
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-06-00039-CR



Marcus Williams, Appellant

v.

The State of Texas, Appellee



FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
NO. D-1-DC-05-904127, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING


O P I N I O N

		A jury convicted appellant Marcus Williams of the offenses of robbery and
aggravated robbery.  See Tex. Penal Code Ann. §§ 29.02, 29.03 (West 2003).  The jury assessed
punishment at 60 years' confinement for each offense, with the sentences to run concurrently.  In
a single issue on appeal, Williams asserts that there was insufficient evidence to support the
jury's finding that Williams exhibited a deadly weapon.  Additionally, although Williams did not
raise the issue, the State, in a supplemental brief, concedes that Williams's convictions for both
robbery and aggravated robbery violated double jeopardy.  The State asks us to affirm the
district court's judgment convicting Williams of aggravated robbery and vacate Williams's
conviction for robbery.  We overrule Williams's sufficiency issue and agree with the State that a
double jeopardy violation occurred.  We conclude, however, that under the circumstances
present here, we must instead affirm Williams's conviction for robbery and vacate his conviction
for aggravated robbery.  

BACKGROUND
The jury heard evidence that in the early morning hours of August 4, 2004,
Alejandro 
Catemaxa and his son Claudio were robbed at gunpoint in the parking lot of their apartment
complex.  The State's evidence included the testimony of Alejandro and Claudio, police officer
Manuel Jimenez, and robbery detective Richard Guajardo.
		Alejandro testified that he and his son lived in the same apartment and would
often drive to work together.  On the morning in question, Alejandro was waiting in the parking
lot for his son when he was approached by two men in a truck.  Alejandro testified that the men
were asking for directions to places that they said were on "Lamar or Guadalupe or something
like that."  Alejandro's suspicions were aroused because he knew that the places to which the
men were asking directions were not close to either street.
		Alejandro further testified that when Claudio came outside and the pair tried to
get in their car to leave, one of the men pulled out a gun and pointed it at Alejandro.  The man
was speaking to him in English, which Alejandro could not understand.  However, Alejandro
testified that he understood from the man's gestures that "he wanted something."  Alejandro
gave the man his wallet and  Claudio did the same.  The men then drove away.  Alejandro
identified Williams as the man who had pointed the gun at him.
		During Alejandro's testimony, the State showed Alejandro a gun recovered
during the robbery investigation and asked Alejandro whether he could identify it as the type of
weapon that had been pointed at him during the robbery.  Alejandro answered that the gun
appeared similar but 
not identical.  Alejandro explained that he could only see the upper part of the weapon when he
was robbed because of the angle at which the gun had been pointed at him. 
		Claudio, who understood English better than his father, testified that Williams
told them to "give him everything because he was going to kill us with a gun."  Claudio testified
that he saw the gun and that Williams pointed it at both of them.  Claudio explained that he gave
Williams his wallet because he was afraid that either he or his father would be injured or even
killed.  Claudio identified Williams as the man with the gun.  Claudio was also shown the gun
that was recovered during the investigation and was asked if it looked like the gun that was used
on him.  Claudio testified, "It's similar to the one I saw, but I can't say that's the one."       
		Because Alejandro and Claudio spoke little English, Officer Manuel Jimenez was
called to the crime scene to translate for and interview the victims.  Jimenez testified that
Alejandro described how Williams got out of his vehicle, approached Alejandro, asked for
directions, pulled out a weapon, and placed it on Alejandro's chest.  Jimenez further testified that
Alejandro described the weapon as "an automatic with a black on top and white on bottom."
