  FFIRM ; Opinion Filed Nov eniber 14, 2012.




                                                In The
                                  uurt of \pprat,a
                          Fift1! Ditrirt of cxa at t1at1a
                                        No 05-11-01195-CR
                                        No. 05-1 1-01196-CR


                            JOSEPh DARRYL WILSON, Appellant

                                                  V.

                               THE STATE OF TEXAS, Appellee


                       On Appeal from the 363rd Judicial District Court
                                    Dallas County, Texas
                    Trial Court Cause Nos. F09-60022-W and F09-60023-W


                                            OPINION
                       Before Justices O’Neill, FitzGerald, and Lang-Miers
                                 Opinion By Justice Lang-Miers

        In two cases arising out of the same incident and consolidated for trial, a jury convicted

appellant Joseph Darryl Wilson of burglary of a habitation and aggravated assault with a deadly

weapon. The trial court assessed punishment in each case at 15 years in prison and ordered the

sentences to run concurrently. In one issue on appeal appellant argues that his convictions “violate

double jeopardy.” We resolve appellant’s issue against him and affirm.

        At trial appellant and the two complainants each gave different accounts of what occurred

on the night in question. In the interest ofclarity, we summarize appellant’s version first. According

to appellant, his ex—girl friend. Samantha Montelongo, called him around 7:30 p.m. and asked him
to come pick her up from her house. It was his understanding at the time that Samantha was

pregnant with his baby. When he arrived Samantha was standing outside. Appellant got out of his

car and asked Samantha where her clothes were. She went inside to get them and a Mexican guy”

ran outside. asked appellant who he was, and started pushing him. At that point the two men started

fighting. Another person joined in and started beating up appellant. According to appellant he did

not have a gun and he never went inside Samantha’s house.

        Samantha, on the other hand, testified that she had not talked to appellant for days and she

didnotthinkheknewwhere she was living until around 11:15 p.m. onthe nightin question. She

and her boyfriend Carlos Gomez were lying in bed talking when a log suddenly flew through the

bedroom window, breaking most ofthe glass. Appellant climbed through the broken window and

said. ‘[C]ome get in the car with me.” Samantha asked appellant to leave. Carlos told Samantha to

go call the police, and Carlos and appellant started fighting. Samantha testified that she had not told

appellant where she was living and did not ask appellant to come pick her up. Samantha also

testified that she never saw appellant’s gun. When she was questioned about why her written

statement to police said that “Carlos got the gun from [appellant],” she explained to the jury that she

lied to the police about seeing appellant’s gun because she did not want Carlos to be mad at her ‘br

not taking his side.” During cross-examination, Samantha acknowledged that she signed an affidavit

stating that she did not want to prosecute this case, and she explained, “The reason why is because

I don’t want him to go to prison. I believe people should get a second chance.”

       Carlos testified that he and Samantha were lying in bed when he saw something fly through

the window that he later determined was a “two-by-four.” Appellant came into the room with a gun

in his right hand. Carlos thought it was just a “random burglary. robbery” until Samantha started

yelling appellant’s name and saying,        don’t do it.” Appellant said to Carlos, “[W]hat are you

doing in bed with my woman, this is my woman.” Next appellant pointed his gun at Carlos and tried

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to shoot C’arlos. hut the gun did not fire. (hirlos wrestled the gun away from appellant and tried to

shoot him, hut the gun did not lire. During his testimony Carlos was asked. “Are von certain that

you saw a firearm in [appellant*s j hand’?” Carlos answered. “I’m very certain he had a gun when he

came in.”

        Appellant was convicted of two oltenses: burglary ofa habitation and aggravated assault with

a deadl’ weapon. Under the disjunctive application paragraph of the jury charge. the jury could

convict appellant of burglary of a habitation under either of two theories: (I) entry with intent to

commit aggravated assault with a deadly weapon; or (2) entry and commission or attempted

commission of aggravated assault with a deadly weapon. The general verdict form did not require

the jury to specify which theory it relied upon.

        Appellant argues for the first time on appeal that he received multiple punishments for the

same offense because the jury rested its verdict on the second burglary theory, which made the

aggravated assault with a deadly weapon a lesser included offense of burglary. In response, the State

argues that appellant failed to preserve his complaint for appellate review because he did not object

to the disjunctive jury charge at trial. We agree with the State.

        Generally, to preserve a multiple-punishments double jeopardy claim for appellate review,

a defendant must object at or before the time the charge is submitted to the jury. Gonzalez v. State.

8 S.W.3d 640, 642 (Tex. Crim. App. 2000). A timely objection allows the trial court and the

prosecution an opportunity to remove the basis of the objection and allows the prosecution a chance

to obtain a conviction “without the risk of an unnecessary retrial in the face of a valid multiple

punishments claim.” Id. at 645—46. An appellant is excused from this preservation requirement and

allowed to raise a multiple-punishments double jeopardy claim for the first time on appeal only if

two conditions are met: (1) the undisputed facts show the double jeopardy violation is clearly

apparent on the face of the record. and (2) enforcement of the usual rules of procedural default serves
no legitimate state interests, Id. at 643 see also Langs v. State. 163 SW$d 680, 6X2 (Tex. Crim.

