      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

                             444444444444444444444444444
                               ON MOTION FOR REHEARING
                             444444444444444444444444444



                                      NO. 03-06-00039-CR


                                  Marcus Williams, Appellant

                                                 v.

                                  The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
      NO. D-1-DC-05-904127, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING



                                          OPINION


               We withdraw our opinion and judgment issued on June 1, 2007, and substitute the

following in its place. We overrule the State’s motion for rehearing.

               A jury convicted appellant Marcus Williams of the offenses of robbery and

aggravated robbery. See Tex. Penal Code Ann. §§ 29.02, 29.03 (West 2003). The jury assessed

punishment at 60 years’ confinement for each offense, with the sentences to run concurrently. In a

single issue on appeal, Williams asserts that there was insufficient evidence to support the jury’s

finding that Williams exhibited a deadly weapon. Additionally, although Williams did not raise the

issue, the State, in a supplemental brief, concedes that Williams’s convictions for both robbery and

aggravated robbery violated double jeopardy. The State asks us to affirm the district court’s

judgment convicting Williams of aggravated robbery and vacate Williams’s conviction for robbery.
We overrule Williams’s sufficiency issue and agree with the State that a double jeopardy violation

occurred. We also agree that, under the circumstances present here, we must affirm Williams’s

conviction for aggravated robbery and vacate his conviction for robbery.


                                          BACKGROUND

               The jury heard evidence that in the early morning hours of August 4, 2004, Alejandro

Catemaxa and his son Claudio were robbed at gunpoint in the parking lot of their apartment

complex. The State’s evidence included the testimony of Alejandro and Claudio, police officer

Manuel Jimenez, and robbery detective Richard Guajardo.

               Alejandro testified that he and his son lived in the same apartment and would often

drive to work together. On the morning in question, Alejandro was waiting in the parking lot for his

son when he was approached by two men in a truck. Alejandro testified that the men were asking

for directions to places that they said were on “Lamar or Guadalupe or something like that.”

Alejandro’s suspicions were aroused because he knew that the places to which the men were asking

directions were not close to either street.

               Alejandro further testified that when Claudio came outside and the pair tried to get

in their car to leave, one of the men pulled out a gun and pointed it at Alejandro. The man was

speaking to him in English, which Alejandro could not understand. However, Alejandro testified

that he understood from the man’s gestures that “he wanted something.” Alejandro gave the man

his wallet and Claudio did the same. The men then drove away. Alejandro identified Williams as

the man who had pointed the gun at him.




                                                 2
                During Alejandro’s testimony, the State showed Alejandro a gun recovered during

the robbery investigation and asked Alejandro whether he could identify it as the type of weapon that

had been pointed at him during the robbery. Alejandro answered that the gun appeared similar but

not identical. Alejandro explained that he could only see the upper part of the weapon when he was

robbed because of the angle at which the gun had been pointed at him.

                Claudio, who understood English better than his father, testified that Williams told

them to “give him everything because he was going to kill us with a gun.” Claudio testified that he

saw the gun and that Williams pointed it at both of them. Claudio explained that he gave Williams

his wallet because he was afraid that either he or his father would be injured or even killed. Claudio

identified Williams as the man with the gun. Claudio was also shown the gun that was recovered

during the investigation and was asked if it looked like the gun that was used on him. Claudio

testified, “It’s similar to the one I saw, but I can’t say that’s the one.”

                Because Alejandro and Claudio spoke little English, Officer Manuel Jimenez was

called to the crime scene to translate for and interview the victims. Jimenez testified that Alejandro

described how Williams got out of his vehicle, approached Alejandro, asked for directions, pulled

out a weapon, and placed it on Alejandro’s chest. Jimenez further testified that Alejandro described

the weapon as “an automatic with a black on top and white on bottom.”