		Detective Richard Guajardo investigated the robbery and testified that, in a photo
lineup, Alejandro identified Esteban Benitez and Williams as the men who robbed him. 
Guajardo also testified that a CO2-powered BB gun was found in Benitez's hotel room during
the investigation.  Guajardo explained that there was also a second, unrecovered gun that
Williams claimed to own at around the time the robbery occurred.  Guajardo could not testify
with certainty which of the two weapons Williams used during the robbery.  However, Guajardo
did note in his investigation report that the gun described by Alejandro matched the gun seized
from the hotel room.  
		Guajardo testified that a CO2-powered BB pistol was capable of causing death or
serious bodily injury.  Specifically, Guajardo explained that it could put out an eye, break a
tooth, or even cause death if shot at someone's abdomen or head.  Guajardo also read to the jury
the warning on the gun, which stated that "misuse or careless use may cause serious injury or
death." 
		The State indicted Williams for the offenses of robbery and aggravated robbery. 
Count one of the indictment alleged that, on or about August 4, 2004, Williams intentionally and
knowingly placed Alejandro Catemaxa in fear of imminent bodily injury or death while in the
course of committing theft of property and with intent to obtain and maintain control of said
property.  Count two of the indictment alleged the same offense, the same date, and the same
victim as count one but added an allegation that a deadly weapon was used during the
commission of the offense, namely a CO2-powered BB pistol.  The jury convicted Williams of
both counts in the indictment.  Williams pleaded true to the enhancement paragraphs in the
indictment alleging three prior felony convictions, and the jury assessed punishment at 60 years'
confinement for each offense.  This appeal followed.
DISCUSSION
Deadly-weapon finding
		In his sole issue on appeal, Williams asserts that the evidence was insufficient (1) to
support the jury's finding that he exhibited a deadly weapon during the commission of the
offense. (2)
		When there is a challenge to the legal sufficiency of the evidence to sustain a
criminal conviction, we consider whether a rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt.  Vodochodsky v. State, 158 S.W.3d 502, 509
(Tex. Crim. App. 2005).  We review all the evidence in the light most favorable to the verdict
and assume that the trier of fact resolved conflicts in the testimony, weighed the evidence, and
drew reasonable inferences in a manner that supports the verdict.  See Griffin v. State, 614
S.W.2d 155, 159 (Tex. Crim. App. 1981).  It is not necessary that every fact point directly and
independently to the defendant's guilt; it is enough if the conclusion is warranted by the
combined and cumulative force of all the incriminating circumstances.  Johnson v. State, 871
S.W.2d 183, 186 (Tex. Crim. App. 1993).  We consider even erroneously admitted evidence.  Id.
		In a factual sufficiency review, we view the evidence in a neutral light and ask
whether a jury was rationally justified in finding guilt beyond a reasonable doubt.  See Watson v.
State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006).  We then determine whether the evidence
supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or
whether the verdict is against the great weight and preponderance of the conflicting evidence. 
Id. at 415. We will not reverse a case on a factual sufficiency challenge unless we can say, with
some objective basis in the record, that the great weight and preponderance of the evidence
contradicts the jury's verdict.  Id. at 417.
		Under both the legal and factual sufficiency standards of review, the jury is the
exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to the
witnesses' testimony.  Jaggers v. State, 125 S.W.3d 661, 670 (Tex. App.--Houston [1st Dist.]
2003, pet. ref'd) (citing Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981)). 
Under both legal and factual sufficiency reviews, an appellate court must be appropriately
deferential to the fact-finder's role at trial.  Harvey v. State, 135 S.W.3d 712, 717 (Tex.
