                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-12-00134-CR

ANTHONY JEROME CARTER,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                          From the 19th District Court
                           McLennan County, Texas
                          Trial Court No. 2011-1713-C1


                         MEMORANDUM OPINION

      Appellant Anthony Jerome Carter entered an open plea of guilty to two counts of

evading arrest or detention in a motor vehicle with a deadly weapon and pleaded true

to the enhancement and habitual paragraphs. After a punishment hearing, the trial

court assessed Carter’s punishment at life imprisonment for each count and signed a

judgment on each count. This appeal ensued.

      In his sole issue, Carter contends for the first time that convicting him twice for

only one incident of evading violates the Double Jeopardy Clause of the Fifth
Amendment to the U.S. Constitution; Article I, Section 14 of the Texas Constitution; and

article 1.10 of the Code of Criminal Procedure.1 The State concedes error, responding

that, as the law currently stands, there can be only one conviction for one act of evading,

even if the act causes more than one death; therefore, one of Carter’s judgments must be

vacated. We agree.

         Carter’s open plea of guilty does not forfeit his double-jeopardy claim because

the judgment of conviction was not rendered independent of the double-jeopardy

violation as “the claim is that the State may not convict petitioner no matter how validly

his factual guilt is established.” See Reyes v. State, 139 S.W.3d 448, 449 (Tex. App.—

Austin 2004, no pet.) (quoting Menna v. New York, 423 U.S. 61, 62 n.2, 96 S.Ct. 241, 46

L.Ed.2d 195 (1975)); see also Wilson v. State, Nos. 05-10-01207-CR to 05-10-01212-CR, 05-

11-00087-CR, 2012 WL 983119, at *3 (Tex. App.—Dallas Mar. 21, 2012, no pet.) (mem.

op., not designated for publication). Furthermore, an appellant may raise a double-

jeopardy claim for the first time on appeal when, as here, (1) the undisputed facts show

the double-jeopardy claim violation is clearly apparent from the face of the record, and

(2) enforcement of the usual rules of procedural default serve no legitimate state

purpose. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000); Rangel v. State, 179

S.W.3d 64, 70 (Tex. App.—San Antonio 2005, pet. ref’d).

         “A defendant suffers multiple punishments in violation of the Double Jeopardy

Clause when he is convicted of more offenses than the legislature intended.” Ervin v.

1Although included in Carter’s brief in the statement of his issue presented, article 1.10 of the Code of
Criminal Procedure is not mentioned in the substance of Carter’s argument. Moreover, citing Phillips v.
State, 787 S.W.2d 391, 393 n.2 (Tex. Crim. App. 1990), Carter states that the U.S. and Texas Constitution
double-jeopardy provisions are treated identically.

Carter v. State                                                                                   Page 2
State, 991 S.W.2d 804, 807 (Tex. Crim. App. 1999) (citing Ball v. United States, 470 U.S.

856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985)). “The legislature … determines whether

offenses are the same for double-jeopardy purposes by defining the ‘allowable unit of

prosecution.’” Ex parte Cavazos, 203 S.W.3d 333, 336 (Tex. Crim. App. 2006) (quoting

Sanabria v. United States, 437 U.S. 54, 69, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978)). “The

legislature also decides whether a particular course of conduct involves one or more

distinct offenses under a given statute.” Id. Consequently, the scope of the Double

Jeopardy Clause’s protection against multiple punishments under the evading-arrest-

or-detention statute (TEX. PENAL CODE ANN. § 38.04 (West Supp. 2013)) depends on

ascertaining the allowable unit of prosecution. See Ex parte Cavazos, 203 S.W.3d at 336.

“Absent an explicit statement that ‘the allowable unit of prosecution shall be such-and-

such,’ the best indicator of legislative intent with respect to the unit of prosecution

seems to be the focus or ‘gravamen’ of the offense.” Jones v. State, 323 S.W.3d 885, 889

(Tex. Crim. App. 2010).

         The gravamen of “evading arrest” is the evasion of an arrest. Jackson v. State, 718

S.W.2d 724, 726 (Tex. Crim. App. 1986); see In re D.X.S., No. 13-12-00446-CV, 2013 WL

5522722, at *4 (Tex. App.—Corpus Christi Oct. 3, 2013, pet. denied) (mem. op.). Thus,

the allowable unit of prosecution for evading arrest is the evasion of arrest. See Jones,

323 S.W.3d at 889; Jackson, 718 S.W.2d at 726.

         In this case, Carter was charged in two separate indictments, each with its own

cause number, of evading arrest or detention in a motor vehicle with a deadly weapon.

In both indictments, the grand jury alleged that Carter, on or about June 23, 2011, “did

Carter v. State                                                                       Page 3
then and there intentionally flee from Eric Trojanowski, a person the Defendant knew

was a peace officer who was attempting lawfully to arrest or detain the Defendant”;

however, one indictment alleged that

         as a direct result of the attempt by the said Eric Trojanowski to apprehend
         the Defendant while the Defendant was in flight, MAE JEAN ECKLES
         suffered death as a result of the Defendant failing to control his motor
         vehicle and/or by failing to keep his vehicle on the roadway and/or by
         driving a motor vehicle at an excessive speed

while the other indictment alleged that

         as a direct result of the attempt by the said Eric Trojanowski to apprehend
         the Defendant while the Defendant was in flight, JESUS ESPINOZA
         suffered death as a result of the Defendant failing to control his motor
         vehicle and/or by failing to keep his vehicle on the roadway and/or by
         driving a motor vehicle at an excessive speed.

The State’s Motion to Consolidate Prosecution of Offenses was subsequently granted

and the indictments became two counts with one cause number. Carter pleaded guilty

to each count in the consolidated indictment, but there is no dispute that both counts

involved only one incident of evading arrest or detention and that each count merely

alleged a separate fatality victim. Carter’s two evading-arrest-or-detention convictions

based on the same evasion of arrest therefore violate the Double Jeopardy Clause. We

sustain Carter’s sole issue.

         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. Ball, 470 U.S. at 864, 105 S.Ct. at 1673. In making that determination, we

retain the conviction for the “most serious” offense and set aside the other conviction.

Ex parte Cavazos, 203 S.W.3d at 337. When the offenses and punishments are identical,

Carter v. State                                                                        Page 4
we may uphold the conviction for the first offense listed in the indictment and vacate

the conviction for the second offense alleged. See Lopez v. State, 80 S.W.3d 624, 629 (Tex.

App.—Fort Worth 2002), aff’d on other grounds, 108 S.W.3d 293 (Tex. Crim. App. 2003).

Because the two offenses and punishments are identical in this case, we vacate the trial

court’s judgment convicting Carter under Count II for evading arrest or detention in a

motor vehicle with a deadly weapon and affirm the trial court’s judgment convicting

him under Count I.




                                                 REX D. DAVIS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed in part, vacated in part
Opinion delivered and filed April 24, 2014
Do not publish
[CRPM]




Carter v. State                                                                      Page 5
