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                                         No. PD-1676-14




                                             IN THE                           COiltf
                               COURT OF CRIMINAL APPEALS
                                           OF TEXAS                                    FEB 27 2015


                                                                               Ahr' "•i'^a     C"®?k
                                     RORY KEITH JONES,
                                       Appellant/Petitioner
                                                                          nni     FILED IN
                                                VS.                       COURT OF CRIMINAL APPEALS
                                                                                   [77^ fin ---•;
                                                                                   f ;--> <W 4,.,J
                                    THE STATE OF TEXAS
                                      Appellee/Respondent
                                                                               /wi Acosta, Clerk




        Petition in Cause No. F-2014-0079-C from the 211th Judicial District Court of Denton
            County, Texas, and the Fourth Court of Appeals, Texas, No. 02-14-00068-CR




                         PETITION FOR DISCRETIONARY REVIEW




                                                         Respectfully submitted,

                                                         Rory K. Jones
                                                         Appellant/Petitioner, Pro se
                                                         TDCJ-CID#01914710
                                                         Wynne Unit
                                                         810 FM 2821
                                                         Huntsville, Texas 77349
                                                   INDEX




LIST OF AUTHORITIES                                                                     3

STATEMENT REGARDING ORAL ARGUMENT                                                      4

STATEMENT OF THE CASE                                                                  4

STATEMENT OF PROCEDURAL HISTORY                                                        6

QUESTION FOR REVIEW                                                                    2


    1. Whether the court of appeals erred by failing to find the evidence insufficient to
       support the conviction because of the State failed to disprove double-jeopardy
       attached beyond a reasonable doubt, violating Due Process and Petitioner's right
       to a fair trial, in violation of Art. 1, §§ 13 & 19 of the Texas Constitution, Art.
         1.04, Texas Code of Criminal Procedure. '


REASONS FOR REVIEW                                                                     7

ARGUMENT & AUTHORITIES                                                             11-17

PRAYER FOR RELIEF                                                                     17

CERTIFICATE OF SERVICE                                                                18

APPENDIX A                                                                      Opinion




1Saxton v. State, 116 S.W.2d 685 (Tex. App. — Houston [14th Dist] 1989).

                                                       2
                               LIST OF AUTHORITIES



CASE LAW:                                                                     PAGE:

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)                     13

Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008)                      13

Jackson v. Virginia, 443 U.S. 307, 319 (1979)                                    12

Saxton v. State, 116 S.W.2d 685 (Tex. App. — Houston [14th Dist.] 1989)           2

Saxtonv. State, 804 S.W.2d 910, 914 (Tex. Crim. App.)                            12

Westbrook v. State, 29 SW3d 103, 111 (Tex. Crim. App. 2000)                      12

Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007)                    13

Zulianiv. State., 97 S.W.3d 589, 594 (Tex. Crim. App. 2003)                      12

STATUTES:                                                                     PAGE:

TEX. PENAL CODE §§ 19.02(b) (1) & (b) (2)                                         5

Tex. R. App. P. 66.3(a)                                                           6
Tex. R. App. P. 66.3(b)                                                        6,17

Tex. Penal Code Ann. § 19.02(b)                                           ,      11

Tex. Penal Code Ann. § 19.02(a) (l)-(2), (d) (West)                             14

Tex. R. Evid. 801(d)                  :                                         16

Tex. R. Evid. 802                                                               16


Tex.R.Evid.803(2)                                                               16
                                   No. PD-1676-14




                                      PD-1676-14


                                        IN THE
                        COURT OF CRIMINAL APPEALS
                                      OF TEXAS




                               RORY KEITH JONES,
                                 Appellant/Petitioner

                                          VS.