                Detective Richard Guajardo investigated the robbery and testified that, in a photo

lineup, Alejandro identified Esteban Benitez and Williams as the men who robbed him. Guajardo

also testified that a CO2-powered BB gun was found in Benitez’s hotel room during the

investigation. Guajardo explained that there was also a second, unrecovered gun that Williams


                                                    3
claimed to own at around the time the robbery occurred. Guajardo could not testify with certainty

which of the two weapons Williams used during the robbery. However, Guajardo did note in his

investigation report that the gun described by Alejandro matched the gun seized from the hotel room.

               Guajardo testified that a CO2-powered BB pistol was capable of causing death or

serious bodily injury. Specifically, Guajardo explained that it could put out an eye, break a tooth,

or even cause death if shot at someone’s abdomen or head. Guajardo also read to the jury the

warning on the gun, which stated that “misuse or careless use may cause serious injury or death.”

               The State indicted Williams for the offenses of robbery and aggravated robbery.

Count one of the indictment alleged that, on or about August 4, 2004, Williams intentionally and

knowingly placed Alejandro Catemaxa in fear of imminent bodily injury or death while in the course

of committing theft of property and with intent to obtain and maintain control of said property.

Count two of the indictment alleged the same offense, the same date, and the same victim as count

one but added an allegation that a deadly weapon was used during the commission of the offense,

namely a CO2-powered BB pistol. The jury convicted Williams of both counts in the indictment.

Williams pleaded true to the enhancement paragraphs in the indictment alleging three prior felony

convictions, and the jury assessed punishment at 60 years’ confinement for each offense. This

appeal followed.


                                          DISCUSSION

Deadly-weapon finding

               In his sole issue on appeal, Williams asserts that the evidence was insufficient1 to

support the jury’s finding that he exhibited a deadly weapon during the commission of the offense.


       1
          Williams does not specify in his brief whether he is challenging the legal or factual
sufficiency of the evidence. We will address both.

                                                 4
                When there is a challenge to the legal sufficiency of the evidence to sustain a criminal

conviction, we consider whether a rational trier of fact could have found the essential elements of

the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim.

App. 2005). We review all the evidence in the light most favorable to the verdict and assume that

the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable

inferences in a manner that supports the verdict. See Griffin v. State, 614 S.W.2d 155, 159

(Tex. Crim. App. 1981). It is not necessary that every fact point directly and independently to the

defendant’s guilt; it is enough if the conclusion is warranted by the combined and cumulative force

of all the incriminating circumstances. Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App.

1993). We consider even erroneously admitted evidence. Id.

                In a factual sufficiency review, we view the evidence in a neutral light and ask

whether a jury was rationally justified in finding guilt beyond a reasonable doubt.                 See

Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We then determine whether the

evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or

whether the verdict is against the great weight and preponderance of the conflicting evidence. Id.

at 415. We will not reverse a case on a factual sufficiency challenge unless we can say, with some

objective basis in the record, that the great weight and preponderance of the evidence contradicts the

jury’s verdict. Id. at 417.

                Under both the legal and factual sufficiency standards of review, the jury is the

exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to the

witnesses’ testimony. Jaggers v. State, 125 S.W.3d 661, 670 (Tex. App.—Houston [1st Dist.] 2003,

pet. ref’d) (citing Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981)). Under both



                                                   5
legal and factual sufficiency reviews, an appellate court must be appropriately deferential to the fact-

finder’s role at trial. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.—Dallas 2003, no pet.) (citing

Jones v. State, 944 S.W.2d 642, 647-48 (Tex. Crim. App. 1996)).2 The jury may believe all, some,

or none of any witness’s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986);

Jaggers, 125 S.W.3d at 670. This standard of review applies to both direct and circumstantial

evidence cases. King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000).

               Proof of the use or exhibition of a deadly weapon is an essential element of the

offense of aggravated robbery as charged in the indictment. See Tex. Penal Code Ann. § 29.03(a)(2).

A deadly weapon is “anything that in the manner of its use or intended use is capable of causing

death or serious bodily injury.” Id. § 1.07(a)(17)(B) (West Supp. 2006).

