                            NUMBER 13-10-00250-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

CHARLES RUTH III,                                                         Appellant,

                                          v.

THE STATE OF TEXAS,                                                       Appellee.


                   On appeal from the 107th District Court
                        of Cameron County, Texas.


                        MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Rodriguez and Garza
            Memorandum Opinion by Justice Rodriguez
      Appellant Charles Ruth III challenges his convictions by a jury for two counts of

burglary of a habitation (counts one and two) and one count of aggravated assault (count

three). See TEX. PENAL CODE ANN. § 22.02(a)(1) (West Supp. 2010), § 30.02(a)(3) (West

2003). By five issues, Ruth complains that the evidence was legally insufficient to

support his convictions, the State improperly commented on his post-arrest silence, the
trial court erroneously admitted evidence of a prior conviction without a limiting

instruction, and his multiple convictions constituted double jeopardy. We vacate and

dismiss counts two and three of Ruth's conviction and affirm count one.

                                              I. BACKGROUND

          Ruth was indicted for two counts of burglary of a habitation. Count one read as

follows:

          [O]n or about the 6th Day of November, 2008, [Ruth] . . . did then and there
          intentionally or knowingly enter a habitation, without the effective consent of
          Vashti Vela, the owner thereof, and attempted to commit or committed an
          assault against Jose Angel Alcorta.

(Emphases omitted.) Count two reads as follows:

          [O]n or about the 6th Day of November, 2008, [Ruth] . . . did then and there
          intentionally or knowingly enter a habitation, without the effective consent of
          Vashti Vela, the owner thereof, and attempted to commit or committed an
          assault against Vashti Vela.

(Emphases omitted.) Ruth was also indicted for one count of aggravated assault (count

three):

          [O]n or about the 6th day of November, 2008, [Ruth] . . . did then and there
          intentionally, knowingly, or recklessly cause bodily injury to Jose Angel
          Alcorta by stabbing or cutting Jose Angel Alcorta, and [Ruth] did then and
          there use or exhibit a deadly weapon, to wit: a knife, during the
          commission of said assault.

(Emphases omitted.) Finally, Ruth was indicted for aggravated kidnapping.

          Ruth pleaded not guilty to all counts, and the case was tried to a jury. The jury

found Ruth guilty on the burglary and aggravated assault charges (counts one, two, and

three) and sentenced him to thirty-five years' incarceration for each of those counts.1

The trial court ordered the sentences to run concurrently. This appeal followed.

          1
              The jury acquitted Ruth of aggravated kidnapping.
                                                       2
                             II. SUFFICIENCY OF THE EVIDENCE

       By his first issue, Ruth argues that the evidence was legally insufficient to prove his

identity for any of the convicted offenses. Specifically, Ruth argues that the testimony at

trial did not positively identify him as the perpetrator for either the burglaries or the

aggravated assault.

       In a sufficiency review, courts examine all of the evidence in the light most

favorable to the verdict to determine whether "any rational fact finder could have found

guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); see

Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) ("[T]he Jackson

legal-sufficiency standard is the only standard that a reviewing court should apply in

determining whether the evidence is sufficient to support each element of a criminal

offense that the State is required to prove beyond a reasonable doubt."). This standard

requires reviewing courts to resolve any evidentiary inconsistencies in favor of the

judgment, keeping in mind that the fact finder is the exclusive judge of the facts, the

credibility of the witnesses, and the weight to give their testimony. Brooks, 323 S.W.3d

at 899; see TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 1979) ("The jury, in all cases, is

the exclusive judge of the facts proved, and of the weight to be given to the

testimony . . . ."). Appellate courts do not re-evaluate the weight and credibility of the

evidence; they only ensure that the jury reached a rational decision. Laster v. State, 275

S.W.3d 512, 517 (Tex. Crim. App. 2009).

       It is not necessary that the evidence directly proves the defendant's guilt;

"[c]ircumstantial evidence is as probative as direct evidence in establishing the guilt of the

actor, and circumstantial evidence alone can be sufficient to establish guilt." Hooper v.

