                                                                                   PD-0429-15
                                                                 COURT OF CRIMINAL APPEALS
                                                                                  AUSTIN, TEXAS
September 14, 2015                                               Transmitted 9/14/2015 9:11:15 AM
                                                                   Accepted 9/14/2015 9:16:53 AM
                                                                                   ABEL ACOSTA
                                No. PD-0429-15                                             CLERK

                     IN THE COURT OF CRIMINAL APPEALS

                                  OF TEXAS

                               AUSTIN, TEXAS


                             FRANCISCO DURAN
                                APPELLANT

                                       v.

                            THE STATE OF TEXAS
                                 APPELLEE


                     APPELLANT’S BRIEF ON PETITION
                      FOR DISCRETIONARY REVIEW


                               On review from the
           Thirteenth Court of Appeals, Corpus Christi-Edinburg, Texas
                           Cause No. 13-12-00344-CR


Filed by:
Joseph Moreno
State Bar No. 24048676
23409 El Paso Drive
Harlingen, Texas 78552
Phone: (956) 536-8359
Fax: (210) 247-9433
Email: j_moreno_02@yahoo.com
Attorney for Appellant

                         Oral Argument Was Not Granted


                                        1
                                 No. PD-0429-15

                   IN THE COURT OF CRIMINAL APPEALS

                                    OF TEXAS

                                AUSTIN, TEXAS


                              FRANCISCO DURAN
                                 APPELLANT


                                         v.


                             THE STATE OF TEXAS
                                  APPELLEE


                    APPELLANT’S BRIEF ON PETITION
                     FOR DISCRETIONARY REVIEW


                               On review from the
           Thirteenth Court of Appeals, Corpus Christi-Edinburg, Texas
                           Cause No. 13-12-00344-CR


To the Honorable Judges of the Court of Criminal Appeals:

      Now Comes Francisco Duran, Appellant in this cause, by and through his

court-appointed appellate counsel, Joseph Moreno, and files this brief on petition

for discretionary review.




                                         2
               IDENTITY OF THE PARTIES AND COUNSEL

      The following is a complete list of all parties and counsel:

Defendant/Appellant:                          Francisco Duran Jr.

Appellee:                                     State of Texas

Appellant’s Counsel:
                                              Joseph Moreno (Appointed)
                                              State Bar No. 24048676
                                              23409 El Paso Drive
                                              Harlingen, Texas 78552
                                              Phone: (956) 536-8359
                                              Fax: (210) 247-9433
                                              Email: j_moreno_02@yahoo.com

                                              On Direct Appeal to the 13th Court of
                                              Appeals
                                              Edmund K. Cyganiewicz
                                              State Bar No. 05300050
                                              1000 E. Madison
                                              Brownsville, Texas 78520
                                              (956) 541-5995

Appellant’s Trial Counsel:                    Doug McMaster
                                              847 E. Harrison Street
                                              Brownsville, Texas 78520

Counsel for Appellee:
                                              Hon. Luis V. Saenz
                                              Cameron County District Attorney
                                              Rene Gonzalez
                                              Jennifer Hahn
                                              Brian Erskine
                                              Assistant District Attorneys
                                              964 E. Harrison
                                              Brownsville, TX 78520
                                              Phone: (956) 544-0849
                                              Fax: (956) 544-0869

                                          3
                                    TABLE OF CONTENTS

1. Identity or parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

2. Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

3. Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

4. Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

5. Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

6. Grounds for which Review was Granted . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

7. Statement of the Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7-8

8. Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9-10

9. Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

10. Issue 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10-13

11.Issue 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-14

12.Issue 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-16

13.Issue 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16-17

14.Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-18

15.Certificate of Compliance.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

16.Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18




                                                       4
                        INDEX OF AUTHORITIES
                                (Case Law)
1. Blount v. State, 257 S.W.3d 712 (Tex. Crim. App. 2008). . . . . . . . . . . . . . 15

