                            NUMBER 13-12-00605-CR

                              COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI – EDINBURG


MARIA ALMAGUER,                                                            Appellant,


                                           v.


THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 93rd District Court
                        of Hidalgo County, Texas.


                          ORDER OF ABATEMENT
              Before Justices Garza, Benavides, and Perkes
                       Order by Justice Benavides

      After a jury trial, appellant, Maria Almaguer, appeals her convictions for one count

of manslaughter, see TEX. PENAL CODE ANN. § 19.04 (West, Westlaw through 2013 3d

C.S.), a second-degree felony enhanced to a first-degree felony; one count of murder,

see id. § 19.02(b)(3) (West, Westlaw through 2013 3d C.S.), a first-degree felony; and
two counts of intentionally or knowingly causing serious injury to a child, each first-degree

felonies, see id. § 22.04(e) (West, Westlaw through 2013 3d C.S.). All of these charges

relate to the death of Almaguer’s 23-month-old son, Ismael. This case was submitted to

this Court on March 31, 2014. An opinion was issued on April 10, 2014, wherein we

affirmed in part and reversed and remanded in part. Almaguer and the State have each

filed motions for rehearing. For the reasons stated below, we abate and remand.

                              I.     MULTIPLE PUNISHMENTS

       Almaguer argues on appeal that her multiple convictions and punishments violate

the constitutional protections against double jeopardy. See U.S. CONST. amend. V, XIV;

TEX. CONST. art. I, § 14. This issue was raised by Almaguer’s counsel during the trial

court’s pronouncement of sentence and was overruled by the trial court; it was raised

again in a motion for new trial, which was denied by operation of law on January 3, 2013.

See TEX. R. APP. P. 21.8(c). The State concedes Almaguer’s point on appeal and agrees

that only one judgment in this case can stand and the others must be vacated. Therefore,

our sole inquiry in this issue is to determine which of the four judgments of conviction

remains. See TEX. R. APP. P. 47.1.

A.     Applicable Law

       It is undisputed in this case that all of Almaguer’s convictions are the “same” for

purposes of double jeopardy. When a defendant is convicted of multiple offenses that

are the “same” for double-jeopardy purposes, case law tells us that the conviction for the

“most serious” offense is retained and the other conviction is set aside. Ex parte Cavazos,

203 S.W.3d 333, 337 (Tex. Crim. App. 2006).




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       Cavazos overruled prior case law which allowed courts to examine other factors—

i.e. the degree of the felony, range of punishment, and rules governing parole eligibility

and awarding of good-conduct time—as “tie breakers” in retaining the most serious

offense. See id. at 338 (overruling Landers v. State, 957 S.W.2d 558, 559–60 (Tex. Crim.

App. 1997) (en banc)); see also 41 GEORGE E. DIX & JOHN M. SCHMOLESKY, CRIMINAL

PRACTICE AND PROCEDURE § 19:16 (3d ed. 2013) (“The Court . . . had second thoughts

[after Landers] about entering the thicket of parole eligibility and awards of good time.”).

Under Cavazos, we look to one factor rather than several in determining the most serious

offense—that is, the most serious offense is the offense with the greatest sentence

assessed. Id. If the sentences are equal in terms of years, we may look to see if

restitution was added to an offense, and if so, that is the most serious offense. See id. at

338–39.

       The court of criminal appeals re-visited this issue two years later, however, in

Bigon v. State, 252 S.W.3d 360, 372–73 (Tex. Crim. App. 2008). In Bigon, the defendant

was convicted of multiple offenses for the same conduct, which the Court held violated

the double-jeopardy provision. Id. at 372. The Court sought to set aside five of the

defendant’s six convictions under the Cavazos test, but the punishment assessed for

each conviction was equal. See id. at 373. As a result, the court of criminal appeals

looked to the degree of the felony for each offense to determine which was most serious.

