                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                         Nos. 07-17-00051-CR
                                              07-17-00052-CR
                                              07-17-00053-CR


                                 JUAN MARTINEZ, APPELLANT

                                                   V.

                               THE STATE OF TEXAS, APPELLEE

                           On Appeal from the 364th District Court
                                  Lubbock County, Texas
 Trial Court No. 2015-408,165, Counts 1, 2, and 3, Honorable William R. Eichman II, Presiding

                                             August 14, 2018

                                 MEMORANDUM OPINION
                        Before CAMPBELL and PIRTLE and PARKER, JJ.


       Appellant, Juan Martinez, appeals his convictions for two counts of burglary of a

habitation1 and one count of retaliation.2 He contends that these convictions violate his

double jeopardy rights and that the judgments should be reformed in such a manner that

only the second count of burglary of a habitation should stand. The State concedes that


       1   See TEX. PENAL CODE ANN. § 30.02(a) (West Supp. 2017).

       2   See id. § 36.06(a) (West 2016).
one of the burglary of a habitation convictions must be vacated but contends that

retaliation is a separate offense from burglary of a habitation and, as such, these

convictions do not implicate double jeopardy concerns. Agreeing with the State, we will

vacate one of the burglary of a habitation counts and affirm the judgments as reformed.


                           Factual and Procedural Background


       On November 26, 2015, Elizabeth Lopez and her common law husband, Lincoln

Flores, went to Lincoln’s sister’s house to have drinks. About thirty minutes after arriving,

Elizabeth left to go home and work on cooking Thanksgiving dinner. Later, Lincoln’s

sister, Victoria, called Elizabeth and told her that she needed to come pick up Lincoln.

When Lincoln entered the vehicle, he started calling Elizabeth names and hitting the seat.

He eventually struck Elizabeth, which initiated a physical altercation between the two.

Victoria, alerted by the commotion, approached the vehicle and hit Elizabeth in the face

with a beer bottle. Lincoln and Victoria then began punching and pulling on Elizabeth,

who drove away from the scene in fear for her life. After driving away, Elizabeth called

911. The police met Elizabeth at her house, where she gave them a report of the incident.

While the police were still at the house, Lincoln arrived and was arrested for domestic

assault.


       At some point after the police left, one of Elizabeth’s sons knocked on the door to

her bedroom but did so while warning her not to open the door. Despite the warning,

Elizabeth opened the door to see appellant, Victoria’s husband, inside her house and

coming toward her. After a brief exchange during which appellant demanded the keys to

Elizabeth’s car, appellant punched Elizabeth in the face with sufficient force to knock her



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to the ground. Appellant then stabbed Elizabeth in the right arm with a knife. At that

point, Elizabeth’s fourteen-year-old son hit appellant on the side of his head. In response,

appellant began hitting Elizabeth’s son and cutting him with the knife. To protect her

children, Elizabeth drew appellant’s attention back to herself.         Appellant stabbed

Elizabeth again, this time in her left arm. Elizabeth then ran down the street from

appellant until she tripped. A car approached the location where Elizabeth had fallen and

the passengers in the vehicle got out. Unfortunately for Elizabeth, the passengers were

Victoria and members of her family. Appellant, Victoria, and the others then began

punching and kicking Elizabeth until her son once again intervened. After Elizabeth’s son

intervened in the street, appellant and the others ran away. Elizabeth gave a report to

the police about the incident with appellant. Both she and her son were taken to the

hospital where both received stitches for their injuries.


       Appellant was indicted for burglary of a habitation with the felony offense of injury

to a child (Count 1), burglary of a habitation with the felony offense of aggravated assault

(Count 2), and retaliation (Count 3). Appellant entered an open plea of guilty to all three

counts alleged in the indictment and “true” to two felony enhancement paragraphs. The

trial court held a punishment hearing, after which it sentenced appellant to seventy-five

years’ imprisonment for each burglary count, and fifty years’ imprisonment for the

retaliation count. Appellant timely filed his notice of appeal.


       Appellant presents two issues by his appeal. His first issue contends that the trial

court could not punish him for the burglary offense alleged in Count 2 and the retaliation

offense alleged in Count 3 because the elements of retaliation are subsumed within the

elements of that burglary charge. Appellant’s second issue contends that the two burglary

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offenses relate to a single burglary and, as such, violate double jeopardy. The State

concedes appellant’s second issue. Because this issue resolves appellant’s first issue,

we will address appellant’s second issue first.