App. 2006 (“[[Ihe thee of the trial court record must clearly show a double jeopardy violation

before a de lèndant max’ successfully raise a multiple punishment’ double jeopardy claim for the first

time on appeaL).

        One of the ways in which a multiple-punishments double jeopardy claim arises is in the lesser

included otiènse context. in which the same conduct is punished twice—once [‘or particular conduct,

and a second time for that same conduct plus more (for example, attempted assault and assault of

the same complainant in the course of the same criminal episode). Longs. 183 S.W.3d at 685. When

a defendant is convicted of burglary and another felony committed during that burglary, whether the

defendant’s multiple punishments violate the Double Jeopardy Clause depends on the type of

burglary charged. Jd. at 686. For example. if the burglary allegation is that the defendant entered

a habitation without the consent of the owner and then committed or attented to commit assault

within the habitation as defined in section 30.02(a)(3) of the penal code, then the assault is a lesser

included offense of the burglary and the defendant may not be punished tbr both the burglary and

the assault. See id. But if the burglary allegation is that the defendant entered a habitation without

consent of the owner and with the intent to commit assault as defined in section 30.02(a)(1), then

the burglary and the assault are two separate offenses and the defendant may be punished for both:

       The entry of the home with felonious intent and the felony committed within are two
       distinct criminal acts, and each requires the State to prove an element that the other
       does not. A person charged with burglary under Section 30.02(a)(1) is guilty of that
       offense the moment he crosses the threshold ofa habitation without consent and with
       the intent to commit the underlying felony. It matters not whether he actually does
       commit that felony or even if he attempts to commit it.

Id. (footnote citations omitted).

       When both theories of burglary described above are submitted to the jury disjunctively, a

double jeopardy violation is not clearly apparent on the lhce of the record if there is sufficient



                                                —4—
evidence to support the theory that would not constitute a double jeopardy violation. Longs, 1 83

S.W.3d at 687 Applying this law to the facts of this case. a double jeopardy violation would not be

apparent on the hice of the record if there is sufficient evidence to support the theory that appellant

entered Samantha’s home with the intent to commit aggravated assault with a deadly weapon.

        Appellant argues that there is insufficient evidence that he entered Samantha’s home with

the intent to commit aggravated assault with a deadly weapon because Sarnantha’s testimony

indicates that the assault arose only when Sarnantha refused to leave with appellant. We disagree.

According to Carlos’s testimony, appellant threw a two-by-four through Carlos and Samantha’s

bedroom window, entered the bedroom with a gun in his hand. and tried to shoot Carlos. We

conclude that there is sufficient evidence to support a finding that appellant entered the home with

intent to commit aggravated assault with a deadly weapon. See, e.g.. Morel v. State. 12 S.W.3d 505.

507 (Tex. App.—San Antonio 1999, pet. ref d) (evidence was sufficient to prove defendant entered

home with intent to commit aggravated assault because evidence showed defendant “hurled himself

through a downstairs window of the house” and yelled “where is she, where is she” while carrying

a knife and handgun). Because appellant could have been convicted under section 30.02(a)(l), a

doublejeopardy violation is not apparent on the face ofthe record. As a result, appellant has not met

the first prong of the exception to the preservation requirement set forth in Gonzalez. 8 S.W.3d 643.

We conclude that appellant has not preserved his double jeopardy claim for our review.

       We resolve appellant’s sole issue against him and affirm.


                                                   r   /   I




                                                        UZAETH LANG-MIERS
                                                       ‘UST1E
Do Not Publish
FEX. R. App. P. 47
111 195F.U05
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                                        JUDGMENT
JOSEPIl DARRYL WILSON, Appellant                  Appeal from the 363rd Judicial District
                                                  Court of Dallas County, Texas. (Tr.Ct.N o.
No. 05-11-01195-CR           V                    F09-60022-W).
                                                  Opinion delivered by Justice Lang-Miers,
THE STATE OF TEXAS, Appellee                      Justices O’Neill and FitzGerald
                                                  participating.

      Based on the Court’s opinion of this date, the judgment of the trial court is AFFLRMED.


Judgment   entered November 14, 2012.
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                                                 JLIZi,BET11 LANG-MIEkS
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                                          JUDGMENT
JoSEPH [)ARRYL WILSON, Appellant                      Appeal from the 363rd Judicial District
                                                      Court of Dallas County, Texas. (Tr.Ct.No.
No. 05-1 1-01 196-CR          V.                      F09-60023 -W).
                                                      Opinion delivered by Justice Ling-Miers,
THE STATE OF TEXAS, Appellee                          Justices ONei1l and FitzGerald
                                                      11rt icipati ng.

       Based on the Court’s   opinion   of this date, the judgment oIthe trial court is AFFIRMED.


Judgment entered November 14, 2012.



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