
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-03-00297-CR


Richard Reyes, Appellant

v.

The State of Texas, Appellee





FROM THE DISTRICT COURT OF CALDWELL COUNTY, 274TH JUDICIAL DISTRICT
NO. 2002-148, HONORABLE JACK H. ROBISON, JUDGE PRESIDING


O P I N I O N


	Appellant Richard Reyes pleaded guilty to the offenses of aggravated sexual assault
of a child, attempted aggravated sexual assault, and indecency with a child by exposure.  Tex. Pen.
Code Ann. § 22.021(a)(B)(iii) (West Supp. 2004), §§ 15.01, 21.11(a)(2)(A) (West 2003).  Reyes's
plea was not made pursuant to an agreement with the State, and the trial judge assessed punishment
at 30 years' confinement for the aggravated sexual assault charge, 20 years' confinement for the
attempted sexual assault charge, and 10 years' confinement for the indecency with a child by
exposure charge.
	Reyes appeals only his conviction for indecency with a child.  He contends that the
conviction violated the prohibition against double jeopardy because the conduct supporting this
charge was incident to and an integral part of the offense of attempted aggravated sexual assault to
which he pleaded guilty.  See U.S. Const. amend. V; Blockburger v. United States, 284 U.S. 299,
304 (1932); Landers v. State, 957 S.W.2d 558, 559 (Tex. Crim. App. 1997); Patterson v. State, 96
S.W.3d 427, 432-33 (Tex. App.--Austin 2002, pet. granted).  The State concedes that the indecency
conviction violated the Double Jeopardy Clause of the United States Constitution, but argues that
by pleading guilty, Reyes waived the right to appeal this non-jurisdictional error.  Our review of the
record, however, reflects that the trial court correctly certified that Reyes's case "is not a plea-bargain
case, and the defendant has the right of appeal."
	In Young v. State, the court of criminal appeals set forth the standard for waiver in
cases where the defendant pleads guilty:

Whether entered with or without an agreed recommendation of punishment by the
State, a valid plea of guilty or nolo contendere "waives" or forfeits the right to appeal
a claim of error only when the judgment of guilt was rendered independent of, and
is not supported by, the error.


8 S.W.3d 656, 666-67 (Tex. Crim. App. 2000) (abolishing the Helms rule); see also Monreal v.
State, 99 S.W.3d 615, 620 (Tex. Crim. App. 2003) ("a non-bargaining defendant may be able to
appeal an error not raised on a written pretrial-motion, if it is otherwise preserved and survives
Young"). (1)
	A double jeopardy claim may be raised for the first time on appeal.  Jones v. State,
586 S.W.2d 542, 544 (Tex. Crim. App. 1979).  Furthermore, 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."  Menna v. New York, 423 U.S. 61,
62 n.2 (1975).  Because the judgment of conviction was not rendered independent of Reyes's double
jeopardy claim and the State has conceded error, we reverse Reyes's conviction for indecency with
a child by exposure.  See Patterson, 96 S.W.3d at 433.
	The judgments of conviction for aggravated sexual assault and attempted aggravated
sexual assault are affirmed.  The judgment of conviction for indecency with a child by exposure is
reversed and that cause is dismissed.


  
					Bea Ann Smith, Justice
Before Justices Kidd, B. A. Smith and Pemberton
Affirmed in Part; Reversed and Dismissed in Part
Filed:   July 1, 2004
Do Not Publish Released for publication July 29, 2004.  Tex. R. App. P. 47.3(c).
1.   The rules of appellate procedure place further limitations on a defendant's right to appeal
when he has pleaded guilty pursuant to a plea bargain.  See Tex. R. App. P. 25.2(a)(2) (requiring
permission of trial judge for appeal of those matters not raised by written motion and ruled on by
trial court).  There is no such limitation in the rules for an unbargained guilty plea.

