      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-07-00391-CR



                                   Angel Martinez, Appellant

                                                 v.

                                  The State of Texas, Appellee


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
      NO. D-1-DC-06-302188, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING



                                          OPINION


               Angel Martinez appeals his convictions for burglary with intent to commit aggravated

sexual assault and burglary with intent to commit theft. See Tex. Penal Code Ann. § 30.02(a)

(West 2003). He received a forty-year sentence for the former conviction and twenty years for the

latter. In two points of error, Martinez contends that his two convictions, which were based on the

same incident in which he entered a residence, violate his right to be free of double jeopardy, and

that the charge enabled the jury to convict him based on less than a unanimous verdict. We sustain

Martinez’s first point of error but overrule his second. Martinez further argues that our remedy for

the double-jeopardy violation should be to vacate his conviction for burglary with intent to commit

aggravated sexual assault and affirm his conviction for burglary with intent to commit theft.

Concluding that current law requires the opposite, we will vacate Martinez’s conviction for
burglary with intent to commit theft and affirm his conviction for burglary with intent to

commit sexual assault.

               Martinez does not challenge the sufficiency of the evidence supporting either of his

convictions. For our purposes here, we need only note that it is undisputed both convictions were

based on a single incident in which Martinez had entered the home of an elderly woman. The victim

testified at trial that Martinez broke into her house during the early morning hours of

September 28, 2006, sexually assaulted or attempted to sexually assault her, then stole some of her

personal property before departing.

               Martinez was indicted on two counts of burglary. Each count of the indictment

contained two paragraphs. Count I, paragraph 1 alleged that on or about September 28, 2006,

Martinez “with intent to commit the felony offense of aggravated sexual assault enter[ed] a

habitation without the effective consent of [the victim,] the owner thereof.” Paragraph 2 alleged that

Martinez, on or about the same date, “intentionally or knowingly enter[ed] a habitation, without the

effective consent of [the victim,] the owner thereof, and attempted to commit or committed the

felony offense of aggravated sexual assault.” Paragraphs 1 and 2 corresponded to, respectively,

subsections (a)(1) and (a)(3) of section 30.02 of the penal code. See Tex. Penal Code Ann.

§ 30.02(a)(1) & (3). Count II of the indictment was parallel to count I, with two paragraphs

containing allegations corresponding to subsections (a)(1) and (3) of section 30.02, but instead

referencing the underlying offense of theft rather than aggravated sexual assault.

               The jury charge essentially tracked the indictment, with a separate general verdict

form for each count. However, the jury was instructed to find Martinez guilty on each count if it



                                                  2
found that either Martinez had entered a habitation without the victim’s effective consent with intent

to commit the underlying offense (subsection (a)(1)) or Martinez had entered a habitation without

the victim’s effective consent and committed or attempted to commit the underlying offense

(subsection (a)(3)).1 Although the jury was instructed that its verdicts had to be unanimous, the

disjunctive submission of each count enabled the jury to find guilt without each juror necessarily

agreeing on the same alternative theory supporting that finding.

                The jury found Martinez guilty on both counts.          The district court assessed

punishment at forty years’ imprisonment on count I and twenty years’ imprisonment on count II, to

run concurrently.




       1
           The application paragraph regarding count I stated:

               Now bearing in mind the foregoing instructions, if you believe from the
       evidence beyond a reasonable doubt that the defendant, Angel Roel Martinez, on or
       about the 28th day of September 28, 2006, in the County of Travis, and State of
       Texas, did then and there, with intent to commit the felony offense of aggravated
       sexual assault, enter a habitation without the effective consent of [victim], the owner
       thereof; or

               If you believe from the evidence beyond a reasonable doubt that on or about
       the 28th day of September 28, 2006, in the County of Travis, and State of Texas, that
       Angel Roel Martinez, did then and there intentionally or knowingly enter a
       habitation, without the effective consent of [victim], the owner thereof, and
       attempted to commit or committed the felony offense of aggravated sexual assault.