               During the robbery investigation, a CO2-powered BB pistol was recovered from the

hotel room of Esteban Benitez, Williams’s alleged accomplice in the crime. Although Detective

Guajardo testified that he could not be certain if this was the weapon used in the robbery, he did note

in his investigation report that the gun described by Alejandro matched the gun seized from the hotel

room. Furthermore, both Alejandro and Claudio testified that the gun recovered by the police was

“similar” to the gun used in the robbery. Although neither individual could state with certainty that

this was the weapon used, a rational jury could infer that this uncertainty could have been due to the

traumatic nature of being robbed at gunpoint.




       2
         See also Rivera v. State, No. 03-04-00235-CR, 2005 Tex. App. LEXIS 3997, at *19
(Tex. App.—Austin May 26, 2005, no pet.) (not designated for publication).

                                                   6
               Alejandro also explained that his view of the weapon was obscured by the angle at

which Williams held it. However, Alejandro further testified that, despite minor differences, the gun

shown to him in court was “the same, just a little bit bigger” than the gun used during the robbery.

Claudio’s testimony about the gun corroborated Alejandro’s testimony. We find nothing irrational

about the jury’s decision to infer from the testimony of the two victims that the gun used during the

commission of the robbery was the same gun recovered by the police. See Abbott v. State,

726 S.W.2d 644, 647 (Tex. App.—Amarillo 1987, pet. ref’d) (testimony that gun “looks like” and

“could have been” weapon used was sufficient).

               There is also the issue of Detective Guajardo’s testimony that Williams told him that

he owned a second gun at around the time of the robbery. The police were unable to recover this

gun. However, Detective Guajardo also testified that Williams told him that he had traded one gun

for the other. A rational jury could infer that this other gun had been traded away prior to the robbery

in exchange for the CO2-powered BB pistol, especially considering that the police were unable to

recover the other gun but were able to recover the BB pistol.

               We also find nothing irrational about the jury’s decision to infer that the BB pistol

allegedly used during the commission of the offense was a deadly weapon. “[A]n object is a deadly

weapon if the actor intends a use of the object in which it would be capable of causing death or

serious bodily injury.” McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). Here, the

uncontroverted testimony of Alejandro and Claudio establishes that Williams pointed the gun

directly at them during the robbery. Officer Jimenez testified that Alejandro told him that Williams

placed the gun on Alejandro’s chest. Detective Guajardo provided uncontroverted testimony that



                                                   7
a CO2-powered BB pistol is capable of causing serious bodily injury or even death if pointed toward

a person’s head or abdomen. The jury also heard Guajardo read the warning label on the gun, which

stated that “misuse or careless use may cause serious injury or death.” “With testimony that a BB

gun is capable of causing serious bodily injury, it is reasonable for a jury to make a deadly weapon

finding.” Adame v. State, 69 S.W.3d 581, 582 (Tex. Crim. App. 2002); see Delgado v. State,

986 S.W.2d 306, 308-09 (Tex. App.—Austin 1999, no pet.).

               Viewing the evidence in the light most favorable to the verdict, we find that there was

legally sufficient evidence to support the jury’s deadly weapon finding. Considering all of the

evidence in a neutral light, we find that there was factually sufficient evidence to support the jury’s

deadly weapon finding. We overrule Williams’s sole issue on appeal.


Double jeopardy

               In a supplemental brief, the State concedes that a double jeopardy violation occurred

in this case because Williams received multiple punishments for the same offense.

               The Fifth Amendment guarantee against double jeopardy protects against: (1) a

second prosecution for the same offense following conviction; (2) a second prosecution for the same

offense following acquittal; and (3) multiple punishments for the same offense. Illinios v. Vitale,

447 U.S. 410, 415 (1980); Cervantes v. State, 815 S.W.2d 569, 572 (Tex. Crim. App. 1991); Berger

v. State, 104 S.W.3d 199, 204-05 (Tex. App.—Austin 2003, no pet.). When the same act or

transaction violates two different penal statutes, the two offenses are the same for double-jeopardy

purposes if one of the offenses contains all the elements of the other. Blockburger v. United States,

284 U.S. 299, 304 (1932). Cumulative punishment may be imposed where separate offenses occur



                                                  8
in the same transaction, as long as each conviction requires proof of an additional element which the

other does not. Id.; Phillips v. State, 787 S.W.2d 391, 394 (Tex. Crim. App. 1990). Absent

indication of contrary legislative intent, it is presumed that the legislature did not intend to authorize

multiple punishments for two offenses that are the same under the Blockburger test.

