                                                                                PD-0429-15
                                                               COURT OF CRIMINAL APPEALS
                                                                               AUSTIN, TEXAS
October 19, 2015                                             Transmitted 10/15/2015 9:16:56 AM
                                                              Accepted 10/15/2015 12:32:58 PM
                                                                                ABEL ACOSTA
                          CAUSE NO. PD-0429-15                                          CLERK



                   IN THE COURT OF CRIMINAL APPEALS

                                 OF TEXAS


                           FRANCISCO DURAN,
                               Petitioner

                                     v.

                            STATE OF TEXAS,
                               Respondent.


              On Discretionary Review from the Court of Appeals
                      for the Thirteenth District of Texas
               Court of Appeals Cause Number 13-12-00344-CR


                       STATE’S APPELLATE BRIEF


                                   Luis V. Saenz
                                   Cameron County District Attorney

                                   René B. González
                                   Assistant District Attorney
                                   Consuelito Martínez
                                   Associate Attorney
                                   964 East Harrison Street
                                   Brownsville, Texas 78520
                                   Phone: (956) 544-0849
                                   Fax: (956) 544-0869

                                   Attorneys for the State of Texas
                                           TABLE OF CONTENTS

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Salutation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of the Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Argument and Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

         State’s response to Petitioner’s first ground for review. . . . . . . . . . . . . . . . . 4

                   Sub-issue 1(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

                   Sub-issue 1(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

                   Sub-issue 1(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

                   Sub-issue 1(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15




                                                              -i-
                                    INDEX OF AUTHORITIES

Cases

Asberry v. State,
      813 S.W.2d 526 (Tex. App.--Dallas 1991, pet. ref’d). . . . . . . . . . . . . . . . . . 7

Ball v. United States,
       470 U.S. 856 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Banks v. State,
     708 S.W.2d 460 (Tex. Crim. App. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Blount v. State,
      257 S.W.3d 712 (Tex. Crim. App. 2008). . . . . . . . . . . . . . . . . . . . . . 8, 10, 12

Brooks v. State,
     847 S.W.2d 247 (Tex. Crim. App. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Duran v. State,
     No. 13-12-00344-CR, 2013 WL 3378327
     (Tex. App.--Corpus Christi July 3, 2013, pet. granted). . . . . . . . . . . . . . 2, 12

Ellison v. State,
      425 S.W.3d 637 (Tex. App.--Houston [14th Dist.] 2014, no pet.).. . . . . . . 13

Ex Parte Grettenberg,
     790 S.W.2d 613 (Tex. Crim. App. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Herring v. State,
      752 S.W.2d 169 (Tex. App.--Houston [1st Dist.] 1988),
      remanded on other grounds, 758 S.W.2d 283 (Tex. Crim. App. 1988). . . . 7

Landers v. State,
     957 S.W.2d 558 (Tex. Crim. App. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . 13




                                                       -ii-
Polk v. State,
      693 S.W.2d 391 (Tex. Crim. App. 1985). . . . . . . . . . . . . . . . . . . . . . . . 10, 12

Roy v. State,
      76 S.W.3d 87 (Tex. App.--Houston [14th Dist.] 2002, no pet.).. . . . . . . . . 13

Ruben v. State,
     645 S.W.2d 794 (Tex. Crim. App. 1983). . . . . . . . . . . . . . . . . . . . . . . . 10, 12

Statutes

Tex. Penal Code § 12.42. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Tex. Penal Code § 22.02(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Tex. Penal Code § 30.02(d).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Tex. Penal Code § 30.02. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Rules

Tex. R. App. P. 38.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Tex. R. App. P. 43.2(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7




                                                         -iii-
                          CAUSE NO. PD-0429-15
                   ____________________________________

                 IN THE COURT OF CRIMINAL APPEALS

                                OF TEXAS
                   ____________________________________

                             FRANCISCO DURAN,
                                 Petitioner

                                         v.

                            STATE OF TEXAS,
                                Respondent
                   ____________________________________

                       STATE’S APPELLATE BRIEF
                   ____________________________________

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

       COMES NOW, Respondent, the STATE OF TEXAS, by and through the

Cameron County District Attorney, the Honorable Luis V. Saenz, and, pursuant to

Rule 38.2 of the Texas Rules of Appellate Procedure, files this, its Appellate Brief

in the above-styled and -numbered cause of action, and in support thereof, would

show this Honorable Court as follows:




State’s Brief                                                                 Page 1
                         STATEMENT OF THE FACTS

       The Petitioner was indicted, in a multi-count indictment, with the offenses

of: count one - Burglary of a Habitation (while committing or attempting to

commit the underlying felony of Aggravated Assault), a first degree felony, Tex.