              You will find the defendant guilty of the offense of burglary of a habitation
       (aggravated sexual assault) as alleged in count one of the indictment . . . .

The application paragraphs for count II were substantively identical except that “the felony offense
of aggravated sexual assault” was replaced with “theft” in the first paragraph and “theft of property”
in the second. Similarly, the third paragraph referred to “. . . burglary of a habitation (theft) as
alleged in count two of the indictment.”

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               Martinez’s core contention of appeal is that subsections (a)(1) and (a)(3) of

section 30.02 establish separate criminal offenses. In his view, “[o]n its face, the indictment alleges

four crimes in two counts—burglary of a habitation with the intent to commit the felony offense of

aggravated sexual assault; burglary of a habitation and then attempted commission or commission

of aggravated sexual assault; burglary of a habitation with the intent to commit theft; burglary of a

habitation and then attempted commission or commission of theft.” Based on this view, Martinez

argues in his second point of error that the charge erroneously enabled the jury to render non-

unanimous verdicts in each count regarding “separate offenses” under subsections (a)(1) and (3), and

that this constituted egregious harm.2 At the same time, Martinez also urges in his first point of error

that his convictions for both counts I and II—which he seems to view as subsuming duplicative

convictions for both an offense of burglary with intent to commit either sexual assault or theft

(subsection (a)(1)) and a separate offense of burglary of a habitation with attempted commission or

commission of either aggravated sexual assault or theft (subsection (a)(3))—violates double-

jeopardy. See Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex. Crim. App. 2006) (convictions for

both burglary of a habitation with intent to commit sexual assault and burglary of habitation with

intent to commit theft arising from single entry incident violated double jeopardy).

               The State responds that, in essence, Martinez’s convictions were based on a single

offense for both double-jeopardy and jury-unanimity purposes. As to double jeopardy, the State

acknowledges that “[t]he victim described only one incident in which her home was burglarized”


        2
         Martinez did not raise a jury-unanimity objection to the charge at trial. Consequently, any
charge error is not reversible unless Martinez incurred egregious harm. See Almanza v. State,
686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g).

                                                   4
and that “there is no evidence in the record suggesting that the appellant entered the victim’s home

more than one time.” Consequently, the State concedes that double jeopardy bars Martinez’s

convictions on two counts of burglary that differed only with respect to whether the underlying

offense was aggravated sexual assault or theft. See Cavazos, 203 S.W.3d at 337. As we explain

below, the State is correct that the record establishes a double-jeopardy violation. However, the

State insists that subsections (a)(1) and (3) of section 30.02 do not establish separate criminal

offenses, but merely alternative manners and means by which the offense of burglary can be

committed or proven. Thus, the State reasons, the disjunctive submission of these alternatives

within each count did not deprive Martinez of a unanimous verdict.

               “Under our state constitution, jury unanimity is required in felony cases, and, under

our state statutes, unanimity is required in all criminal cases.” Ngo v. State, 175 S.W.3d 738, 745

(Tex. Crim. App. 2005); see Tex. Const. art. V, § 13; Tex. Code Crim. Proc. Ann. art. 36.29(a)

(West Supp. 2007), arts. 37.02, 37.03, 45.034-.036 (West 2006). This means “the jury must agree

[unanimously] that the defendant committed one specific crime.” Landrian v. State, ___ S.W.3d ___,

No. PD-1561-07, 2008 Tex. Crim. App. LEXIS 1183, at *9 (Tex. Crim. App. Oct. 8, 2008) (citing

Stuhler v. State, 218 S.W.3d 706, 717-19 (Tex. Crim. App. 2007)). “That does not mean, however,

that the jury must unanimously find that the defendant committed that crime in one specific way or

even with one specific act.” Id. “To discern what a jury must be unanimous about, appellate courts

examine the statute defining the offense to determine whether the legislature created multiple,

separate offenses, or a single offense with different methods or means of commission.”