Whalen v. United States, 445 U.S. 684, 691-92 (1980); Duvall v. State, 59 S.W.3d 773, 780

(Tex. App.—Austin 2001, pet. ref’d).

                In Texas, an offense is included within another if, among other things, “it is

established by proof of the same or less than all the facts required to establish the commission of the

offense charged.” Tex. Code Crim. Proc. Ann. art. 37.09(1) (West 2006); Hutchins v. State,

992 S.W.2d 629, 631 (Tex. App.—Austin 1999, pet. ref’d). Under Texas law, the offense of

aggravated robbery is defined as robbery, committed with the use or exhibition of a deadly weapon.

See Tex. Penal Code Ann. § 29.03(a)(2).             Thus, robbery is a lesser-included offense of

aggravated robbery.

                The legislature also determines whether offenses are the same for double-jeopardy

purposes by defining the “allowable unit of prosecution.” Ex parte Hawkins, 6 S.W.3d 554, 556

(Tex. Crim. App. 1999) (citing Sanabria v. United States, 437 U.S. 54 (1978)). In Texas, the

allowable unit of prosecution for an assaultive offense such as robbery is per victim. Id. at 560.

Thus, multiple convictions for the same offense committed against different victims do not violate

double jeopardy. Id. at 561.

                However, in this case, Williams was indicted for a single offense involving a single

victim, Alejandro Catemaxa. The State did not name Claudio Catemaxa as a victim in either count

of the indictment. Therefore, although it was permissible to submit both robbery and aggravated


                                                    9
robbery to the jury, Williams could not be convicted of both. See Berger, 104 S.W.3d at 205. We

agree with the State that Williams “was subjected to multiple punishment for the same criminal

transaction in violation of double jeopardy.” Id.

               “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) (citing Ball v. United States,

470 U.S. 856, 864-865 (1985)). However, the law governing which of the convictions to vacate is

currently somewhat unsettled. In Landers, the court of criminal appeals adopted “what we will call

the ‘most serious punishment’ test” for determining which of the “same” offenses in the double-

jeopardy context should be retained. Id. at 560. The Landers court explained that “[t]he ‘most

serious punishment’ is the longest sentence imposed, with rules of parole eligibility and good time

serving as a tie-breaker.” The court’s adoption of this rule was informed by its previous adoption

of a similar rule in the misjoinder context: “when a defendant is convicted of two or more offenses

that were misjoined, the remedy is to retain the most serious offense and vacate the remaining

offenses.” Id. at 559 (citing Ex parte Pena, 820 S.W.2d 806, 809 (Tex. Crim. App. 1991) (plurality

opinion)).

               “The most serious offense,” under the rule that the court had applied in the misjoinder

context, had been “determined by the degree of the felony, the range of punishment and the sentence

imposed, with rules of parole eligibility and good conduct time as a tie-breaker.” Id. When adopting

that rule, the court of criminal appeals rejected other “predominant methods” it had previously

applied, including “[choosing] the offense that the defendant was convicted of first,” “affirm[ing]

the conviction that had the lowest number on the charging instrument,” and “[choosing] the offense


                                                 10
that was alleged first in the indictment.” Pena, 820 S.W.2d at 808. It cited several policy

justifications for the new rule, including that “it does not attempt to make arbitrary distinctions based

on which allegations or conviction preceded the others,” ensuring that “the outcome of a case will

not depend on the coincidence of the order of offenses in an indictment or jury charge.” Id. at 808.

                Recently, the court of criminal appeals clarified the application of what it termed the

“most serious offense” test of Landers. Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App.

2006); cf. id. at 339-40 (Keller, P.J., concurring). It expressed concern that a standard based on “the

degree of the felony, the range of punishment and the sentence imposed, with rules of parole

eligibility and good conduct time as a tie-breaker” could be difficult to apply and subjective.