                              THE STATE OF TEXAS
                                 Appellee/Respondent




 Petition in Cause No.F-2014-0079-C from the 211th Judicial District Court of Denton
     County, Texas, and the Fourth Court of Appeals, Texas, No. 02-14-00068-CR




                  PETITION FOR DISCRETIONARY REVIEW




TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

       Appellant-Petitioner Rory K. Jones, (hereinafter "Petitioner"), petitions the Court

to review the decision affirming the judgment and sentence in cause number F-2004-

0079-C, out ofthe 211th Judicial District Court ofDenton County, Texas.
                    STATEMENT REGARDING ORAL ARGUMENT


         Petitioner is not an attorney and incarcerated. Oral argument would not be helpful

to the Court under these circumstances.


                                  STATEMENT OF THE CASE


        Petitioner Rory Keith Jones was charged, indicted and convicted for the felony

offenses of aggravated robbery, aggravated assault, and attempted kidnapping. See Tex.

Penal Code-Ann. §§ 15.01, 20.04, 22.02(a)(2), 29.03 (West 2011). After Petitioner

pleaded true to the prior-felony-conviction enhancement paragraph in each indictment,

the jury assessed punishment at life in prison in each case and assessed fines in the

amounts of $10,000 for the aggravated assault conviction and $2,500 for the attempted

aggravated kidnapping conviction. The trial court sentenced Petitioner accordingly,

ordering that the sentences run concurrently. In a single issue, Petitioner claims that

convicting him for both aggravated robbery and aggravated assault violated the Fifth

Amendment proscription against double jeopardy. The State concedes error on this issue

and requests that we set aside Petitioner's conviction and punishment for aggravated

assault. After conducting an independent evaluation, we will vacate and dismiss

Petitioner's conviction for aggravated assault and affirm Petitioner's convictions for

aggravated robbery and attempted aggravated kidnapping.2 This proceeding followed.


                       STATEMENT OF PROCEDURAL HISTORY


        A panel of the Second Court of Appeals affirmed thejudgment of the trial court in

a decision rendered November 20, 2014. {See Jones v. State, No. 02-14-00068-CR).

2Although Petitioner appealed hisconviction forattempted aggravated kidnapping, he didnotassert any
error. Thus, thecourt of appeals affirmed theconviction as a matter of course and included this fact in a
footnote of its memorandum opinion. Id. Fn. 2.
Petitioner filed one motion for an extension of time, which was granted by the Court

allowing Petitioner up to and including, Friday, February 20, 2015, in which to file his

pro se PDR. This PDR was deposited into the prison mailbox on February 19, 2015,

making it timely. Additionally, as an incarcerated litigant, Petition filed a motion to

suspend Rule 9(c), Tex. R. App. P., which the Court granted requiring him to only file

one copy of the instant PDR. Petitioner now files his petition for discretionary review

pursuant to Rule 68 of the Texas Rules of Appellate Procedure.

                      QUESTIONS PRESENTED FOR REVIEW

   1. Whether the court of appeals erred by failing to find the evidence insufficient to
      support the conviction because of the State failed to disprove double-jeopardy
      attached beyond a reasonable doubt, violating Due Process and Petitioner's right
      to a fair trial, in violation of Art. 1, §§ 13 & 19 of the Texas Constitution, Art.
       1.04, Texas Code of Criminal Procedure.

                              REASONS FOR REVIEW


   A. The Court of Appeals' decision conflicts with other Court of Appeals' decisions
       on the same issues. Tex. R. App. P. 66.3(a).

   B. The Court of Appeals has erroneously decided important questions of state and
       federal law that have not been, but should be, settled by this Court. Tex. R. App.
       P. 66.3(b).

   C. The Court of Appeals has decided important questions of state and federal law in
      conflict with applicable decisions of the Supreme Court of the United States. Tex.
       R. App. P. 66.3(c).