Pizzo v. State, 235 S.W.3d 711, 714 (Tex. Crim. App. 2007) (citations and quotations omitted); see



                                                 5
also Martinez v. State, 212 S.W.3d 411, 416 (Tex. App.—Austin 2006, pet. ref’d) (“allowing a jury

to choose between alternative theories of how an offense was committed does not run afoul of the

unanimous-verdict requirement.”).

               In numerous recent cases, the court of criminal appeals has addressed the distinction

between separate offenses and “manner or means” in the context of jury-unanimity challenges

concerning nominally single offenses submitted disjunctively and their counterpart, double-jeopardy

challenges to multiple convictions for separately-submitted, nominally different offenses. See

Huffman v. State, ___ S.W.3d ___, ___, No. PD-1539-07, 2008 Tex. Crim. App. LEXIS 1180, at

* 4 (Tex. Crim App. Oct. 1, 2008) (“Our jury unanimity opinions and several of our double jeopardy

opinions address the same basic question: do different legal theories of criminal liability comprise

different offenses, or do they comprise alternative methods of committing the same offense.”). In

general, the court has attempted to ascertain whether particular factual components of the offense

are essential elements, which a jury must find unanimously, as opposed to “preliminary” or

“underlying” facts that are means by which an element can be met or proven. See Stuhler,

218 S.W.3d at 718-19; Ngo, 175 S.W.3d at 745-47. In this connection, it has also sought to identify

the “gravamen” or “focus” of the offense—the primary conduct or evil the legislature was intending

to prevent or punish—including whether the offense is focused on a particular result, a particular

nature or type of conduct, or particular circumstances surrounding conduct or a result. Huffman,

2008 Tex. Crim. App. LEXIS 1180, at *10-11 (“[t]he common thread in all of these cases

[distinguishing separate offenses from mere manner and means] seems to be ‘focus’ . . . If the focus

of the offense is the result—that is, the offense is a ‘result of conduct’ crime—then different types



                                                 6
of results are considered to be separate offenses, but different types of conduct are not. On the other

hand, if the focus of the offense is the conduct—that is, the offense is a ‘nature of conduct’

crime—then different types of conduct are considered to be separate offenses.”); Landrian,

2008 Tex. Crim. App. LEXIS 1183, at *14-15 (determining that gravamen of offense of aggravated

assault was “causing bodily injury” and that “[t]he precise act or nature of conduct in this result-

oriented offense is inconsequential.”); Pizzo, 235 S.W.3d at 717 (determining that “commits . . .

sexual contact with a child by touching . . .” denoted a nature-of-conduct offense and that alternative

sites of touching denoted different offenses); Stuhler, 218 S.W.3d at 718-19 (characterizing offense

of injury to a child as a “result of conduct” offense, such that causing “serious bodily injury” to a

child was a separate offense from causing “serious mental deficiency, impairment or injury”). For

further guidance, the court has also looked to what it terms “eighth-grade grammar.” Pizzo,

235 S.W.3d at 717 (diagraming the sexual contact with a child statute and determining that statute

focused on nature of conduct); Stuhler, 218 S.W.3d at 718-19 (determining that injury to a child is

a result-oriented offense based on fact that offense has “main verb” of “causes” and alternative direct

objects describing the prohibited results); see also Ngo, 175 S.W.3d at 745 n.24 (“A handy, though

not definitive, rule of thumb is to look to the statutory verb defining the criminal act [which] . . . is

generally the criminal act upon which all jurors must unanimously agree.”).

                Section 30.02 of the penal code, titled “Burglary,” provides, in relevant part:


        A person commits an offense if, without the effective consent of the owner, the
        person:

        (1)     enters a habitation, or a building (or any portion of a building) not then open
                to the public, with intent to commit a felony, theft, or an assault; or

                                                   7
       (2)     remains concealed, with intent to commit a felony, theft, or an assault, in a
               building or habitation; or

       (3)     enters a building or habitation and commits or attempts to commit a felony,
               theft, or an assault.


