Juan Jose Rivera v. State

• Court: Court of Appeals of Texas
• Decided: July 6, 1994
• Docket: 10-93-00108-CR
• Status: Published

Opinion

Rivera v. State

IN THE

TENTH COURT OF APPEALS

No. 10-93-108-CR

     JUAN JOSE RIVERA,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the 339th District Court

Harris County, Texas

Trial Court # 595,462

O P I N I O N

      This is an appeal by Appellant Rivera from his conviction for possession with intent to deliver 400 grams of cocaine, for which he was assessed thirty-five years in the Institutional Division of the Texas Department of Criminal Justice and a $20,000 fine.

      Officer Wood of the Houston Police Department first heard of Appellant from Joseph Hall, a person he had arrested for possession of cocaine. Hall told Officer Wood that Appellant had large quantities of cocaine, and that Officer Wood could listen in as he set up a drug deal with Appellant on the phone. Wood listened as Hall called Appellant and asked to buy half a kilo of cocaine. The time was approximately 4:00 P.M. on April 18, 1991. Wood verified that the number dialed belonged to a body shop owned by Appellant. Hall gave Wood a description of Appellant which Wood verified from Appellant's rap sheet. Hall made a second call to Appellant firming up the sale at 4:30 P.M. At that time Wood was at the body shop conducting a personal surveillance to verify Hall's information and was informed of the call. At 6:00 P.M. Appellant left the body shop and drove to his house. Appellant entered the house carrying nothing and exited a few minutes later carrying a small brown paper bag. Wood testified that the small bag was consistent with a package that could contain a half kilo of cocaine. Appellant then got into his car and drove in the direction of where he had agreed to take the cocaine.

      Officer Wood called and had Appellant stopped by a patrol unit. Wood then recovered the bag which was on the passenger seat of Appellant's car. The bag contained 466 grams of cocaine. A further search of the car revealed another bag which contained 161 grams of cocaine.

      Trial was before the court. Appellant filed a motion to suppress the admission of the cocaine, which was denied by the trial court. Appellant's counsel stipulated "everything except to the admission of the cocaine." "I stipulate the care, custody and control and that it is indeed cocaine." The trial court then admitted the cocaine.

      As noted, the court found Appellant guilty and assessed his punishment at 35 years confinement and a $20,000 fine.

      Appellant appeals on one point of error: "The trial court reversibly erred in overruling the Appellant's motion to suppress in light of the fact that the Appellant's warrantless arrest contravened Article 14.04, Vernon's Annotated Code of Criminal Procedure, and the resulting search and seizure violated Article 38.23, Vernon's Annotated Code of Criminal Procedure."

      Article 14.04 provides: "Where it has been shown by satisfactory proof to a peace office, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without a warrant, pursue and arrest the accused."

      Article 38.23 provides: "No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case."

      Appellant contends that since there was no evidence Appellant was about to escape, that his warrantless arrest was illegal, [Article 14.04], and that the admission of the cocaine was thus precluded by Article 38.23.

      Article 14.04 is not the exclusive criterion for, or the only authorization, for a warrantless arrest.

      Article 14.03 provides that a peace officer may arrest, without a warrant, persons found in suspicious places and under circumstances which reasonably show that such persons are guilty of a felony.

      And, the requirement of a search warrant may be excused in the case of a moving vehicle if there is probable cause for the stop and for the search. Gill v. State, (Tex. Crim. App.) 625 S.W.2d 307, 310; Christopher v. State, (Tex. Crim. App.) 639 S.W.2d 932, 935.

      The court must determine whether the officer possessed probable cause by determining whether, given all the known circumstances, a person of reasonable caution would be warranted in the belief that contraband or evidence might be found in the vehicle. Amores v. State, (Tex. Crim. App.) 816 S.W.2d 407; Vargas v. State, (Tex. App.—El Paso) 852 S.W.2d 43, 46; Murray v. State, (Tex. App.—Texarkana) 864 S.W.2d 111, 116. In Murray, supra, the court found that the police officers had probable cause for a warrantless arrest and search of a driver of a vehicle after receiving a phone tip from a confidential informant, found to be reliable in the past, that the driver was transporting alleged drugs.

      In this case Officer Wood had ample probable cause to believe that Appellant was carrying cocaine in his vehicle. First, he heard Hall make the initial telephone call setting up the deal and was informed of the second call which established the time for the sale. Second, Wood immediately set up surveillance on Appellant's business, had verified Hall's description of Appellant, the type of car he possessed, and where his work place was. His continued surveillance confirmed Appellant's departure to his home at the predicted time, his retrieval of a small paper bag consistent with carrying a half kilo of cocaine, and his driving in the direction of the arranged location for the sale.

      As soon as the above facts were verified, Appellant's car was stopped and the brown paper bag seized. We hold that probable cause existed for the stopping of Appellant's vehicle, and for the seizure of the cocaine found in the front seat.

      Appellant's point is overruled and the judgment of the trial court is affirmed.

