Opinion
NO. 02-14-00068-CRNO. 02-14-00069-CRNO. 02-14-00070-CR
11-20-2014
RORY JONES APPELLANT v. THE STATE OF TEXAS STATE
FROM THE 211TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. F-2014-0079-C, F-2014-0080-C, F-2014-0081-C
MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
I. INTRODUCTION
A jury convicted Appellant Rory Jones of aggravated robbery, aggravated assault, and attempted aggravated kidnapping. See Tex. Penal Code Ann. §§ 15.01, 20.04, 22.02(a)(2), 29.03 (West 2011). After Jones pleaded true to the prior-felony-conviction enhancement paragraph in each indictment, the jury assessed punishment at life in prison in each case and assessed fines in the amounts of $10,000 for the aggravated assault conviction and $2,500 for the attempted aggravated kidnapping conviction. The trial court sentenced Jones accordingly, ordering that the sentences run concurrently. In a single issue, Jones claims that convicting him for both aggravated robbery and aggravated assault violated the Fifth Amendment proscription against double jeopardy. The State concedes error on this issue and requests that we set aside Jones's conviction and punishment for aggravated assault. After conducting an independent evaluation, we will vacate and dismiss Jones's conviction for aggravated assault and affirm Jones's convictions for aggravated robbery and attempted aggravated kidnapping.
Although Jones appealed his conviction for attempted aggravated kidnapping, he did not assert any error. Thus, we affirm the conviction as a matter of course and include it here only in the interest of clarity.
II. FACTUAL AND BACKGROUND
After getting off work as a maid at the Best Value Inn in Lewisville, Texas, Modesta Sanchez-Montero saw Jones walk by where she was sitting. About twenty minutes later, Jones approached her from behind, grabbed her, and demanded money. Jones was wielding an object that appeared to be a screwdriver and threatened to stab Sanchez-Montero if she did not comply with his demands. He then began beating her and forcibly dragging her towards a truck in the parking lot. Sanchez-Montero broke free, ran to her room, and called the motel owner. The owner confronted Jones and told him to wait while the owner investigated the situation. Jones instead got into his truck and fled the motel.
The State charged Jones with aggravated robbery, aggravated assault, and attempted aggravated kidnapping. The pertinent portion of Jones's aggravated robbery indictment read:
[W]hile in the course of committing theft of property and with intent to obtain or maintain control of said property, [Jones did] intentionally or knowingly threaten or place Modesta Sanchez-Montero in fear of imminent bodily injury or death, and [Jones] did then and there use or exhibit a deadly weapon, to-wit: a screwdriver or an object unknown to the Grand Jury, that in the manner of its use or intended use was capable of causing death or serious bodily injury.The pertinent portion of Jones's aggravated assault indictment read:
[Jones did] intentionally or knowingly threaten Modesta Sanchez-Montero with imminent bodily injury, and did then and there during the commission of said assault, use or exhibit a deadly weapon, to-wit: a screwdriver or an unknown object to the Grand Jury, that in the manner of its use or intended use was capable of causing death or serious bodily injury.
III. DOUBLE JEOPARDY
Jones argues, and the State agrees, that convicting him of aggravated assault and aggravated robbery, both by threat, for the same criminal act violated the double jeopardy protections guaranteed by the Fifth Amendment. See U.S. Const. amend. V, cl. 2. We agree. See Saldano v. State, 70 S.W.3d 873, 884 (Tex. Crim. App. 2002) (explaining that the State's confession of error is not conclusive on review and conducting an independent review on the merits).
The Double Jeopardy Clause of the United States Constitution provides that no person shall be subjected to twice having life or limb in jeopardy for the same offense. U.S. Const. amend. V. A double jeopardy claim may be raised for the first time on appeal "when the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and when enforcement of usual rules of procedural default serves no legitimate state interests." Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000) (footnotes omitted); see Langs v. State, 183 S.W.3d 680, 686-87 (Tex. Crim. App. 2006).
