                                                                               ACCEPTED
                                                                           03-15-00301-CR
                                                                                   6442724
                                                                THIRD COURT OF APPEALS
                                                                           AUSTIN, TEXAS
                                                                     8/11/2015 11:57:32 AM
                                                                         JEFFREY D. KYLE
                                                                                    CLERK
                  NO. 03-15-00301-CR

                 COURT OF APPEALS                         FILED IN
                                                   3rd COURT OF APPEALS
                                                        AUSTIN, TEXAS
                        FOR THE                    8/11/2015 11:57:32 AM
                                                       JEFFREY D. KYLE
                                                            Clerk
          THIRD SUPREME JUDICIAL DISTRICT


                IN RE JOSE C. LOREDO,
                                            Appellant



     FROM THE HAYS COUNTY COURT AT LAW NO. 1 OF

HAYSCOUNTY,TEXAS-HONORABLEJUDGEROBERTUPDEGROVE


                 APPELLANT'S BRIEF



                         Respectfully submitted,

                         MENDOZA LAW OFFICES, PLLC
                         608 South Guadalupe Street
                         San Marcos, Te    78666
                         Tel: (512y157-8830
                         Fax: (YU)878-8426
                   c_        b
                         David A. Mendoza
                         State Bar No. 24046426
                         mendozaone@yahoo.com


           ORAL ARGUMENT NOT REQUESTED
                               lndetification of Parties

Trial Counsel on Application for Writ of Habeas Corpus:

Representing State of Texas:

Ms. Rebecca Culpepper, SBN 24077 429
Assistant District Attorney
Hays County Government Center
712 S. Stagecoach Trail
San Marcos, Texas 78666
(512) 393-7600-Telephone
(512) 393-7619 - Facsimile

Representing Appellant Jose C. Loredo:

Mr. David A. Mendoza, SBN 24046426
Attorney for Appellant
608 South Guadalupe Street
San Marcos, Texas 78666
(512) 757-8830-Telephone
(512) 787-8426-Facsimile

Appellate Counsel:

Mr. Wesley Mau, SBN 00784539
Hays County Criminal District Attorney
Hays County Government Center
712 S. Stagecoach Trail
San Marcos, Texas 78666
(512) 393-7600-Telephone
(512) 393-7619-Facsimile
Attorney for Appellee State of Texas


Representing Appellant Jose C. Loredo:

Mr. David A. Mendoza, SBN 24046426
Attorney for Appellant, Jose C. Loredo

                                                           11
                                           TABLE OF CONTENTS

TABLE OF CONTENTS.......................................................................................... m
STATEMENT OF ORAL ARGUMENT .......................... ..................... ID
INDEX OF AUTHORITIES .................................................................................... IV

STATEMENT OF THE CASE ................................................................................... 1

ISSUE ONE ................................................................................................................... 1

SUMMARY OF THE ARGUMENT ......................................................................... 2
FACTS ............................................................................................... .. 3


ARGUMENT ................................................................................................................ 5

  ISSUE ONE
Appellant asserts a violation of the protections afforded him under the Double
Jeopardy Clause of the Fifth Amendment, because the subsequent prosecution in the
misdemeanor case amounts to a subsequent prosecution for the same offense after
conviction    and     multiple    punishments     for    the    same      offense
........................................................................ 2.
CONCLUSION ........................................................................................................... 10

PRAYER...................................................................................................................... 11
CERTIFICATE OF SERVICE ................................................................................ 12


                                        Statement of Oral Argument



Oral argument not requested.




                                                                                                                            iii
                               INDEX OF AUTHORITIES


CASES

Ex parte Milner, 394 S.W.3d 502 (Tex. Crim. App. 2013) ........................... 5, 6
Ex parte Schmidt, 109 S.W.3d 480 (Tex. Crim. App 2003) .............................. 6
Reyes v. State, 139 S.W.3d 448 (Tex. App. -Austin 2004, no pet.) ..................... 8
Shelby v. State, 448 S.W.3d 431 (Tex. Crim. App. 2014) ....................................... 6
Wilson v. State, No. 05-10-01207-CR, 2012 Tex. App.LEXIS 2192 (Tex. App.-
Dallas March 21, 2012, no pet.) (UNPUBLISHED) ................................. 9, 10



STATE STATUTES


ARTICLE 1.10, C.C.P ........................................................................ 6



U.S. CONSTITUTION


FIFTH AMENDMENT .................................................................. 5, 11
FOURTEENTH AMENDMENT .................................................... 5, 7, 11


