Duran v. .State

¶1CONCURRING OPINION

¶2filed a concurring opinion in which JOHNSON, J., joined.

¶3I agree with the Court’s conclusion that the jury’s guilty verdict in Count I (burglary of a habitation) does not support a deadly weapon finding.1 And, I agree that the conviction in Count II (aggravated assault) should have' been vacated by the court of appeals, leaving a judgment of conviction only on Count L I also agree that the deadly weapon finding should be deleted from the judgment. The State’s abandonment of Count II was tantamount to an acquittal of that offense. Once the State abandoned Count II, it.was gone for aMintents and purposes. I concur in the Court’s decision that affirms in part2 and *751reverses in part, and further modifies the trial court judgment to delete both the aggravated assault conviction in Count II and the deadly weapon finding.

¶4The Two-Count Indictment

¶5Appellant was indicted' in Count I of first degree burglary of a habitation (with the" underlying felony of aggravated assault) and in Count II of second degree aggravated assault with a deadly weapon:

¶6COUNT I

Francisco Duran, Jr., ... on or about the 10th day of December, 2010, ... did then and there intentionally or knowing- ' ly enter a habitation, without the effective consent of Gonzalo Gonzalez, the owner thereof, and attempted to commit or committed the felony offense of aggravated assault.

¶7COUNT II

Francisco Duran, Jr., ... on or about the 10th day of December, 2010, ... did then and there intentionally, knowingly, or recklessly cause bodily injury to Gonzalo Gonzalez by striking Gonzalo Gonzalez about the head and/or body, and the defendant did then and there use or exhibit a deadly weapon, to-wit: electronic equipment or an object unknown to the Grand Jury, during the commission of said assault.

¶8The indictment also included an enhancement allegation of a prior felony, which elevated the punishment range for Count I to a possible 16-99 years, or life, and the punishment range for Count II to that of a first degree felony (a possible 6-99 years, or life). . •

¶9The Jury Charge On Guiltllnnocence

¶10After both sides rested, defense counsel objected to the jury being charged on both counts:

DEFENSE COUNSEL: We object that number five — or paragraph number five — these two paragraphs in the indictment which are not in the Charge should be in the alternative. You cannot be found guilty of both charges because they’re both based on an ag- • gravated assault_

STATE: Your Honor, that’s the incorrect analysis. The courts do not apply that. As a matter of fact, he can be found guilty on both, but once he’s found guilty on both, the Court would have to vacate one charge. He cannot be sentenced on both charges. He can, in fact, be. found guilty. Double jeopardy prevents the sentencing of both not ivith regards to the guilty/innocence [sic] phase of the proceeding.3

* ⅜ ⅜

THE COURT: ... The objection is overruled. Both five and six will remain in place as currently stated.

¶11The Jury Charge on Punishment

¶12After the jury found Duran guilty of both counts, the State chose to . abandon the aggravated assault count out of double jeopardy concerns, and appellant did not object:

*752THE STATE: At this time the State is abandoning the second charge of aggravated assault with a deadly weapon due to the fact that the Defendant cannot be punished on both charges. It is double jeopardy, so we are going forward solely on the burglary of a habitation.

THE COURT: All right.4

¶13The jury found the enhancement paragraph “true” and sentenced Duran to 25 years.

¶14Both The Aggravated Assault Conviction And The Deadly Weapon Finding Should Be Deleted From The Judgment

¶15On direct appeal, among other things, Duran complained that the judgment should not have reflected that he was convicted of Count II. In overruling this issue, the court of appeals held that it was unnecessary to delete Count II from the judgment “because appellant was, in fact, convicted of it.” The court of appeals concluded that “the judgment should be modified to reflect that the State abandoned Count II before the punishment phase and to affirmatively state that punishment was assessed only on Count I. This conclusion is not supported by case law.5 I am in complete agreement with the Court’s conclusion that the court of appeals should have vacated the conviction for Count II (aggravated assault), rather than leave it in the judgment.

¶16In Ex parte Cavazos, this Court departed from its earlier decision in Landers v. State regarding how to remedy the situation when a defendant is convicted of more than one offense in violation of double jeopardy:

This Court has pointed out that “[a] defendant suffers multiple punishments in violation of the Double Jeopardy Clause when he is convicted of more offenses than the legislature intended.” Ervin v. State, 991 S.W.2d 804, 807 (Tex. Crim.App.1999) (citing Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985)).

⅜ ⅜ ⅜

When a defendant is convicted of two offenses that are the “same” for double-*753jeopardy purposes, our case law tells us that the conviction for the “most serious” offense is retained and the other conviction is set aside. Landers v. State, 957 S.W.2d 558, 559-60 (Tex. Crim.App.1997). Landersstates that the “most serious” offense is determined by the degree of the felony, range of punishment and sentence imposed, with rules of parole eligibility and good-conduct time as a tie-breaker: Id.

