                                                OPINION
                                          No. 04-09-00677-CR

                                        Nicholas GALLEGOS,
                                              Appellant

                                                  v.

                                         The STATE of Texas,
                                               Appellee

                     From the 290th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2009-CR-4323
                             Judge Sharon S. MacRae, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Karen Angelini, Justice
                  Phylis J. Speedlin, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: February 23, 2011

AFFIRMED IN PART; VACATED IN PART

           In six issues, Nicholas Gallegos challenges his convictions for aggravated sexual assault

with a deadly weapon, aggravated kidnapping with a deadly weapon, burglary of a habitation

with intent to commit aggravated kidnapping, burglary of a habitation with intent to commit

assault, and assault. With the exception of vacating the judgment on the count of burglary of a

habitation with the intent to commit aggravated kidnapping, we affirm the judgment of the trial

court.
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                                         BACKGROUND

         Kathleen Ramos testified that on August 8, 2008, Gallegos broke into her home,

assaulted her, and then forced her to drive around with him while he continued to physically and

sexually abuse her. Ramos is the mother of Gallegos’s two young children, Faith and Aiden.

Ramos and Gallegos were never married and broke up in January 2008.

         On the night in question, Ramos was at her mother’s house with her two children and two

friends, Gabriela Agueros and Sara Hernandez, getting ready to go to a party. Gallegos had been

sending Ramos text messages and calling her about visiting the children. Gallegos left one voice

mail message, saying, “I know you’re inside your house, I can see your lights on.” Ramos heard

knocking on a window and told her friends that Gallegos was outside and to turn off all the lights

in the house. Ramos and Agueros ran to the room where Faith was sleeping; there they noticed

that the air conditioning unit was on the floor and saw Gallegos entering through the window.

They picked up Faith and ran back to the front bedroom where Hernandez was waiting with

Aiden.

         Gallegos kicked open the locked bedroom door, and threw Ramos onto the bed and beat

her. Gallegos also assaulted Agueros and Hernandez. Gallegos managed to push Ramos out of

the house and dragged her by the hair and told her to go to his car, but Ramos refused. Gallegos

went back in the house to get Faith; he put Faith in the car and continued assaulting Ramos,

kicking her in the face and stomach. Ramos got into Gallegos’s car because she “had no

choice,” “because first of all, he had my daughter and he forcefully put me in the car.” Gallegos

returned to the house, and Ramos feared he would also take Aiden, but Gallegos came back out

without the child. Gallegos then drove away with Ramos and Faith in the car.




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          Agueros and Hernandez gave testimony similar to Ramos’s and described Gallegos’s

assault of all three women. Agueros specified that Gallegos called Ramos over ten times that

night, and that at one point Ramos put Gallegos on speaker phone and Agueros heard him say

that he wanted to see her and that he was going to “show up” at her mother’s house; Gallegos

sounded very mad and Ramos was scared. Eventually, Ramos stopped answering Gallegos’s

calls; later, they heard a car driving back and forth by the house. After the assault in the house,

Gallegos dragged Ramos outside by her hair, and when Agueros tried to help Ramos, Gallegos

told her to get away and threatened her with a baseball bat. Agueros stated that Gallegos forced

Ramos into his car. Agueros was afraid that Ramos was going to die because Ramos had said

that Gallegos was going to kill her. Agueros and Hernandez ran to a neighbor’s house to call

police.

          Ramos stated that once in the car, Gallegos hit her with a baseball bat and threatened to

kill her. Gallegos drove around, making several stops, and forced Ramos to give him oral sex by

threatening her with the bat.        Ramos’s brother, Andrew, called Gallegos’s cell phone and

Gallegos instructed Ramos to answer it and tell Andrew that she was okay. Gallegos finally

stopped at a convenience store and left the car running while he went inside; Ramos got in the

driver’s seat and drove away from the store. 1 She called Andrew and told him that she had

escaped, but that she had no idea where she was. Andrew told her to exit the highway and get to

a safe place; Ramos pulled into a McDonald’s parking lot and attracted the attention of two

policemen, including Officer Derek Villegas of the New Braunfels Police Department. She was

taken to the hospital and examined.