                                              3
State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); see Kuciemba v. State, 310 S.W.3d 460,

462 (Tex. Crim. App. 2010).       A fact finder may support its verdict with reasonable

inferences drawn from the evidence, and it is up to the fact finder to decide which

inference is most reasonable. Laster, 275 S.W.3d at 523.

       Here, the evidence at trial showed that Ruth and Vela had a prior relationship. On

November 5, 2008, Ruth called Vela at work. Vela did not answer Ruth's subsequent

repeated calls or respond to his text messages. Vela testified that Ruth's messages

were angry and aggressive and accused her of "talking to [Alcorta]"; Vela stated that Ruth

was "threatening [her], calling [her] a bitch and a whore and just stuff like that."

       Later that evening, Vela met up with Alcorta, who stayed with Vela at her

apartment that night. In the early morning hours of November 6, 2008, Vela and Alcorta

were awakened by loud banging on the front door of Vela's apartment. They did not

answer the door. Vela testified that she looked outside and saw Ruth's car. She

testified that she heard Ruth's car start up and leave; she knew it was Ruth's car leaving

because it "was late," so there was no one else awake in the parking lot, and his car made

a specific sound when it was starting.        Later in the night, Vela and Alcorta were

awakened by someone banging on and then breaking in the back door of Vela's

apartment. The intruder proceeded to the bedroom. Vela hid in the closet while Alcorta

confronted the intruder, who stabbed Alcorta "on [his] side and on [his] armpit." Alcorta

identified the intruder as Ruth. Vela did not come out of the closet until the intruder had

fled the apartment.

       Ruth's sister, Cynthia Cuevas, testified that around 4:00 a.m. on November 6,

2006, Ruth came to her home drunk, mad, and covered in blood. Ruth told Cuevas that

                                              4
"he had stabbed the little boy, that he caught [Vela] with him and—I remember he said

that it was his best friend or something like that."

       Contrary to Ruth's assertion on appeal, there was testimony at trial positively

indentifying him as the intruder who stabbed Alcorta.         Regardless, identity may be

proved by either direct or circumstantial evidence, and there was also ample

circumstantial evidence in this case identifying Ruth as the perpetrator of the charged

offenses. See Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009) ("[T]he

State may prove the defendant's identity . . . by either direct or circumstantial evidence,

coupled with all reasonable inferences from that evidence."); see also Hooper, 214

S.W.3d at 13; Kuciemba, 310 S.W.3d at 462. His menacing messages to Vela, the

presence of his car at the scene, and his later appearance at his sister's house, where he

was covered in blood and admitted that he stabbed the "little boy" he "caught" with Vela,

all connect Ruth with the burglaries and the assault.

       Viewing the evidence in the light most favorable to the verdict, we conclude that a

rational jury could have identified Ruth, beyond a reasonable doubt, as the person who

committed the burglaries and aggravated assault. See Jackson, 443 U.S. at 318-19;

Brooks, 323 S.W.3d at 895. Thus, the evidence supporting Ruth's convictions was

legally sufficient in this regard. We overrule his first issue.

                          III. COMMENT ON POST-ARREST SILENCE

       By his second issue, Ruth complains that the State improperly commented on his

post-arrest silence when the prosecutor questioned a police officer "about the police

giving suspects the opportunity to tell police their side of the story." Ruth also complains

that the State improperly commented on his post-arrest silence in its closing argument.

                                              5
       The    State    violates     a   defendant's     Fifth   Amendment      privilege   against

self-incrimination when it comments on his post-arrest silence. Doyle v. Ohio, 426 U.S.

610, 617-18 (1976). This is because commenting on a defendant's post-arrest silence

raises an inference of guilt in the same way as a comment on his failure to testify at trial.

Dinkins v. State, 894 S.W.2d 330, 356 (Tex. Crim. App. 1995). To determine whether

the State commented on a defendant's exercise of his right to remain silent, we view the

language from the jury's standpoint and the context in which the comment was made and

decide whether the jury would necessarily and naturally take it as a comment on the

defendant's exercise of his constitutional right. See Bustamante v. State, 48 S.W.3d

761, 765 (Tex. Crim. App. 2001).