                                           Law and Analysis


       The Fifth Amendment to the United States Constitution provides that no person

shall “be subject for the same offence to be twice put in jeopardy of life or limb . . . .” U.S.

CONST. amend. V. The Double Jeopardy Clause prohibits a second prosecution after the

accused has already been convicted or acquitted for the offense, and multiple

punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53

L. Ed. 2d 187 (1977); Stevenson v. State, 499 S.W.3d 842, 850 (Tex. Crim. App. 2016).

“A multiple-punishments violation can arise either in the context of lesser-included

offenses, where the same conduct is punished under a greater and a lesser-included

offense, and when the same conduct is punished under two distinct statutes where the

Legislature only intended for the conduct to be punished once.” Garfias v. State, 424

S.W.3d 54, 58 (Tex. Crim. App. 2014).                Whether the Legislature intended multiple

punishments is the key factor in determining whether a multiple-punishment double

jeopardy violation has occurred. Stevenson, 499 S.W.3d at 850.


       In a double-jeopardy analysis, whether conduct constitutes the “same offense” is

determined by examining the legislative intent and determining the number of punishable

offenses the Legislature contemplated. Id. When two separate statutory provisions are

involved, our analysis must include both an elements analysis under Blockburger3 and a



       3   Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).

                                                     4
units analysis. Id. However, if the offenses involved are codified in a single statute, we

need only conduct a units-of-prosecution analysis because the elements tests must

necessarily be resolved in favor of the defendant. Id.


       In conducting the elements analysis under Blockburger, we compare the two

statutes and determine “whether each provision requires proof of a fact that the other

does not.” Ex parte Benson, 459 S.W.3d 67, 72 (Tex. Crim. App. 2015) (orig. proceeding)

(quoting Blockburger, 284 U.S. at 304). In Texas, we apply the cognate-pleadings

approach to the Blockburger elements analysis. Id. This approach entails comparing the

elements of the greater offense as pleaded to the statutory elements of the lesser offense.

Id.   Utilizing this approach, if the offenses have the same elements, a rebuttable

assumption arises that the offenses are the same for purposes of double jeopardy. Id.


       If the offenses are proscribed by a single statute or are the same under an

elements analysis, double jeopardy is not violated if the offenses constitute separate

allowable units of prosecution. Id. at 73. In conducting a units analysis, we consider the

allowable unit of prosecution based on the statute’s construction and the gravamen of the

offense, as well as how many units have been proven by the trial evidence. Stevenson,

499 S.W.3d at 850-51.


       When a double jeopardy claim is not raised before the trial court, it may be raised

for the first time on appeal when: (1) the undisputed facts show the double jeopardy

violation is clearly apparent on the face of the record, and (2) enforcement of the usual

rules of procedural default serves no legitimate state interest. Langs v. State, 183 S.W.3d

680, 687 (Tex. Crim. App. 2006). A double jeopardy claim is apparent on the face of the



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record if resolution of the claim does not require further proceedings to introduce

additional evidence. Ex parte Denton, 399 S.W.3d 540, 544 (Tex. Crim. App. 2013).

While the State has an interest in maintaining the finality of a conviction, there is “no

legitimate [state] interest in maintaining a conviction when it is clear on the face of the

record that the conviction was obtained in contravention of constitutional double-jeopardy

protections.” Id. at 545.


                                          Issue Two


         By his second issue, appellant contends that the two burglary counts violate double

jeopardy because they arise out of the same burglary and only vary in terms of the felony

that was committed within the habitation. The State concedes that conviction for these

offenses violates double jeopardy.


         The indictment’s first count alleges that appellant intentionally or knowingly entered

a habitation without the owner’s consent and committed the felony offense of injury to a

child.    Its second count alleges that appellant intentionally or knowingly entered a

habitation without the owner’s consent and committed the felony offense of aggravated

assault. Both offenses are prescribed by the same statute, section 30.02 of the Texas

Penal Code. See TEX. PENAL CODE ANN. § 30.02. The gravamen of a burglary offense

under section 30.02 is the unauthorized entry with the requisite mental state. Ex parte

Cavazos, 203 S.W.3d 333, 337 (Tex. Crim. App. 2006); Scroggs v. State, 396 S.W.3d 1,

17 (Tex. App.—Amarillo 2010, pet. ref’d). “The offense is complete from entry.” Scroggs,

396 S.W.3d at 17. As such, convictions for two burglary of a habitation counts that involve

the same unlawful entry and vary only in the identification of the intended felony violate



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double jeopardy. Ex parte Cavazos, 203 S.W.3d at 337; see Scroggs, 396 S.W.3d at 17.