            ARGUMENT IN SUPPORT OF REASONS FOR REVIEW

                                  Factual Background


      After getting off work as a maid at the Best Value Inn in Lewisville, Texas,

Modesta Sanchez-Montero saw Petitioner walk by where she was sitting. About twenty

minutes later, Petitioner approached her from behind, grabbed her, and demanded money.
Petitioner was wielding an object that appeared to be a screwdriver and threatened to stab

Sanchez-Montero if she did not comply with his demands. He then began beating her and

forcibly dragging her towards a truck in the parking lot. Sanchez-Montero broke free, ran

to her room, and called the motel owner. The owner confronted Petitioner and told him to

wait while the owner investigated the situation. Petitioner instead got into his truck and

fled the motel. The State charged Petitioner with aggravated robbery, aggravated assault,

and attempted aggravated kidnapping. The pertinent portion of Petitioner's aggravated

robbery indictment read:" [WJhile in the course of committing theft of property and with

intent to obtain or maintain control of said property, [Petitioner did] intentionally or

knowingly threaten or place Modesta Sanchez-Montero in fear of imminent bodily injury

or death, and [Petitioner] did then and there use or exhibit a deadly weapon, to-wit: a

screwdriver or an object unknown to the Grand Jury, that in the manner of its use or

intended use was capable of causing death or serious bodily injury."

       The pertinent portion of Petitioner's aggravated assault indictment read:

"[Petitioner did] intentionally or knowingly threaten Modesta Sanchez-Montero with

imminent bodily injury, and did then and there during the commission of said assault, use

or exhibit a deadly weapon, to-wit: a screwdriver or an unknown object to the Grand

Jury, that in the manner of its use or intended use or intended use was capable of causing

death or serious bodily injury.

                                  Question One Restated

    1. Whether the court of appeals erred by failing to find the evidence insufficient to
       support the conviction because of the State failed to disprove double-jeopardy
       attached beyond a reasonable doubt, violating Due Process and Petitioner's right
       to a fair trial, in violation of Art. 1, §§ 13 & 19 of the Texas Constitution, Art.
        1.04, Texas Code of Criminal Procedure.
       The Double Jeopardy Clause of the United States Constitution provides that no

person shall be subjected to twice having life or limb in jeopardy for the same offense.

U.S. Const, amend. V. A doublejeopardy claim may be raised for the first time on appeal

"when the undisputed facts show the doublejeopardy violation is clearly apparent on the

face of the record and when enforcement of usual rules of procedural default serves no

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

(footnotes omitted); see Langs v. State, 183 S.W.3d 680, 686-87 (Tex. Crim. App. 2006).


       Impermissible multiple punishments occur when the same criminal act is

punished twice under two distinct statutory provisions and the legislature intended that

the conduct be punished only once. Bigon v. State, 252 S.W.3d 360, 370 (Tex. Crim.

App. 2008). To determine whether there have been multiple punishments for the same

offense, we apply the "same elements" test from Blockburger v. United States, 284 U.S.

299, 304, 52 S. Ct. 180, 182 (1932). See Ex Parte Denton, 399 S.W.3d 540, 545 (Tex.

Crim. App. 2013). We focus on the elements alleged in the charging instrument to

determine whether the offenses as charged require proof of the same elements. Bigon,

252 S.W.3d at 370. Double-jeopardy challenges should be made even to offenses that

have differing elements under the Blockburger test "if the same 'facts required' are

alleged in the indictment." Id. (citing Hall v. State, 225 S.W.3d 524 (Tex. Crim. App.

2007)). If two offenses do not have the same elements under the Blockburger test, but if

other indicia manifest a legislative intent that an accused not be punished for two offenses

arising from the course of a single transaction, an accused may not be punished for both

offenses. See Gonzales v. State, 304 S.W.3d 838, 845-46 (Tex. Crim. App. 2010).
       Here, the indictments for aggravated robbery and aggravated assault both alleged

that Petitioner intentionally or knowingly threatened Modesta Sanchez- Montero with

imminent bodily injury and used a screwdriver or unknown object that in its manner of

use or intended use was capable of causing death or serious bodily injury. The indictment

for aggravated robbery further alleged that Petitioner committed theft. When faced with

the same double jeopardy issue as we have here and almost identical indictments, the