       Ruth points to the following exchange between the State and Harlingen Police

Department Investigator Myriam Anderson as the impermissible comment on his

post-arrest silence during trial:

       [Prosecutor]:                    And like what do you look for that would
                                        corroborate that person's allegation, "I just got
                                        stabbed"?

       [Investigator Anderson]:         The evidence would be injuries. It would be
                                        witnesses; statements made by the victims; and
                                        in the preliminary investigation, even
                                        statements made by the suspect as well.

                                        ....

       [Prosecutor]:                    Okay. What happens if the suspect is not
                                        there?

       [Investigator Anderson]:         If the suspect is not there, later on a step that we
                                        take is to give the suspect the opportunity to
                                        provide a statement to see if there is any
                                        additional information.

       [Prosecutor]:                    So if a police officer comes to the scene of the
                                                  6
                                   crime and we have somebody acting like that in
                                   the picture there, he's bleeding, actually blood is
                                   gushing out of him and he gives you a
                                   statement, you know, can they assert, "Well,
                                   you only got his side of the story. It's all one
                                   sided"? I mean—

       [Defense counsel]:          Your Honor, I'm going to object [to the State's
                                   allusion to Ruth's Fifth Amendment right to not
                                   testify] . . . .

However, we have reviewed the testimony preceding this exchange, and the context in

which it occurred negates a conclusion that the State commented on Ruth's post-arrest

silence.

       In an earlier exchange with defense counsel, Investigator Anderson testified

regarding a domestic violence report Vela had filed in 2003. Defense counsel elicited

testimony from Investigator Anderson that Vela had given conflicting statements in that

report. When defense counsel passed the witness, the State questioned Investigator

Anderson about the standard procedure for processing domestic violence complaints.

Investigator Anderson testified that when the police receive a domestic violence

complaint, they conduct a "field investigation" that involves interviewing "all the parties

present" and "finding possible witnesses." Investigator Anderson testified that victims of

domestic violence often change their stories after the initial complaint and that she does

not necessarily consider that "a lie." Thus, because victim statements are often not

reliable, Officer Anderson typically looks for some sort of corroboration; in other words,

she does not "just take that person's word for it." It was this explanation of investigation

techniques and procedures that led to Investigator Anderson's testimony about looking

for "injuries," "witnesses," victim statements, and "even statements made by the suspect

as well." The prosecution's follow-up comments that "you only got his side of the story"
                                         7
and "[i]t's all one sided" flowed from their general discussion about how the police take

statements and investigate domestic violence cases and the State's obvious attempt to

rehabilitate Vela as a witness after defense counsel elicited testimony that she may have

lied in a report.

       Ruth also complains that the State improperly commented on his post-arrest

silence in its closing argument when it stated, "Now, who else gave us the same

testimony? Well, how about the defendant himself?" What Ruth omits, however, is the

argument preceding and following that statement:

              And then there's a fight, and there's blood on the floor. There's a
       stabbing. The defendant flees out through the back. And then Joey
       [Alcorta] leaves, but then he comes back and he turns back when the police
       show up. And then he had two bloody puncture wounds. Again, the
       photos also support what he testifies to.

              Now who else gave us the same testimony? Well, how about the
       defendant himself? The defendant told his sister Cynthia, and Cynthia
       then told us how the defendant had told her that he had just finished coming
       from Valerie's house and found her with someone and got into with that
       person, that he had stabbed that person . . . .

              Okay. Up to this point, we have Valerie's testimony consistent with
       Joey's testimony that is consistent with Cynthia's testimony . . . .

In context, the complained-of statement is clearly not a comment on Ruth's post-arrest

silence. Instead, it is merely part of the State's summary of the evidence, which included

testimony by Ruth's sister that he essentially admitted the stabbing to her.

       Therefore, looking at the context in which the foregoing complained-of exchange

and statement occurred, we cannot conclude that the jury would have necessarily and

naturally taken them as comments on Ruth's post-arrest silence. We overrule Ruth's

second issue.


