












 
 
 
 
 
 
                                        COURT
OF APPEALS
                                         SECOND
DISTRICT OF TEXAS
                                                     FORT WORTH
 
 
                                           NO.
2-08-112-CR
 
 
JOSEPH MARTINEZ                                                              APPELLANT
 
                                                      V.
 
THE STATE OF TEXAS                                                                 STATE
 
                                                  ------------
 
             FROM THE 372ND
DISTRICT COURT OF TARRANT
 COUNTY
 
                                                  ------------
 
                                  MEMORANDUM OPINION[1]
 
                                                  ------------




In two issues, appellant Joseph Martinez contends
that his convictions for possession and delivery of the same ten pounds of
marijuana are the same for double jeopardy purposes and that the trial judge
erred by refusing to include a jury question on possession of marijuana under
five pounds.  We reverse the judgment as
to the possession charge and acquit appellant on that charge only; however, we
affirm the judgment as to the delivery charge.
The State concedes appellant=s first
issue and asks that we delete appellant=s
conviction for possession.  Accordingly,
we sustain appellant=s first issue.
In his second issue, appellant contends the trial
court erred by failing to include a question on possession of under five
pounds.  But because by sustaining
appellant=s first issue, we must reverse
the conviction for possession, his second issue is now moot and we need not
address it.[2]  See Tex.
R. App. P. 47.1; Dixon
v. State, 932 S.W.3d 567, 571 (Tex. App.CTyler
1995, no pet.).




Having
sustained appellant=s first issue and having
determined that his second issue is therefore moot, we affirm the trial court=s
judgment as to the conviction for delivery of marijuana, but we reverse the
trial court=s judgment as to the conviction
for possession of marijuana and render a judgment of acquittal as to that
offense only.
 
 
TERRIE LIVINGSTON
JUSTICE
PANEL:  LIVINGSTON, GARDNER, and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App.
P. 47.2(b)
DELIVERED: December 11, 2008




[1]See Tex. R. App. P. 47.4.


[2]When an appellant is
convicted of two offenses that are the same for double jeopardy purposes, we
retain the conviction for the most serious offense, which is the offense of
conviction for which the greatest sentence was assessed.  Ex parte Cavazos, 203 S.W.3d 333, 337B38 (Tex. Crim. App.
2006).  Here, that is the sentence of ten
years= confinement for
delivery.