Impermissible multiple punishments occur when the same criminal act is punished twice under two distinct statutory provisions and the legislature intended that the conduct be punished only once. Bigon v. State, 252 S.W.3d 360, 370 (Tex. Crim. App. 2008). To determine whether there have been multiple punishments for the same offense, we apply the "same elements" test from Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932). See Ex Parte Denton, 399 S.W.3d 540, 545 (Tex. Crim. App. 2013). We focus on the elements alleged in the charging instrument to determine whether the offenses as charged require proof of the same elements. Bigon, 252 S.W.3d at 370. Double-jeopardy challenges should be made even to offenses that have differing elements under the Blockburger test "if the same 'facts required' are alleged in the indictment." Id. (citing Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007)). If two offenses do not have the same elements under the Blockburger test, but if other indicia manifest a legislative intent that an accused not be punished for two offenses arising from the course of a single transaction, an accused may not be punished for both offenses. See Gonzales v. State, 304 S.W.3d 838, 845-46 (Tex. Crim. App. 2010).
Here, the indictments for aggravated robbery and aggravated assault both alleged that Jones intentionally or knowingly threatened Modesta Sanchez-Montero with imminent bodily injury and used a screwdriver or unknown object that in its manner of use or intended use was capable of causing death or serious bodily injury. The indictment for aggravated robbery further alleged that Jones committed theft. When faced with the same double jeopardy issue as we have here and almost identical indictments, the court of criminal appeals in Denton explained,
[A]s plead, aggravated assault is a lesser-included offense of aggravated robbery because "it is established by proof of the same or less than all the facts required to establish the commission of the offense charged[.]" "If . . . the prosecution, in proving the elements of one charged offense, also necessarily proves another charged offense, then that other offense is a lesser-included offense." If there is no clear legislative intent to punish the offenses separately, multiple punishments for the criminal act that is the subject of the prosecution is barred. No such intent has been shown here. We conclude that applicant has shown that [his convictions for aggravated robbery and aggravated assault] are in violation of his constitutional double-jeopardy protections that preclude multiple punishments for the same offense.399 S.W.3d at 547. Here, as in Denton, the aggravated assault, as charged, is a lesser-included offense of the aggravated robbery, and Jones's convictions for both offenses violated double jeopardy.See id.; cf. Garfias v. State, 424 S.W.3d 54, 63-64 (Tex. Crim. App.) (holding that aggravated assault by causing bodily injury was not a lesser-included offense of aggravated robbery by threat), cert. denied, 2014 WL 3753800 (2014).
Jones did not raise a double jeopardy claim in the trial court, but as both parties assert on appeal, the double jeopardy violation is clearly apparent on the face of the record and enforcement of usual rules of procedural default serves no legitimate state interests. See Gonzalez, 8 S.W.3d at 643.
When a defendant has been prosecuted and convicted in a single criminal action of two or more offenses that constitute the same offense, in violation of double jeopardy, the remedy is to apply "the most serious offense" test and retain the conviction for the "most serious" offense. Denton, 399 S.W.3d at 547. The "most serious" offense is the offense for which the greatest sentence was assessed. Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App. 2006); see also Evans v. State, 299 S.W.3d 138, 141 (Tex. Crim. App. 2009); Bigon, 252 S.W.3d at 372-73. But when the punishment for each conviction is identical, we cannot look to only the sentences imposed to determine the most serious offense. See Bigon, 252 S.W.3d at 373. Instead, we have to look to other criteria, including the degree of felony for each offense, to determine which offense is the most serious. Id.; White v. State, 395 S.W.3d 828, 832 (Tex. App.—Fort Worth 2013, no pet.).
In this case, Jones received a life sentence for both the aggravated assault and aggravated robbery convictions. Because aggravated robbery is a first- degree felony and aggravated assault is a second-degree felony, aggravated robbery is the most serious offense here.See Tex. Penal Code Ann. §§ 22.02(b), 29.03(b). As such, we will vacate Jones's conviction for aggravated assault. See Bigon, 252 S.W.3d at 373; White, 395 S.W.3d at 833. We sustain Jones's sole issue.
Both offenses were enhanced with a prior felony conviction. Thus, the aggravated robbery offense was enhanced to a "hybrid" first-degree felony with a punishment range of not less than fifteen years or more than ninety-nine years or life in prison. See Tex. Penal Code Ann. § 12.42(c)(1) (West Supp. 2014). The aggravated assault offense was enhanced to a first-degree felony. See id. § 12.42(b).
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IV. CONCLUSION
Having sustained Jones's sole issue, we vacate and dismiss his conviction for aggravated assault and affirm the convictions for aggravated robbery and attempted aggravated kidnapping.
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: LIVINGSTON, C.J.; WALKER and GABRIEL, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 20, 2014