Less than six months ago, a majority of this Court refused to let Justice Vance do exactly what he is doing in this case; identify, raise, brief, and dispose of an issue not raised or briefed by either party. See Archie v. State, 181 S.W.3d 428 (Tex.App.Waco 2005, pet. granted). Why Justice Reyna has flipped positions and now joins Justice Vance in becoming an advocate for a party is left unexplained. For the reasons expressed in Archie, I remain opposed to judges becoming advocates for a party. And it is not just the identification and decision of the issue that is the problem. When only one point of view is identified, briefed, and then argued, by a member of the Court, it is then difficult for the Court, and particularly that member, to be entirely objective and impartial in deciding the issue. The opportunity for advocates to make legal arguments on behalf of a party is the cornerstone of our system of jurisprudence. By an advocate for the other party in an appeal, compelling arguments can be made against the majority’s procedure to take up this issue for a party as well as the merits of the majority’s decision. But we are improperly deprived of the benefit of other briefing and argument on the issue. See Tex.R.App. P. 38.9.
I pause here only long enough to note that in this combined case there is only one judgment signed by the trial court. For practical purposes, the two indictments were consolidated. Copies of the single judgment were placed in each file; but there is still only one judgment. So, I do not know which judgment is being affirmed if one judgment is being reversed. For that reason, if no other, I must dissent. But frankly, that is not the only problem with the majority opinion.
First, in a rush to establish the ability to do what a majority of the Court had rejected in Archie, I believe the majority has rushed past a meritorious issue raised by the defendant.
Second, the majority mentions the two competing tests discussed in Harris used to determine which offense to vacate as a remedy on appeal. See Harris v. State, 34 S.W.3d 609, 612-613 (Tex.App.-Waco 2000, pet. ref d). In Ex parte Pena, the Court of Criminal Appeals adopted the “most serious offense” test to determine which offense to dismiss where there was a misjoinder of more than one offense in an indictment. Ex parte Pena, 820 S.W.2d 806, 809 (Tex.Crim.App.1991). The Court of Criminal Appeals, in Landers, adopted the “most serious punishment” test to determine which offense to dismiss when there was a double jeopardy violation because the defendant was convicted of both a greater and lesser included offense. Landers v. State, 957 S.W.2d 558, 559-60 (Tex.Crim.App.1997). But in Harris, nei*756ther test was determinative. So this Court used the test described in Holcomb to determine which offense should be vacated. Holcomb v. State, 745 S.W.2d 903, 908 (Tex.Crim.App.1988); Hams, 34 S.W.3d at 614. That test is that we uphold the conviction listed first in the trial court’s judgment. Id. But instead of using one of these tests, the majority sort of merges the Landers test and the Holcomb test to make up its own test, concluding that the conviction with the most serious punishment that was alleged first in the indictment is the conviction to be upheld. Maj. Op. at 754. There is no need to create a new test.
And third, there is a critical distinction between the Harris line of cases and this case. In Harris, we were concerned with double jeopardy, not unanimity of a jury verdict. In Harris, the jury had answered four separate questions in the charge finding the defendant guilty on all four. If this charge had been properly submitted as four separate questions and the jury answered guilty on all four, then we might have a double jeopardy issue if the four acts were not sufficiently distinct so that the conduct required to support each finding was different. But only when you have separate unanimous jury verdicts do you even start trying to decide which convictions will be disregarded to avoid violating the constitutional prohibition of double jeopardy and which conviction(s) will be affirmed.
The fact that the majority can go through the offenses and find one with a more serious penalty and, thus, decide on which count to base a finding of guilt, is significant. It lets the majority sit, not as a thirteenth juror, but as the jury’s Dali Lama, telling us the answer to the question: What is the meaning of the jury’s verdict?
The resolution of the issue identified, briefed, and argued by the majority is the most powerful argument that Gonzales has suffered some injury from the error in the charge which deprived Gonzales of a unanimous jury verdict on each specific count and deprived Gonzales of the ability to know which of the charges the jury unanimously agreed upon, if any. Because one victim can be subjected to multiple assaults, Gonzales may have committed four assaults in this case. Or, it could be that the only assault in the charge the jury could agree upon was causing serious bodily injury (which does not require a deadly weapon) and rejected the other three assaults (which involved a deadly weapon). Or it could be they did not all agree that Gonzales committed any of the four assaults. We know that the jury that considered the two aggravated assault counts in the first trial, which resulted in a hung jury, could not reach an agreement on either of those counts charged in the disjunctive — including the count the majority now decides to affirm. But now we know which one this jury unanimously agreed upon because the majority tells us. That is the jury’s decision, not this Court’s.
I dissent.