court of criminal appeals in Denton explained,



       [A]s plead, aggravated assault is a lesser-included offense of aggravated
       robbery because "it is established by proof of the same or less than all the
       facts required to establish the commission of the offense charged[.]" "If.
       . . the prosecution, in proving the elements of one charged offense, also
       necessarily proves another charged offense, then that other offense is a
       lesser-included offense." If there is no clear legislative intent to punish
       the offenses separately, multiple punishments for the criminal act that is
       the subject of the prosecution is barred. No such intent has been shown
       here. We conclude that applicant has shown that [his convictions for
       aggravated robbery and aggravated assault] are in violation of his
       constitutional double-jeopardy protections that preclude multiple
       punishments for the same offense.

399 S.W.3d at 547. Here, as in Denton, the aggravated assault, as charged, is a lesser-

included offense of the aggravated robbery, and Jones's convictions for both offenses

violated double jeopardy. See id; cf. Garfias v. State, 424 S.W.3d 54, 63-64 (Tex. Crim.

App.) (holding that aggravated assault by causing bodily injury was not a lesser-included

offense of aggravated robbery by threat), cert, denied, 2014 WL 3753800 (2014).

       While it is true that the court of appeals vacated Petitioner's aggravated assault

conviction, Petitioner avers that it should have vacated both the aggravated robbery and
aggravated assault convictions, versus just the one.


       Petitioner respectfully submits that this Court should settle these weighty

constitutional questions, of grave concern to Texas' citizens and of great importance to

Texas jurisprudence. Tex. R. App. P. 66.3(b).



                                PRAYER FOR RELIEF


       Petitioner respectfully prays that this Honorable Court grant his Petition for

Discretionary Review and reverse the decision of the Court of Appeals.

       Signed on this the 19th day ofFebruary 2015.


                                              Respectfully submitted,




                                                rDCJ-q"'
                                              Wynne LMit
                                              810FM/2821
                                              Huntsville, Texas 77349




                                             10
                           CERTIFICATE OF SERVICE

       I, Rory K. Jones, TDCJ-CID#01914710, Petitioner, pro se, herein certifies that a

true and correct copy of the above and foregoing Petition for Discretionary Review was

sent to the Denton County District Attorney, and The State Prosecuting Attorney, by

placing same, in the prison mail box, first-class, postage paid, on this the 191 day of

February, 2015..
Appendix

   A




   12
                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                                   FORT WORTH


                             NO. 02-14-00068-CR
                                   02-14-00069-CR
                                   02-14-00070-CR



RORY JONES                                                         APPELLANT


                                       V.


THE STATE OF TEXAS                                                       STATE




         FROM THE 211TH DISTRICT COURT OF DENTON COUNTY
      TRIAL COURT NO. F-2014-0079-C, F-2014-0080-C, F-2014-0081-C




                        MEMORANDUM OPINION




                                I. Introduction


      A jury convicted Appellant Rory Jones of aggravated robbery, aggravated

assault, and attempted aggravated kidnapping.       See Tex. Penal Code Ann.

§§ 15.01, 20.04, 22.02(a)(2), 29.03 (West 2011). After Jones pleaded true to the


      1See Tex. R. App. P. 47.4.
prior-felony-conviction enhancement paragraph in each indictment, the jury

assessed punishment at life in prison in each case and assessed fines in the

amounts of $10,000 for the aggravated assault conviction and $2,500 for the

attempted aggravated kidnapping conviction.        The trial court sentenced Jones

accordingly, ordering that the sentences run concurrently.          In a single issue,

Jones claims that convicting him for both aggravated robbery and aggravated

assault violated the Fifth Amendment proscription against double jeopardy. The

State concedes error on this issue and requests that we set aside Jones's

conviction and punishment for aggravated assault.               After conducting an

independent evaluation, we will vacate and dismiss Jones's conviction for

aggravated assault and affirm Jones's convictions for aggravated robbery and

attempted aggravated kidnapping.2
                           II. Factual and Background