Cavazos, 203 S.W.3d at 337-38. The court instead adopted a test based primarily on the fact-finder’s

discretion: “the ‘most serious’ offense is the offense of conviction for which the greatest sentence

was assessed.” Id. at 338. The court added, “To the extent that Landers holds that other factors,

such as the degree of the felony, range of punishment, and rules governing parole eligibility and

awarding of good-conduct time, shall be used in that determination, it is overruled.” Id.

                Having clarified the nature of the “most serious” offense test, Cavazos applied it to

two convictions arising from the same incident, burglary of a habitation with intent to commit theft

and burglary of a habitation with intent to commit sexual assault, for each of which the defendant

had been sentenced to a 25-year term. In that situation, the court found a tie-breaker in the

imposition of restitution for only one of the offenses (burglary with intent to commit theft), because

“restitution is punishment.” Id. Having concluded that the “punishment assessed makes the burglary

with intent to commit theft conviction the ‘most serious’ offense,” the court did not need to proceed

further, but noted the following in a footnote:


                                                   11
       Some 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. See, e.g., Ex parte
       Cravens, 805 S.W.2d 790 (Tex. Crim. App. 1991); McIntire v. State, 698 S.W2d 652
       (Tex. Crim. App. 1985); Ex parte Siller, 686 S.W.2d 617 (Tex. Crim. App. 1985).
       Generally, this will be the offense described in Count I of the indictment. We do not
       address that question today.

Id. at 339 n.8. Cravens, McIntire, and Siller were each misjoinder cases that predated Pena.

               The present case presents the question that Cavazos left unaddressed. Here, we are

confronted with two identical 60-year sentences in two written judgments of conviction. The only

difference between the two judgments is that robbery is listed as a “second degree felony enhanced

to [a] first degree felony,” while aggravated robbery is listed as a “first degree felony.” Unlike

Cavazos, no restitution was ordered for either conviction.

               Recently, in Villanueva v. State, Nos. PD-0718-06 & 0719-06, 2007 Tex. Crim.

App. LEXIS 866, at *13-14 (Tex. Crim. App. June 27, 2007), a case involving a double jeopardy

violation where the sentences imposed were identical and no restitution was ordered, the court held

that “[u]nder these circumstances” it was appropriate to use an affirmative deadly weapon finding

in the judgment of one of the convictions as a tie-breaker. Id. In her dissent, Presiding Judge Keller

suggested that the majority had adopted the position of her concurrence in Cavazos that parole

consequences should remain available as a tie-breaker when the punishment is otherwise identical.

Id. at *25-26 n.1 (Keller, P.J., dissenting); see Cavazos, 203 S.W.3d 333, 340 (Tex. Crim.

App. 2006) (Keller, P.J., concurring) (“Perhaps parole and good time consequences should not be

the first tie-breaker, but it should be an available tie-breaker when the punishment is otherwise

identical.”). More generally, Villanueva appears to clarify that the Court of Criminal Appeals did

not intend Cavazos to prohibit all consideration of “other factors, such as the degree of the felony,

                                                 12
range of punishment, and rules governing parole eligibility and awarding of good-conduct time” to

determine the “most serious” offense after application of the length-of-sentence and restitution

criteria proves to be indeterminate.

               Following this most recent guidance from the Court of Criminal Appeals, we will

retain the aggravated robbery conviction and vacate the robbery conviction. See Tex. Govt. Code

Ann. § 508.145(d); Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(1)(F) (aggravated robbery, but

not robbery, are among offenses for which inmates are not eligible for parole until calendar time

served equals one-half of sentence).



                                        CONCLUSION

               The district court rendered two written judgments of conviction, one for each of the

two offenses for which appellant was convicted. The judgment of conviction for aggravated robbery

is affirmed. The judgment of conviction for robbery is vacated.




                                                     ____________________________________

                                                     Bob Pemberton, Justice

Before Chief Justice Law, Justices Patterson and Pemberton

Affirmed in part, Vacated in part on Motion for Rehearing

Filed: July 27, 2007

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