1
  The record reflects that Faith remained in the car when her mother drove away from the convenience store. The
record does not contain any further reference to Faith.

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       Officer Villegas did an inventory search of the car, and seized strands of hair, a cell

phone, a baseball bat, and a white t-shirt with blood on it. At trial, Villegas described Ramos’s

obvious injuries, stating, “[s]he had swelling, trauma to the left side of her face and head and she

had blood on her face.” The officer could tell that Ramos had been through something traumatic.

       Gallegos testified on his own behalf. He explained that he went to Ramos’s house to pick

up the children, and became concerned when he saw the lights go out. He went to Ramos’s

bedroom window and was trying to see through the gap between the air conditioning unit and the

window frame when he accidentally pushed the unit in. He ran to the front of the house and

entered through the unlocked front door. He and Ramos began to argue and hit each other. He

left the house and put Faith in the car, and Ramos followed and tripped on the pavement. Ramos

got into the car and Gallegos drove off.

       While he drove, Ramos scratched, kicked, hit, and spit on him. Gallegos “blanked out

[and] lost control,” and pushed and slapped Ramos. Ramos began assaulting herself, pulling her

hair and hitting herself. Gallegos stopped at a convenience store so Ramos could clean herself

up before going to his mother’s house, but Ramos refused to go in. Gallegos left the car running

and went in the store; as he was buying a fountain drink, Ramos drove away.

                                           DISCUSSION

       On appeal, Gallegos raises the following six issues: (1) his right to be free from double

jeopardy was violated when he was convicted of two burglary offenses based on a single entry;

(2) his right to be free from double jeopardy was violated when he was convicted of the lesser-

included offense of aggravated kidnapping and the offense of burglary predicated on aggravated

kidnapping; (3) the trial court erred in allowing the jury to consider “other evidence” during




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deliberations; (4) the trial court erred in submitting a supplemental jury instruction; (5) he

received ineffective post-trial assistance of counsel; and (6) cumulative error.

Double Jeopardy

        We begin by addressing Gallegos’s second issue, in which he complains that the

convictions for burglary with intent to commit aggravated kidnapping and aggravated

kidnapping violate double jeopardy principles because aggravated kidnapping is a lesser-

included offense of burglary as charged. See Bigon v. State, 252 S.W.3d 360, 369-70 (Tex.

Crim. App. 2008) (multiple punishments for the same offense violate double jeopardy

principles). Although Gallegos did not make a double jeopardy objection at trial, we address this

issue because the double jeopardy violation is apparent on the face of the record, and no

legitimate state interest would be served by applying the usual rules of procedural default. 2

Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000).

        The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution,

made applicable to the states through the Fourteenth Amendment, protects an accused against a

second prosecution for the same offense for which he has previously been acquitted or convicted,

and also protects him from being punished more than once for the same offense. Brown v. Ohio,

432 U.S. 161, 165 (1977); Littrell v. State, 271 S.W.3d 273, 275 (Tex. Crim. App. 2008). To

determine whether multiple punishments violate the Double Jeopardy Clause, we compare the

elements of the offenses as pled in the indictment. Littrell, 271 S.W.3d at 276. To determine

whether jeopardy attaches, we apply the “same-elements” test and determine whether each

offense contains an element not contained in the other. See Blockburger v. United States, 284


2
 “In cases in which the trial court either knew or should have known of the jeopardy problem, no purpose is served
by enforcing the state procedural rule and the defendant may assert this interest after trial.” Beltran v. State, 30
S.W.3d 532, 533 n.1 (Tex. App.—San Antonio 2000, no pet.) (quoting DeMoss v. State, 12 S.W.3d 553, 559 n.2
(Tex. App.—San Antonio 1999, pet. ref’d)).

