Roy Nanez Jr. v. State ( 2019 )

NUMBER 13-17-00646-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ROY NANEZ JR., Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court
of Victoria County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Hinojosa
Memorandum Opinion by Justice Longoria
Appellant Roy Nanez, Jr. was convicted for aggravated assault with a deadly
weapon, aggravated assault, and unlawful restraint of someone less than seventeen
years of age. See TEX. PEN. CODE ANN. §§ 22.02(a)(2), 22.02(a)(1), 20.02(2) (West,
Westlaw through 2017 1st C.S.). By a single issue, Nanez argues that his convictions for
aggravated assault with a deadly weapon and aggravated assault constituted a multiple
punishment double jeopardy violation. We reverse and render judgment of acquittal as
to count two for aggravated assault and affirm as modified as to count one for aggravated
assault with a deadly weapon.
I. BACKGROUND
Nanez was indicted for the offense of aggravated assault with a deadly weapon, a
second-degree felony (count 1), aggravated assault, a second-degree felony (count 2),
assault of a family/house member by impeding breath or circulation, a third-degree felony
(count 3), unlawful restraint of someone less than seventeen years of age, a state jail
felony (count 4), and injury to a child/elderly/disabled person with intent to cause bodily
injury, a third-degree felony (count 5). See TEX. PEN. CODE ANN. §§ 22.02(a)(2),
22.02(a)(1), 22.01(c), 20.02(2), 22.04(f) (West, Westlaw through 2017 1st C.S.).
On November 2, 2017, the jury returned a guilty verdict on counts 1, 2, and 4. On
count 1, the jury sentenced Nanez to fifty-five years’ imprisonment in the Institutional
Division of the Texas Department of Criminal Justice. On count 2, the jury sentenced
Nanez to twenty-five years’ imprisonment in the Institutional Division of the Texas
Department of Criminal Justice and a $10,000 fine. On count 4, the jury returned a
sentence of ten years’ imprisonment in the Institutional Division of the Texas Department
of Criminal Justice and a $10,000 fine. The trial court pronounced sentence as assessed
by the jury on counts 1 and 2; on count 4, the trial court pronounced sentence as twelve
years’ imprisonment in the Institutional Division of the Texas Department of Criminal
Justice and a $10,000 fine. This appeal ensued.
II. DOUBLE JEOPARDY
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In his sole issue, Nanez argues that his conviction on both count 1 and count 2
constituted a double jeopardy violation. 1
A. Standard of Review and Applicable Law
Generally, a double jeopardy claim must be raised in the trial court to preserve the
error for appellate review. Gonzalez v. State, 8 S.W.3d 640, 643–46 (Tex. Crim. App.
2000). An exception to this general rule applies if (1) the undisputed facts show the
double jeopardy violation is clearly apparent from the face of the record and (2) the
enforcement of the usual rules of procedural default serves no legitimate state purpose.
Id. A double jeopardy claim is apparent on the face of the trial record if resolution of the
claim does not require further proceedings for the purpose of introducing additional
evidence to support the claim. Ex parte Knipp, 236 S.W.3d 214, 216, n. 3 (Tex. Crim.
App. 2007).
The Double Jeopardy Clause of the United States Constitution provides no person
shall be subjected to twice having life or limb in jeopardy for the same offense. U.S.
CONST., amend. V. Generally, this clause protects against (1) a second prosecution for
the same offense after acquittal, (2) a second prosecution for the same offense after
conviction, and (3) multiple punishments for the same offense. Brown v. Ohio, 432 U.S.
161, 165 (1977); Ex parte Cavazos, 203 S.W.3d 333, 336 (Tex. Crim. App. 2006). “When
the same act or transaction violates two different penal statutes, the two offenses are the
same for double-jeopardy purposes if one of the offenses contains all the elements of the
other; they are not the same if each offense has a unique element.” Duvall v. State, 59
1 Nanez does not challenge his conviction or sentence for unlawful restraint on count 4.
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S.W.3d 773, 777 (Tex. App.—Austin 2001, pet. ref’d) (citing Blockburger v. U.S., 284 U.S.
299, 304 (1932)).
B. Analysis
The State concedes that punishing Nanez under both count 1 and count 2
constitutes a double jeopardy violation in this case. Both counts involve the same exact
assaultive incident, wherein Nanez attacked the same person, on the same date (March
1, 2017), by the same means (his hand, foot, boot, and broomstick). The State also
concedes that there was no break in Nanez’s attack such that it would have divided the
attack into two distinguishable assaults.
As both Nanez and the State acknowledge, the proper remedy for a multiple
punishment double jeopardy violation is to affirm the conviction for the most serious
offense and vacate the other conviction. See Bigon v. State, 252 S.W.3d 360, 372 (Tex.
Crim. App. 2008). The most serious offense is the offense of conviction for which the
greatest sentence was assessed. See Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex.
Crim. App. 2006). In this case, the most serious offense is count 1 because Nanez was
assessed fifty-five years’ imprisonment on count 1 compared to the twenty-five years’
imprisonment he received on count 2. Therefore, we affirm Nanez’s conviction on count
1 for aggravated assault with a deadly weapon and reverse and render acquittal of
Nanez’s conviction on count 2 for aggravated assault. We sustain Nanez’s sole issue.
III. CONCLUSION
We reverse and render judgment of acquittal as to count two for aggravated
assault and affirm as modified as to count one for aggravated assault with a deadly
weapon.
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NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
28th day of February, 2019.
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