                                            8
             IV. ADMISSION OF PRIOR CONVICTION WITHOUT LIMITING INSTRUCTION

       By his third issue, Ruth argues that the trial court violated rule of evidence 105 by

refusing to give the jury a limiting instruction when it admitted testimony related to Ruth's

prior conviction. Ruth complains of the following exchange, in particular:

       [Prosecutor]:              Okay. You mentioned—the question was, did you
                                  know that he had a criminal record?

       [Vela]:                    Yes.

       [Prosecutor]:              And what criminal            record     is    that   from   your
                                  understanding?

       [Vela]:                    He's a convict.      He had a burglary charge or
                                  something like that.[2]

       [Prosecutor]:              Okay. Convict, how do you mean?

       [Vela]:                    He went to prison for like four years.

At this point, Ruth objected and asked for a limiting instruction, specifically that "the jury

be instructed that his prior convictions or arrests are limited just for the purposes of him

not being qualified to be on the application for the apartment complex." The trial court

denied the requested instruction, stating that the "door's been opened on [Ruth's] criminal

record."

       Texas Rule of Evidence 105 provides:

       When evidence which is admissible as to one party or for one purpose but
       not admissible as to another party or for another purpose is admitted, the
       court, upon request, shall restrict the evidence to its proper scope and
       instruct the jury accordingly; but in the absence of such request the court's
       action in admitting such evidence without limitation shall not be ground for
       complaint on appeal.

TEX. R. EVID. 105(a). Rulings on evidentiary issues are left to the trial court's sound

       2
           The record indicates that Ruth's prior conviction was for robbery.
                                                      9
discretion. See McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008). A trial

court abuses its discretion when its decision lies outside the zone of reasonable

disagreement. Id. We must uphold the trial court's evidentiary ruling if it is correct

under any applicable theory of law. Trevino v. State, 991 S.W.2d 849, 853 n.5 (Tex.

Crim. App. 1999).

       Before the State asked Vela about Ruth's criminal record in re-direct, defense

counsel cross-examined Vela at length about whether she and Ruth had ever lived

together and, through his questioning, attempted to establish that Ruth lived at the

apartment at the time of the alleged burglary. In response to questions from defense

counsel, Vela testified that Ruth began living with her periodically beginning in 2007.

Vela testified that Ruth was never listed on any of the leases for their apartments

"because he's a convict." In connection with this questioning, defense counsel admitted

as evidence a series of documents from the housing authority and apartment complex

informing Vela that they were aware that Ruth was living in the apartment and warning

Vela that Ruth's residence at the apartment was not permitted. One of those documents

was a letter from the apartment complex manager to the housing authority notifying the

housing authority that Ruth had been "repeatedly warned about staying in [Vela's]

apartment without the proper permission."        According to the letter, Ruth told the

apartment complex manager that "he cannot add himself to the lease because he has a

criminal record."

       The trial court did not err in admitting Vela's testimony regarding Ruth's prior

conviction without a limiting instruction for two reasons.    First, Ruth's request for a

limiting instruction was untimely. A party must request a limiting instruction at the first

                                            10
admission of the challenged evidence. Hammock v. State, 46 S.W.3d 889, 892 (Tex.

Crim. App. 2001) (citing Garcia v. State, 887 S.W.2d 862, 878 (Tex. Crim. App. 1994)).

When the opposing party fails to request a limiting instruction at this first opportunity, the

evidence is admitted for all purposes.       Id.   This is because "[a]llowing the jury to

consider evidence for all purposes and then telling them to consider that same evidence

for a limited purpose only is asking a jury to do the impossible. If a limiting instruction is

to be given, it must be when the evidence is admitted to be effective." Id. at 894. The

evidence of Ruth's criminal history came in, during Ruth's cross-examination of Vela,

through his own admission into evidence of Vela's various apartment and lease-related

documents and his own solicitation of testimony by Vela that Ruth is a convict. When the

State later questioned Vela about Ruth's criminal history during re-direct, the evidence

had already been before the jury for some time.

