Opinion issued February 28, 2013.




                                    In The

                           Court of Appeals
                                    For The

                       First District of Texas
                         ————————————
                          NOS. 01-12-00177-CR
                               01-12-00178-CR
                               01-12-00179-CR
                         ———————————
                 IVAN ADOLPHO MORENO, Appellant
                                      V.
                    THE STATE OF TEXAS, Appellee



           On Appeal from County Criminal Court at Law No. 13
                          Harris County, Texas
            Trial Court Case Nos. 1745364, 1790438, & 1790439



                              OPINION
      The state tried Ivan Moreno for burglary of three motor vehicles, one

belonging to Mary Cash and the other two belonging to Carole Nicholson. 1 The

jury found Moreno guilty of all three offenses and assessed a sentence of 365 days’

imprisonment and a $2,000 fine for each. In a single issue, Moreno contends that

two of the convictions violate the Double Jeopardy Clause, because they punish

him twice for commission of the same offense. We affirm.

                                    Background

      About 4:00 one morning in March 2011, Kathleen McMorris awoke to

check on her son, who was sick. While she was tending to him, Mrs. McMorris

noticed a flickering light through the bedroom window’s closed blinds.              The

window was on the side of the house, which was about ten feet from the driveway

of their neighbors, Jim and Mary Cash. It provided a clear view of the driveway,

where the Cashes had parked their two vehicles, a small SUV and a gray Dodge

Ram pickup truck.




1
      The appeals arising out of the convictions for the burglaries of Nicholson’s
      vehicles are Nos. 01-12-00178 and 01-12-00179 (trial court case numbers
      1790438 and 1790439, respectively). Moreno does not raise any issue on appeal
      complaining of his conviction for burglarizing Cash’s truck (Appeal No. 01-12-
      00177-CR). In his prayer for relief, however, he asks that the trial court’s
      judgments be “reverse[d] and the cause be remanded to the trial court with
      instructions that the informations be dismissed.” Because Moreno fails to identify
      any issue requiring reversal of his conviction for that offense, we leave the trial
      court’s judgment in Case No. 1745364 undisturbed.
                                           2
      The light continued to flicker, which sparked Mrs. McMorris’s curiosity.

She approached the window and saw that the Cashes’s truck’s door was ajar and

someone was sitting inside. Mrs. McMorris lifted one slat on the blinds to peer

through, and she saw a heavy-set, dark-haired man, later identified as Moreno, who

appeared to be rifling through the truck’s glove compartment.

      Nicholson, who lived across the street from the McMorrises, also had two

vehicles—a silver Acura MDX and a Volkswagen Jetta wagon—parked in her

driveway. Mrs. McMorris observed another person remove various items from the

MDX. 2 Alarmed, Mrs. McMorris wakened her husband and told him that she

suspected people were breaking into their neighbors’ cars. Her husband called

911. A nearby patrol officer responded to the call and headed to the Harris County

subdivision. During the few minutes before the police arrived, Mr. McMorris

watched as Moreno walked across the street to the MDX, opened the back hatch,

and removed property—later identified as Nicholson’s son’s baseball equipment.

Moreno piled it on the lawn by the end of Nicholson’s driveway. Moreno returned

to the MDX, took out something else, and set it on the lawn with the rest of the

property. Moreno then turned from the MDX toward the Jetta.

      Mr. McMorris saw the dome light of the Jetta blink, and then observed

Moreno moving inside the car. Meanwhile, the police arrived. Mr. McMorris told


2
      That person fled the scene before the police arrived.
                                            3
an officer that he had seen Moreno in the Jetta. The officer approached the Jetta,

found Moreno lying underneath the car, and arrested him.

      At about the same time, Cash was awakened by the sound of her dogs’

barking. She looked out the window and saw six to ten people, most of whom

were police officers. She stayed inside until an officer knocked on her door and

asked her to come out. The officer escorted her across the street to the pile of

belongings by Nicholson’s driveway and asked Cash if any of the items belonged

to her. Cash identified a number of tools, including two chain saws, a hand saw, a

leaf blower, and a camera. After she had a chance to look inside her truck, Cash

also noticed that about five dollars in change was missing from the cab.

      Nicholson identified the items removed from the MDX as her son’s baseball

equipment. An officer also showed Nicholson a tire gauge, which she identified as

the one she kept in the Jetta’s glove compartment.

      A Harris County Assistant District Attorney executed informations charging

Moreno with three misdemeanor offenses of burglary of a motor vehicle. One

information alleged that Moreno had broken into and entered Cash’s vehicle. The

other two each alleged that Moreno:

      did then and there unlawfully with the intent to commit theft, break
      into and enter a vehicle owned by CAROLE NICHOLSON, a person
      having a greater right to possession of the vehicle than the Defendant
      and thereafter styled the Complainant, without the effective consent of
      the Complainant, namely, without consent of any kind.