      After getting off work as a maid at the Best Value Inn in Lewisville, Texas,

Modesta Sanchez-Montero saw Jones walk by where she was sitting.                About

twenty minutes later, Jones approached her from behind, grabbed her, and

demanded money.         Jones was wielding an object that appeared to be a

screwdriver and threatened to stab Sanchez-Montero if she did not comply with

his demands. He then began beating her and forcibly dragging her towards a


      2Although Jones appealed his conviction for attempted aggravated
kidnapping, he did not assert any error. Thus, we affirm the conviction as a
matter of course and include it here only in the interest of clarity.
truck in the parking lot. Sanchez-Montero broke free, ran to her room, and called

the motel owner.      The owner confronted Jones and told him to wait while the

owner investigated the situation. Jones instead got into his truck and fled the

motel.


         The State charged Jones with aggravated robbery, aggravated assault,

and attempted aggravated kidnapping.             The pertinent portion of Jones's

aggravated robbery indictment read:

         [Wjhile in the course of committing theft of property and with intent to
         obtain or maintain control of said property, [Jones did] intentionally
         or knowingly threaten or place Modesta Sanchez-Montero in fear of
         imminent bodily injury or death, and [Jones] did then and there use
         or exhibit a deadly weapon, to-wit: a screwdriver or an object
         unknown to the Grand Jury, that in the manner of its use or intended
         use was capable of causing death or serious bodily injury.

The pertinent portion of Jones's aggravated assault indictment read:

         [Jones did] intentionally or knowingly threaten Modesta Sanchez-
         Montero with imminent bodily injury, and did then and there during
         the commission of said assault, use or exhibit a deadly weapon, to-
         wit: a screwdriver or an unknown object to the Grand Jury, that in the
         manner of its use or intended use was capable of causing death or
         serious bodily injury.

                                 III. Double Jeopardy


         Jones argues, and the State agrees, that convicting him of aggravated

assault and aggravated robbery, both by threat, for the same criminal act violated

the double jeopardy protections guaranteed by the Fifth Amendment. See U.S.

Const, amend. V, cl. 2. We agree. See Saldano v. State, 70 S.W.3d 873, 884
(Tex. Crim. App. 2002) (explaining that the State's confession of error is not

conclusive on review and conducting an independent review on the merits).

      The Double Jeopardy Clause of the United States Constitution provides

that no person shall be subjected to twice having life or limb in jeopardy for the

same offense. U.S. Const, amend. V. A double jeopardy 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." Gonzalez

v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000) (footnotes omitted); see

Langs v. State, 183 S.W.3d 680, 686-87 (Tex. Crim. App. 2006).

      Impermissible multiple punishments occur when the same criminal act is

punished twice under two distinct statutory provisions and the legislature

intended that the conduct be punished only once. Bigon v. State, 252 S.W.3d

360, 370 (Tex. Crim. App. 2008).       To determine whether there have been

multiple punishments for the same offense, we apply the "same elements" test

from Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932).

See Ex Parte Denton, 399 S.W.3d 540, 545 (Tex. Crim. App. 2013). We focus

on the elements alleged in the charging instrument to determine whether the

offenses as charged require proof of the same elements. Bigon, 252 S.W.3d at

370. Double-jeopardy challenges should be made even to offenses that have

differing elements under the Blockburger test "if the same 'facts required' are

alleged in the indictment." Id. (citing Hall v. State, 225 S.W.3d 524 (Tex. Crim.
App. 2007)). If two offenses do not have the same elements under the

Blockburger test, but if other indicia manifest a legislative intent that an accused

not be punished for two offenses arising from the course of a single transaction,

an accused may not be punished for both offenses. See Gonzales v. State, 304

S.W.3d 838, 845-46 (Tex. Crim. App. 2010).