TEXAS CONSTITUTION

ARTICLE I, §14 .......................................................................... 6, 11




                                                                                              lV
                               NO. 03-15-00301-CR

                              COURT OF APPEALS

                                     FOR THE

                    THIRD SUPREME JUDICIAL DISTRICT


                            IN RE JOSE C. LOREDO,
                                                          Appellant



                             APPELLANT'S BRIEF


TO THE HONORABLE msTICE OF THE COURT OF APPEALS:

      COMES NOW Jose C. Loredo, Appellant, by and through his Attorney, David

A. Mendoza, and files this Appeal of the denial of his Application for Writ of Habeas

Corpus and would show the Court the following:


                          STATEMENT OF THE CASE

      Appellant was indicted for Aggravated Assault with a Deadly Weapon

[Family Violence] a Second Degree Felony.          Appellant was also charged by

information and complaint with Assault Causing Bodily Injury - Family Violence.

Both the indictment and the information alleged the same offense date, the same

victim, and the same manner and means.



                                                                              Page 1
      Appellant pleaded guilty in the felony case to the lesser included offense of

Assault Causing Bodily Injury-Family Violence, a Class A misdemeanor. On the

same day in the misdemeanor case, Appellant pleaded guilty to the offense of Assault

Causing Bodily Injury-Family Violence, a Class A misdemeanor.                Appellant's

punishment in both cases was assessed at 160 days, credit for time served.

      Appellant complains that the prosecution in the county court was a violation of

the Double Jeopardy protection afforded him under the Fifth Amendment to the

United States Constitution.      Appellant filed an Application for Writ of Habeas

Corpus seeking relief from the double jeopardy violation.       The application was

denied and this appeal ensued.


                                        ISSUE

      Appellant asserts a violation of the protections afforded him under the Double

Jeopardy Clause of the Fifth Amendment, because the subsequent prosecution in the

misdemeanor case amounts to a subsequent prosecution for the same offense after

conviction and multiple punishments for the same offense.


                       SUMMARY OF THE ARGUMENT

      Appellant's Application for Writ of Habeas Corpus should have been granted,

because the prosecution in the county court is a violation of the Double Jeopardy




                                                                                  Page2
protection afforded Appellant under the Fifth Amendment to the United States

Constitution.

          The felony and misdemeanor charge are practically mirror images of each

other. The indictment charges Aggravated Assault with a Deadly Weapon-Family

Violence and the information charges Assault Causing Bodily Injury - Family

Violence.        However, both the indictment and the information alleged the same

offense date, the same victim, and the same manner and means. The prosecution and

punishment of Appellant in the second, less severe case amounts to violation of the

double jeopardy protection afforded Appellant under the Fifth Amendment to the

United States Constitution.

                                                 FACTS

          In Cause No. CR-10-0816, Appellant was charged with Aggravated Assault

with a Deadly Weapon [Family Violence] a Second Degree Felony. 1

          In Cause No. 095790, Appellant was charged with Assault Causing Bodily

Injury [Family Violence], a Class A Misdemeanor. 2 The victim in both the felony

case and the misdemeanor case is the same person, April Najera. 3 Similarly, the

alleged act occurred on the same date in both cases, May 10, 2009. 4




1
    Clerk's Record (hereinafter "CR") page 44.
2
    CR9.
3
    CR9,44.

                                                                             Page3
           In the felony indictment, the state alleged that Appellant brandished a knife

while in the commission of an assault on the victim, which occurred by grabbing the

victim's hair and face with Appellant's hand or hands. 5

           In the misdemeanor complaint, the State alleged that the Appellant assaulted

the victim by grabbing the victim about the face or pulling the hair of the victim or by

striking the victim. 6

           On September 8, 2011, in the felony case, Appellant pleaded Guilty to the

lesser included offense of Assault Causing Bodily Injury-Family Violence, a Class A

misdemeanor. 7

           On the same day in the misdemeanor case, Appellant pleaded Guilty to the

offense of Assault Causing Bodily Injury-Family Violence, a Class A misdemeanor. 8

           The punishment in both cases is 160 days, credit for time served.