       Second, the State solicited Vela's testimony about Ruth's criminal history as part of

its efforts to rebut the impression created by defense counsel's questioning that Ruth

lived at the apartment at the time of the burglary. When an extraneous offense is

admissible to prove a main fact in the case, a limiting instruction is not required. Porter v.

State, 709 S.W.2d 213, 215 (Tex. Crim. App. 1986). Here, Ruth's cross-examination of

Vela created the impression that Ruth lived at the apartment and, as such, sowed doubt

as to whether he entered the apartment without Vela's effective consent. This was an

essential element the State was required to prove in the case. See TEX. PENAL CODE

ANN. § 30.02(a); see also DeVaughn v. State, 749 S.W.2d 62, 65 (Tex. Crim. App. 1988)

("The gravamen of the offense of burglary clearly remains entry of a building or habitation

without the effective consent of the owner . . . ."). When the State then questioned Vela

                                             11
about Ruth's criminal history on re-direct, our review of the testimony indicates that it was

the lead-in to the State's attempts to establish why Ruth did not live at the apartment and,

accordingly, prove that Ruth entered the apartment without the effective consent of the

owner, Vela.

        For these reasons, Ruth was not entitled to a limiting instruction. Because the

trial court's ruling is correct under the foregoing theories of law, we conclude that the court

did not abuse its discretion in admitting Vela's testimony about Ruth's prior conviction

without a limiting instruction. Ruth's third issue is overruled.

                                        V. DOUBLE JEOPARDY

        By two issues, Ruth argues that his convictions violate the Double Jeopardy

Clause of the United States Constitution. See U.S. CONST. amend. V. Specifically, by

his fourth issue, Ruth argues that his multiple burglary convictions (counts one and two)

constitute double punishment for a single act; and by his fifth issue, Ruth argues that his

convictions on the first count of burglary (count one, which includes the commission or

attempted commission of assault against Alcorta) and the aggravated assault count

(count three, in which the victim was Alcorta) amount to Blockburger double jeopardy

because proving the burglary charge necessarily required the State to prove all of the

elements of the underlying aggravated assault.3 See id.; Blockburger v. United States,

284 U.S. 299, 304 (1932).


        3
           The State asserts that because Ruth did not raise these multiple-punishment double jeopardy
issues in the trial court, he has not preserved them for our review. However, the double jeopardy violations
in this case are apparent on the face of the record and the enforcement of procedural default rules would
serve no legitimate state interest as the convictions at issue happened in the same court, on the same day,
before the same judge, and were based on the same evidence. See Gonzalez v. State, 8 S.W.3d 640, 643
& n.15 (Tex. Crim. App. 2000) (citations omitted). Thus, Ruth may raise them for the first time on appeal.
See id. at 643-44; Langs v. State, 183 S.W.3d 680, 687 (Tex. Crim. App. 2006).
                                                    12
      The Fifth Amendment provides that "[n]o person shall be . . . subject for the same

offense to be twice put in jeopardy of life or limb." U.S. CONST. amend. V. "The United

States Supreme Court has concluded that the Fifth Amendment offers three separate

constitutional protections: (1) protection against a second prosecution for the same

offense after acquittal; (2) protection against a second prosecution for the same offense

after conviction; and (3) protection against multiple punishments for the same offense."

Ex parte Cavazos, 203 S.W.3d 333, 336 (Tex. Crim. App. 2006) (citing North Carolina v.

Pearce, 395 U.S. 711, 717 (1969); Lopez v. State, 108 S.W.3d 293, 295-96 (Tex. Crim.

App. 2003)). This case poses issues of multiple punishments for the same offense.

      We address first whether Ruth's burglary convictions under counts one and two

violate the Double Jeopardy Clause—we find they do. In Ex parte Cavazos, the court of

criminal appeals reasoned and held as follows:

              [A] defendant suffers multiple punishments in violation of the Double
      Jeopardy Clause when he is convicted of more offenses than the legislature
      intended. However, the Double Jeopardy Clause imposes few, if any,
      limitations on the legislative power to establish and define offenses. The
      legislature, therefore, determines whether offenses are the same for
      double-jeopardy purposes by defining the "allowable unit of prosecution."
      The legislature also decides whether a particular course of conduct involves
      one or more distinct offenses under a given statute. Consequently, the
      scope of the Double Jeopardy Clause's protection against multiple
      punishments under the burglary statute depends on ascertaining the
      allowable unit of prosecution.

