Affirmed as Modified in Part; Vacated and Dismissed in Part; and Opinion Filed
April 30, 2014.




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-13-01154-CR
                                      No. 05-13-01155-CR

                         TOMMY EXIQUIO MARTINEZ, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                      On Appeal from the 194th Judicial District Court
                                   Dallas County, Texas
                     Trial Court Cause Nos. F10-51119-M, F10-51168-M

                             MEMORANDUM OPINION
                            Before Justices Lang, Myers, and Brown
                                   Opinion by Justice Myers
       Tommy Exiquio Martinez pleaded guilty to two burglary of a habitation offenses. The

trial court deferred adjudication of guilt, placed appellant on five years’ community supervision

in each case, and also assessed a $500 fine in cause no. 05-13-01154-CR. The State later moved

to adjudicate guilt. The trial court granted the State’s motions, adjudicated appellant guilty, and

sentenced him to twelve years’ imprisonment in each case. These appeals followed.

                                          Background

       Appellant originally filed briefs asserting the trial court’s judgment in each case needed

to be modified to correct various clerical errors. Upon review of the records, this Court noted

that based on the records before the Court, it appeared appellant had pleaded guilty to and had
been convicted of the same offense.        Specifically, each indictment alleged burglary of a

habitation on the same date with the same complaining witness. Moreover, the plea papers in

each case reflected the same complaining witness. There was a police report in the clerk’s record

for cause no. 05-13-01155-CR (trial court no. F10-51168-M) indicating there was a second

complaining witness and a different burglary date. Therefore, we abated for the trial court to

make findings regarding whether there was an amended indictment and amended plea papers for

cause no. 05-13-01155-CR that reflected the name of the complaining witness and the date

reflected in the police report in that clerk’s record. We adopted the trial court’s findings that

there is not an amended indictment and the plea papers and judicial confession in the clerk’s

record for cause no. 05-13-01155-CR are correct copies of the documents admitted into

evidence. We ordered the parties to file supplemental briefs addressing the issue of whether

appellant was charged with the same offense in the two indictments and pleaded guilty to the

same offense as an alleged in the two indictments. We have now received the supplemental

briefs.

                         05-13-01155-CR (Trial Court No. F10-51168-M)

          In his supplemental brief, appellant asserts his conviction in cause no. 05-13-01155-CR

(trial court no. F10-51168-M) constitutes a double jeopardy violation. Appellant asserts that his

failure to raise the issue in the trial court does not constitute a waiver because the face of the

record clearly demonstrates a double jeopardy violation and the enforcement of the normal rules

of procedural default serves no legitimate state interests. The State responds that it expressly

refrains from making any claim of procedural default. Further, the State asserts that, while not

agreeing the record “unquestionably establishes” the double jeopardy violation, it not only does

not object to appellant’s receipt of the requested relief, it agrees appellant should receive the

relief requested. The State contends that while it is hypothetically possible for a defendant to

                                                –2–
burglarize the habitation of the same victim twice in one day, there is nothing in the record

before this Court to support such an argument.

          Although a double jeopardy complaint may be waived by failure to raise it in the trial

court, a 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. Ex parte Denton, 399

S.W.3d 540, 544 (Tex. Crim. App. 2013); Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim.

App. 2000). A double jeopardy claim is apparent on the face of the trial record if the resolution

of the claim does not require further proceedings for the purpose of introducing additional

evidence in support of the claim. Ex parte Denton, 399 S.W.3d at 544.

          We agree that on their face, the records in these cases clearly establish a double jeopardy

violation. See Ex parte Denton, 399 S.W.3d at 544; Gonzalez, 8 S.W.3d at 643. In each case,

the indictment alleges the offense of burglary of a habitation occurred on or about January 13,

2010 and identifies the complaining witness as Jimmie Stephenson. Additionally, the judicial

confessions in each case each identify Jimmie Stephenson as the complaining witness. The

indictment in cause no. 05-13-01155-CR (trial court no. F10-51168-M) was filed on February

19, 2010. Although the police report contained in the clerk’s record for cause no. 05-13-01155-

CR is dated January 14, 2010, identifies the complaining witness by the name of Moreno, and

bears the handwritten notation of “10-51168-194,” the trial court found there was no amended

indictment alleging Moreno as the complaining witness and that the plea papers identifying the

complaining witness as Stephenson were the ones admitted into evidence. 1 Thus, we conclude

the record on its face establishes that appellant was twice indicted for and twice convicted of the


     1
       The record on its face established the double jeopardy violation. The findings this Court sought from the trial court were to ensure the
Court had the proper documents before it for cause no. 05-13-01155-CR. See TEX. R. APP. P. 34.5.



                                                                    –3–
same burglary offense in violation of the Double Jeopardy provisions of the United States

Constitution. See Ex parte Denton, 399 S.W.3d at 544; Gonzalez, 8 S.W.3d at 643.

