                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-14-00068-CR
                                 02-14-00069-CR
                                 02-14-00070-CR


RORY JONES                                                         APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


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        FROM THE 211TH DISTRICT COURT OF DENTON COUNTY
      TRIAL COURT NO. F-2014-0079-C, F-2014-0080-C, F-2014-0081-C

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                        MEMORANDUM OPINION1

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                               I. INTRODUCTION

      A jury convicted Appellant Rory Jones of aggravated robbery, aggravated

assault, and attempted aggravated kidnapping.      See Tex. Penal Code Ann.

§§ 15.01, 20.04, 22.02(a)(2), 29.03 (West 2011). After Jones pleaded true to the


      1
      See Tex. R. App. P. 47.4.
prior-felony-conviction enhancement paragraph in each indictment, the jury

assessed punishment at life in prison in each case and assessed fines in the

amounts of $10,000 for the aggravated assault conviction and $2,500 for the

attempted aggravated kidnapping conviction. The trial court sentenced Jones

accordingly, ordering that the sentences run concurrently.    In a single issue,

Jones claims that convicting him for both aggravated robbery and aggravated

assault violated the Fifth Amendment proscription against double jeopardy. The

State concedes error on this issue and requests that we set aside Jones’s

conviction and punishment for aggravated assault.         After conducting an

independent evaluation, we will vacate and dismiss Jones’s conviction for

aggravated assault and affirm Jones’s convictions for aggravated robbery and

attempted aggravated kidnapping.2

                        II. FACTUAL AND BACKGROUND

     After getting off work as a maid at the Best Value Inn in Lewisville, Texas,

Modesta Sanchez-Montero saw Jones walk by where she was sitting. About

twenty minutes later, Jones approached her from behind, grabbed her, and

demanded money.      Jones was wielding an object that appeared to be a

screwdriver and threatened to stab Sanchez-Montero if she did not comply with

his demands. He then began beating her and forcibly dragging her towards a


     2
       Although Jones appealed his conviction for attempted aggravated
kidnapping, he did not assert any error. Thus, we affirm the conviction as a
matter of course and include it here only in the interest of clarity.


                                       2
truck in the parking lot. Sanchez-Montero broke free, ran to her room, and called

the motel owner. The owner confronted Jones and told him to wait while the

owner investigated the situation. Jones instead got into his truck and fled the

motel.

         The State charged Jones with aggravated robbery, aggravated assault,

and attempted aggravated kidnapping.             The pertinent portion of Jones’s

aggravated robbery indictment read:

         [W]hile in the course of committing theft of property and with intent to
         obtain or maintain control of said property, [Jones did] intentionally
         or knowingly threaten or place Modesta Sanchez-Montero in fear of
         imminent bodily injury or death, and [Jones] did then and there use
         or exhibit a deadly weapon, to-wit: a screwdriver or an object
         unknown to the Grand Jury, that in the manner of its use or intended
         use was capable of causing death or serious bodily injury.

The pertinent portion of Jones’s aggravated assault indictment read:

         [Jones did] intentionally or knowingly threaten Modesta Sanchez-
         Montero with imminent bodily injury, and did then and there during
         the commission of said assault, use or exhibit a deadly weapon, to-
         wit: a screwdriver or an unknown object to the Grand Jury, that in the
         manner of its use or intended use was capable of causing death or
         serious bodily injury.

                                 III. DOUBLE JEOPARDY

         Jones argues, and the State agrees, that convicting him of aggravated

assault and aggravated robbery, both by threat, for the same criminal act violated

the double jeopardy protections guaranteed by the Fifth Amendment. See U.S.

Const. amend. V, cl. 2. We agree. See Saldano v. State, 70 S.W.3d 873, 884




                                            3
(Tex. Crim. App. 2002) (explaining that the State’s confession of error is not

conclusive on review and conducting an independent review on the merits).

      The Double Jeopardy Clause of the United States Constitution provides

that no person shall be subjected to twice having life or limb in jeopardy for the

same offense. U.S. Const. amend. V. A double jeopardy claim may be raised

for the first time on appeal “when the undisputed facts show the double jeopardy

violation is clearly apparent on the face of the record and when enforcement of

usual rules of procedural default serves no legitimate state interests.” Gonzalez

v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000) (footnotes omitted); see

Langs v. State, 183 S.W.3d 680, 686–87 (Tex. Crim. App. 2006).

      Impermissible multiple punishments occur when the same criminal act is

punished twice under two distinct statutory provisions and the legislature

intended that the conduct be punished only once. Bigon v. State, 252 S.W.3d

360, 370 (Tex. Crim. App. 2008).       To determine whether there have been

multiple punishments for the same offense, we apply the “same elements” test

from Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932).