Penal Code § 30.02; count two - Aggravated Assault with a deadly weapon; and,

to both of these counts was added an enhancement count alleging a prior

conviction. (C.R. p. 15). The Petitioner was found Guilty of both Count I,

Burglary of a Habitation Committing Aggravated Assault, and Count II,

Aggravated Assault with a Deadly Weapon. (C.R. pp. 78-79). Prior to proceeding

to punishment by the same jury, the State abandoned Count II, due to Double

Jeopardy concerns regarding punishment. The jury found the allegation in the

enhancement count to be true and sentenced Petitioner to 25 years confinement on

Count I. (R.R. Vol. 5, p. 57). Thereafter, Petitioner sought review of his

conviction and the Court of Appeals affirmed, but modified the trial court’s

judgment. The Court of Appeals held that the judgment of the trial court should

be “modified to reflect that the State abandoned Count II before the punishment

phase and affirmatively states that punishment was assessed only on Count I.”

Duran v. State, No. 13-12-00344-CR, 2013 WL 3378327, at *1 (Tex. App.--

Corpus Christi July 3, 2013, pet. granted July 1, 2015). Additionally, the Court of

State’s Brief                                                                  Page 2
Appeals concluded that the Defendant’s conviction by the jury of Burglary of a

Habitation with the underlying offense of Aggravated Assault sufficiently

supported the trial court’s judgment that a deadly weapon had been used. The

Court of Appeals deleted the “special issue” language from the original trial court

decision. This language was removed in order to reflect that the deadly weapon

finding entered by the jury resulted from the Defendant having been found guilty

as charged in the indictment.



                         SUMMARY OF ARGUMENT

       This Court has granted review on Petitioner’s first ground, only, which

contains four sub-issues. In the first sub-issue, Petitioner complains that the Court

of Appeals erred in modifying the trial court’s judgment, such that a second degree

felony burglary offense was subsequently “modified” to a first degree Burglary of

a Habitation. The State responds by asserting that said modification did not occur

and that Petitioner was properly punished for the burglary as a first degree felony.

In his second sub-issue, Petitioner complains that the Court of Appeals erred in

modifying the trial court’s judgment by eliminating the words “special issue” in

the deadly weapon finding. The State responds by asserting that the Court of

Appeals did not err in its modification of the original judgment by removing the

State’s Brief                                                                    Page 3
“special issue” from the deadly weapon language. In sub-issues 1(c) and 1(d),

Petitioner complains that the Court of Appeals erred by failing to vacate the

jeopardy-barred conviction from the trial court’s original judgment, and as a

consequence he alleges he suffered a violation of his Fifth Amendment protection

against Double Jeopardy. The State responds that such a violation has not taken

place.



                         ARGUMENT AND AUTHORITIES

State’s Response to Petitioner’s First Ground for Review

         In his Petition for Discretionary Review, Petitioner states his first Ground

for Review as follows:

         1.   The Court of Appeals erred in affirming and modifying the
         judgment of conviction and in particular:

                a.    by modifying the jury’s conviction from a second degree
                      felony of burglary to a first degree felony burglary by
                      retaining an indictment count of aggravated assault with
                      a deadly weapon that was abandoned by the prosecution;

                b.    by modifying the judgment to delete the words “Special
                      Issue” in the deadly weapon finding so that the State’s
                      abandonment of Count II became a legal shoe that fit
                      their modification(s);

                c.    by failing to vacate the double jeopardy barred
                      conviction(s) as requested and agreed between defense

State’s Brief                                                                     Page 4
                     counsel and the State Appellate Counsel, to wit, the
                     aggravated assault with a deadly weapon;

                d.   by failing to recognize the plain error of petitioner being
                     deprived of a fair trial in violation of the Fifth
                     Amendment’s double jeopardy clause.

       This Honorable Court granted review on this first ground only. Petitioner’s

brief in support of his p.d.r., restates this ground for review and then argues issues

which appear to be beyond the scope of this ground for review, which include

attacking the actions of the trial court in modifying the judgment herein, and

arguing that his sentence was illegal. For this reason, the State will confine its

responsive brief to the ground listed in the petition for discretionary review, and

will ignore the arguments in Petitioner’s Brief which exceed the scope of the

review granted.