See id. Thus, the Court affirmed the defendant’s first-degree felony murder conviction

and vacated the remaining second-degree felonies. See id. The Bigon Court further

reaffirmed the policy reasons behind applying the “most serious test” to double-jeopardy

violations—that is, (1) it eliminates arbitrary decisions based upon the order of the




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offenses in the charging instrument; and (2) public safety is insured through the deterrent

influence of penalties. Id. (citing Landers, 957 S.W.2d at 559).

       When convictions entail the same punishment and are of same degree, courts may

use other factors in determining the most serious offense. For example, in Villanueva v.

State, 227 S.W.3d 744, 749 (Tex. Crim. App. 2007), the court of criminal appeals utilized

an affirmative finding of use of a deadly weapon in one first-degree felony to vacate

another equal first-degree felony where an affirmative finding of use of a deadly weapon

was not made.

       In Ruth v. State, No. 13-10-00250-CR, 2011 WL 3840503, at **6–9 (Tex. App.—

Corpus Christi Aug. 29, 2011, no pet.) (mem. op., not designated for publication), this

Court faced a situation in which a defendant was subject to multiple punishments for the

same offense in violation of the double jeopardy provision. In determining which of three

convictions should be retained, we noted that each of the convictions were identical under

the Cavazos, Bigon, and Villanueva holdings. Id. at *8. As a result, we faced “an

unsettled question” of law, and chose to return to pre-Cavazos case law, which retained

the “first-indicted offense” to “break the tie” when all else was equal since the court of

criminal appeals expressly declined to address the issue in Cavazos. See id. (citing Ex

parte Cravens, 805 S.W.2d 790, 791 (Tex. Crim. App. 1991) (en banc); Ex parte Siller,

686 S.W.2d 617, 620 (Tex. Crim. App. 1985) (en banc)).

B.     Discussion

       Almaguer was convicted of: (1) one count of manslaughter, a lesser-included

offense to capital murder and a second-degree felony enhanced to a first-degree felony

based upon a finding of “true” that Almaguer had once been before convicted of a felony




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offense, see TEX. PENAL CODE ANN. § 19.04; (2) one count of felony murder, a first-degree

felony regardless of enhancements, see id. § 19.02(b)(3); (3) intentionally or knowingly

causing serious bodily injury to a child by act, a first-degree felony regardless of

enhancements, see id. § 22.04(e); and (4) intentionally or knowingly causing serious

bodily injury to a child by omission, a first-degree felony regardless of enhancements, see

id. The jury assessed punishment for each count at life imprisonment with a $10,000 fine

and no restitution.

       First, we are unable to utilize Cavazos’s greatest-sentence-only test in this case

because the punishment for each conviction is equal. See Cavazos, 203 S.W.3d at 338.

However, by applying Bigon and Villanueva, we conclude that Almaguer’s manslaughter

conviction, as a second-degree felony before enhancements, should not be considered.

See Bigon, 252 S.W.3d at 372–73; Villanueva, 227 S.W.3d at 749. We note that the

State takes an identical position in its briefing.

       By not considering Almaguer’s manslaughter charge, we are now left to determine

which one of the three remaining first-degree felonies is the most serious offense. Here,

all three convictions are equal in: (1) the assessment of punishment, see Cavazos, 203

S.W.3d at 338; (2) the degree of offense, see Bigon, 252 S.W.3d at 372–73; and (3)

deadly weapon findings, see Villanueva, 227 S.W.3d at 749. Furthermore, we distinguish

our holding in Ruth and find it inapplicable to this particular case. Generally, when

applying the rule announced in Ruth, the conviction that should be affirmed “is the offense

named in the first verdict form,” and typically will be the offense described in Count I of

the indictment. See Cavazos, 203 S.W.3d at 339 n.8. Here, the offense named in the

first verdict form and likewise described in Count I of the indictment was the offense of




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capital murder, under which the jury found Almaguer guilty of the lesser included offense

of manslaughter. However, because we are not considering Almaguer’s manslaughter

conviction for purposes of this analysis, we are unable to utilize the “first-indicted offense”

test in this case.