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U.S. 299, 304 (1932); Watson v. State, 900 S.W.2d 60, 61-62 (Tex. Crim. App. 1995). If the

second offense contains an element not found in the first offense, then double jeopardy

protections are not violated. Watson, 900 S.W.2d at 61.

       In Langs v. State, the Court of Criminal Appeals stated that “[i]t is well-settled that a

defendant may not be punished for both the underlying felony and burglary if the burglary

allegation is that the defendant entered a home without the consent of the owner and then

committed the underlying felony within the home as defined in § 30.02(a)(3).” Langs v. State,

183 S.W.3d 680, 686 (Tex. Crim. App. 2006). In that situation, a conviction for either burglary

or the underlying felony may stand, but not both. Id. The Court went on to state that “it is

equally well settled that a substantive felony and a burglary by entering a home without the

consent of the owner and with the intent to commit that felony are two distinct offenses. The

entry of the home with felonious intent and the felony committed within are two distinct criminal

acts, and each requires the State to prove an element that the other does not.” Id.; see TEX.

PENAL CODE ANN. § 30.02(a)(1) (West 2003). Thus, a defendant’s convictions for burglary

under section 30.02(a)(1) and commission of the underlying felony may both stand without

violating double jeopardy. Langs, 183 S.W.3d at 686.

       Here, Count III of the indictment alleged that Gallegos committed burglary under two

alternative manners and means, namely (1) that he entered the habitation with the intent to

commit aggravated kidnapping, or (2) that he entered the habitation and then attempted or did

commit aggravated kidnapping. See TEX. PENAL CODE ANN. § 30.02(a)(1), (3) (West 2003).

The disjunctive charge allowed the jury to determine, under one burglary theory, that Gallegos

had formed the requisite intent to commit an aggravated kidnapping at the time he entered the

house, which is a distinct offense from the actual commission of aggravated kidnapping as



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alleged in Count II of the indictment. See Langs, 183 S.W.3d at 687. Under that theory, the

State was therefore required to prove an element that was not an element of the other alleged

offense. Thus, the State argues there is no double jeopardy violation as long as there is sufficient

evidence to support the theory alleged in the first paragraph of Count III, i.e., that Gallegos

intended to commit the offense of aggravated kidnapping at the time he entered Ramos’s home.

See id. (when separate theories for an offense are submitted to the jury disjunctively, a double

jeopardy violation is not clearly apparent from the face of the record if there is sufficient

evidence to support a theory that would not violate double jeopardy).

       Although intent can be inferred from circumstantial evidence, such as acts, words, and

conduct of the accused, Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004), we cannot

conclude that the evidence in this record was sufficient to establish that Gallegos entered

Ramos’s home with the intent to commit aggravated kidnapping. See Linder v. State, 828

S.W.2d 290, 294 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d) (“To prove intent to commit a

felony . . . in a prosecution for burglary, the State must show that the defendant’s intent existed at

the time of his entry.”). The evidence simply does not demonstrate that, at the time he entered

the house, Gallegos intended to abduct Ramos by using and threatening to use deadly force and

by secreting and holding her in a place where she was not likely to be found. See TEX. PENAL

CODE ANN. § 20.04 (West 2003). Accordingly, the jury could only have based Gallegos’s

burglary conviction on section 30.02(a)(3), requiring that he entered the habitation and then

attempted to commit or committed aggravated kidnapping.              See TEX. PENAL CODE ANN.

§ 30.03(a)(3) (West 2003); Langs, 183 S.W.3d at 686. Because the elements of aggravated

kidnapping are subsumed within the elements of burglary under section 30.02(a)(3), as pled in

the indictment, we conclude that in this case, aggravated kidnapping is a lesser-included offense



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of burglary of a habitation predicated on aggravated kidnapping; therefore, Gallegos was

punished twice for the same criminal conduct in violation of double jeopardy principles.