Sub-issue 1(a)

       In sub-issue 1(a), Petitioner argues that the Court of Appeals erred in

affirming and modifying the judgment of conviction by modifying the jury’s

conviction from a second degree felony of burglary to a first degree felony

burglary by retaining an indictment count of aggravated assault with a deadly

weapon that was abandoned by the prosecution. In response to sub-issue 1(a), the

State would note that Petitioner was charged in Count I of the indictment as



State’s Brief                                                                      Page 5
follows:

       Francisco Duran, Jr… did then and there intentionally or knows lying
       enter a habitation, without the effective consent of Gonzalo Gonzalez,
       the owner thereof, and attempted to commit or committed the felony
       offense of Aggravated Assault.

(C.R. 15). The offense in count I, therefore, as charged, is a first degree felony

under section 30.02(d) of the Penal Code, because it alleges that the premises are a

habitation, and further, it alleges that Petitioner entered the habitation and he

committed or attempted to commit a felony other than felony theft, i.e., aggravated

assault. See Tex. Penal Code § 30.02(d). The State’s abandonment of Count II

had no effect on the allegations of Count I.

       Nevertheless, even if this Court were to determine that the State’s

abandonment of the Aggravated Assault charge in Count II would have somehow

affected the allegations in Count I and would have reduced the burglary count

from a first degree felony to a second degree felony, the State responds by

asserting that the indictment also contained an enhancement count, which the jury

found to be true. (R.R. Vol. 5, p. 57). Therefore, even if Petitioner is correct in

his argument that the allegation in Count I was a second degree felony (a point

which the State vehemently denies), the burglary was nevertheless correctly

punished as a first degree because of the enhancement count. See Tex. Penal Code



State’s Brief                                                                       Page 6
§ 12.42.

Sub-issue 1(b)

       In sub-issue 1(b), Petitioner complains that the Court of Appeal erred by

modifying the judgment to delete the words “Special Issue” in the deadly weapon

finding so that the State’s abandonment of Count II became a legal shoe that fit

their modification(s). In response to issue 1(b), the State responds by noting that

an appellate court has authority to “modify the trial court’s judgment and affirm it

as modified.” See Tex. R. App. P. 43.2(b). “Appellate Courts have frequently

reformed judgments to correct improper recitations or omissions relating to

punishment.” Asberry v. State, 813 S.W.2d 526, 530 (Tex. App.--Dallas 1991,

pet. ref’d); see also Banks v. State, 708 S.W.2d 460, 462 (Tex. Crim. App. 1986)

(cumulated sentences). Moreover, judgments have been reformed to include a

jury’s affirmative finding of the use of a deadly weapon. Herring v. State, 752

S.W.2d 169, 175 (Tex. App.--Houston [1st Dist.] 1988), remanded on other

grounds, 758 S.W.2d 283 (Tex. Crim. App. 1988). Additionally, “the failure of

the trial court to make the necessary entry as to an affirmative finding is not an

error of judicial reasoning ‘but rather an error of a clerical nature.’” Asberry, 813

S.W.2d at 530. As such the appellate court, in this case, was well within its

authority to modify the lower court’s judgment under the rules of Texas Appellate

State’s Brief                                                                   Page 7
Procedure 43.2(b), and did not err as the Petitioner asserts.

       Further, the State would show that, the modification of the judgment herein

by the Court of Appeals was necessary to reflect the jury’s finding of a deadly

weapon. Based on the language in the indictment, Petitioner had notice that the

State would seek an affirmative finding of a Deadly Weapon. This Court stated in

Blount v. State:

       Aggravated assault may be committed in only two ways: (1) by “caus
       [ing] serious bodily injury” or (2) by “us[ing] or exhibit[ing] a deadly
       weapon during the commission of the assault.” Tex. Penal Code §
       22.02(a). Each of these involves the use of a deadly weapon. The
       first way necessarily implies the use of a deadly weapon, which is
       “anything that in the manner of its use or intended use is capable of
       causing death or serious bodily injury.” Id., § 1.07(a)(17)(B). The
       second way specifies the use of a deadly weapon. Therefore an
       allegation that a defendant committed aggravated assault gives him
       notice that the deadly nature of the weapon alleged in the indictment
       would be an issue at trial and that the State may seek an affirmative
       finding on the use of the weapon.

