Affirmed in No. 14-17-00026-CR, Affirmed as Modified in No. 14-17-00027-CR,
and Opinion filed February 28, 2019.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-17-00026-CR
                              NO. 14-17-00027-CR

                     EPOLITO LOZANO, JR., Appellant
                                        V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 239th District Court
                           Brazoria County, Texas
                   Trial Court Cause Nos. 75194 and 75195

                                    OPINION

      In this appeal from multiple convictions, appellant complains of three issues:
(1) that his sentences are grossly disproportionate, in violation of the Eighth
Amendment; (2) that he was denied the effective assistance of counsel, in violation
of the Sixth Amendment; and (3) that he was punished twice for the same offense,
in violation of the Fifth Amendment. For reasons explained more fully below, we
sustain only the third issue.

                                 BACKGROUND

      There are five charged offenses in this case, and all of them arise from a single
fight between appellant and his son.

      The fight broke out because the son was operating a four-wheeler while he
was intoxicated, and his two young daughters (appellant’s granddaughters) were
both on board without wearing helmets. When appellant put a stop to his son’s
recklessness, the son objected to the intervention: “Don’t be telling me what to F’ing
do with my girls. They’re my girls. You know, you’ve bullied me my whole life.
I’m not your kid anymore. You don’t tell me how to raise my girls.”

      The argument quickly escalated into a fist fight, with both men exchanging
blows. The son’s wife entered the brawl in an effort to separate the two men. Once
they were separated, the son reached for a taser, but appellant knocked it out of his
son’s hands.

      The son’s wife eventually convinced her family to leave. As the family was
loading into the son’s vehicle, appellant went to his own vehicle and retrieved a
firearm. The son saw the firearm and taunted appellant to shoot him (the son).
Appellant discharged the firearm, and the bullet struck the front driver’s side door
of the son’s vehicle. At the time of the shooting, the son and his wife were both by
the front driver’s side door, but no one was injured.

      The grand jury returned two indictments, each in a separate cause number.
The first indictment contained two counts. The first count alleged that appellant
committed aggravated assault by threatening the son’s wife with a deadly weapon.



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The second count alleged that appellant engaged in deadly conduct by discharging a
firearm at or in the direction of a vehicle.

      The second indictment contained three counts. The first count alleged that
appellant committed aggravated assault by threatening the son (as opposed to his
wife) with a deadly weapon. The second count mirrored the first indictment: it
alleged that appellant engaged in deadly conduct by discharging a firearm at or in
the direction of a vehicle. The third count alleged that appellant unlawfully
possessed a firearm, as he had previously been convicted of a felony.

      Appellant pleaded guilty to all five offenses without an agreed
recommendation as to punishment. After a hearing, the trial court found appellant
guilty, assessed his punishment at eight years’ imprisonment for each of the five
offenses, and ordered all of the sentences to run concurrently.

                    CRUEL AND UNUSUAL PUNISHMENT

      Appellant concedes that, for each offense, the trial court sentenced him within
the statutory range of punishment, but he argues in his first issue that his punishments
are cruel and unusual because they are grossly disproportionate to the crimes
committed. We overrule this issue without addressing the merits because appellant
did not lodge any complaint in the trial court regarding his punishments. See Quick
v. State, 577 S.W.3d 775, 788 (Tex. App.—Houston [14th Dist.] 2018, pet. filed)
(holding that these sorts of challenges cannot be raised for the first time on appeal);
Battle v. State, 348 S.W.3d 29, 31 (Tex. App.—Houston [14th Dist.] 2011, no pet.)
(same).

                               DOUBLE JEOPARDY

      The next two issues are related. In his second issue, appellant contends that
his trial counsel was ineffective because counsel did not move to quash the second

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indictment, which alleged a count of deadly conduct that was identical to the first
indictment. And in his third issue, appellant contends that the identical counts
violated his constitutional protection against double jeopardy. Because we sustain
the double-jeopardy complaint, we need not address the ineffectiveness claim.

      The Double Jeopardy Clause embodies three essential protections: (1) it
protects against a successive prosecution for the same offense after an acquittal, (2) it
protects against a successive prosecution for the same offense after a conviction, and
(3) it protects against multiple punishments for the same offense. See Evans v. State,
299 S.W.3d 138, 140–41 (Tex. Crim. App. 2009). The issue in this case involves the
third protection against multiple punishments.