             ....

              [T]he gravamen of a burglary is the entry without the effective
      consent of the owner and with the requisite mental state. This Court has
      found that, when a burglary is committed, the harm results from the entry
      itself. The offense is complete once the unlawful entry is made, without
      regard to whether the intended theft or felony is also completed.

            The allowable unit of prosecution for an assaultive offense is each
      complainant. Burglary, however, is not an assaultive offense; rather, its
                                        13
       placement within Title 7 [of the penal code] indicates that the legislature
       determined burglary to be a crime against property. Thus, the complainant
       is not the appropriate allowable unit of prosecution in a burglary[;] rather,
       the allowable unit of prosecution in a burglary is the unlawful entry. [A
       defendant]'s convictions violate double jeopardy [when] he is punished
       multiple times for a single unlawful entry.

203 S.W.3d at 336, 337 (internal citations and quotations omitted). Ruth's two burglary

convictions fit squarely within the foregoing holding. The only difference between the

two counts of conviction is the alleged assault victim. Both counts are based on a single

unlawful entry, and it is that unlawful entry that is the allowable unit of prosecution for

purposes of our constitutional analysis. See id. For this reason, we conclude that

Ruth's convictions on counts one and two constitute multiple punishments for one

unlawful entry and, as such, violate the Fifth Amendment's double jeopardy prohibition.

Ruth's fourth issue is sustained.

       With regard to Ruth's second double jeopardy contention, we note that the State

appears to concede that Ruth's convictions for counts one and three violate the

prohibition against double jeopardy.     And we agree.      The Texas Court of Criminal

Appeals has held that

       [A] defendant may not be punished for both the underlying felony and
       burglary if the burglary allegation is that the defendant entered a home
       without the consent of the owner and then committed the underlying felony
       within the home as defined in [section] 30.02(a)(3). Thus, the State may
       obtain either a burglary or the underlying felony (or theft or assault)
       conviction if it alleges a burglary under [s]ection 30.02(a)(3) of the [p]enal
       [c]ode, but not both.

Langs v. State, 183 S.W.3d 680, 686 (Tex. Crim. App. 2006) (citations omitted). Here,

through Ruth's convictions for both count one and count three, the State did just that. In

count one, Ruth was convicted, pursuant to penal code section 30.02(a)(3), of entering

Vela's home without her consent and committing or attempting to commit assault against
                                        14
Alcorta. 4   See TEX. PENAL CODE ANN. § 30.02(a)(3).                   And in count two, Ruth was

convicted of assaulting Alcorta.           The Constitution prohibits this multiple-punishment

scenario. See Langs, 183 S.W.3d at 686; see also Blockburger, 284 U.S. at 304. As

such, we conclude that Ruth's convictions for counts one and three are also multiple

punishments for the same offense, which violate the Fifth Amendment. Ruth's fifth issue

is sustained.

        The question remaining is which counts of conviction should be vacated and which

retained.5 "The Supreme Court has directed that when a defendant is convicted in a

single criminal action of two offenses that are the 'same' for double jeopardy purposes,

the remedy is to vacate one of the convictions." Landers v. State, 957 S.W.2d 558, 559

(Tex. Crim. App. 1997), overruled on other grounds by Ex parte Cavazos, 203 S.W.3d at

338 (citing Ball v. United States, 470 U.S. 856, 864-65 (1985)).                         In making that

determination, we retain the conviction for the "most serious" offense and set aside the

other. Ex parte Cavazos, 203 S.W.3d at 337. "[T]he 'most serious' offense is the

offense of conviction for which the greatest sentence was assessed."6 Id. at 338.

