Juan Martinez v. State ( 2018 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
Nos. 07-17-00051-CR
07-17-00052-CR
07-17-00053-CR
JUAN MARTINEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 364th District Court
Lubbock County, Texas
Trial Court No. 2015-408,165, Counts 1, 2, and 3, Honorable William R. Eichman II, Presiding
August 14, 2018
MEMORANDUM OPINION
Before CAMPBELL and PIRTLE and PARKER, JJ.
Appellant, Juan Martinez, appeals his convictions for two counts of burglary of a
habitation1 and one count of retaliation.2 He contends that these convictions violate his
double jeopardy rights and that the judgments should be reformed in such a manner that
only the second count of burglary of a habitation should stand. The State concedes that
1 See TEX. PENAL CODE ANN. § 30.02(a) (West Supp. 2017).
2 See id. § 36.06(a) (West 2016).
one of the burglary of a habitation convictions must be vacated but contends that
retaliation is a separate offense from burglary of a habitation and, as such, these
convictions do not implicate double jeopardy concerns. Agreeing with the State, we will
vacate one of the burglary of a habitation counts and affirm the judgments as reformed.
Factual and Procedural Background
On November 26, 2015, Elizabeth Lopez and her common law husband, Lincoln
Flores, went to Lincoln’s sister’s house to have drinks. About thirty minutes after arriving,
Elizabeth left to go home and work on cooking Thanksgiving dinner. Later, Lincoln’s
sister, Victoria, called Elizabeth and told her that she needed to come pick up Lincoln.
When Lincoln entered the vehicle, he started calling Elizabeth names and hitting the seat.
He eventually struck Elizabeth, which initiated a physical altercation between the two.
Victoria, alerted by the commotion, approached the vehicle and hit Elizabeth in the face
with a beer bottle. Lincoln and Victoria then began punching and pulling on Elizabeth,
who drove away from the scene in fear for her life. After driving away, Elizabeth called
911. The police met Elizabeth at her house, where she gave them a report of the incident.
While the police were still at the house, Lincoln arrived and was arrested for domestic
assault.
At some point after the police left, one of Elizabeth’s sons knocked on the door to
her bedroom but did so while warning her not to open the door. Despite the warning,
Elizabeth opened the door to see appellant, Victoria’s husband, inside her house and
coming toward her. After a brief exchange during which appellant demanded the keys to
Elizabeth’s car, appellant punched Elizabeth in the face with sufficient force to knock her
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to the ground. Appellant then stabbed Elizabeth in the right arm with a knife. At that
point, Elizabeth’s fourteen-year-old son hit appellant on the side of his head. In response,
appellant began hitting Elizabeth’s son and cutting him with the knife. To protect her
children, Elizabeth drew appellant’s attention back to herself. Appellant stabbed
Elizabeth again, this time in her left arm. Elizabeth then ran down the street from
appellant until she tripped. A car approached the location where Elizabeth had fallen and
the passengers in the vehicle got out. Unfortunately for Elizabeth, the passengers were
Victoria and members of her family. Appellant, Victoria, and the others then began
punching and kicking Elizabeth until her son once again intervened. After Elizabeth’s son
intervened in the street, appellant and the others ran away. Elizabeth gave a report to
the police about the incident with appellant. Both she and her son were taken to the
hospital where both received stitches for their injuries.
Appellant was indicted for burglary of a habitation with the felony offense of injury
to a child (Count 1), burglary of a habitation with the felony offense of aggravated assault
(Count 2), and retaliation (Count 3). Appellant entered an open plea of guilty to all three
counts alleged in the indictment and “true” to two felony enhancement paragraphs. The
trial court held a punishment hearing, after which it sentenced appellant to seventy-five
years’ imprisonment for each burglary count, and fifty years’ imprisonment for the
retaliation count. Appellant timely filed his notice of appeal.
Appellant presents two issues by his appeal. His first issue contends that the trial
court could not punish him for the burglary offense alleged in Count 2 and the retaliation
offense alleged in Count 3 because the elements of retaliation are subsumed within the
elements of that burglary charge. Appellant’s second issue contends that the two burglary
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offenses relate to a single burglary and, as such, violate double jeopardy. The State
concedes appellant’s second issue. Because this issue resolves appellant’s first issue,
we will address appellant’s second issue first.