2. Duran v. State, No. 13-12-003440CR, 2013 Tex. App. Lexis 811. .11, 15, 16

3. Ex parte Lange, 85 U.S. 163 (U.S. 1874) . . . . . . . . . . . . . . . . . . . . 10, 11, 16

4. Ex parte McIver, 586 S.W.2d 851 (Tex. Crim. App. 1979). . . . . . . . . . . . 12

5. Ex parte Johnson, 697 S.W.2d 605 (Tex. Crim. App. 1985) . . . . . . . . . . . .14

6. Horn v. State, 117 Tex. Crim. 22 (Tex. Crim. App. 1931) . . . . . . . . . . . . .13

7. . Langs v. State, 183 S.W.3d 680 (Tex. Crim. App. 2006) . . . . . . . . . . . . . 17

8. Moore v. State, 154 Tex. Crim. 307 (Tex. Crim. App. 1950) . . . . . . . . . . .13

9. Powell v. State, 124 Tex. Crim. 513 (Tex. Crim. App. 1933). . 10, 11, 12,14,
   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15, 16, 17

10. Smith v. State, 479 S.W.2d 680 (Tex. Crim. App. 1972) . . . . . . . . . . . . . . 14

11. Ex parte Spaulding, 687 S.W.2d 741 (Tex. Crim. App. 1985) . . . . . . . . . .14

12. Williams v. State, 145 Tex. Crim. 536 (Tex. Crim. App. 1943) . . .10, 11, 16

                                         (Statutes and Rules)

1. Tex. Penal Code § 30.02 1 (b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

2. Tex. Penal Code § 12.33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

3. Tex. Code Crim. Proc. Ann. Art. 42.12 §3g(a)(2) (Supp. 2011) . . . . . . . . .15

4. USCS Const. Amend. 5§III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17




                                                        5
                          STATEMENT OF THE CASE

      Appellant was convicted of both Burglary of a Habitation and the underlying

offense of Aggravated Assault with a Deadly weapon. C.R. Writ I pg. 81. After

accepting the jury verdict and assessing punishment, the original judgment was

modified by the trial court. Supp. C. R. Writ I Pg. 1-6 (modifying judgment

entered on June 6, 2012).

      Mr. Duran appealed the conviction and modifications made to the original

judgment. The Thirteenth Court of Appeals affirmed the conviction and trial

court’s modifications and ordered further modifications to the judgment. Id.

      Mr. Duran filed a petition for Discretionary Review, pro se, and current

counsel, Joseph Moreno, was appointed to assist Mr. Duran in preparation of this

brief. 2nd Supp. C.R. Writ I pgs. 1-2.

              STATEMENT REGARDING ORAL ARGUMENT

      Oral Argument Was Not Granted.

            GROUNDS FOR WHICH REVIEW WAS GRANTED

   1. Whether the modifications to the judgment, as ordered by the Thirteenth

      Court of Appeals constitute a violation of Mr. Duran’s 5th Amendment right

      against multiple punishments for the same offense.




                                         6
   2. Whether the Thirteenth Court of Appeals erroneously found that the

      modification made, by the trial court to the original judgment, changing the

      conviction from a Second Degree Felony to a First Degree felony and

      including a finding of deadly weapon were proper.

                            STATEMENT OF FACTS

      Appellant, Francisco Duran, was charged by two (2) count indictment with

Burglary of a Habitation (Count I) and Aggravated Assault With a Deadly Weapon

(Count II). C.R. Writ I pg. 79. The jury convicted Mr. Duran of both counts of

the indictment. C.R. Writ I pg. 81. Because Count II of the indictment constituted

the underlying felony for Count I (Burglary of a Habitation), the State abandoned

the conviction for Count II and proceeded to Sentencing only on Count I of the

indictment. C. R. Writ I pgs 81-85; Duran v. State, No. 13-12-00344-CR, 2013

Tex. App. Lexis 811.