Blount v. State, 257 S.W.3d 712, 714 (Tex. Crim. App. 2008). Count II of the

indictment herein clearly states that the underlying felony alleged, was Aggravated

Assault. The evidence presented to the jury was of a single criminal episode,

wherein the jury found Defendant guilty under Count II (aggravated assault with a

deadly weapon), and Count I (burglary of a habitation-with the underlying felony

being the identical aggravated assault). Therefore, the Petitioner had notice of the



State’s Brief                                                                     Page 8
State’s intent to seek an affirmative finding of a deadly weapon as to both counts.

       In Ex parte Grettenberg, 790 S.W.2d 613 (Tex. Crim. App. 1990), this

Court confronted an analogous situation. In that case, the defendant was charged

with two crimes under a single indictment: the first count charged Grettenberg

with burglary of a habitation with the intent to commit aggravated assault, and the

second count charged him with attempted capital murder and alleged use of a

deadly weapon. Both counts arose from the same criminal episode; however, only

the second count specifically alleged use of a deadly weapon. The State ultimately

abandoned the second count, and the defendant was convicted of burglary with

intent to commit aggravated assault. In addition, the jury found that a deadly

weapon had been used during the crime. This Court held that the original

indictment gave the defendant adequate notice that the State would seek an

affirmative finding of use or exhibition of a deadly weapon, even though that part

of the indictment had been voluntarily abandoned by the State. As this Court

stated, “when the theories of prosecution contained in the counts are so

interrelated as under the facts of this case, the election by the State to pursue one

of the counts in preference to the other will not vitiate the notice given in the

indictment in its original form.” Id. at 614; see also Brooks v. State, 847 S.W.2d

247, 248-49 (Tex. Crim. App. 1993).

State’s Brief                                                                       Page 9
       The jury in the present case heard evidence of the deadly weapon and found

Petitioner guilty of burglary of a habitation (with the underlying felony being

aggravated assault) in count I and of aggravated assault with a deadly weapon in

count II. In both instances that jury found the Petitioner guilty “as charged in the

indictment.” (C.R. pp. 78-79). Therefore, under this Court’s decisions in Blount

and Polk, the language of the indictment specifically placed the issue before the

trier of fact, and an affirmative finding was de facto made when the Petitioner was

found guilty “as charged in the indictment.” See Blount, 257 S.W.3d at 714

(holding that an allegation that a defendant committed aggravated assault

necessarily includes an allegation of a deadly weapon, upon which the State may

seek an affirmative finding on the use of the weapon); see also Polk v. State, 693

S.W.2d 391, 394 (Tex. Crim. App. 1985) (citing Ruben v. State, 645 S.W.2d 794

(Tex. Crim. App. 1983)) (holding that when an allegation specifically places the

deadly weapon issue before the trier of fact, then an affirmative finding is de facto

made when the defendant is found guilty “as charged in the indictment”).

       Further, because the deadly weapon allegation was contained in the

indictment, the matter was left for the jury to decide. Where an indictment leaves

the issue before the jury, then an affirmative finding is automatically made when

the jury finds the defendant guilty as charged in the indictment. See Polk, 693

State’s Brief                                                                 Page 10
S.W.2d at 394 (holding that when an affirmative finding is made by the trier of

fact, it then becomes the mandatory duty of the trial court to enter a separate and

specific deadly weapon finding in the judgment).

       Accordingly, the modification of the judgment herein by the Court of

Appeals was both proper, under the law and the facts herein, and authorized under

the Rules of Appellate Procedure.

Sub-issue 1(c)

       In sub-issue 1(c), Petitioner complains that the Court of Appeals erred by

failing to vacate the double jeopardy barred conviction(s) as requested and agreed

between defense counsel and the State Appellate Counsel, to wit, the aggravated

assault with a deadly weapon. In response to issue 1(c), the State responds by

noting that the Court of Appeals herein did modify the judgment herein to reflect

that the State did abandon Count II, the charge of aggravated assault with a deadly

weapon. Specifically, the opinion of the Court of Appeals states:

       We conclude that the judgment should be modified to reflect that the
       State abandoned Count II before the punishment phase and to
       affirmatively state that punishment was assessed only on Count I.

                                     * * * * *

       We modify the judgment...to reflect that the State abandoned Count II
       before the punishment phase and to reflect that punishment was
       assessed only on Count I... . We affirm the judgment as modified.