Law and Analysis
The Fifth Amendment to the United States Constitution provides that no person
shall “be subject for the same offence to be twice put in jeopardy of life or limb . . . .” U.S.
CONST. amend. V. The Double Jeopardy Clause prohibits a second prosecution after the
accused has already been convicted or acquitted for the offense, and multiple
punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53
L. Ed. 2d 187 (1977); Stevenson v. State, 499 S.W.3d 842, 850 (Tex. Crim. App. 2016).
“A multiple-punishments violation can arise either in the context of lesser-included
offenses, where the same conduct is punished under a greater and a lesser-included
offense, and when the same conduct is punished under two distinct statutes where the
Legislature only intended for the conduct to be punished once.” Garfias v. State, 424
S.W.3d 54, 58 (Tex. Crim. App. 2014). Whether the Legislature intended multiple
punishments is the key factor in determining whether a multiple-punishment double
jeopardy violation has occurred. Stevenson, 499 S.W.3d at 850.
In a double-jeopardy analysis, whether conduct constitutes the “same offense” is
determined by examining the legislative intent and determining the number of punishable
offenses the Legislature contemplated. Id. When two separate statutory provisions are
involved, our analysis must include both an elements analysis under Blockburger3 and a
3 Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
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units analysis. Id. However, if the offenses involved are codified in a single statute, we
need only conduct a units-of-prosecution analysis because the elements tests must
necessarily be resolved in favor of the defendant. Id.
In conducting the elements analysis under Blockburger, we compare the two
statutes and determine “whether each provision requires proof of a fact that the other
does not.” Ex parte Benson, 459 S.W.3d 67, 72 (Tex. Crim. App. 2015) (orig. proceeding)
(quoting Blockburger, 284 U.S. at 304). In Texas, we apply the cognate-pleadings
approach to the Blockburger elements analysis. Id. This approach entails comparing the
elements of the greater offense as pleaded to the statutory elements of the lesser offense.
Id. Utilizing this approach, if the offenses have the same elements, a rebuttable
assumption arises that the offenses are the same for purposes of double jeopardy. Id.
If the offenses are proscribed by a single statute or are the same under an
elements analysis, double jeopardy is not violated if the offenses constitute separate
allowable units of prosecution. Id. at 73. In conducting a units analysis, we consider the
allowable unit of prosecution based on the statute’s construction and the gravamen of the
offense, as well as how many units have been proven by the trial evidence. Stevenson,
499 S.W.3d at 850-51.
When a double jeopardy claim is not raised before the trial court, it may be raised
for the first time on appeal when: (1) the undisputed facts show the double jeopardy
violation is clearly apparent on the face of the record, and (2) enforcement of the usual
rules of procedural default serves no legitimate state interest. Langs v. State, 183 S.W.3d
680, 687 (Tex. Crim. App. 2006). A double jeopardy claim is apparent on the face of the
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record if resolution of the claim does not require further proceedings to introduce
additional evidence. Ex parte Denton, 399 S.W.3d 540, 544 (Tex. Crim. App. 2013).
While the State has an interest in maintaining the finality of a conviction, there is “no
legitimate [state] interest in maintaining a conviction when it is clear on the face of the
record that the conviction was obtained in contravention of constitutional double-jeopardy
protections.” Id. at 545.
Issue Two
By his second issue, appellant contends that the two burglary counts violate double
jeopardy because they arise out of the same burglary and only vary in terms of the felony
that was committed within the habitation. The State concedes that conviction for these
offenses violates double jeopardy.
The indictment’s first count alleges that appellant intentionally or knowingly entered
a habitation without the owner’s consent and committed the felony offense of injury to a
child. Its second count alleges that appellant intentionally or knowingly entered a
habitation without the owner’s consent and committed the felony offense of aggravated
assault. Both offenses are prescribed by the same statute, section 30.02 of the Texas
Penal Code. See TEX. PENAL CODE ANN. § 30.02. The gravamen of a burglary offense
under section 30.02 is the unauthorized entry with the requisite mental state. Ex parte
Cavazos, 203 S.W.3d 333, 337 (Tex. Crim. App. 2006); Scroggs v. State, 396 S.W.3d 1,
17 (Tex. App.—Amarillo 2010, pet. ref’d). “The offense is complete from entry.” Scroggs,
396 S.W.3d at 17. As such, convictions for two burglary of a habitation counts that involve
the same unlawful entry and vary only in the identification of the intended felony violate
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double jeopardy. Ex parte Cavazos, 203 S.W.3d at 337; see Scroggs, 396 S.W.3d at 17.
