dissenting.
The first count of both the indictment and the jury charge describe burglary as entry into a habitation without the consent of the owner, Nerelyne Pope, and committing or attempting to commit assault of an unnamed person. The majority concludes that the evidence shows that Appellant assaulted Tony Russell by hitting him in the mouth after entering the house while Pope was away.
The second count of the indictment and the second count of the jury charge describe the aggravated assault of Tony Russell with a deadly weapon in the same episode. Appellant argues that aggravated assault is a lesser included offense of burglary as alleged in the indictment and that his convictions for both burglary and aggravated assault violate double jeopardy protections. This argument comports with his complaint at trial. The majority contends that because the assault with bodily injury occurred inside the house and the assault with the knife occurred after Appellant chased Russell outside the house, they are two separate offenses, and there is, therefore, no double jeopardy violation. The record, however, reflects a single, continuing assault. The unit of prosecution in a burglary offense is the entry, not the number of persons assaulted.1 Two convictions will lie only if the aggravated assault is not part of the assault alleged in the burglary count.
The record reflects that Appellant and Russell were arguing and fighting in the front room of the house. Appellant hit Russell in the face, and Russell said he was going to call the police. Pope testified, “He didn’t make it over there in time to call the police.” The prosecutor asked her what happened to prevent Russell from calling the police, and she testified, “[Appellant] ran him down and stabbed him.”
When asked for further explanation, Pope said that when Russell said that he was calling 911, Appellant ran into the kitchen to get a knife, and she and Appellant ran out the front door. Pope ran to *109her car, and Russell ran toward the next door neighbor’s house across a vacant lot. Appellant ran Russell down and stabbed him with the knife that he had grabbed in Pope’s kitchen.
The Texas Court of Criminal Appeals has discussed stop-action prosecution in connection with sexual offenses against children, explaining that there is nothing in the language of the various statutes demonstrating that the legislature intended harsh penalties for sexual abuse of children to suggest that it also intended to authorize “stop-action” prosecution:
Just as a conviction for a completed offense bars prosecution for an attempt to commit the same offense, a conviction for an offense set out in § 3.03 bars conviction for conduct that, on the facts of the case, is demonstrably part of the commission of the greater offense.2
The record before us demonstrates that the assault of Russell began inside the house and continued outside as Russell attempted to run away from Appellant. The assault was part of the burglary offense. Had the indictment charged Appellant with burglary by entering the house and committing or attempting to commit sexual assault of Pope, the State could have sustained its burden by showing the sexual assault was begun inside the house and completed outside, whether on the porch, or in her car, or in the yard next door.
Similarly, the assault of Russell was an inextricable part of the burglary. Just as the State could not have convicted Appellant of assaulting Russell in the back of the house and also in the front room (although the fight began in the back of the house), the State cannot separate the composite parts of the assault in order to secure a burglary conviction for the portion of the assault that occurred inside the house and a separate aggravated assault conviction for the final portion of the assault that was completed outside.
Because such stop-action prosecution permits multiple punishments for both the greater offense of burglary and the lesser included offense of assault, I would sustain Appellant’s double jeopardy complaint.
When a defendant is convicted of two offenses that are the “same” for double-jeopardy purposes, case law tells us that the conviction for the “most serious” offense is retained, and the other conviction is set aside.3 “[T]he ‘most serious’ offenses is the offense ... for which the greatest sentence was” imposed.4 The trial court sentenced Appellant to ten years’ confinement for the burglary of a habitation conviction and ninety years’ confinement for the aggravated assault with a deadly weapon conviction. I would therefore retain the aggravated assault conviction with the deadly weapon finding and set aside the burglary conviction. Because the majority upholds both convictions, violating double jeopardy protections, I must respectfully dissent.
. Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex.Crim.App.2006).
.Patterson v. State, 152 S.W.3d 88, 92 (Tex.Crim.App.2004); see also Tex. Penal Code Ann. § 3.03 (Vernon Supp.2008).
. Cavazos, 203 S.W.3d at 337.
. Id.