App.--Dallas 2003, no pet.) (citing Jones v. State, 944 S.W.2d 642, 647-48 (Tex. Crim. App.
1996)). (3)  The jury may believe all, some, or none of any witness's testimony.  Sharp v. State, 707
S.W.2d 611, 614 (Tex. Crim. App. 1986); Jaggers, 125 S.W.3d at 670.  This standard of review
applies to both direct and circumstantial evidence cases.  King v. State, 29 S.W.3d 556, 565
(Tex. Crim. App. 2000).
		Proof of the use or exhibition of a deadly weapon is an essential element of the
offense of aggravated robbery as charged in the indictment.  See Tex. Penal Code Ann. §
29.03(a)(2).  A deadly weapon 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) (West Supp. 2006).   
		During the robbery investigation, a CO2-powered BB pistol was recovered from
the hotel room of Esteban Benitez, Williams's alleged accomplice in the crime.  Although
Detective Guajardo testified that he could not be certain if this was the weapon used in the
robbery, he did note in his investigation report that the gun described by Alejandro matched the
gun seized from the hotel room.  Furthermore, both Alejandro and Claudio testified that the gun
recovered by the police was "similar" to the gun used in the robbery.  Although neither
individual could state with certainty that this was the weapon used, a rational jury could infer
that this uncertainty could have been due to the traumatic nature of being robbed at gunpoint.  
		Alejandro also explained that his view of the weapon was obscured by the angle
at which Williams held it.  However, Alejandro further testified that, despite minor differences,
the gun shown to him in court was "the same, just a little bit bigger" than the gun used during the
robbery.  Claudio's testimony about the gun corroborated Alejandro's testimony.  We find
nothing irrational about the jury's decision to infer from the testimony of the two victims that the
gun used during the commission of the robbery was the same gun recovered by the police.  See
Abbott v. State, 726 S.W.2d 644, 647 (Tex. App.--Amarillo 1987, pet. ref'd) (testimony that gun
"looks like" and "could have been" weapon used was sufficient).
		There is also the issue of  Detective Guajardo's testimony that Williams told him
that he owned a second gun at around the time of the robbery.  The police were unable to recover
this gun.  However, Detective Guajardo also testified  that Williams told him that he had traded
one gun for the other.  A rational jury could infer that this other gun had been traded away prior
to the robbery in exchange for the CO2-powered BB pistol, especially considering that the police
were unable to recover the other gun but were able to recover the BB pistol.
		We also find nothing irrational about the jury's decision to infer that the BB pistol
allegedly used during the commission of the offense was a deadly weapon.  "[A]n object is a
deadly weapon if the actor intends a use of the object in which it would be capable of causing
death or serious bodily injury."  McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). 
Here, the uncontroverted testimony of Alejandro and Claudio establishes that Williams pointed
the gun directly at them during the robbery.  Officer Jimenez testified that Alejandro told him
that Williams placed the gun on Alejandro's chest.  Detective Guajardo provided uncontroverted
testimony that a CO2-powered BB pistol is capable of causing serious bodily injury or even
death if pointed toward a person's head or abdomen.  The jury also heard Guajardo read the
warning label on the gun, which stated that "misuse or careless use may cause serious injury or
death."  "With testimony that a BB gun is capable of causing serious bodily injury, it is
reasonable for a jury to make a deadly weapon finding."  Adame v. State, 69 S.W.3d 581, 582
(Tex. Crim. App. 2002); see Delgado v. State, 986 S.W.2d 306, 308-09 (Tex. App.--Austin
1999, no pet.).   
		Viewing the evidence in the light most favorable to the verdict, we find that there
was legally sufficient evidence to support the jury's deadly weapon finding.  Considering all of
the evidence in a neutral light, we find that there was factually sufficient evidence to support the
jury's deadly weapon finding.  We overrule Williams's sole issue on appeal.

