dissenting.
Appellant was initially charged by indictment with unauthorized use of a motor vehicle, to-wit a truck, alleged to have occurred on or about June 27,1994. Subsequently, he was re-indicted and charged in a single two-count indictment with the same unauthorized use of a track, and theft of property, to-wit one track, of the value of $750 or more but less than $20,000. Both counts alleged the same owner and the same occurrence date, i.e. on or about June 27, 1994. Habitual allegations were included in both the original and the reindictment.
Upon a trial by jury, appellant was found guilty of count two, the unauthorized use of a motor vehicle (UUMV), and guilty of the lesser included offense of theft of property of the value of $200 or more but less than $750. The jury assessed punishment at 62 years confinement in the Institutional Division of the Texas Department of Criminal Justice for the UUMV, and 9 months confinement in the county jail for the misdemeanor lesser included theft.
The Second Court of Appeals, after sua sponte asking the parties to brief the issue, held that a double jeopardy violation had occurred since unauthorized use of a motor vehicle was a lesser included offense of theft. Landers v. State, No. 2-95-171-CR (Tex.App.—Fort Worth, delivered August 29, 1996, slip op. at 4). It then reformed the judgment to dismiss appellant’s conviction and sentence for theft. Id. at 5. After subsequently overruling appellant’s two points of eraor, the court of appeals then affirmed the UUMV conviction and sentence. Id. at 5-11. We granted appellant’s sole question for review which questions the propriety of the court of appeals dismissing the greater offense, theft, and leaving intact the conviction for the lesser included offense, UUMV. Because the majority approves such disposition, I respectfully dissent.
I.
SUMMARY OF PERTINENT FACTS
The record reflects that appellant was convicted of stealing his employer’s track and using it without his consent during June of 1994. The complainant, appellant’s employer, testified that the track had been provided to appellant for work related purposes only, and that the last time he saw appellant with it was June 23, 1994; whereafter appellant disappeared with the track. The complainant testified that in July he received a letter from an auto impound in Lewisville, whereupon he went and retrieved the truck. A police officer indicated that it had been towed from an apartment complex in Coppell as an abandoned vehicle.
Appellant did testify at punishment that “a total misunderstanding has happened here” between him and the complainant, and that he actually returned possession of the track to the complainant in Coppell. Appellant insisted that he had “absolutely no criminal intent whatsoever” against the complainant and had the complainant’s full consent and full trust to use the track, even on personal time. He noted that he had total access to the complainant’s home and many of his properties, including money, jewelry, and other vehicles, including the keys to a Mercedes Benz. Appellant added that the complainant put the charges against him “out of retaliation for another dispute” they had , specifically about the way the complainant *562cared for Ms properties and showed neglect for his tenants.
II.
COURT OF APPEALS HOLDING
The court of appeals, after sua sponte asking the parties to brief the issue, held that a double jeopardy violation had occurred since unauthorized use of a motor vehicle was a lesser included offense of theft. Landers v. State, supra. Upon determining such a double jeopardy violation had occurred, the court concluded that dismissing the theft conviction was the appropriate remedy. It relied primarily on the analysis of Ex parte Pena, 820 S.W.2d 806 (Tex.Cr.App.1991)(plurality opinion), and Hoffman v. State, 877 S.W.2d 501 (Tex.App.—Fort Worth 1994, no pet.).
Based upon its interpretation of Pena, the court of appeals noted the five predominant methods used to determine wMch conviction to uphold. These were: (1) choose the offense the defendant was convicted of first, (2) choose the conviction that has the lowest number on the charging instrument, (3) choose the offense that was alleged first in the indictment, (4) choose the conviction that has the greatest evidentiary support, and (5) choose the conviction for the most serious offense. Landers v. State, supra, slip op. at 4. After analyzing via those methods, the court of appeals concluded that because appellant was first indicted for UUMV, and because the State presumably would have chosen the most serious offense had it been given the opportunity to choose, it was appropriate to uphold the UUMV conviction and dismiss the conviction and sentence for theft. Id., at 4-5.
III.
APPELLANT’S CLAIM
Appellant contends that when a defendant is convicted of both the greater and lesser included offenses in a single trial, the appellate court lacks the discretion to dismiss the greater offense and leave intact the lesser included conviction. He asserts that Hoffman was wrongly decided and has never been examined by a higher court. He points out that Hoffman applied the legal principles developed in Pena, a misjoinder ease, to a double jeopardy situation. Appellant contends that misjoinder and double jeopardy are distinct legal principles and, it was inappropriate to mix the concepts in tMs double jeopardy situation.