      The original judgment and order (signed on April 23, 2012) indicates that

the jury convicted Mr. Duran of both Counts of the Indictment. C.R. Writ I pg. 81.

Additionally, the verdict and judgement are devoid of a specific finding of “use of

a deadly weapon” and reflects that the Burglary of a Habitation constitutes a

Second Degree Felony. C.R. Writ I pg. 81.

      After the jury was dismissed and Mr. Duran was “committed” under the

judgment sentencing him to 25 years in the Texas Department of Criminal Justice,

                                         7
the judgment was modified, by the trial court, to reflect that the Burglary of a

Habitation was, in fact, a First Degree felony and that the jury made an

“affirmative finding that a deadly weapon was used or exhibited” in the

commission of the offense. Supp. C.R. Writ I. pgs. 1-6 (order modifying judgment

entered on June 6, 2012).

      Mr. Duran appealed his conviction on several grounds requesting that the

modification of the order finding “use of a deadly weapon” be found to be

improper and that the Aggravated Assault conviction be set aside and vacated since

that count was abandoned by the State. Duran v. State, No. 13-12-00344-CR,

2013 Tex. App. Lexis 811.

      The Thirteenth Court of Appeals found that it has the “authority to modify

the record to make it speak the truth” and ordered that, “although it is unnecessary

to completely delete Count II,” the judgment should be modified to reflect that

Count II was abandoned and punishment was as to Count I only. Further, the

appellate court concluded that the trial court did not err by its later modifications of

the judgment. Id at 8.

      Mr. Duran filed a petition for Discretionary Review, pro se, and current

counsel, Joseph Moreno, was appointed to assist Mr. Duran in preparation of this

brief. 2nd Supp. C.R. Writ I pgs. 1-2.




                                           8
                       SUMMARY OF THE ARGUMENT

Issue 1:      The trial court improperly modified its original judgment to include a

deadly weapon finding because the modification was made:

      a. by the trial court;

      b. without consent of the jury; and

      c. after the defendant was sentenced to prison under the trial court’s original

           judgment and his sentence began to run.

Issue 2:      Mr. Duran’s original sentence of 25 years constitutes an illegal

sentence since the judgment reflects that he was convicted of a Second Degree

Felony Burglary of a Habitation and the modification to the judgment was

improperly performed after Mr. Duran’s sentence began to run.

Issue 3:      The Double Jeopardy Clause of the United States Constitution forbids

any increase in a defendant’s sentence once that sentence has been served or

executed. When the trial court modified Mr. Duran’s sentence to include the

deadly weapon finding, his original sentence was essentially increased since the

modification affected his eligibility for parole amounting to a second sentence for

the same offense.

Issue 4:      When The Thirteenth Court of Appeals affirmed the trial court’s

deadly weapon finding, held that Count II of Mr. Duran’s conviction need not be

completely deleted, and ordered further modifications to the already modified

                                          9
judgment, Mr. Duran’s Constitutional Right against multiple punishments for the

same offense under the Double Jeopardy Clause of the United States Constitution

was violated.

                                   ARGUMENT

Issue 1: The trial court improperly modified its original judgment
to include a deadly weapon finding

      In Williams v. State, 145 Tex. Crim. 536, 542 (Tex. Crim. App. 1943) The

Court of Criminal Appeals recognized the general rule that trial courts retain

plenary power to modify a judgment “during the term of court in which they are

made.” The exception to that general rule, however, is that once the defendant in a

criminal case has “suffered some punishment” due to the order, the trial court loses

its power to make modifications to the order. Id.

      The Supreme Court of the United States further expounded on the time

limits for a trial court to modify a judgment or order, in Ex parte Lange, 85 U.S.

163, 176 (U.S. 1874), when it held that a court can no longer “revise, correct or

vacate a sentence. . . after the defendant has been committed thereunder.” Id.