4   Id..
5
    CR44.
6
    CR9.
7
  CR28-29.
8
  CR 13-14.

                                                                                 Page4
                          ARGUMENT & AUTHORITY

      Appellant is unlawfully restrained of his liberty by and through a subsequent

conviction and punishment for the same occurrence. In Cause No. CR-10-0816,

Appellant was convicted of the lesser included offense of Assault Causing Bodily

Injury-Family Violence, a Class A Misdemeanor. In Cause No. 095790, Appellant

was convicted of Assault Causing Bodily Injury-Family Violence, also a Class A

misdemeanor. The victim and date are the same. Other than the assault for which he

was twice convicted, Appellant was not charged with any other crime against April

Najera on May 10, 2009, either by indictment, complaint, information or counts or

paragraphs.

      The double jeopardy clause in the Fifth Amendment is extended to state

criminal prosecutions through the 14th Amendment.          Double Jeopardy protects

citizens from three things: 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. Ex parte Milner, 394 S.W.3d 502, 506

(Tex. Crim. App. 2013) (finding "[w]hen a double-jeopardy violation has occurred, a

writ of habeas corpus is a proper venue through which to challenge the error).

      Appellant claims that the State has violated the latter two prohibitions, because

he was subjected to a subsequent prosecution for the same offense after conviction,

and he was also subjected to multiple punishments for the same offense.

                                                                                 Page 5
      Thus, the appropriate remedy is to leave intact the more serious conviction and

vacate the less serious offense.   As the Court of Criminal Appeals surmised in

Shelby, "[w]hen an individual is convicted of two offenses that are the "same" for

double jeopardy purposes, the appropriate remedy is to affirm the conviction for the

"most serious" offense and to vacate the other conviction." Shelby v. State, 448

S.W.3d431, 440 (Tex. Crim. App. 2014).

      Accordingly, Appellant requests that the misdemeanor conviction in Cause

No. 095790 be vacated and declared null and void, because the subsequent

prosecution and punishment is barred by the Double Jeopardy Clauses of the Fifth

and Fourteenth Amendments of the United States Constitution, Article I, § 14 of the

Texas Constitution, and Article I.IO of the Texas Code of Criminal Procedure.

      Jurisdiction and Illegal Restraint.      Pursuant to article 11.09, Code of

Criminal Procedure, an application for writ of habeas corpus is properly before the

County Court at Law when a person is confined on the charge of a misdemeanor.

However, actual constraint is not required. Ex parte Schmidt, 109 S.W.3d 480 (Tex.

Crim. App 2003) (reversing denial of application for writ of habeas corpus from

Harris County Criminal Court, because defendant was restrained due to enhancement

provisions in DWI laws); see also Ex parte Milner, 394 S.W.3d 502 (Tex. Crim.

App. 2013) (finding that when a double jeopardy violation has occurred, a writ of

habeas corpus is the appropriate venue to challenge the violation). Jose Loredo is

                                                                                Page 6
constrained of his liberty, because the second conviction for assault causing bodily

injury-family violence may result in Jose Loredo's deportation. Mr. Loredo has an

immigration hearing scheduled for June 2015.

      Second Prosecution and Multiple Punishments.               The double jeopardy

clause in the Fifth Amendment is extended to state criminal prosecutions through the

14th Amendment. Double Jeopardy protects citizens from three things: 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. When

the State subjected Jose Loredo to a second prosecution and punishment for the same

assault against April Najera, it was a violation of the double jeopardy clause.

      In its trial brief, the State argued that Jose Loredo's double jeopardy claim is

improper, because the charges started out differently, e.g. Aggravated Assault in

district court and Class A assault in county court. 9 The State's argument, however,

ignored the end result in the record, i.e., two misdemeanor assault prosecutions and

convictions for the same crime.         April Najera is the victim in both cases.

Furthermore, the evidence in the record is that Jose Loredo committed only one

assault on April Najera on May 10th, 2009.

      Alternatively, the State argued that if double jeopardy occurred, Jose Loredo

voluntarily waived his rights to the protections afforded under the double jeopardy



                                                                                  Page7
clause. 1° First, there is absolutely no express or implied waiver in the plea bargain

agreements to the rights afforded by the double jeopardy clause.

         Moreover, in Reyes v. State, 139 S.W.3d 448 (Tex. App. - Austin 2004, no

pet.), the Austin Court of Appeals ruled that:

               [w]hether entered with or without an agreed recommendation of

               punishment by the State, a valid plea of guilty or nolo contendere

               "waives" or forfeits the right to appeal a claim of error only when

               the judgment of guilt was rendered independent of and is not

               supported by, the error.

Reyes, 139 S.W.3d at 448. Reyes had pleaded guilty to aggravated sexual assault of

a child and a second charge of indecency with a child. The state conceded that the

two charges were integral and violated double jeopardy, because both charges

stemmed from one incident.