Tex. Penal Code Ann. § 30.02(a). The court of criminal appeals has identified the elements of

burglary, as defined in subsection (a)(1), as (1) intentionally or knowingly (the general culpable

mental state required by the penal code3) (2) entering a habitation or building (or portion thereof) not

then open to the public (3) without the effective consent of the owner, and (4) with the intent to

commit a felony, theft, or assault. DeVaughn v. State, 749 S.W.2d 62, 64 (Tex. Crim. App. 1988).

The State must prove that intent to commit a felony, theft, or assault existed at the moment of entry.

Id. at 65. Thus, under subsection (a)(1), the general culpable mental state of intentional or knowing

entry is subsumed within the element of specific intent to commit a felony, theft, or assault. Id. at

64 n.3. Another implication is that “the offense is complete upon entry; a completed felony or theft

[or assault] is unnecessary.” Id. at 65.

               As suggested by the grammatical structure of subsection (a)(1), its primary focus or

gravamen is the verb and direct object—“enters a habitation or a building”—modified by the

prepositional phrase “without the effective consent of the owner” (a circumstance distinguishing

burglarious entry from the mere act of entering a habitation or building, which is not inherently

illegal), and accompanied by the requisite mental state attaching to the entry (an element




       3
        “Although no general culpable mental state is set forth in the statute, it is settled that the
entry must be intentional or knowing.” DeVaughn v. State, 749 S.W.2d 62, 64 n.3 (Tex. Crim.
App. 1988).

                                                   8
distinguishing burglary from trespass4). See id. at 65. The fact that the required mental state

attaches to the act of entry is an indicator that this act was intended to be the focus or gravamen of

the offense. Cf. Huffman, 2008 Tex. Crim. App. LEXIS 1180, at *13 (fact that legislature required

culpable mental state to attach to a particular circumstance and not a particular result or particular

nature of conduct indicated that the circumstance was the gravamen of the offense). The statute’s

focus on entry is also recognized in other court of criminal appeals opinions characterizing burglary

as a crime against property, as opposed to an assaultive crime, whose “harm results from the entry

itself.” Cavazos, 203 S.W.3d at 337 (citing Richardson v. State, 888 S.W.2d 822, 824 (Tex. Crim.

App. 1994)). More generally, the court has explained that “[o]ur burglary statutes are intended to

protect the sanctity of private areas, be they habitations, buildings not open to the public, or

vehicles,” and the entry itself causes the harm “because the intrusion violates the occupant’s

reasonable expectation of privacy.” Richardson, 888 S.W.2d at 824 . Thus, in Cavazos, the court

held that convictions for both burglary with intent to commit aggravated sexual assault and burglary

with intent to commit theft arising from a single act of entering a residence were barred by double

jeopardy, even where each count had a different complainant, as “the allowable unit prosecution in

a burglary is the unlawful entry.” Cavazos, 203 S.W.3d at 337. For this reason, the State, with good

reason, conceded Martinez’s first point of error.

                The elements of burglary, as defined in subsection (a)(3), are: (1) intentionally or

knowingly (2) entering a habitation or building (or portion thereof) not then open to the public

(3) without the effective consent of the owner, and (4) committing or attempting to commit a felony,


       4
           See, e.g., Day v. State, 532 S.W.2d 302, 306 (Tex. Crim. App. 1975).

                                                    9
theft, or an assault. Tex. Penal Code Ann. § 30.02(a)(3); DeVaughn, 749 S.W.2d at 65. With the

exception of the prepositional phrase “without the effective consent of the owner,” each element of

burglary as defined in (a)(1) and (3)—and (a)(2), for that matter—appear in their respective separate

subsections. The court of criminal appeals has appeared to suggest that the legislature’s placement

of differing alternative statutory components of an offense in separate sections or subsections may

signal legislative intent to create separate offenses.       Cf. Huffman, 2008 Tex. Crim. App.