        As a result, we explore this issue further herein due to the absence of clarity in the

controlling authorities and recurrent problems in applying these authorities in different

scenarios where the offenses are equal no matter which factors are applied to determine

the most serious offense. Both Almaguer and the State agree that only one conviction

should remain; but neither party directs us to any authority to make that determination on

direct appeal. More specifically, the State “defers to this Court” in its briefing.

        We have applied all of the existing controlling authority from the majority opinions

of the court of criminal appeals, as well as precedent from this Court, and we must

therefore seek guidance from Presiding Judge Keller’s dissent in Bigon.1 In it, she states

the following:

        Although I authored Landers, the practical impossibility of determining in
        some cases which offense is really the most serious has convinced me that
        it would be preferable to simply give the local prosecutor the option to
        choose which conviction to retain. Making the matter a function of
        prosecutorial discretion seems to be most consistent with our prior
        recognition that a prosecutor in this type of situation is entitled to “submit
        both offenses to the jury for consideration” and receive “the benefit of the

        1 We note that the Austin Court issued a post-Cavazos opinion that utilized parole and good time

considerations as a tie-breaker when all other tie-breakers yielded an equal result. See Williams v. State,
240 S.W.3d 293, 300 (Tex. App.—Austin 2007, pet. ref'd); but see Ex parte Williams, No. WR-69021-04,
2013 WL 5872880, at *1 (Tex. Crim. App. Oct. 30, 2013) (granting Williams the opportunity to file an out-
of-time petition for discretionary review of the judgment of the Third Court of Appeals’ decision).

         We do not read Cavazos as expansively as the Williams Court and decline to extend its holding
today. However, even if we were to utilize parole and good time considerations as a tie-breaker in this
case, the three remaining convictions would nevertheless remain equal. Pursuant to government code
section 508.145(d)(1), see TEX. GOV’T CODE ANN. § 508.145(d)(1) (West, Westlaw through 2013 3d C.S.),
read in conjunction with article 42.12 of the code of criminal procedure, see TEX. CODE CRIM. PROC. ANN.
art. 42.12 § 3g(a)(1)(A), (I) (West, Westlaw through 2013 3d C.S.), Almaguer is not eligible for release on
parole for any of the remaining three convictions for 30 calendar years.


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       most serious punishment obtained.” If a subjective decision is to be made,
       let the local prosecutor who exercised the decision to bring the case make
       it. Indeed, doing so would be consistent with at least one of our decisions—
       Ex parte Ervin, [991 S.W.2d 804, 817 (Tex. Crim. App. 1999),] the very case
       relied upon to find a double-jeopardy violation here.

Bigon, 252 S.W.3d at 374 (Keller, P.J., dissenting); Cf. Ball v. U.S., 470 U.S. 856, 864–

65 (1985) (remanding a defendant’s sentences under the federal firearm statutes to the

district court to exercise its discretion to vacate one of the convictions). Therefore, absent

any authority to the contrary, we adopt Presiding Judge Keller’s suggestion and remand

to the trial court for the local prosecutor's office to decide which conviction should be

retained as the “most serious.” See id.

                                    II.     CONCLUSION

       We abate this appeal for thirty days and remand this cause to the trial court to hold

a hearing and give the local prosecutor’s office an opportunity to decide which of the

following convictions (counts two, three, and four of trial court cause number CR–217–

09–B) is the most serious offense. The trial court is ordered to conduct a hearing

consistent with this order and solely for this limited purpose. The trial court’s ruling and

new judgment shall be included in a supplemental clerk’s record and transmitted to this

Court along with a reporter’s record of the hearing.

       This appeal is abated and will be reinstated on this Court's active docket only when

the supplemental clerk's record is filed in this Court. The Court will consider an

appropriate motion to reinstate the appeal filed by either party, or the Court may reinstate

the appeal on its own motion. After reinstatement, the Court will consider the issues on

appeal. It is the State’s responsibility to request a hearing date from the trial court and to

schedule a hearing in compliance with this Court's order. If the parties do not request a




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hearing, the court coordinator of the trial court shall set a hearing date and notify the

parties of such date.



                                                      GINA M. BENAVIDES,
                                                      Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
9th day of May, 2014.




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