Double jeopardy
		In a supplemental brief, the State concedes that a double jeopardy violation
occurred in this case because Williams received multiple punishments for the same offense.
		The Fifth Amendment guarantee against double jeopardy protects against: (1) a
second prosecution for the same offense following conviction; (2) a  second prosecution for the
same offense following acquittal; and (3) multiple punishments for the same offense.  Illinios v.
Vitale, 447 U.S. 410, 415 (1980); Cervantes v. State, 815 S.W.2d 569, 572 (Tex. Crim. App.
1991); Berger v. State, 104 S.W.3d 199, 204-05 (Tex. App.--Austin 2003, no pet.).  When the
same act or transaction violates two different penal statutes, the two offenses are the same for
double-jeopardy purposes if one of the offenses contains all the elements of the other. 
Blockburger v. United States, 
284 U.S. 299, 304 (1932).  Cumulative punishment may be imposed where separate offenses
occur in the same transaction, as long as each conviction requires proof of an additional element
which the other does not.  Id.; Phillips v. State, 787 S.W.2d 391, 394 (Tex. Crim. App. 1990). 
Absent indication of contrary legislative intent, it is presumed that the legislature did not intend
to authorize multiple punishments for two offenses that are the same under the Blockburger test. 
Whalen v. United States, 445 U.S. 684, 691-92 (1980); Duvall v. State, 59 S.W.3d 773, 780 (Tex.
App.--Austin 2001, pet. ref'd).
		In Texas, an offense is included within another if, among other things, "it is
established by proof of the same or less than all the facts required to establish the commission of
the offense charged."  Tex. Code Crim. Proc. Ann. art. 37.09(1) (West 2006); Hutchins v. State,
992 S.W.2d 629, 631 (Tex. App.--Austin 1999, pet. ref'd).  Under Texas law, the offense of
aggravated robbery is defined as robbery, committed with the use or exhibition of a deadly
weapon.  See Tex. Penal Code Ann. § 29.03(a)(2).  Thus, robbery is a lesser-included offense of
aggravated robbery.
		The legislature also determines whether offenses are the same for double-jeopardy purposes by defining the "allowable unit of prosecution."  Ex parte Hawkins, 6 S.W.3d
554, 556 (Tex. Crim. App. 1999) (citing Sanabria v. United States, 437 U.S. 54 (1978)).  In
Texas, the allowable unit of prosecution for an assaultive offense such as robbery is per victim. 
Id. at 560.  Thus, multiple convictions for the same offense committed against different victims
do not violate double jeopardy.  Id. at 561. 
		However, in this case, Williams was indicted for a single offense involving a
single victim, Alejandro Catemaxa.  The State did not name Claudio Catemaxa as a victim in
either count of the indictment.  Therefore, although it was permissible to submit both robbery
and aggravated robbery to the jury, Williams could not be convicted of both.  See Berger, 104
S.W.3d at 205.  We agree with the State that Williams "was subjected to multiple punishment for
the same criminal transaction in violation of double jeopardy."  Id.  
		"When a defendant is convicted in a single criminal action of two offenses that
are the 'same' for double jeopardy purposes, the remedy is to vacate one of the convictions." 
Landers v. State, 957 S.W.2d 558, 559 (Tex. Crim. App. 1997) (citing Ball v. United States, 470
U.S. 856, 864-865 (1985)).  However, the law governing which of the convictions to vacate is
currently unsettled.  In Landers, the court of criminal appeals adopted "what we will call the
'most serious punishment' test" for determining which of the "same" offenses in the double-jeopardy context should be retained.  Id. at 560.  The Landers court explained that "[t]he 'most
serious punishment' is the longest sentence imposed, with rules of parole eligibility and good
time serving as a tie-breaker."  The court's adoption of this rule was informed by its previous
adoption of a similar rule in the misjoinder context: "when a defendant is convicted of two or
more offenses that were misjoined, the remedy is to retain the most serious offense and vacate
the remaining offenses."  Id. at 559 (citing Ex parte Pena, 820 S.W.2d 806, 809 (Tex. Crim.
App. 1991) (plurality opinion)).  
		"The most serious offense," under the rule that the court had applied in the
misjoinder context, had been "determined by the degree of the felony, the range of punishment
and the sentence imposed, with rules of parole eligibility and good conduct time as a tie-breaker." Id.  When adopting that rule, the court of criminal appeals rejected other "predominant
methods" it had previously applied, including "[choosing] the offense that the defendant was
convicted of first," "affirm[ing] the conviction that had the lowest number on the charging
instrument," and "[choosing] the offense that was alleged first in the indictment." Pena, 820
S.W.2d at 808.  It cited several policy justifications for the new rule, including that "it does not
attempt to make arbitrary distinctions based on which allegations or conviction preceded the
others," ensuring that "the outcome of a case will not depend on the coincidence of the order of
offenses in an indictment or jury charge."  Id. at 808.  		Recently, the court of
criminal appeals saw fit to clarify the application of what it termed the "most serious offense"
test of Landers.  Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App. 2006); cf. id. at 339-40 (Keller, P.J., concurring).  It expressed concern that a standard based on "the degree of the
felony, the range of punishment and the sentence imposed, with rules of parole eligibility and
good conduct time as a tie-breaker" could be difficult to apply and subjective.  Cavazos, 203
S.W.3d at 337-38.  The court instead adopted a test based primarily on the fact-finder's
discretion:  "the 'most serious' offense is the offense of conviction for which the greatest
sentence was assessed."  Id. at 338.  The court added, "To the extent that Landers holds that
other factors, such as the degree of the felony, range of punishment, and rules governing parole
eligibility and awarding of good-conduct time, shall be used in that determination, it is
overruled."  Id.  
		Having clarified the nature of the "most serious" offense test, Cavazos applied it
to two convictions arising from the same incident, burglary of a habitation with intent to commit
theft and burglary of a habitation with intent to commit sexual assault, for each of which the
defendant had been sentenced to a 25-year term.  In that situation, the court found a tie-breaker
in the imposition of restitution for only one of the offenses (burglary with intent to commit
theft), because  "restitution is punishment."  Id.  Having concluded that the "punishment
assessed makes the burglary with intent to commit theft conviction the 'most serious' offense,"
the court did not need to proceed further, but noted the following in a footnote:



Some of our case law suggests that, all other factors being equal, the conviction
that should be affirmed is the offense named in the first verdict form.  See, e.g.,
Ex parte Cravens, 805 S.W.2d 790 (Tex. Crim. App. 1991); McIntire v. State, 698
S.W2d 652 (Tex. Crim. App. 1985); Ex parte Siller, 686 S.W.2d 617 (Tex. Crim.
App. 1985). Generally, this will be the offense described in Count I of the
indictment.  We do not address that question today.



Id. at 339 n.8.  Cravens, McIntire, and Siller were each misjoinder cases that predated Pena.  
		The present case squarely presents the question that Cavazos left unaddressed. 
Here, we are confronted with two identical 60-year sentences in two written judgments of
conviction.  The only difference between the two judgments is that robbery is listed as a "second
degree felony enhanced to [a] first degree felony," while aggravated robbery is listed as a "first
degree felony."  Unlike Cavazos, no restitution was ordered for either conviction.  
		The State suggests that we retain the aggravated robbery as the "most serious"
offense because, absent enhancement, a first-degree felony has a broader range of punishment
than a second-degree felony.  See Tex. Penal Code Ann. §§ 12.32(a), 12.33(a) (West 2003).  We
also note that robbery is a lesser-included offense of aggravated robbery.  Ex parte Walton, 626
S.W.2d 528, 530 (Tex. Crim. App. 1981); see Tex. Penal Code Ann. §§ 29.02, 29.03.  Having
given effect to the fact-finder's discretion as the primary determinant of the "most serious"
offense, and restitution not being a tie-breaker here, the underlying rationale of Cavazos
arguably would not foreclose our reliance on these objective factors.  However, as an
intermediate appellate court, we must take the highest criminal court of our state at its words: 
"[t]o the extent that Landers holds that other factors such as the degree of the felony, range of
punishment, and rules governing parole eligibility and awarding of good-conduct time, shall be
used in that determination [of the "most serious" offense], it is overruled."  Nothing in the
factual or procedural context of Cavazos gives us comfort that we should disregard as
distinguishable the high court's literal words or the court's broad criticism of the Landers
criteria. (4) 
 Cavazos does not, however, preclude us from employing the alternative principle
that "the conviction that should be affirmed is the offense named in the first verdict form."  203
S.W.3d at 339 n.8.  Although Pena eventually rejected this approach as "arbitrary" when used as
a primary governing principle for determining which of two or more misjoined convictions to
uphold, 820 S.W.2d at 809, Pena's rationale does not necessarily foreclose this approach when
our application of the "most serious" offense or punishment test yields an indeterminate
conclusion.
		Accordingly, unless and until the court of criminal appeals instructs us otherwise,
we will retain the offense described in the first verdict form and count one of the
indictment--robbery--and vacate Williams's conviction for aggravated robbery.    

CONCLUSION
The district court rendered two written judgments of conviction, one for each of
the 
two offenses for which appellant was convicted.  The judgment of conviction for aggravated
robbery is vacated.  The judgment of conviction for robbery is affirmed.

							____________________________________
							Bob Pemberton, Justice
Before Chief Justice Law, Justices Patterson and Pemberton;
     Concurring and Dissenting Opinion by Justice Patterson
Affirmed in part; Vacated in part
Filed:   June 1, 2007
Publish
1.   Williams does not specify in his brief whether he is challenging the legal or factual
sufficiency of the evidence.  We will address both.
2.   We note that the deadly-weapon finding is an element of aggravated robbery, not robbery. 
See Tex. Penal Code Ann. § 29.03(a)(2) (West 2003).  Assuming we are correct in our double-jeopardy analysis in vacating the aggravated robbery conviction rather than the robbery conviction,
Williams's challenge to the sufficiency of the evidence supporting the former conviction would be
moot.  However, because the law governing which conviction we vacate is somewhat unsettled
presently, we will address the sufficiency issue in the interest of judicial economy.  See Tex. R. App.
P. 47.1 (requiring us to prepare written opinion that addresses "every issue raised and necessary to
final disposition of the appeal.").
3.   See also Rivera v. State, No. 03-04-00235-CR, 2005 Tex. App. LEXIS 3997, at *19 (Tex.
App.--Austin May 26, 2005, no pet.) (not designated for publication).
4.   It is curious that the court prefaced its discussion of restitution as a tie-breaker by
observing that "the degree of the offense of conviction and the term of years assessed by the fact
finder are the same."  Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App. 2006) (emphasis
added).  The significance of the court's reference to the degree of the offense is unclear, but it does
not alter our conclusion.  