Even in situations where the trial court attempts to modify a sentence during the

term at which the original order was entered, an attempt to modify the sentence so

that it increases the original sentence imposed results in a void order “and the

original order remains in force.” Powell v. State, 124 Tex. Crim. 513, 515 (Tex.


                                          10
Crim. App. 1933) quoting Ex parte Lange, 85 U.S. 163, 176 (U.S. 1874).

      Mr. Duran was convicted by a jury of Burglary of a Habitation and the

underlying offense of Aggravated Assault with a Deadly Weapon. C. R. Writ I

pgs. 79-85. Recognizing the potential Double Jeopardy violation, the State

abandoned the Aggravated Assault with a Deadly Weapon count of the indictment

and proceeded to sentencing only on the Burglary of a Habitation count. Duran v.

State, No. 13-12-00344-CR, 2013 Tex. App. Lexis 811 at 8. The jury assessed

punishment at 25 years in TDCJ on count I only. C. R. Writ I pg. 81. The trial

court entered its original order on April 23, 2012 reflecting that Mr. Duran was

convicted on both counts of Burglary of a Habitation and Aggravated Assault with

a Deadly Weapon. C. R. Writ I pg. 81. However, the judgment signed on the 23rd

of April, 2012 is silent as to any specific findings made by the jury regarding use

of a deadly weapon during the commission of the offense. C. R. Writ I pgs. 81-85.

      Mr. Duran was “committed” to prison upon the order of the court.

C. R. Writ I pg 85. The trial court pronounced its sentence and ordered that he,

“shall be taken by the authorized agent of the State of Texas . . . and delivered to

the Director of institutional division of the Texas Department of Criminal

Justice… .” Id. Thus, the trial court lost plenary power to modify its judgment.

See Williams v. State, 145 Tex. Crim. 536, 542 (Tex. Crim. App. 1943); Powell v.

State, 124 Tex. Crim. 513, 515 (Tex. Crim. App. 1933).

                                          11
      Subsequent to the court’s original order and imposition of sentence, the State

filed a motion to modify the judgment. Duran, at 6. The trial court granted the

State’s motion and on June 6, 2012 modified the order to include the language that

the jury made an “[a]ffirmative finding that a deadly weapon was used or

exhibited.” Supp. C. R. Writ I pg. 2.

       Accordingly, when the trial court modified its judgment after the sentence

was imposed and the defendant was “committed thereunder,” it was without power

to do so and Appellant requests that the modification be vacated. Powell v. State,

124 Tex. Crim. 513, 515 (Tex. Crim. App. 1933).

      Additionally, Count I of the indictment alleged simply that the defendant

committed that act of Burglary of a Habitation when he entered a habitation “and

attempted to commit or committed the felony offense of Aggravated Assault.”

C. R. Writ I pg. 79. Thus, when the trial court modified the original judgment to

include use of a deadly weapon, the trial court engaged in judicial reasoning to

arrive at its conclusion that the jury must have intended a deadly weapon finding

since such a finding is absent from the verdict form and original judgment.

C. R. Writ I pg. 81-85.

      In Ex parte McIver, 586 S.W.2d 851,854 (Tex. Crim. App. 1979), the Court

of Criminal Appeals held that “[c]ourts have no power to change a jury verdict

unless it is with a jury’s consent and before they have dispersed.” Further, in

                                         12
Moore v. State, 154 Tex. Crim. 307 (Tex. Crim. App. 1950), The Court of

Criminal Appeals held, while discussing a similar point, that “the judge is not a

juror, and, on a plea of ‘Not Guilty’ in a felony case, cannot render a verdict or any

part thereof. Id. at 312; See also Horn v. State, 117 Tex. Crim. 22, 35 (Tex. Crim.

App. 1931) holding that finding by the trial court, after the jury was dismissed, that

a defendant was previously convicted of three felonies was improper even where

the indictment alleged three prior felonies.