See Ex Parte Denton, 399 S.W.3d 540, 545 (Tex. Crim. App. 2013). We focus

on the elements alleged in the charging instrument to determine whether the

offenses as charged require proof of the same elements. Bigon, 252 S.W.3d at

370. Double-jeopardy challenges should be made even to offenses that have

differing elements under the Blockburger test “if the same ‘facts required’ are

alleged in the indictment.” Id. (citing Hall v. State, 225 S.W.3d 524 (Tex. Crim.


                                        4
App. 2007)). If two offenses do not have the same elements under the

Blockburger test, but if other indicia manifest a legislative intent that an accused

not be punished for two offenses arising from the course of a single transaction,

an accused may not be punished for both offenses. See Gonzales v. State, 304

S.W.3d 838, 845–46 (Tex. Crim. App. 2010).

      Here, the indictments for aggravated robbery and aggravated assault both

alleged that Jones intentionally or knowingly threatened Modesta Sanchez-

Montero with imminent bodily injury and used a screwdriver or unknown object

that in its manner of use or intended use was capable of causing death or serious

bodily injury. The indictment for aggravated robbery further alleged that Jones

committed theft. When faced with the same double jeopardy issue as we have

here and almost identical indictments, the court of criminal appeals in Denton

explained,

      [A]s plead, aggravated assault is a lesser-included offense of
      aggravated robbery because “it is established by proof of the same
      or less than all the facts required to establish the commission of the
      offense charged[.]” “If . . . the prosecution, in proving the elements
      of one charged offense, also necessarily proves another charged
      offense, then that other offense is a lesser-included offense.” If
      there is no clear legislative intent to punish the offenses separately,
      multiple punishments for the criminal act that is the subject of the
      prosecution is barred. No such intent has been shown here. We
      conclude that applicant has shown that [his convictions for
      aggravated robbery and aggravated assault] are in violation of his
      constitutional double-jeopardy protections that preclude multiple
      punishments for the same offense.

399 S.W.3d at 547. Here, as in Denton, the aggravated assault, as charged, is a

lesser-included offense of the aggravated robbery, and Jones’s convictions for


                                         5
both offenses violated double jeopardy.3 See id.; cf. Garfias v. State, 424 S.W.3d

54, 63–64 (Tex. Crim. App.) (holding that aggravated assault by causing bodily

injury was not a lesser-included offense of aggravated robbery by threat), cert.

denied, 2014 WL 3753800 (2014).

      When a defendant has been prosecuted and convicted in a single criminal

action of two or more offenses that constitute the same offense, in violation of

double jeopardy, the remedy is to apply “the most serious offense” test and retain

the conviction for the “most serious” offense. Denton, 399 S.W.3d at 547. The

“most serious” offense is the offense for which the greatest sentence was

assessed. Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App. 2006); see

also Evans v. State, 299 S.W.3d 138, 141 (Tex. Crim. App. 2009); Bigon, 252

S.W.3d at 372–73. But when the punishment for each conviction is identical, we

cannot look to only the sentences imposed to determine the most serious

offense. See Bigon, 252 S.W.3d at 373. Instead, we have to look to other

criteria, including the degree of felony for each offense, to determine which

offense is the most serious. Id.; White v. State, 395 S.W.3d 828, 832 (Tex.

App.—Fort Worth 2013, no pet.).

      In this case, Jones received a life sentence for both the aggravated assault

and aggravated robbery convictions.      Because aggravated robbery is a first-

      3
       Jones did not raise a double jeopardy claim in the trial court, but as both
parties assert on appeal, the double jeopardy violation is clearly apparent on the
face of the record and enforcement of usual rules of procedural default serves no
legitimate state interests. See Gonzalez, 8 S.W.3d at 643.


                                        6
degree felony and aggravated assault is a second-degree felony, aggravated

robbery is the most serious offense here.4        See Tex. Penal Code Ann.

§§ 22.02(b), 29.03(b). As such, we will vacate Jones’s conviction for aggravated

assault. See Bigon, 252 S.W.3d at 373; White, 395 S.W.3d at 833. We sustain

Jones’s sole issue.

                                IV. CONCLUSION

      Having sustained Jones’s sole issue, we vacate and dismiss his conviction

for aggravated assault and affirm the convictions for aggravated robbery and

attempted aggravated kidnapping.



                                                 /s/ Sue Walker
                                                 SUE WALKER
                                                 JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 20, 2014




      4
         Both offenses were enhanced with a prior felony conviction. Thus, the
aggravated robbery offense was enhanced to a “hybrid” first-degree felony with a
punishment range of not less than fifteen years or more than ninety-nine years or
life in prison. See Tex. Penal Code Ann. § 12.42(c)(1) (West Supp. 2014). The
aggravated assault offense was enhanced to a first-degree felony. See id.
§ 12.42(b).


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