…

Our case law grants great discretion to the finder of fact. See e.g., Swain v. State, 181 S.W.3d 359, 365 (Tex.Crim. App.2005) (suppression motion); Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App.2003) (application for writ of habeas corpus); Morales v. State, 32 S.W.3d 862, 865-66 (Tex.Crim. App.2000) (decision to admit of [sic ] exclude scientific evidence). We now extend that discretion to the determination of the “most serious” offense and hold ■ that the “most serious” offense is the offense of conviction for which the greatest sentence was assessed. To the extent that Landersholds 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.6

¶17Consistent with Presiding Judge Keller’s concurring opinion in Cavazos, it appears that this Court has since relaxed its “overruling” of Landersand will look to these other factors in the event that the finder of fact assesses the same sentence.7

¶18In this case, if the State had chosen not to abandon Count II, or if the defense had objected to the abandonment of Count II, the trial court would have had to submit both offenses to the jury for punishment.8 And, if both offenses had been submitted to the jury to assess punishment, the offense given the- greater sentence by the jury would have been the one retained, even though one was a first degree felony and the other was a second degree felony.9 But, if the jury had assessed the same punishment for both offenses, the deadly weapon allegation in Count II of the indictment would likely have been the deciding factor in determining the “most serious” offense, since the aggravated assault allegations in Couíit II would have supported a deadly weapon finding, and the burglary allegations in Count I would not have.10

¶19*754In that instance, even though a lesser degree of felony; Count II would have been retained, not- Count I.

¶20Nevertheless, in this case, the jury did not have the opportunity to assess punishment for both offenses. .Rather, the State made the decision of which offense to retain and which to set aside when it abandoned Count. II prior to the punishment phase of the trial, leaving only Count I— the burglary offense — to, be submitted to the jury for punishment. Once the State chose to abandon Count II, the trial court should have set aside that jury verdict.

¶21Abandonment of a charge after jeopardy attaches is tantamount to an acquittal because a defendant -may not be retried for that charge.11 So it stands to reason that, because the State cannot retry Duran for this aggravated assault offens,e since it abandoned Count II after jeopardy attached, the State cannot .thereafter use Count II to support a deadly, weapon finding under Count I.

¶22Could the language in Count II of the indictment have served as notice to support the submission to the jury of a deadly weapon special issue on the remaining Count I? Yes. Could it now support a deadly weapon finding on Count I without a special issue having been submitted? No. Once Count II was abandoned by the State, it was an acquittal on that count. Count. II cannot be resurrected to support a deadly weapon finding because it no longer exists, as a viable charge or a valid conviction. It is gone. Therefore, I agree with the Court’s decision to delete both the aggravated assault conviction and the deadly-weapon finding.

¶23With these comments, I join the majority.

¶34CONCURRING AND DISSENTING OPINION

¶35filed an opinion concurring in part and dissenting in part in which Keasler,- J., joined.

¶36I agree with the Court’s first two conclusions: the court of appeals (1) should have vacated the aggravated assault conviction and (2) should not have held that the deadly weapon finding was proper based on the jury’s verdict with respect to the burglary charge. Majority Opinion at 743. I take issue, however, with the Court’s characterization of much of our previous case law with respect to deadly weapon findings. Most particularly, I question the Court’s suggestion that the second rationale supplied in Crumpton v. State, 301 S.W.3d 663, 664 (Tex.Crim.App.2009), is nothing more than dicta. Majority Opinion at 747-48. This ^suggestion strikes me as questionable, at best,1 and in any event, unnecessary to the Court’s purpose. For these reasons, I concur 'only in the result the Majority reaches with respect to these issues.

¶37Regarding the Majority’s rejection of the State’s final argument, that a deadly *755weapon finding may still be predicated on the abandoned jury verdict of guilty of aggravated assault, I believe it is premature for the Court to reach this issue. The Court concedes that the court of appeals never reached this alternative argument. Majority Opinion at 749. It is usually our practice that, when our resolution of a particular issue on discretionary review operates to raise or revive an alternative argument or issue in the lower appellate court, our recourse is to remand the cause to allow the court of appeals to address the alternative,argument or issue in the first instance. See McCliviock v. State, 444 S.W.3d 15, 20-21 (Tex.Crim.App.2014) (it is “[t]ypically” the Court’s practice to remand for resolution of issues hot yet addressed in the lower appellate court unless “the proper disposition of an outstanding issue is clear,” in part because “our resolution of the issue (if any should even be necessary after a remand) would benefit from a carefully wrought decision from the court of appeals”).

¶38Instead, the Court today resolves the issue itself, and does so in a perfunctory manner that does not seem to me to give adequate consideration to the potential merits of the State’s argument. It seems to me that there may be good arguments to support the 'Court’s conclusion that deadly weapon findings are offense-specific. But I do not think the issue is beyond debate, and I would give the court of appeals a chance to address, it in the first instance. I.would remand the cause to the court of appeals for a fuller treatment. We. may or may not subsequently find it necessary to address the argument/issue ourselves in a later petition for discretionary review. Because the Court does not remand the, cause, I dissent to that facet of its opinion.