     Case: 11-50175     Document: 00511612070         Page: 1     Date Filed: 09/23/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        September 23, 2011
                                     No. 11-50175
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

EMILIO T. CINTRON,

                                                  Petitioner-Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 5:11-CV-16


Before HIGGINBOTHAM, DAVIS and ELROD, Circuit Judges.
PER CURIAM:*
        Emilio T. Cintron seeks a certificate of appealability (COA) to appeal the
district court’s denial of his 28 U.S.C. § 2254 application, in which he sought to
challenge his conviction of nine counts of aggravated sexual assault and nine
counts of indecency with a child for which he was sentenced to two consecutive
life sentences and 16 concurrent life sentences.




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-50175    Document: 00511612070      Page: 2    Date Filed: 09/23/2011

                                  No. 11-50175

      To obtain a COA, Cintron must show that reasonable jurists would find
the district court’s assessment of his constitutional claims debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484 (2000). A movant “satisfies this standard
by demonstrating that jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.” Miller-El,
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
      Cintron argues that his convictions and sentences violated the Double
Jeopardy Clause because indecency with a child is a lesser-included offense of
aggravated sexual assault, and he therefore received multiple punishments for
the same offense. The Double Jeopardy Clause of the Fifth Amendment 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. See Brown v. Ohio, 432 U.S. 161, 165 (1977). “[A] lesser
or greater-included offense is, for double jeopardy purposes, the ‘same offense.’”
Neville v. Butler, 867 F.2d 886, 889 (5th Cir. 1989) (internal quotation marks
and citation omitted). Under Texas jurisprudence, “[i]ndecency with a child can
be a lesser-included offense of aggravated sexual assault,” implicating double
jeopardy concerns. See Ex parte Infante, 151 S.W.3d 255, 261 (Tex. App. 2004).
      The district court concluded that Cintron’s indictment alleged 18 different
offenses that “occurred on different dates or involved different sexual acts” and,
therefore, “all eighteen of the offenses are supported by different facts and do not
violate double jeopardy.” However, the record before the district court did not
include papers from the state court proceedings necessary to review the factual
evidence underlying Cintron’s convictions (e.g., trial transcripts). Accordingly,
the district court could not have properly assessed whether the state court
correctly determined that Cintron’s convictions and sentences did not violate
double jeopardy. See Neville, 867 F.2d at 889. Therefore, the district court’s
resolution of this claim is debatable. See Slack, 529 U.S. at 484.

                                         2
   Case: 11-50175    Document: 00511612070      Page: 3   Date Filed: 09/23/2011

                                  No. 11-50175

      Cintron also asserts that his trial counsel rendered ineffective assistance
by not raising an objection at trial or at sentencing on the basis of double
jeopardy and that his appellate counsel was ineffective for not arguing on direct
appeal that the convictions and sentences violated the Double Jeopardy Clause.
The district court concluded that Cintron had not demonstrated that his trial or
appellate counsel were ineffective under the test enunciated in Strickland v.
Washington, 466 U.S. 688 (1984), because Cintron did not have a valid double-
jeopardy claim; the district court reasoned that it would have been futile for
counsel to raise the issue. However, given the lack of state court records, there
was no basis for the district court to determine whether a double-jeopardy
challenge would be meritorious. Because the record does not allow a proper
examination of whether counsel rendered constitutionally ineffective assistance,
reasonable jurists could debate the district court’s resolution of Cintron’s claims
that he received the ineffective assistance of trial and appellate counsel. See id.
      He further argues that, with respect to the aggravated-sexual-assault
counts, the jury should have been instructed that it could find him guilty of the
lesser-included offense of indecency with a child. Cintron has not demonstrated
that reasonable jurists would debate the district court’s resolution of this claim,
and he therefore has not made the required showing for a COA. See Slack, 529
U.S. at 484.
      In light of the foregoing, a COA is GRANTED as to Cintron’s claims that
his convictions and sentences violated the Double Jeopardy Clause and that his
trial counsel and appellate counsel were ineffective for not challenging his
convictions and sentences on the basis of double jeopardy. The district court’s
judgment is VACATED with respect to the denial of these claims, and this case
is REMANDED for further proceedings consistent with this opinion.              On
remand, the district court is encouraged to order the respondent to add to the
record any portion of the state court papers necessary for the district court to
conduct a meaningful review of the issues on which COA has been granted.

                                        3
  Case: 11-50175   Document: 00511612070     Page: 4   Date Filed: 09/23/2011

                                No. 11-50175

Cintron’s motion for COA is DENIED in all other respects. His motion for leave
to proceed in forma pauperis on appeal is GRANTED.




                                      4