      Therefore, in Mr. Duran’s case, the trial court’s modification was improper

because it was made without the jury’s consent and required the judge to use his

own judicial reasoning in arriving at the modification without the consent of the

jury and 44 days after the original judgment. Supp. C.R. Writ I pg. 1. Mr. Duran

prays that the modifications made to the original order, after the court lost power to

modify its judgment and without the consent of the jury be vacated and set aside

and the cause be remanded for new trial.

Issue 2: Mr. Duran’s original sentence of 25 years constitutes an
illegal sentence since the judgment reflects that he was convicted of
a Second Degree Felony Burglary of a Habitation and the
modification to the judgment was improperly performed after Mr.
Duran’s sentence began to run.

      The jury verdict form indicates that Mr. Duran was convicted of Burglary of

a Habitation and that his conviction on that count constituted a Second Degree

Felony. C. R. Writ I pg. 81. The range of punishment on a Second Degree Felony

                                           13
is “not more than 20 years or less than 2 years. . .” according to the Texas Penal

Code § 12.33. Further, Texas Penal Code § 30.02 1(b)(2) provides that the offense

of Burglary of a Habitation is a second degree felony. Thus, the jury verdict and

original judgment are facially correct. C.R. Writ I pgs. 81-85. Therefore, a

sentence of 25 years for a second degree felony offense of Burglary of a Habitation

is outside the range of punishment and constitutes an illegal sentence.

      Appellant prays that the sentence of 25 years in prison be declared void

since it is unauthorized by law and remanded for new trial. Smith v. State, 479

S.W.2d 680 (Tex. Crim. App. 1972); Ex parte Spaulding, 687 S.W.2d 741 (Tex.

Crim. App. 1985); But see Ex parte Johnson, 697 S.W.2d 605,607 (Tex. Crim.

App. 1985) holding that “a court is authorized to reform a verdict and judgment

containing unauthorized punishment.”

Issue 3: The Double Jeopardy Clause of the United States
Constitution forbids any increase in a defendant’s sentence once
that sentence has been served or executed. When the trial court
modified Mr. Duran’s sentence to include the deadly weapon
finding, his original sentence was essentially increased since the
modification affected his eligibility for parole.

      In the seminal case of Powell v. State, 124 Tex. Crim. 513, 515 (Tex. Crim.

App. 1933), this Court of Criminal Appeals held that even if a sentence is modified

while still in the same term, but after the defendant “has been committed” under

the original order, “a trial court is without power to . . . impose a new or different

                                           14
sentence increasing the punishment.” Id. at 516.

      Mr. Duran was sentenced to 25 years in prison and the judgment was entered

on April 23, 2012. C.R. Writ I pg. 81-85. After the court pronounced its sentence

and Mr. Duran was “committed thereunder” the State moved for modification of

the order. Duran at 6. In its modified judgment entered on June 6, 2012 the trial

court included the finding that a deadly weapon was used or exhibited during the

commission of the offense. Supp. C.R. Writ I pg. 1. A finding that a deadly

weapon was used or exhibited during the commission of the offense negatively

affects a prison inmates “eligibility for parole.” Blount v. State, 257 S.W.3d

712,713 (Tex. Crim. App. 2008); See Tex. Code Crim. Proc. Ann. Art. 42.12 §

3g(a)(2) (West Supp. 2011).

      Thus, when the trial court modified the judgment to include the deadly

weapon finding, Mr. Duran’s sentence was effectively increased since it negatively

impacted the amount of time he would spend in prison before he was parole

eligible. This action by the trial court is tantamount to Mr. Duran receiving a

second sentence. Powell v. State, 124 Tex. Crim. 513 (Tex. Crim. App. 1933). A

second sentence amounts to multiple punishments for the same offense in violation

of the Double Jeopardy Clause of the United States Constitution. Id. at 516.

      Appellant prays that the subsequent judgments of the trial court be vacated

and the case be remanded for new trial.