Since appellant was convicted of two counts of burglary of a habitation based on a single

entry, one to commit the intended felony of injury to a child and the other to commit the

intended felony of aggravated assault, we conclude that the multiple convictions and

resulting punishments violate double jeopardy.


       When a defendant has been convicted of two offenses that are the same offense

for double jeopardy purposes, we retain the conviction with the “most serious

punishment,” and vacate any remaining convictions that violate double jeopardy. Ex parte

Cavazos, 203 S.W.3d at 337; Scroggs, 396 S.W.3d at 17. The most serious offense is

ordinarily the offense for which the greatest punishment was assessed.             Ex parte

Cavazos, 203 S.W.3d at 338. When the two sentences are the same, other factors can

be considered to determine which offense is the most serious. See Bigdon v. State, 252

S.W.3d 360, 373 (Tex. Crim. App. 2008) (degree of offense); Villanueva v. State, 227

S.W.3d 744, 749 (Tex. Crim. App. 2007) (deadly weapon finding); Ex parte Cavazos, 203

S.W.3d at 338-39 (restitution).


       In the present case, appellant was punished for each burglary of a habitation

charge by seventy-five years’ incarceration with no fine or restitution ordered. Further,

an affirmative finding on the use or exhibition of a deadly weapon is contained in each

judgment. While not specifically reaching the issue, the Texas Court of Criminal Appeals

has cited to some of its case law as suggesting that, all other factors being equal, the

conviction that should be affirmed is the offense named in the first verdict form, which will

ordinarily be the offense described in the first count of an indictment. Ex parte Cavazos,

203 S.W.3d at 339 n.8 (citing Ex parte Cravens, 805 S.W.2d 790, 791 (Tex. Crim. App.

                                             7
1991), McIntire v. State, 698 S.W.2d 652, 656 (Tex. Crim. App. 1985), and Ex parte Siller,

686 S.W.2d 617, 620 (Tex. Crim. App. 1985)). When this Court was confronted with the

situation of a double jeopardy violation involving convictions under the same statute for

which identical sentences were imposed, we affirmed the offense named first in the

verdict form. Scroggs, 396 S.W.3d at 17-18. Several of our sister courts have taken the

same approach. See Burwell v. State, No. 11-12-00351-CR, 2014 Tex. App. LEXIS

12542, at *4-5 (Tex. App.—Eastland Nov. 20, 2014, pet. ref’d) (mem. op., not designated

for publication); Cooper v. State, No. 03-10-00348-CR, 2014 Tex. App. LEXIS 7509, at

*3-5 (Tex. App.—Austin July 11, 2014, no pet.) (mem. op., not designated for publication);

Ellison v. State, 425 S.W.3d 637, 648-49 (Tex. App.—Houston [14th Dist.] 2014, no pet.);

Ruth v. State, No. 13-10-00250-CR, 2011 Tex. App. LEXIS 7006, at *24-25 (Tex. App.—

Corpus Christi Aug. 29, 2011, no pet.) (mem. op., not designated for publication);

Newsome v. State, No. 02-05-00390-CR, 2007 Tex. App. LEXIS 2546, at *8 (Tex. App.—

Fort Worth Mar. 29, 2007, pet. ref’d) (mem. op., not designated for publication). We will

follow this approach in the present case and vacate Count Two of the judgments, which

convicts appellant of burglary of a habitation predicated on his commission of aggravated

assault against Elizabeth Lopez.


                                       Issue One


      Appellant’s first issue contends that the trial court could not punish him for the

burglary of a habitation predicated on his commission of aggravated assault against

Elizabeth Lopez (Count 2) and retaliation against Elizabeth (Count 3) because doing so

would violate double jeopardy in that the elements of retaliation are subsumed within the

elements of burglary of a habitation as charged in the indictment. However, as we have

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vacated appellant’s conviction for Count 2, we need not address appellant’s first issue.

See TEX. R. APP. P. 47.1.


                                        Conclusion


       We render judgment vacating Count 2, burglary of a habitation predicated on

aggravated assault, of the judgments of the trial court. In all other respects, we affirm the

trial court’s judgments.



                                                         Judy C. Parker
                                                            Justice


Do not publish.




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