      Here, the indictments for aggravated robbery and aggravated assault both

alleged that Jones intentionally or knowingly threatened Modesta Sanchez-

Montero with imminent bodily injury and used a screwdriver or unknown object

that in its manner of use or intended use was capable of causing death or serious

bodily injury. The indictment for aggravated robbery further alleged that Jones

committed theft. When faced with the same double jeopardy issue as we have

here and almost identical indictments, the court of criminal appeals in Denton

explained,

      [A]s plead, aggravated assault is a lesser-included offense of
      aggravated robbery because "it is established by proof of the same
      or less than all the facts required to establish the commission of the
      offense charged[.]" "If... the prosecution, in proving the elements
      of one charged offense, also necessarily proves another charged
      offense, then that other offense is a lesser-included offense." If
      there is no clear legislative intent to punish the offenses separately,
      multiple punishments for the criminal act that is the subject of the
      prosecution is barred. No such intent has been shown here. We
      conclude that applicant has shown that [his convictions for
      aggravated robbery and aggravated assault] are in violation of his
      constitutional double-jeopardy protections that preclude multiple
      punishments for the same offense.

399 S.W.3d at 547. Here, as in Denton, the aggravated assault, as charged, is a

lesser-included offense of the aggravated robbery, and Jones's convictions for
both offenses violated double jeopardy.3 See id.; cf. Garfias v. State, 424 S.W.3d
54, 63-64 (Tex. Crim. App.) (holding that aggravated assault by causing bodily

injury was not a lesser-included offense of aggravated robbery by threat), cert,

denied, 2014 WL 3753800 (2014).

      When a defendant has been prosecuted and convicted in a single criminal

action of two or more offenses that constitute the same offense, in violation of

double jeopardy, the remedy is to apply "the most serious offense" test and retain

the conviction for the "most serious" offense. Denton, 399 S.W.3d at 547. The

"most serious" offense is the offense for which the greatest sentence was

assessed. Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App. 2006); see

also Evans v. State, 299 S.W.3d 138, 141 (Tex. Crim. App. 2009); Bigon, 252

S.W.3d at 372-73. But when the punishment for each conviction is identical, we

cannot look to only the sentences imposed to determine the most serious

offense.   See Bigon, 252 S.W.3d at 373.      Instead, we have to look to other

criteria, including the degree of felony for each offense, to determine which

offense is the most serious.   Id.; White v. State, 395 S.W.3d 828, 832 (Tex.

App.—Fort Worth 2013, no pet.).

      In this case, Jones received a life sentence for both the aggravated assault

and aggravated robbery convictions.      Because aggravated robbery is a first-

      3Jones did not raise a double jeopardy claim in the trial court, but as both
parties assert on appeal, the double jeopardy violation is clearly apparent on the
face of the record and enforcement of usual rules of procedural default serves no
legitimate state interests. See Gonzalez, 8 S.W.3d at 643.
degree felony and aggravated assault is a second-degree felony, aggravated

robbery is the most serious offense here.4        See Tex. Penal Code Ann.

§§ 22.02(b), 29.03(b). As such, we will vacate Jones's conviction for aggravated

assault. See Bigon, 252 S.W.3d at 373; White, 395 S.W.3d at 833. We sustain

Jones's sole issue.


                                IV. Conclusion


      Having sustained Jones's sole issue, we vacate and dismiss his conviction

for aggravated assault and affirm the convictions for aggravated robbery and

attempted aggravated kidnapping.



                                                 /s/ Sue Walker
                                                 SUE WALKER
                                                 JUSTICE


PANEL: LIVINGSTON, C.J.; WALKER and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 20, 2014




        4Both offenses were enhanced with a prior felony conviction. Thus, the
aggravated robbery offense was enhanced to a "hybrid" first-degree felony with a
punishment range of not less than fifteen years or more than ninety-nine years or
life in prison. See Tex. Penal Code Ann. § 12.42(c)(1) (West Supp. 2014). The
aggravated assault offense was enhanced to a first-degree felony. See id.
§ 12.42(b).
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