Appellant also points out that Texas has a lesser included offense statute, Article 37.08, V.A.C.C.P., which states, “In a prosecution for an offense with lesser included offenses, the jury may find the defendant not guilty of the greater offense, but guilty of any lesser included offense.” He suggests that it follows from such language that a jury may not find a person not guilty of the lesser, but yet guilty of the greater. He avers that the court of appeals has effectively done just that in dismissing the greater offense, theft, and upholding the lesser included offense, UUMV. (Appellant’s brief, pp. 4-5) He insists that such illogically allows the part (the lesser included UUMV) to override the whole (the greater theft).
Appellant offers the reasoning of the Special Court of- Appeals of Maryland, wMch stated, “When a merger is necessitated, the ‘lesser’ crime is merged into the ‘greater’ and the judgment of conviction and the sentence on the lesser offense are vacated.” Slye v. State, 42 Md.App. 520, 401 A.2d 195, 199 (1979). The .same court also noted, “The greater offense, therefore, is not necessarily the offense for which the greater penalty is provided; it is the offense with the additional element or elements.... ” Lancaster v. State, 86 Md.App. 74, 585 A.2d 274, 277 (1991). This definition is consistent with Article 37.09, V.A.C.C.P., which includes in its definition of a lesser included offense, one that “is established by proof of the same or less than all the facts required to establish the commission of the offense eharged[.]”
Appellant proposes that the greater offense, the theft charge, should have been kept intact and the lesser included offense of UUMV should have been dismissed.
IV.
STATE’S CLAIM
Citing Jones v. Thomas, 491 U.S. 376, 387, 109 S.Ct. 2522, 2529, 105 L.Ed.2d 322, 335 *563(1989), the State insists that the Double Jeopardy Clause does not exist to provide unjustified windfalls; and that appellant is seeking such an unjustified windfall. It maintains that dismissal of any one of the convictions, lesser or greater, is all that is required to guarantee the protections afforded under the Double Jeopardy Clause. It also states that while misjoinder and double jeopardy are distinct legal concepts, they serve to protect similar interests, thus remedies available under the caselaw on misjoin-der are appropriately utilized in double jeopardy situations.
The State insists that the most serious offense, i.e. the one for which the greatest punishment was assessed, should stand. At oral argument, it acknowledged that “the punishment applicable to the offense does not have an effect in determining which is the greater offense relative to which is the lesser offense.” At oral argument it also acknowledged that there was no direct description of legislative intent regarding the offenses of theft and UUMV, but it contended that public policy favors what the court of appeals did; specifically noting V.T.C.A. Penal Code, § 1.02 which states an objective of the Code is to insure the public safety through the deterrent influence of the penalties provided and such punishment as may be necessary to prevent likely recurrence of criminal behavior, and to prescribe penalties that are proportionate to the seriousness of offenses and that permit recognition of differences in rehabilitation possibilities among different offenders. The State also noted appellant pleading true to the habitual offender allegations, including a prior UUMV, and that the legislative intent of the habitual offender statute shows that the more appropriate sentence in this case is the 62 years assessed for UUMV.
V.
ANALYSIS
As noted above, Art. 37.09 includes in its definition of a lesser included offense, one that “is established by proof of the same or less than all the facts required to establish the commission of the offense charged[.]” And it is very well-settled that UUMV is a lesser included offense of theft. Neely v. State, 571 S.W.2d 926, 928 (Tex.Cr.App.1978). In a similar case involving a stolen pickup truck, this Court specifically held the defendant “could not rightfully be convicted for both the theft and the unauthorized use of [the complainant’s] pickup truck.” Ex parte Jefferson, 681 S.W.2d 33, 34 (Tex.Cr.App.1984). And at oral argument before this Court, the State explicitly declared that it was in total agreement with appellant as to several issues. Specifically, the prosecutor said,
We totally agree that on these facts, unauthorized use of a motor vehicle is the lesser included offense of theft. And we also agree that the punishment applicable to the offense does not have an effect in determining which is the greater offense relative to which is the lesser offense. We also agree that the appellant’s double jeopardy rights were violated. And we agree that the court of appeals has vacated the judgment of conviction and the sentence of the greater offense of theft.
Thus, the sole issue before this Court is the proper remedy for the double jeopardy violation.