         Moreover, the State agrees that appellant should receive the relief he is seeking as to

cause no. 05-13-01155-CR (trial court no. F10-51168-M). Thus, we conclude enforcement of

the usual rules of procedural default serve no legitimate state interest. See Ex parte Denton, 399

S.W.3d at 544; Gonzalez, 8 S.W.3d at 643. We sustain appellant’s issue in his supplemental

brief.

         When a defendant is convicted of two offenses and those convictions violate double

jeopardy protections, ordinarily the conviction for the more serious offense is retained and the

other is set aside. See Ex parte Denton, 399 S.W.3d at 547. Here, appellant was convicted of the

same offense in both cases. Accordingly, we vacate the trial court’s judgment in trial court no.

F10-51168-M and dismiss the case. See Ex parte Denton, 399 S.W.3d at 547. See also TEX. R.

APP. P. 43.2(e). Because of our disposition of this issue, we do not address the issues raised

regarding modification of the judgment. See TEX. R. APP. P. 47.1.

                   Cause No. 05-13-01154-CR (Trial Court No. F10-51119-M)

         In his original brief, appellant asserts the trial court’s judgment in cause no. 05-13-01154-

CR (trial court no. F10-51119-M) should be modified to reflect there was no plea bargain

agreement, to show appellant pleaded not true to one of the alleged probation violations, and to

reflect that the trial court found appellant violated the terms and conditions as set forth in the

amended motion to adjudicate guilt. The State agrees the judgment should be modified as

requested by appellant.

         The record reflects that on May 29, 2013, the State filed an amended motion to proceed

with adjudication of guilt. Appellant pleaded not true to alleged violation (a)(2), which alleged

he committed a new aggravated assault/family violence offense. Appellant entered an open plea

                                                 –4–
of true to the remaining allegations.     The trial court’s judgment adjudicating guilt reflects

appellant pleaded true to the motion to adjudicate, the terms of a plea bargain were “12 years

TDCJ,” and that appellant violated the terms and conditions of supervision as set out in the

State’s “Original” motion to adjudicate guilt. Thus, the judgment is incorrect and we may

modify it to correctly reflect the trial court proceedings. See TEX. R. APP. P. 43.2(b); Bigley v.

State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 183 S.W.2d 526, 529–30

(Tex. App.––Dallas 1991, pet. ref’d). We sustain appellant’s three issues related to this case.

       We modify the trial court’s judgment as follows: (1) the section entitled “plea to motion

to adjudicate” is modified to show “Not True” as to “allegation (a)(2)” and “True” as to the

remaining allegations; (2) the section entitled “Terms of Plea Bargain” is modified to show

“Open”; and (3) the paragraph specifying the terms and conditions violated is modified to state

“as set out in the State’s AMENDED Motion to Adjudicate Guilt as follows: See attached

Amended Motion to Adjudicate Guilt.”

       As modified, we affirm the trial court’s judgment in cause no. 05-13-01154-CR (trial

court no. F10-51119-M).

       We vacate the trial court’s judgment in cause no. 05-13-01155-CR (trial court no. F10-

55168-M, and dismiss the case.




                                                     LANA MYERS
                                                     JUSTICE


Do Not Publish
TEX. R. APP. P. 47
131154F.U05




                                               –5–
                                         S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

TOMMY EXIQUIO MARTINEZ, Appellant                      On Appeal from the 194th Judicial District
                                                       Court, Dallas County, Texas
No. 05-13-01154-CR          V.                         Trial Court Cause No. F10-51119-M.
                                                       Opinion delivered by Justice Myers,
THE STATE OF TEXAS, Appellee                           Justices Lang and Brown participating.

       Based on the Court’s opinion of this date, we MODIFY the trial court’s judgment as
follows:

        (1) the section entitled “plea to motion to adjudicate” is modified to show “Not True” as

to “allegation (a)(2)” and “True” as to the remaining allegations;

       (2) the section entitled “Terms of Plea Bargain” is modified to show “Open”; and

       (3) the paragraph specifying the terms and conditions violated is modified to state “as set

out in the State’s AMENDED Motion to Adjudicate Guilt as follows: See attached Amended

Motion to Adjudicate Guilt.”

As MODIFIED, we AFFIRM the trial court’s judgment.


Judgment entered this 30th day of April, 2014.




                                                       /Lana Myers/
                                                       LANA MYERS
                                                       JUSTICE



                                                 –6–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

TOMMY EXIQUIO MARTINEZ, Appellant                      On Appeal from the 194th Judicial District
                                                       Court, Dallas County, Texas
No. 05-13-01155-CR         V.                          Trial Court Cause No. F10-51168-M.
                                                       Opinion delivered by Justice Myers,
THE STATE OF TEXAS, Appellee                           Justices Lang and Brown participating.

     Based on the Court’s opinion of this date, we VACATE the trial court’s judgment and
DISMISS the case.


Judgment entered this 30th day of April, 2014.




                                                       /Lana Myers/
                                                       LANA MYERS
                                                       JUSTICE




                                                 –7–