         When a defendant is subjected to multiple punishments for the same conduct, the remedy

is to affirm the conviction for the “most serious” offense and vacate the other conviction. Ex

parte Cavazos, 203 S.W.3d 333, 337 (Tex. Crim. App. 2006). “[T]he most serious offense is the

offense of conviction for which the greatest sentence was assessed.” Id. at 338. Here, both the

aggravated kidnapping and burglary predicated on aggravated kidnapping offenses were charged

as first degree felonies and Gallegos was sentenced to forty years’ confinement on each

conviction, with the sentences to run concurrently. See TEX. PENAL CODE ANN. §§ 20.04(c);

30.02(d) (West 2003). Thus, we cannot distinguish between the two merely by examining their

respective punishments. However, because aggravated kidnapping is most often charged as a

first degree felony, 3 while burglary, depending on the circumstances, can be charged either as a

state jail felony, second degree felony, or first degree felony, we conclude the most serious

offense is aggravated kidnapping.              Accordingly, we affirm the conviction for aggravated

kidnapping, and vacate the conviction for burglary with intent to commit aggravated kidnapping.

Our vacating of this burglary conviction renders Gallegos’s first issue, in which he complains

that two burglary convictions arising from a single unlawful entry violate double jeopardy

principles, moot.

“Other Evidence” under Texas Rule of Appellate Procedure 21.3(f) and Supplemental Jury

Instruction

         In his third and fourth issues, Gallegos contends the trial court erred in admitting a cell

phone purported to belong to him because the jury later used the phone to discover other

3
  Aggravated kidnapping is always a first degree felony, unless the defendant proves by a preponderance of the
evidence at the punishment stage that he voluntarily released the victim in a safe place; in that case, the offense is
classified as a second degree felony. See TEX. PENAL CODE ANN. § 20.04(c), (d) (West 2003).

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evidence that was adverse to him. After Ramos stopped at the McDonald’s for help, Officer

Villegas collected a cell phone lying on the passenger seat of Gallegos’s car. Villegas placed the

phone, along with strands of hair he collected from the car, in the evidence vault at the New

Braunfels police station. Officer William Armstrong of the San Antonio Police Department later

picked up the evidence and brought it to San Antonio, where he deposited it in a secure locker.

At trial, the State attempted to introduce the cell phone through Officer Armstrong, but the

defense objected that the proper foundation had not been laid to establish that the phone

belonged to Gallegos; the objection was sustained. The State next attempted to introduce the cell

phone through Officer Villegas, and the defense again objected that “[i]t could not be verified

that it belonged to” Gallegos. The trial court sustained the objection. The State then introduced

the phone through Ramos, who stated that she recognized State’s Exhibit 7 as “Nicholas’ Sprint

phone” and that both she and Gallegos used the phone to talk to her brother on the night of

August 8, 2008. The defense objected to the introduction of the phone, stating, “[a]s far as the

phone is concerned, she’s identified that the phone looks like his phone. But outside of that,

there’s nothing else showing that it is his phone.” The trial court overruled the objection.

         After retiring to deliberate, the jury foreman sent a note to the trial court and the

following discussion occurred:

Court:          We got a note from the jury. It says, “A juror read a text message on the cell
                phone. Is this evidence we are permitted to read?” And it’s signed by the
                foreman. Do y’all have any idea what’s on the phone?
State:          Text messages from the defendant to the complainant.
Court:          You’ve read them?
State:          No, Your Honor, I’ve not read them —
Court:          Okay. Do you know what’s on there?
Defense:        I do not know what’s on there, Judge. I mean, it’s hard to verify who that
                message is from.
Court:          Well, that’s right. But here’s the problem. It’s in evidence, and they have a right
                to examine the evidence. So I’m going to tell them “yes.”



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`State:          I think it’s appropriate, Your Honor. The testimony from Kathleen said that —
Court:           We’ll let them examine the cell phone. And take this back, please.