LEXIS 1180, at *14-15 (concluding that legislature “was apparently neutral” about whether

defendant intentionally, knowingly, or recklessly caused bodily injury “because all three culpable

mental states are listed together in a single phrase within a single subsection of the statute.”). On

the other hand, the definition of burglary under subsection (a)(3) is substantively identical to that in

(a)(1), with a single exception: instead of having to prove specific intent to commit a felony, theft,

or assault at the time of entry, the State can prove the defendant, after entry, proceeded to actually

commit or attempt to commit a felony, theft, or assault. Subsection (a)(3) thus “includes as burglary

the conduct of one who enters without effective consent but, lacking intent to commit any crime

upon his entry, subsequently forms that intent and commits or attempts to commit a felony or theft.

[It] dispenses with the need to prove intent at the time of the entry when the actor is caught in the

act.” DeVaughn, 749 S.W.2d at 65 (quoting Tex. Penal Code Ann. § 30.02, Practice Commentary).

We must decide whether the legislature intended, through this single substantive distinction between

burglary as defined under subsections (a)(1) versus (a)(3), to create two distinct criminal offenses.

Guided by the court of criminal appeals’ prior analysis of section 30.02, we conclude it did not.




                                                  10
                In DeVaughn, a case involving the sufficiency of a burglary indictment, the court of

criminal appeals characterized the distinction between subsection (a)(1) and (a)(3) as follows:


       the attempted or completed theft or felony required by § 30.02(a)(3), supra, merely
       supplants the specific intent which accompanies entry in §§ 30.02(a)(1) and (2). . . .
       The gravamen of the offense of burglary clearly remains entry of a building or
       habitation without the effective consent of the owner, accompanied by either the
       required mental state, under §§ 30.02(a)(1) and (2) . . . or the further requisite acts
       or omissions, under § 30.02(a)(3).


Id. (emphasis added).5 Relying on DeVaughn, at least two of our sister courts, albeit in unreported

opinions, have concluded that subsections (a)(1) and (3) are essentially alternative means of proving

a single mens rea element and not separate offenses. Ramos v. State, No. 04-05-00543-CR,

2006 Tex. App. LEXIS 5139, at *3-4 (Tex. App.—San Antonio June 14, 2006, pet. ref’d) (mem. op.,

not designated for publication); Yates v. State, No. 05-05-00140-CR, 2005 Tex. App. LEXIS 9468,

at *6-9 (Tex. App.—Dallas Nov. 10, 2005, no pet.) (mem. op., not designated for publication). We

agree with the essence of their reasoning. Subsection (a)(1)’s specific-intent requirement and

subsection (a)(3)’s further-acts requirement function as alternative means of proving what amounts

to an aggravating factor that elevates acts constituting trespass to the offense of burglary. At least

for purposes of 30.02, the two alternatives, though contained in separate subsections, function as

conceptual and moral equivalents. See Landrian, 2008 Tex. Crim. App. 1183, at *15-19 (intentional,

knowing, and reckless bodily injury assault functioned as equivalents and were not separate crimes).

Whether a burglary defendant actually committed or attempted to commit the underlying felony,


       5
         We also note that the DeVaughn court termed the three subsections of (a) as “three distinct
ways in which one may commit the offense of burglary.” 749 S.W.2d at 64-65.

                                                 11
theft, or assault versus merely intending it when entering may have implications for a defendant’s

overall criminal liability, but these would stem from other penal provisions rather than anything the

legislature intended within section 30.02. We overrule Martinez’s second point of error.

                 Our disposition of Martinez’s points of error requires us to vacate one of his two

convictions but affirm the other. Bigon v. State, 252 S.W.3d 360, 372 (Tex. Crim. App. 2008);

Cavazos, 203 S.W.3d at 337.       The court of criminal appeals has instructed us that when two

convictions violate double jeopardy, we must retain the conviction for the “most serious” offense.

