                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


                                                §
                                                                No. 08-13-00369-CR
                                                §
                                                                   Appeal from the
 EX PARTE: ARMANDO AVALOS.                      §
                                                             County Court at Law No. 1
                                                §
                                                              of El Paso County, Texas
                                                §
                                                                 (TC# 20120C00978)
                                                §

                                         OPINION

       Appellant Armando Avalos appeals the trial court’s denial of his writ of habeas corpus.

In his sole issue, Appellant contends that because he previously pleaded guilty to stealing certain

property found in his truck from one victim, the State is precluded, under the Double Jeopardy

Clause, from subsequently prosecuting him for any other separately stolen property discovered

during the course of the same arrest. We affirm.

                                        BACKGROUND

       In September 2011, Appellant pleaded guilty to felony theft of property worth more than

$1,500 but less than $20,000 in Cause No. 20110D01442. Specifically, Appellant admitted to

possessing a computer router and jewelry stolen from Brian Heller. Police found the computer

router and jewelry, along with property stolen from other people, in Appellant’s truck during a
traffic stop. The trial court sentenced Appellant to nine months in jail. Several months after

Appellant’s plea, the State then charged Appellant with misdemeanor theft of property worth

more than $50 but less than $500, alleging that he possessed computer equipment and jewelry

stolen from William Lockhart.1 Appellant filed for a pretrial writ of habeas corpus, arguing that

the instant prosecution violated the Double Jeopardy Clause because he already pleaded guilty to

felony charge arising out of the same transaction or occurrence. The trial court denied Appellant

relief. He appealed.

                                                 DISCUSSION

        In one issue, Appellant argues that this prosecution violates double jeopardy because the

misdemeanor offense for which he was charged is a lesser-included offense of the felony theft

offense to which he previously pleaded guilty. Appellant also maintains that further prosecution

is barred because the stolen property at issue here was part of the same transaction or occurrence

as in the previous case. We disagree on both counts.

                                              Standard of Review

        We review the facts underlying the trial court’s habeas corpus decision “in the light most

favorable to the trial judge’s ruling and should uphold [that ruling] absent an abuse of

discretion.” Ex parte Quintana, 346 S.W.3d 681, 684 (Tex.App.--El Paso 2009, pet. ref’d). We

review de novo mixed questions of law and fact that do not hinge on credibility or demeanor

determinations. Ex parte Miller, No. 08-11-00245-CR, 2012 WL 5949741, at *2 (Tex.App.--

El Paso Nov. 28, 2012, no pet.)(not designated for publication).

                                                     Analysis

1
  In Cause No. 20120C07317, the State indicted Appellant for stealing between $50 and $500 worth of property—
specifically, a digital camera—from another person, Reema Singh. That property was also found in the truck during
the arrest. Appellant sought pretrial habeas relief in that case as well on identical grounds as this case. The trial
court denied relief in that cause number, and Appellant appealed. That case before this Court is Cause No. 08-13-
00368-CR.

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       “The Double Jeopardy Clause protects criminal defendants from three things: 1) a second

prosecution for the same offense after acquittal; 2) a second prosecution for the same offense

after conviction; and 3) multiple punishments for the same offense.” Ex parte Milner, 394

S.W.3d 502, 506 (Tex.Crim.App. 2013).

       At the outset, we note that Appellant’s assertion that the misdemeanor theft charge here is

a lesser-included offense of felony theft is incorrect under these facts. A person convicted of a

crime may not later be subject to prosecution for any of the spectrum of lesser-included offenses

whose elements are completely subsumed within the convicted offense. See Rubio v. State, No.

08-00-00341-CR, 2002 WL 125732, at *5 (Tex.App.--El Paso Jan. 31, 2002, no pet.)(not

designated for publication)(citing Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180,

182, 76 L.Ed. 306 (1932))(recognizing that if each criminal offense requires proof of at least one

element that the other does not, the offenses are distinct and prosecution for both is permissible).

An offense is a lesser-included offense where inter alia “it differs from the offense charged only

in the respect that a less serious injury or risk of injury to the same person, property, or public

interest suffices to establish its commission.” [Emphasis added]. TEX.CODE CRIM.PROC.ANN.

art. 37.09(2)(West 2006). Although misdemeanor theft would be subsumed within a felony theft

as an elemental matter under the Blockburger test, by definition, a crime committed against

another person and with respect to different property is not a lesser-included offense, but a

separate offense. This point is unavailing.

       We also note that conviction for one offense does not necessarily preclude prosecution

for all offenses that occurred in a single transaction. “The protection against double jeopardy

does not apply to separate and distinct offenses that occur during the same transaction.” Ex parte

Milner, 394 S.W.3d 502, 506 (Tex.Crim.App. 2013). Where a defendant is accused of violating



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the same statute multiple times, we must determine what the appropriate “unit of prosecution” is

as defined by the Legislature to assess preclusion under double jeopardy. See Garfias v. State,

424 S.W.3d 54, 59 (Tex.Crim.App. 2014).

         Case law conclusively demonstrates that for theft, each victim is an appropriate unit of

prosecution, and the State may charge a defendant with separate theft counts where property is

stolen from separate victims during a single criminal episode. In Iglehart v. State, 837 S.W.2d

122, 124 (Tex.Crim.App. 1992), overruled on other grounds as recognized by Bailey v. State, 87

S.W.3d 122, 128-29 (Tex.Crim.App. 2002), the defendant burglarized the home of Robert

LaVaye, stealing a pistol and a typewriter from LaVaye and a fur coat and stereo equipment

from his daughter Valerie. The State charged Iglehart with misdemeanor theft for taking the

items from LaVaye and felony theft for taking the items from Valerie. Iglehart pleaded nolo

contendere to the misdemeanor theft charge, then filed for a writ of habeas corpus, arguing that

subjecting her to the felony theft prosecution would constitute double jeopardy. Iglehart, 837

S.W.3d at 124-25. The Texas Court of Criminal Appeals held that the theft from LaVaye and the

theft from Valerie were separate offenses, even though they occurred within one criminal

transaction or episode.2 Id. at 127; see also Rubio, 2002 WL 125732, at *5-*6 (recognizing that

Inglehart allows for successive theft prosecution where property is stolen from different owners).

         This case is indistinguishable from Iglehart.                   Here, Appellant was charged with

possession property stolen from one victim (William Lockhart) after pleading guilty to

possessing property stolen from Brian Heller. As such, the charged offense is a separate offense,


2
  To the extent, Appellant relies on the “same conduct” test articulated in Grady v. Corbin, 495 U.S. 508, 110 S.Ct.
2084, 109 L.Ed.2d 548 (1990)(forbidding the State from charging a defendant who was convicted of a crime from
being subject to later prosecution for other crimes arising out of the same criminal episode if the State is required to
re-prove conduct from the first conviction), we note that Grady was overruled three years later by United States v.
Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). Dixon abolished the same conduct test as alternate
grounds for relief when a later-charged offense did not fit squarely within Blockburger’s elemental framework. See
Bailey, 87 S.W.3d at 129.

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and double jeopardy does not stand as a bar to prosecution.

       Issue One is overruled. The judgment of the trial court is affirmed.



April 15, 2015
                                            YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)




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