         However, the State in the Reyes case argued on appeal that Reyes waived the

double jeopardy violation by pleading guilty.

         The Austin Court went on to find that the lower court's judgment was not

rendered independent of the double jeopardy violation, because the State could not




9
    CR38-40.
IO  Id.

                                                                                     Page 8
convict the defendant of the second crime no matter how validly his factual guilt is

established. Id. at 449.

      Similarly, Jose Loredo did not waive his double jeopardy protections, because

the second prosecution and second punishment is for the same crime. Thus, the

second judgment is directly supported by the facts in the first prosecution and first

punishment. In other words, the second judgment in Jose Loredo's case is not

independent of the other misdemeanor assault, i.e., the double jeopardy violation.

The State cannot convict Jose Loredo of the second Assault no matter how validly his

factual guilt is established. The misdemeanor assault and felony assault allege the

same victim on the same date and there is no evidence that there is a second assault

on April Najera.

      In Wilson v. State, No. 05-10-01207-CR, 2012 Tex. App.LEXIS 2192 (Tex.

App.- Dallas March 21, 2012, no pet.) (UNPUBLISHED), the defendant pleaded

guilty to two burglary of a habitations wherein the State changed the consentor in the

second burglary. The habitation was the same in both cases and the date alleged was

the same in both cases. The difference was the person who gave consent. One case

said without the effective consent of Jean Black and the other case said with effective

consent of Twaya Michelle Wilson.




                                                                                 Page9
      The Wilson court found that same offense means identical criminal act and that

in their case the indictments alleged entry into two different habitations. Wilson at

*3. However, the undisputed facts were that the two convictions were based on the

same conduct, which was one entry into the habitation. Likewise, in our case Jose

Loredo pleaded guilty to a misdemeanor assault against April Najera on May 10th and

he also pleaded guilty to a misdemeanor assault against April Najera on May 10th.

The undisputed evidence is that Jose Loredo committed one assault against April

Najera on May 10th. The Wilson court held that "two convictions based on a single

unlawful entry violate double jeopardy." Wilson at *9.

      Jose Loredo is asking this Court to find that two convictions based on a single

assault likewise violates double jeopardy.


                                  CONCLUSION

      Appellant's Application for Writ of Habeas Corpus seeking relief from a

violation of the Double Jeopardy clause should have been granted, because Appellant

was subjected to a subsequent prosecution for the same offense after conviction, and

he was also subjected to multiple punishments for the same offense.




                                                                             Page 10
                                      PRAYER

      WHEREFORE, PREMISES CONSIDERED, Jose C. Loredo prays that this

Court reverse the trial court's denial of the Application for Writ of Habeas Corpus, or

Grant Appellant's Application and Order that that the misdemeanor conviction in

Cause No. 095790 be vacated and declared null and void, because the subsequent

prosecution and punishment is barred by the Double Jeopardy Clauses of the Fifth

and Fourteenth Amendments of the United States Constitution, Article I, § 14 of the

Texas Constitution, and Article 1.10 of the Texas Code of Criminal Procedure, and to

grant any further relief to which Applicant may be entitled.

                                        Respectfully submitted,

                                        MENDOZA LAW OFFICES, PLLC
                                        608 South Guadalupe Street
                                        San Marcos, Texas 78666
                                        Tel: (512) 757-8830---
                                        Fax: (512)!:426
                                     c_           L
                                        David A. Mendoza
                                        State Bar No. 24046426
                                        mendozaone@yahoo.com




                                                                               Page 11
                           CERTIFICATE OF SERVICE

      I certify that a true copy of the foregoing brief has been mail-delivered to:

Ms. Rebecca Culpepper, SBN 24077 429
Assistant District Attorney
Hays County Government Center
712 S. Stagecoach Trail
San Marcos, Texas 78666
(512) 393-7600-Telephone
(512) 393-7619 - Facsimile


Mr. Wesley Mau, SBN 00784539
Hays County Criminal District Attorney
Hays County Government Center
712 S. Stagecoach Trail
San Marcos, Texas 78666
(512) 393-7600-Telephone
(512) 393-7619-Facsimile
Attorney for Appellee


on this the   9    day of August, 20~-5_. -0
                                        David A. Mendoza

                    CERTIFICATE OF PAGE/WORD LIMIT

       I certify that this brief, exclusive of the Cover Page, Table of Contents, Index,

and Certificate of Service, contains 2,036 words.




                                        David A. Mendoza



                                                                                Page 12