      In a multiple-punishments case, the question to be determined is whether the
defendant was convicted of more offenses than the legislature intended. See Ex parte
Milner, 394 S.W.3d 502, 507 (Tex. Crim. App. 2013). When, as here, the offenses
at issue are codified in just a single statutory provision, the answer depends on how
the legislature defined the “allowable unit of prosecution,” and how many units were
actually shown. See Ex parte Benson, 459 S.W.3d 67, 73 (Tex. Crim. App. 2015).

      The allowable unit of prosecution is best described by the focus or gravamen
of the offense, which we determine from the text of the statute. See Loving v. State,
401 S.W.3d 642, 647 (Tex. Crim. App. 2013). The statute here provides as follows:

      A person commits an offense if he knowingly discharges a firearm at
      or in the direction of:
             (1) one or more individuals; or
             (2) a habitation, building, or vehicle and is reckless as to whether
             the habitation, building, or vehicle is occupied.

Tex. Penal Code § 22.05(b).



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       The State argues that the allowable unit of prosecution under this statute is
each individual victim, which is generally the rule for assaultive offenses. See Shelby
v. State, 448 S.W.3d 431, 439 (Tex. Crim. App. 2014) (“The allowable unit of
prosecution for an assaultive offense in Texas is each victim.”). But that general rule
cannot apply here because the statute as written does not even require a victim. The
offense is completed whenever the defendant knowingly discharges a firearm “at or
in the direction of” a person or particular thing. See Tex. Penal Code § 22.05. There
is no requirement that the discharge come into contact with a person or thing.

       As we construe the statute, the focus of the offense is not on the result of the
defendant’s knowing discharge of a firearm—i.e., it matters not whether the
discharge causes injury or damage. Nor is the focus on the mere act of discharging
a firearm, which is not inherently criminal conduct. Instead, the focus is on the
circumstances surrounding the discharge. See Zuliani v. State, 383 S.W.3d 289, 299
(Tex. App.—Austin 2012, pet. ref’d). The discharge is made criminal only when the
discharge puts others at risk, as in subsection (b)(1), or when the defendant is
reckless as to whether the discharge could put others at risk, as in subsection (b)(2).1

       Based on the statute as written, we conclude that the allowable unit of
prosecution for the offense of engaging in deadly conduct is each discharge of a
firearm that occurs under the proscribed surrounding circumstances. See Miles v.
State, 259 S.W.3d 240, 249 (Tex. App.—Texarkana 2008, pet. ref’d).

       Having determined that the allowable unit of prosecution is each discharge of
the firearm, we must now determine how many of these units were actually shown.
See Stevenson v. State, 499 S.W.3d 842, 850 (Tex. Crim. App. 2016). Here, the State

       1
        Appellant was charged under subsection (b)(2), not subsection (b)(1). He does not argue,
and we need not address, whether an offense under either subsection is a lesser-included offense
of aggravated assault with a deadly weapon, which would be the same offense for jeopardy
purposes.

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concedes that the evidence shows that appellant discharged his firearm only once in
the direction of a vehicle. After reviewing the evidence, we agree with the State.

      The State further concedes that if the legislature only intended for each
discharge of the firearm to be the allowable unit of prosecution (rather than each
victim), then we must vacate the second conviction for deadly conduct because only
a single discharge was shown. We agree. See Harris v. State, 359 S.W.3d 625, 632
(Tex. Crim. App. 2011) (concluding that the defendant could not be convicted three
times of indecency with a child by exposure where the allowable unit of prosecution
was each act of exposure, not each child victim, and the evidence was undisputed
that the defendant exposed himself only once to three children at the same time).

                                 CONCLUSION

      We affirm the judgment in Trial Court Cause Number 75194 (Appeal Cause
Number 14-17-00026-CR). We modify the judgment in Trial Court Cause Number
75195 (Appeal Cause Number 14-17-00027-CR) by vacating the conviction for
deadly conduct, and we affirm that judgment as so modified.




                                       /s/       Tracy Christopher
                                                 Justice

Panel consists of Justices Christopher, Jewell, and Hassan.
Publish — Tex. R. App. P. 47.2(b).




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