Since appellant was convicted of two counts of burglary of a habitation based on a single
entry, one to commit the intended felony of injury to a child and the other to commit the
intended felony of aggravated assault, we conclude that the multiple convictions and
resulting punishments violate double jeopardy.
When a defendant has been convicted of two offenses that are the same offense
for double jeopardy purposes, we retain the conviction with the “most serious
punishment,” and vacate any remaining convictions that violate double jeopardy. Ex parte
Cavazos, 203 S.W.3d at 337; Scroggs, 396 S.W.3d at 17. The most serious offense is
ordinarily the offense for which the greatest punishment was assessed. Ex parte
Cavazos, 203 S.W.3d at 338. When the two sentences are the same, other factors can
be considered to determine which offense is the most serious. See Bigdon v. State, 252
S.W.3d 360, 373 (Tex. Crim. App. 2008) (degree of offense); Villanueva v. State, 227
S.W.3d 744, 749 (Tex. Crim. App. 2007) (deadly weapon finding); Ex parte Cavazos, 203
S.W.3d at 338-39 (restitution).
In the present case, appellant was punished for each burglary of a habitation
charge by seventy-five years’ incarceration with no fine or restitution ordered. Further,
an affirmative finding on the use or exhibition of a deadly weapon is contained in each
judgment. While not specifically reaching the issue, the Texas Court of Criminal Appeals
has cited to some of its case law as suggesting that, all other factors being equal, the
conviction that should be affirmed is the offense named in the first verdict form, which will
ordinarily be the offense described in the first count of an indictment. Ex parte Cavazos,
203 S.W.3d at 339 n.8 (citing Ex parte Cravens, 805 S.W.2d 790, 791 (Tex. Crim. App.
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1991), McIntire v. State, 698 S.W.2d 652, 656 (Tex. Crim. App. 1985), and Ex parte Siller,
686 S.W.2d 617, 620 (Tex. Crim. App. 1985)). When this Court was confronted with the
situation of a double jeopardy violation involving convictions under the same statute for
which identical sentences were imposed, we affirmed the offense named first in the
verdict form. Scroggs, 396 S.W.3d at 17-18. Several of our sister courts have taken the
same approach. See Burwell v. State, No. 11-12-00351-CR, 2014 Tex. App. LEXIS
12542, at *4-5 (Tex. App.—Eastland Nov. 20, 2014, pet. ref’d) (mem. op., not designated
for publication); Cooper v. State, No. 03-10-00348-CR, 2014 Tex. App. LEXIS 7509, at
*3-5 (Tex. App.—Austin July 11, 2014, no pet.) (mem. op., not designated for publication);
Ellison v. State, 425 S.W.3d 637, 648-49 (Tex. App.—Houston [14th Dist.] 2014, no pet.);
Ruth v. State, No. 13-10-00250-CR, 2011 Tex. App. LEXIS 7006, at *24-25 (Tex. App.—
Corpus Christi Aug. 29, 2011, no pet.) (mem. op., not designated for publication);
Newsome v. State, No. 02-05-00390-CR, 2007 Tex. App. LEXIS 2546, at *8 (Tex. App.—
Fort Worth Mar. 29, 2007, pet. ref’d) (mem. op., not designated for publication). We will
follow this approach in the present case and vacate Count Two of the judgments, which
convicts appellant of burglary of a habitation predicated on his commission of aggravated
assault against Elizabeth Lopez.
Issue One
Appellant’s first issue contends that the trial court could not punish him for the
burglary of a habitation predicated on his commission of aggravated assault against
Elizabeth Lopez (Count 2) and retaliation against Elizabeth (Count 3) because doing so
would violate double jeopardy in that the elements of retaliation are subsumed within the
elements of burglary of a habitation as charged in the indictment. However, as we have
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vacated appellant’s conviction for Count 2, we need not address appellant’s first issue.
See TEX. R. APP. P. 47.1.
Conclusion
We render judgment vacating Count 2, burglary of a habitation predicated on
aggravated assault, of the judgments of the trial court. In all other respects, we affirm the
trial court’s judgments.
Judy C. Parker
Justice
Do not publish.
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