        In this case, the punishments imposed for all three counts of conviction are
        4
          An attempted offense is the same offense as the committed offense for purposes of double
jeopardy. See Langs, 183 S.W.3d at 685 (citing Brown v. Ohio, 432 U.S. 161, 168-69 (1977)) (holding that
one of the contexts in which a multiple-punishments claim can arise is "the lesser-included offense context,
in which the same conduct is punished twice; once for the basic conduct, and a second time for that same
conduct plus more (for example, attempted assault of Y and assault of Y; assault of X and aggravated
assault of X)").
        5
            In its brief, the State suggests that this Court "dismiss Count One of the indictment" and posits
that "[i]n dismissing Count one of the indictment[,] the allegations contained in Counts two and three are no
longer issues of double jeopardy." While we agree with the State that this would, indeed, remedy the
double jeopardy issues posed by Ruth's convictions, the State cites no authority for its suggestion and does
not otherwise explain why dismissing count one would be the correct course of action. And for the reasons
discussed infra, we conclude that dismissing count one is not, in fact, the correct disposition in this case.
        6
          In Ex parte Cavazos, the defendant was sentenced to twenty-five years' incarceration for both
burglary offenses; the court determined that the conviction that included $122.00 in restitution was the most
serious offense and retained that conviction. 203 S.W.3d 333, 338-39 (Tex. Crim. App. 2006).
                                                    15
identical: for each offense, Ruth was sentenced to thirty-five years' incarceration, no fine

was assessed, and no restitution was ordered. Thus, no offense in this case is "more

serious" than any other.7 In Ex parte Cavazos, however, the court of criminal appeals

appears to have left one door open. The court noted that "[s]ome of our case law

suggests that, all other factors being equal, the conviction that should be affirmed is the

offense named in the first verdict form" and that, "[g]enerally, this will be the offense

described in Count I of the indictment." Id. at 339 n.8 (citing Ex parte Cravens, 805

S.W.2d 790, 791 (Tex. Crim. App. 1991); Ex parte Siller, 686 S.W.2d 617, 620 (Tex. Crim.

App. 1985)) (other citations omitted). Because we face an unsettled question in the case

before us and because the court of criminal appeals expressly declined to address the

issue in Ex parte Cavazos, see id., we choose to return to the approach favored by earlier

case law and retain the first-indicted offense. See Ex parte Cravens, 805 S.W.2d at 791;

Ex parte Siller, 686 S.W.2d at 620; see also Scroggs v. State, Nos. 07-07-0453-CR,

07-07-0454-CR, 2010 WL 1993676, at *12 (Tex. App.—Amarillo May 19, 2010, pet.

dism'd) (breaking the tie by retaining first-indicted conviction); Pinkston v. State, No.

02-08-165-CR, 2009 WL 2414373, at *7 (Tex. App.—Fort Worth Aug. 6, 2009, no pet.)

(mem. op., not designated for publication) (same).

        Thus, as between Ruth's two burglary convictions, we set aside count two

(unlawful entry without Vela's consent and the assault or attempted assault of Vela) and


        7
          Neither do the convictions in this case include any distinguishing factor utilized by the courts since
Ex parte Cavazos for other seemingly identical sentences, such as: a differing degree of felony between
the convictions, see Bigon v. State, 252 S.W.3d 360, 373 (Tex. Crim. App. 2008); an affirmative finding of
the use of a deadly weapon in one conviction over another, see Villanueva v. State, 227 S.W.3d 744, 749
(Tex. Crim. App. 2007); or one conviction was a second-degree felony enhanced to a first-degree, whereas
the other was an unenhanced first-degree felony, see Williams v. State, 240 S.W.3d 293, 301-02 (Tex.
App.—Austin 2007, no pet.).
                                                      16
retain count one (unlawful entry without Vela's consent and the assault or attempted

assault of Alcorta). Then, as between Ruth's count one burglary conviction and count

three assault conviction, we set aside count three and retain count one.

                                    VI. CONCLUSION

       We vacate and dismiss counts two and three of Ruth's conviction and affirm count

one.


                                                             NELDA V. RODRIGUEZ
                                                             Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the 29th
day of August, 2011.




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