The Fifth Amendment of the United States Constitution provides, “nor shall any person be subject for the same offence [sic] to be twice put in jeopardy of life or limb[.]” U.S. Const., amend. V. This Double Jeopardy Clause protects against second prosecutions for the same offense after conviction and after acquittal, and against multiple punishments for the same offense. Ex parte Herron, 790 S.W.2d 623, 624 (Tex.Cr.App.1990). In the instant cause, because both the UUMV and theft offenses were tried in a single trial, the double jeopardy protection is against multiple punishments for the same offense. And as stated above, the sole issue before this Court is the proper remedy for the agreed double jeopardy violation. Since appellant “could not rightfully be convicted for both the theft and the unauthorized use” offenses, the question is which one of the two is to be upheld.
The crux of appellant’s argument is that the greater offense, theft, encompasses and *564subsumes the lesser included offense, UUMV, and that it is improper to dismiss the jury’s finding of guilt of the greater offense, theft, and yet uphold the lesser, UUMV. The State insists that upholding the greater offense, theft, would provide appellant with an unjustified windfall, since in this ease he received a significantly lesser sentence for that “greater” misdemeanor offense; thus the most serious offense with the greatest punishment, regardless of whether it is “greater” or “lesser included,” should stand.
The court of appeals resolved the dispute by utilizing factors from a misjoinder case, Ex parte Pena, 820 S.W.2d 806, 808 (Tex.Cr.App.1991)(pIurality opinion), which it had also previously used in another double jeopardy case, Hoffman v. State, 877 S.W.2d 501, 502 (Tex.App.—Fort Worth 1994, no pet.). Pena was a misjoinder case, which involved conviction and sentencing for three felonies which had been improperly joined in a single indictment rather than any double jeopardy violation. Ex Parte Pena, 820 S.W.2d at 807.
In Pena, we concluded that in such mis-joinder situations, the appropriate relief was to affirm the most serious offense and vacate the others, thus adopting the “most serious offense” test in determining which conviction to uphold. Id. at 808-10. That “most serious offense” test arose from Judge Miller’s concurring opinion in Callins v. State, 780 S.W.2d 176, 197 (Tex.Cr.App.1986, cert. denied, 497 U.S. 1011, 110 S.Ct. 3256, 111 L.Ed.2d 766 (1990). However, in his concurring and dissenting opinion in Pena, Judge Campbell noted “this strange ‘most serious offense’ rule” and observed that oftentimes there will be no reliable method for determining which offense is “most serious.” Ex parte Pena, 820 S.W.2d at 810 (Campbell, J., concurring and dissenting). He specifically pointed out that there is no reliable way to determine in every ease which offense is truly “most serious” and that basing such a determination upon the sentence imposed is questionable because there is no way to really know why a particular sentence was imposed. Id.
Hoffman, which the court of appeals also relied upon, involved a situation similar to the instant case, with Hoffman having been allowed to start a car at a car lot to listen to the engine, but instead driving it off the lot without permission. Hoffman v. State, 877 S.W.2d at 501. Hoffman was charged with and tried for felony theft and UUMV, but the jury found him guilty of UUMV and misdemeanor theft, finding the value of the car $200 or more but less than $750. Id. The court of appeals, acknowledging the same double jeopardy violation as in the instant case, and likewise analyzing Pena factors, adopted the “most serious offense” method and upheld the UUMV conviction and sentence while dismissing the misdemeanor theft conviction. Id. at 502.
Ex parte Jefferson, 681 S.W.2d at 33, involved a defendant convicted of theft of a pickup truck following prosecution for unauthorized use of that same vehicle. The remedy for that double jeopardy violation was to set aside the theft conviction, which was the greater offense. Id. at 34. However, in that case the two offenses had been tried separately, and the theft was the second one tried and was the subject of the habeas corpus application. Id. at 33-34.
This court has not spoken directly on the appropriate remedy for the specific double jeopardy violation of multiple punishments for a single offense as presented in this case with greater and lesser included offenses. The State urges that in the absence of guidance from this Court we use the tests adopted in Pena (misjoinder) and applied in Hoffman (double jeopardy).
As noted above, the law that was adopted in Pena derives from Judge Miller’s concurrence in Callins which is quite specific as to the issue of joinder. Judge Miller stated, “The rule then should be that in the absence of harm that vitiates all convictions obtained from one indictment when a defendant is charged with and convicted of more than one offense in violation of Art. 21.24, V.A.C.C.P., [footnote omitted] the appellate court will affirm the most serious offense (as determined by the sentence and other relevant factors) and dismiss the other convictions.” Callins v. State, 780 S.W.2d at 198 (Miller, J., *565concurring). However, Article 21.24 specifically deals with joinder of offenses and makes no reference to double jeopardy or lesser included offenses, which are covered in other parts of the Code of Criminal Procedure, e.g. Articles 1.10 and 1.11, V.A.C.C.P. (as to double jeopardy), and Articles 37.08 and 37.09, V.A.C.C.P. (as to lesser included offenses).
