attached, the State cannot .thereafter use Count II to support a deadly, weapon finding under Count I.
Could the language in Count II of the indictment have served as notice to support the submission to the jury of a deadly weapon special issue on the remaining Count I? Yes. Could it now support a deadly weapon finding on Count I without a special issue having been submitted? No. Once Count II was abandoned by the State, it was an acquittal on that count. Count. II cannot be resurrected to support a deadly weapon finding because it no longer exists, as a viable charge or a valid conviction. It is gone. Therefore, I agree with the Court’s decision to delete both the aggravated assault conviction and the deadly-weapon finding.
With these comments, I join the majority.
. The trial court judgment states that the degree of offense of Count I is a second degree offense, and the degree of offense of Count II is a first degree offense. However, as alleged in this indictment, aggravated assault is a second degree felony (Tex. Penal Code § 22.02(a) and (b)), and, as pointed out by the Majority, Tex. Penal Code § 30.02(d) elevates the offense of burglary of a habitation to a first degree felony if any party to the offense entered the habitation with intent to commit a felony other than felony theft or committed of attempted to commit a felony other than felony theft. The Majority notes that the court of appeals properly modified the judgment to reflect that Count I (burglary of a habitation) is a first degree felony (that, in this case, was enhanced to repeater status). That portion of *751the judgment of the court of appeals should be affirmed.
. However, this assertion by the State appears to be contrary to Crocker v. State, 573 S.W.2d 190, 197-98 (Tex.Crim.App.1978), where we held that, if two or more offenses are alleged in separate counts, and conviction of both would violate double jeopardy, the court “may submit each of the counts to the jury with the instruction that a conviction could be had on only one of them.... No double jeopardy problems are extant with this type of submission because the jury returns either an acquittal or a verdict of guilty on one count only.”
. As a general rule, the State must seek the consent of the Court to dismiss, waive or abandon a portion of the charging instrument. Ex Parte Preston, 833 S.W.2d 515, 518 (Tex.Crim.App.1992) (citing to Woods v. State, 152 Tex.Crim. 131, 211 S.W.2d 210, 211 (1948)). It would appear that the trial court "consented” to the State’s abandonment of Count II.
. The appellate court cited to Gibson v. State, No. 06-07-00200-CR, 2008 WL 2596221 (Tex.App. — Texarkana 2008, pet. ref'd (mem. op., not designated for publication); however, Gibson does not support the appellate court’s conclusion. In Gibson, the defendant was charged with burglary and aggravated assault. Both offenses were submitted to the jury. Although the jury found the defendant guilty of both offenses, the trial court considered the aggravated assault to be a lesser included offense of the indicted offense of burglary, and therefore simply "ignored” the aggravated assault verdict and entered a judgment of conviction only on the burglary. The appellate court in Gibson affirmed the trial court judgment, recognizing that "the appropriate remedy for any double jeopardy violation is to vacate one of the convictions.” Id. at *4 (citing to Rangel v. State, 179 S.W.3d 64, 71 (Tex.App. — San Antonio 2005, pet. ref’d) which in turn cited to Ball v. United States, 470 U.S. 856, 864, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985) and Landers v. State, 957 S.W.2d 558, 559 (Tex.Crim.App.1997)) ("When a defendant is subjected to multiple punishments for the same conduct, the remedy is to affirm the conviction for the most serious offense and vacate any other convictions.”). The court in Gibson concluded that "the trial court was correct in accepting the jury’s verdict for burglary and ignoring or dismissing its conviction for aggravated assault.” Id. at *5.
. Ex Parte Cavazos, 203 S.W.3d 333, 336-38 (Tex.Crim.App.2006).
. Id. at 340 ("Perhaps parole and good time consequences should not be the first tie-breaker, but it should be an available tie-breaker when the punishment is otherwise identical.”) (Keller, P J., concurring opinion) (emphasis in original). See Villanueva v. State, 227 S.W.3d 744, 749 (Tex.Crim.App.2007) (holding that, ■ where there was a double jeopardy violation, and the sentences imposed were identical and no restitution was ordered, the affirmative deadly weapon finding in the judgment of one of the convictions acted as a tie-breaker under the "most serious” offense test).
. See Cavazos, 203 S.W.3d at 338 (holding that the finder of fact "now” has the discretion to determine the "most serious” offense).
. Id.
. Burglary of a habitation is one of the enumerated 3g offenses only if the actor committed the offense with the intent to commit a felony under Section 21.02, 21.11, 22.011, 22.021, or 25.02 of the Penal Code. Tex.Code Crim, Proc. art. 42.12 § 3g(a)(l)(N). Under the indictment in this case, Count I was not alleged as a 3g offense. Aggravated assault is not one of the specifically enumerated 3g offenses in article 42.12(a)(1). Under the indictment in this case, Count II included a deadly weapon allegation, which had the potential of making it a 3g offense. See Tex. Code Crim. Proc. art. 42.12 § 3g(a)(2). The presence of an affirmative finding of a deadly weapon on a judgment convicting a defendant of a non-3g offense has a significant impact *754on a defendant’s parole eligibility. See also ' Villanueva, 111 S.W.3d at 749.
. State v. Florio, 845 S.W.2d 849, 852 (Tex.Crim.App.1992) (citing to Ex Parte Preston, 833 S.W.2d 515, 517 (Tex.Crim.App.1992)) (observing that any criminal accusation that is dismissed, waived, or abandoned after the defendant is placed in jeopardy may not be retried); Black v. State, 143 Tex.Crim. 318, 158 S.W.2d 795, 796 (1942) (holding that a count that is abandoned amounts to an acquittal of that charge).