Bigon, 252 S.W.3d at 372; Cavazos, 203 S.W.3d at 337. The “most serious” offense is the

conviction for which the greatest sentence was assessed. Bigon, 252 S.W.3d at 373; Cavazos,

203 S.W.3d at 338.       In this case, we can discern that the district court assessed forty years’

imprisonment as punishment on count I, burglary of a habitation with intent to commit aggravated

sexual assault, and twenty years’ imprisonment on count II, burglary of a habitation with intent to

commit theft. There is no dispute that forty years is greater than twenty years and that burglary of

a habitation with intent to commit aggravated sexual assault is therefore the “most serious” offense

of conviction.

                 Martinez, however, urges that we should instead vacate his most serious conviction

and retain his less serious offense of conviction to deter the State in the future from over-charging

cases and committing “clear” or “obvious” double-jeopardy violations, as he contends occurred here.

Counsel asserts that Travis County prosecutors have persistently engaged in such practices and that

this sort of prophylactic measure is necessary to provide meaningful protection to defendants’ rights

to be free of double jeopardy. Martinez insists that his concept finds support in what he terms the



                                                 12
“implicit rule of Landers,” the case in which the court of criminal appeals held that the

“most serious” offense concept would govern the remedy for double-jeopardy violations.             See

Landers v. State, 957 S.W.2d 558, 559-61 (Tex. Crim. App. 1997). Specifically, Martinez observes

that one of the Landers court’s policy rationales for adopting the “most serious” offense rule was that

“[b]ecause pursuing both offenses is proper in this context, the State should have the benefit of the

most serious punishment obtained.” Id. at 560 (emphasis added). Martinez distinguishes Landers,

which involved two offenses that were “not invariably the ‘same offense’ for double jeopardy

purposes,” from the present case, in which he urges “the prosecution . . . sought convictions for what

is the same offense as a matter of law.” On this basis, Martinez “invokes Landers’ implicit

exception to its remedy: where the prosecution alleges two offenses in one indictment which are the

same as a matter of law, the remedy for unconstitutionally-obtained multiple punishments will be

to vacate the most serious punishment and conviction.”

               Even if we could agree that Landers (much less its progeny Bigon and Cavazos) are

distinguishable and that the “most serious” offense concept does not govern this case, we would still

find no support for the remedy Martinez advocates. Absent further guidance from the court of

criminal appeals, we would not be free simply to impose the prophylactic procedural measure

Martinez advocates, but would instead look to the remedies for double-jeopardy violations that the

court of criminal appeals had applied prior to Landers. These included “‘[choosing] the offense that

the defendant was convicted of first,’ ‘affirm[ing] the conviction that had the lowest number in the

charging instrument,’ and ‘[choosing] the offense that was alleged first in the indictment.’”

Williams v. State, 240 S.W.3d 293, 300 (Tex. App.—Austin 2007, no pet.) (quoting Ex parte Pena,



                                                  13
820 S.W.2d 806, 808 (Tex. Crim. App. 1991) (plurality op.)). Applying these remedies would lead

to the same result as with the “most serious offense” rule—we would retain Martinez’s conviction

for burglary with intent to commit aggravated sexual assault. In short, Martinez’s arguments

regarding the appropriate remedy for the double-jeopardy violation are more appropriately directed

to the court of criminal appeals or the legislature rather than this Court.


                                          CONCLUSION

               We vacate the judgment of conviction for burglary of a habitation with intent to

commit theft. We affirm the judgment of conviction for burglary of a habitation with intent to

commit aggravated sexual assault.



                                               ___________________________________________

                                               Bob Pemberton, Justice

Before Chief Justice Law, Justices Puryear and Pemberton

Affirmed in part; Vacated in part

Filed: November 14, 2008

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