As discussed above, in Pena, a plurality of this Court determined that it was appropriate to adopt and apply the “most serious offense” test developed in Collins, directly quoting Judge Miller’s reasons for advocating the test. Ex parte Pena, 820 S.W.2d at 808-09. And in Hoffman, in reaching the decision to uphold the UUMV conviction and dismissing the theft conviction, the court of appeals stated, “Because the State was entitled to choose which offense to prosecute, since Hoffman’s conduct supported prosecution under more than one statute, [citation omitted], and because the State presumably would have chosen the most serious offense had it been given an opportunity to choose, [citing Pena], we adopt the ‘most serious offense’ method.” Hoffman v. State, 877 S.W.2d at 502.
However, in this case we really do not know which offense the State would have chosen to prosecute. The initial indictment only charged appellant with unauthorized use of a motor vehicle. However, the State then chose to reindict him and add the felony theft charge in addition to UUMV, so apparently it intended to prosecute both. At oral argument, the prosecutor indicated that he was unaware of any explanation for the reindietment. Both of these charges were third degree felonies at the time and would have resulted in equally enhanced' sentences as a result of the habitual allegations. Only after the presentation of evidence did the jury determine the truck to be valued at $200 or more but less than $750.
Since both offenses were third degree felonies, equally enhanceable, neither would have been more serious based upon exposure to potential punishment. Indeed as noted in Judge Campbell’s concurring and dissenting opinion in Pena, the validity of the “most serious offense” rule is questionable, as a prosecutor’s choice amongst offenses may have been based on other factors, such as the strength of available evidence, rather than the severity of the possible punishment. Ex parte Pena, 820 S.W.2d at 810 (Campbell, J., concurring and dissenting).
It is clear that the instant case does not involve an issue of misjoinder which, as discussed above, is the context in which the “most serious offense” test developed. Furthermore, the Second Court of Appeals, a year after its Hoffman opinion, in reviewing another ease where the defendant was convicted for theft and unauthorized use of a motor vehicle that belonged to his employer, stated,
The State concedes that separate convictions for theft and unauthorized use of a motor vehicle violate the double jeopardy clause, [citations omitted] ... The proper remedy under the circumstances is to reform the judgment to dismiss [the defendant’s conviction for the lesser included offense.
Johnson v. State, 903 S.W.2d 496, 499 (Tex.App.—Fort Worth 1995, no pet.) Although upholding the conviction for theft (the greater offense) and dismissing the UUMV conviction (the lesser included offense) was the exact opposite of what it did in Hoffman, the court of appeals gave no reason for its new interpretation of the law. It even cited Hoffman, but provided no explanation for its different treatment of the greater and lesser included offenses. It is clearly this type of inconsistency and variability in the application of relevant law that this Court should seek to prevent.
It is not necessary for the lower courts to mix apples and oranges in their analyses. The concepts of misjoinder and multiple punishments double jeopardy violations are distinct legal concepts deserving of distinct legal remedies. Double jeopardy is a constitutional protection of our Bill of Rights, while misjoinder protections are purely statutory. The protections provided by the Double Jeopardy Clause of the United States Constitution serve to protect the rights of the accused. They are not to be minimized to an arbitrary after-the-fact guessing game of what the prosecutor might or might not have *566done, thereby shifting the focus of protection from the accused to the prosecution. And now this Court creates a new “most serious punishment” test, complete with “a tie-breaker.” Landers v. State, 957 S.W.2d 558, 560 (Tex.Cr.App.1997). The majority even claims that this new test will eliminate the arbitrariness of relying upon classifying offenses as “greater” and “lesser.” Yet such classifications are quite consistent and contingent upon the specific statutory elements; while punishments are subject to the vagaries of our very broad sentencing ranges.
The jury found appellant guilty of the greater offense of theft. Once convicted of that greater offense, the lesser included offense of UUMV was simply no longer available. Accordingly, this Court should reverse the judgment of the court of appeals, reinstate appellant’s greater theft conviction and sentence, and reverse his lesser UUMV conviction. Because the majority does not, I respectfully dissent.
BAIRD and MEYERS, JJ., join.