                                          15
Issue 4: When the Thirteenth Court of Appeals ordered that Count
II of Mr. Duran’s conviction need not be completely deleted and
ordered further modifications and affirming the modifications
including the deadly weapon finding, Mr. Duran’s Constitutional
Right against multiple punishments for the same offense under the
Double Jeopardy Clause of the United States Constitution were
violated.

      On appeal to the Thirteenth Court of Appeals, Mr. Duran complained about

the trial court’s modification to include the deadly weapon finding and the

inclusion of the conviction for Aggravated Assault even though the State

abandoned that conviction before punishment. Duran at 8. The State requested

that the appellate court order a new modification to the judgment retaining the

deadly weapon finding but removing the Aggravated Assault conviction. Id. The

appellate court instead found that the appropriate action was simply to modify the

judgment “to reflect that the State abandoned Count II . . . and that punishment was

only as to Count I.” Id. Mr. Duran once again relies on Williams v. State, 145

Tex. Crim. 536, 542 (Tex. Crim. App. 1943); Powell v. State, 124 Tex. Crim. 513,

516 (Tex. Crim. App. 1933) quoting Ex parte Lange, 85 U.S. 163, 176 (U.S. 1874)

to establish that the trial court was without power to modify the judgment since the

court was no longer in the same term and Mr. Duran was committed on the original

judgment. The State’s motion to modify the judgment was made before the

appellate court had jurisdiction to make such an order and the subsequent judgment

modifying the original order was already improperly made. C.R. Writ I pg. 81-84;
                                         16
Supp. C.R. Writ I pgs. 1-6.

      Additionally, the appellate court’s finding that trial court did not err when it

modified the judgment violates Mr. Duran’s constitutional protection against

Double Jeopardy. Langs v. State, 183 S.W.3d 680, 684 (Tex. Crim. App. 2006);

(holding that the Double Jeopardy Clause of the United States Constitution guards

against multiple punishments for the same offense) USCS Const. Amend. 5§III.

By affirming the finding made by the trial court, the appellate court was affirming

a second punishment for the same offense of Burglary of a Habitation. Powell v.

State, 124 Tex. Crim. 513, 515 (Tex. Crim. App. 1933).

                                      PRAYER

      Wherefore, Premises Considered, Appellant, Francisco Duran, Jr.,

respectfully prays that this court sustain each of the issues herein, and that this

court reverse the judgment of the trial court and reverse the Burglary of a

Habitation conviction and sentence, and remand the case for new trial.

      In addition, Appellant requests that the conviction for Aggravated Assault,

included in the court’s judgment be set aside and vacated.

      Appellant further requests that the trial court’s finding that an affirmative

finding that a deadly weapon was used or exhibited be set aside and vacated and

the judgment be reformed.




                                           17
       Appellant further prays for any and all relief to which he may be justly

entitled.

                                       Respectfully Submitted

                                /s/ Joseph Moreno
                                ATTORNEY FOR APPELLANT
                      CERTIFICATE OF COMPLIANCE

       In accordance with Rules 9.4(e) and (i) of the TEXAS RULES OF
APPELLATE PROCEDURE, the undersigned attorney of record certifies that the
Brief on Petition for Discretionary Review contains 14-point typeface for the body
of the brief, 12-point typeface for footnotes in the brief, and contains 2, 658 words,
excluding those words identified as not being counted in Rule 9.4(i)(1).
                                               /s/ Joseph Moreno
                                               Joseph Moreno


                          CERTIFICATE OF SERVICE

      I certify that a copy of the Appellant’s Brief on Petition for Discretionary
Review was served electronically on this the 14 day of September, 2015, to the
following partyat rgonzalez1@co.cameron.tx.us and that the electronic
transmission was reported as complete:

Rene Gonzalez
Cameron County District Attorney’s Office
965 E. Harrison Street
Brownsville, Texas 78520
Attorney for the State of Texas, Appellee
                                              /s/ Joseph Moreno
                                              Joseph Moreno




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