State’s Brief                                                                 Page 11
Duran, 2013 WL 3378327 at *4, *10. Accordingly, the prohibition against

multiple punishments for a single offense has not been violated.

       For further response, if any need there be, the State notes that in its brief to

the Court of Appeals, the State did suggest that vacating the second count from the

judgment would be appropriate.1 Therefore, should this Court deem it necessary,

the State does not oppose a further correction of the trial court’s judgment, to

vacate the conviction as to count II herein.

Sub-issue 1(d)

       In sub-issue 1(d), Petitioner complains that the Court of Appeals erred by

failing to recognize the plain error of petitioner being deprived of a fair trial in

violation of the Fifth Amendment’s double jeopardy clause. In response to sub-

issue 1(d), the State responds by noting that a defendant is not deprived a fair trial

merely by being prosecuted for two offenses that are the same for double jeopardy

       1
          The State further noted in its brief on direct appeal that, while the trial court’s judgment
should not reflect the Petitioner’s conviction for aggravated assault, the jury’s finding that
Petitioner used or exhibited a deadly weapon is nevertheless proper (State’s Brief on direct
appeal, pp. 32-34). The State now re-urges this position, as noted above, and asserts that even
should this Court amend the judgment herein by vacating the conviction for aggravated assault,
the facts and applicable law nevertheless supports the affirmance of the jury’s deadly weapon
finding. See Blount v. State, 257 S.W.3d 712, 714 (Tex. Crim. App. 2008) (holding that an
allegation that a defendant committed aggravated assault necessarily includes an allegation of a
deadly weapon, upon which the State may seek an affirmative finding on the use of the weapon);
see also Polk v. State, 693 S.W.2d 391, 394 (Tex. Crim. App. 1985) (citing Ruben v. State, 645
S.W.2d 794 (Tex. Crim. App. 1983)) (holding that when an allegation specifically places the
deadly weapon issue before the trier of fact, then an affirmative finding is de facto made when
the defendant is found guilty “as charged in the indictment”).

State’s Brief                                                                                 Page 12
purposes; rather, when a defendant’s Fifth Amendment is violated his or her sole

remedy is to retain the conviction with the most serious punishment and vacate

any remaining convictions that are the same for double jeopardy purposes. Ball v.

United States, 470 U.S. 856, 864 (1985); Landers v. State, 957 S.W.2d 558, 559

(Tex. Crim. App. 1997). A successful double jeopardy challenge will not require a

retrial or remand to the trial court. Ellison v. State, 425 S.W.3d 637, 643 (Tex.

App.--Houston [14th Dist.] 2014, no pet.) (citing Roy v. State, 76 S.W.3d 87, 94

(Tex. App.--Houston [14th Dist.] 2002, no pet.). Accordingly, the sole remedy

which Petitioner is entitled to, is to have his conviction for Count II vacated.



                                      PRAYER

       WHEREFORE, PREMISES CONSIDERED, the State of Texas prays

that this Court will overrule Petitioner’s ground for review, and affirm both the

judgment of conviction and the sentence herein.




State’s Brief                                                                  Page 13
                      Respectfully Submitted,

                      LUIS V. SAENZ
                      Cameron County District Attorney
                      964 East Harrison Street, 4th Floor
                      Brownsville, Texas 78520
                      Phone: (956) 544-0849
                      Fax: (956) 544-0869



                By:   /s/ René B. González
                      René B. González
                      Assistant District Attorney
                      State Bar No. 08131380
                      rgonzalez1@co.cameron.tx.us
                      Consuelito Martínez
                      Associate Attorney
                      Temporary State Bar No. 24095835
                      consuelito.martinez@co.cameron.tx.us

                      Attorneys for the State of Texas




State’s Brief                                               Page 14
                       CERTIFICATE OF COMPLIANCE

       I certify that this document contains 3,051 words (excluding the cover, table

of contents and table of authorities). The body text is in 14 point font, and the

footnote text is in 12 point font.



                                       /s/ René B. González
                                       René B. González




                          CERTIFICATE OF SERVICE

       I certify that a copy of the foregoing State’s appellate Brief was served upon

Mr. Joseph Moreno, Attorney at Law, 23409 El Paso Drive, Harlingen, Texas

78552, j_moreno_02@yahoo.com on the 15th day of October, 2015.



                                       /s/ René B. González
                                       René B. González




State’s Brief                                                                 Page 15
