      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



                           MEMORANDUM OPINION


               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




        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.

                                                    2
               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




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