                                         4
In its closing argument, the State told the jury:

      I want you to find [Moreno] guilty of all three charges: Breaking into
      Mrs. Cash’s truck and taking her tools and her camera, breaking into
      Ms. Nicholson’s Acura and taking her son’s baseball equipment, and
      breaking into Ms. Nicholson’s Jetta and taking her tire gauge. All
      three cases, three guilty verdicts. Please find him guilty.

                                  Double Jeopardy

      The Double Jeopardy Clause of the United States Constitution prohibits

multiple punishments for the same offense. Langs v. State, 183 S.W.3d 680, 685

(Tex. Crim. App. 2006); see U.S. CONST. amend V. A multiple punishments claim

usually arises in one of two contexts: (a) the lesser-included offense context, in

which the same criminal act is punished twice as the primary offense and the

lesser-included offence; and (b) the two statutes context, in which the defendant is

punished under two statutes, but the legislature intended the conduct to be

punished only once. Langs, 188 .W.3d at 685. This case is slightly different: the

charges against Moreno involve one statute, burglary of a motor vehicle, with two

identical charging instruments. The question, then, is whether the two indictments

alleging that he broke into and entered “a vehicle owned by CAROLE

NICHOLSON” permitted multiple punishments for the same offense, in violation

of the Double Jeopardy Clause.




                                           5
      Moreno relies on Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180

(1932), to argue that the offenses are the same. Given that the indictments are

identical and each charges a violation of the same statute, a formulaic application

of the Blockburger test yields a conclusion that both offenses are the same. See

284 U.S. at 304, 52 S. Ct. at 182 (concluding that to determine whether conduct

constitutes two offenses or only one, court must inquire whether each offense

contains at least one element that other does not). Because the charges against

Moreno, however, involve the same statutory provision but different acts, the

Blockburger test does not end our analysis. See Ex parte Hawkins, 6 S.W.3d 554,

555 & n.4 (Tex. Crim. App. 1999) (noting that Blockburger test applies only when

“‘the same act or transaction constitutes a violation of two distinct statutory

provisions’” (quoting Blockburger, 284 U.S. at 304, 52 S. Ct. at 180)). Instead, we

examine whether the two burglary convictions that Moreno challenges are the

same unit of prosecution or distinct units of prosecution. See Ex parte Cavazos,

203 S.W.3d 333, 336 (Tex. Crim. App. 2006) (observing that scope of Double

Jeopardy Clause’s protection against multiple punishments depends on

ascertaining allowable units of prosecution).       Cavazos directly answers this

question for crimes of burglary: “the gravamen of a burglary is the entry without

the effective consent of the owner and with the requisite mental state.” Id. at 337.




                                          6
      Applying Cavazos to the case at hand, the burglary statute, coupled with the

facts, yield no Double Jeopardy violation. The prosecution adduced evidence at

trial that Moreno entered, without Nicholson’s effective consent, each of her two

cars. Each of the Moreno’s convictions thus arose out of a distinct, and allowable,

unit of prosecution—two different entries of different cars without the consent of

the owner.     We hold that Moreno’s convictions for burglarizing each of

Nicholson’s two vehicles do not violate his rights under the Double Jeopardy

Clause.3




3
      A more likely potential problem arising from charges like the ones in this
      case is notice. Generally, “an indictment tracking the language of the statute
      will satisfy constitutional and statutory requirements; the State need not
      allege facts that are merely evidentiary in nature.” State v. Mays, 967
      S.W.2d 404, 406 (Tex. Crim. App. 1998); see also TEX. CODE CRIM. PROC.
      ANN. art. 21.09 (West Supp. 2012) (“If known, personal property alleged in
      an indictment shall be identified by name, kind, number, and ownership.
      When such is unknown, that fact shall be stated, and a general classification,
      describing and identifying the property as near as may be, shall
      suffice. . . .”). If Moreno had cause to question the identical wording of the
      indictments, however, the proper vehicle would have been a timely motion
      to quash the information, not an unpreserved double jeopardy appeal. See
      TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (requiring defendant to object to
      any defect error, or irregularity of form or substance in indictment or
      information before trial; failure to do so constitutes waiver).




                                         7
                                    Conclusion

         We hold that the trial court’s judgments do not violate Moreno’s rights

under the Double Jeopardy Clause. We therefore affirm the judgments of the trial

court.




                                             Jane Bland
                                             Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Publish. TEX. R. APP. P. 47.2(b).




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