          On appeal, Gallegos specifically complains that the trial court erred in allowing the jury

to consider “other evidence” in violation of Rule 21.3(f) of the Texas Rules of Appellate

Procedure. See TEX. R. APP. P. 21.3(f) (requiring that criminal defendant be granted new trial

“when, after retiring to deliberate, the jury has received other evidence”); Bustamante v. State,

106 S.W.3d 738, 743 (Tex. Crim. App. 2003). We hold that Gallegos waived his complaint

regarding “other evidence” by failing to object to the trial court’s instruction permitting the jury

to consider the text messages. TEX. R. APP. P. 33.1(a)(1) (requiring a timely and specific

objection to preserve error); Garza v. State, 126 S.W.3d 79, 82 (Tex. Crim. App. 2004) (the

purpose of Rule 33.1 is to inform the judge of the basis of the objection and give her the chance

to make a ruling on it). The trial court simply was not made aware of any objection on the basis

of Rule 21.3(f).

          Further, Gallegos waived any complaint related to the supplemental jury instruction. See

Daniell v. State, 848 S.W.2d 145, 147 (Tex. Crim. App. 1993) (“When the trial judge responds

substantively to a jury question during deliberations, that communication essentially amounts to

an additional or supplemental jury instruction.”). Although Gallegos initially objected to the

admission of the cell phone on the basis of authenticity, he did not object at the time the trial

court instructed the jurors they could consider the text messages contained within the phone. See

TEX. R. APP. P. 33.1(a)(1); Green v. State, 912 S.W.2d 189, 192 (Tex. Crim. App. 1995)

(defendant’s failure to object to trial court’s written response to jury question waived error on

appeal). Accordingly, we overrule Gallegos’s third and fourth issues.




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Ineffective Assistance of Counsel

       Next, Gallegos claims he received ineffective post-trial assistance of counsel because

counsel failed to file a motion for new trial and develop a record revealing exactly what “other

evidence” the jury discovered on the cell phone.       Under the well-established standard in

Strickland v. Washington, a defendant seeking to challenge counsel’s representation must

establish that his counsel’s performance (1) was deficient and (2) prejudiced his defense.

Strickland v. Washington, 466 U.S. 668, 687 (1984); Smith v. State, 286 S.W.3d 333, 340 (Tex.

Crim. App. 2009). To show deficiency “the appellant must prove by a preponderance of the

evidence that his counsel’s representation objectively fell below the standard of professional

norms.” Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002); see also Ex parte

McFarland, 163 S.W.3d 743, 753 (Tex. Crim. App. 2005) (explaining that counsel’s conduct

was deficient if he failed to act as “‘a reasonably competent attorney’ would have under the

circumstances”). Trial counsel’s conduct during his representation, evaluated as a whole, is

presumed to fall within the wide range of reasonable professional assistance. Thompson v. State,

9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

       On this record, we cannot agree that Gallegos has established that his counsel’s

performance was deficient. “When a motion for new trial is not filed in a case, the rebuttable

presumption is that it was considered by the appellant and rejected.” Oldham v. State, 977

S.W.2d 354, 363 (Tex. Crim. App. 1998). Although Gallegos contends no reasonable attorney

would forego filing a motion for new trial when the motion was truly meritorious, we can just as

easily presume counsel conferred with his client and discovered the text message was favorable

to Gallegos. Because Gallegos has failed to establish the first Strickland prong, he cannot




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prevail on his claim of ineffective assistance of counsel. Gallegos’s fifth issue on appeal is

therefore overruled.

Cumulative Error

       Finally, Gallegos urges this court to consider the cumulative impact of the errors

presented above. See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999)

(holding that a number of errors may be deemed harmful in their cumulative effect). Because we

have overruled all but one of Gallegos’s other points of error, there is no cumulative error

requiring reversal. Gallegos’s sixth issue is overruled.

                                           CONCLUSION

       Based on the foregoing analysis, the trial court’s judgment on Count III of the indictment

is vacated, and the judgments on the remaining four counts are affirmed.



                                                  Phylis J. Speedlin, Justice

PUBLISH




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