                                                                               FRANK G. McDONALD

                                                                               Chief Justice (Retired)

Before Chief Justice Thomas,

      Justice Vance, and

      Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed July 6, 1994

Do not publish

riminal case must be unanimous.[3] Tex. Const. art. V, 13; Tex. Code Crim. Proc. Ann. art. 36.29(a) (Vernon Supp. 2005). A unanimous jury verdict ensures that the jury agrees on the factual elements underlying an offense, requiring more than mere agreement on a violation of a statute. Francis v. State, 36 S.W.3d 121, 125 (Tex. Crim. App. 2000). However, a trial court may submit a disjunctive jury charge and obtain a general verdict where the alternate theories involve the commission of the same offense. Id. at 124; Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991). Because of the possibility of a non-unanimous jury verdict, separate offenses may not be submitted to the jury in the disjunctive. Francis, 36 S.W.3d at 124-25.

In his first issue in both appeals, Gonzales asserts that under this charge, he was deprived of his right to a unanimous jury verdict because the jurors were not required to unanimously agree on which act or acts of assault Gonzales committed. See Ngo v. State, 175 S.W.3d 738, 745-48 (Tex. Crim. App. 2005) (holding that egregious harm occurred when, among other things, prosecutor twice told jury that it could convict even if verdict was not unanimous); Francis, 36 S.W.3d at 123-25. The State argues that the charge was correct because Gonzales was charged in the indictments with various manner and means of committing one offense of aggravated assault.[4] Thus, we must determine whether the jury charge in this case merely charged alternate theories of committing the same offense or whether the jury charge included two or more separate offenses charged disjunctively.

The offense of aggravated assault can be committed in at least three separate and distinct ways:

• Intentionally, knowingly, or recklessly causing serious bodily injury to another. Tex. Pen. Code Ann. 22.01(a)(1), 22.02(a)(1) (Vernon Supp. 2005).

• Intentionally, knowingly, or recklessly causing bodily injury to another, and using or exhibiting a deadly weapon during the commission of the assault. Id. 22.01(a)(1), 22.02(a)(2).

• Intentionally or knowingly threatening another with imminent bodily injury to another, and using or exhibiting a deadly weapon during the commission of the assault. Id. 22.01(a)(2), 22.02(a)(2).[5]

The commission of multiple discrete assaults against the same victim results in liability for separate prosecution and punishment for every instance of such criminal misconduct. Vernon v. State, 841 S.W.2d 407, 410 (Tex. Crim. App. 1992); see, e.g., Ex parte Thurmon, 822 S.W.2d 170, 170-71 (Tex. Crim. App. 1991) (defendant who sexually assaulted victim in one county, then drove her to another county and sexually assaulted her again, could be prosecuted for both acts, which were separate and independent offenses); Archie v. State, 181 S.W.3d 428, 430-31 (Tex. App.Waco 2005, pet. filed) (because indictment alleged and evidence showed two separate, distinct assaults, State was not required to make election and double jeopardy was not invoked);[6] David v. State, 808 S.W.2d 239, 240-44 (Tex. App.Dallas 1991, no pet.) (defendants two aggravated sexual assault convictions for conduct on same day in allegedly penetrating victims sexual organ and victims mouth by his sexual organ were not for same offense) (A defendant can, however, rape an individual, kidnap that person, and rape the same victim again on the same day, constituting three separate offenses.).

The Austin Court of Appeals recently addressed a similar factual and procedural situation in which the defendant was indicted for two counts of aggravated assault: the first count alleged bodily injury assault aggravated by the use of a deadly weapon, with three paragraphs alleging different manners and means; and the second count alleged assault by threat aggravated by the use of a deadly weapon, with two paragraphs alleging different manners and means. See Marinos v. State, --- S.W.3d ---, ---, 2006 WL 66435, at *2 (Tex. App.Austin Jan. 13, 2006, no pet. h.). In a single application paragraph, the trial court authorized the defendants conviction on any or all of the five paragraphs contained in the two counts, and the jury returned a general verdict convicting the defendant of aggravated assault as alleged in the indictment. Id. On the defendants complaint that the jury charge and verdict form denied his right to a unanimous verdict, the court concluded that bodily injury assault and assault by threat are different criminal acts for which a defendant may be convicted only by a unanimous finding of guilt. Therefore, even though the State sought only a single aggravated assault conviction, it was error for the trial court to authorize that conviction without requiring the jury to unanimously agree that appellant committed aggravated bodily injury assault or aggravated assault by threat. Id. at ---, 2006 WL 66435, at *4. The court explained:

Similarly, causing bodily injury to another and threatening another with imminent bodily injury are separately defined statutory criminal acts. Tex. Pen. Code Ann. 22.01(a)(1), (2). Bodily injury assault is a result of conduct offense that can be committed intentionally, knowingly, or recklessly. Fuller v. State, 819 S.W.2d 254, 255-56 (Tex. App.Austin 1991, pet. refd). Assault by threat is a nature of conduct offense that can only be committed intentionally or knowingly. Guzman v. State, 988 S.W.2d 884, 887 (Tex. App.Corpus Christi 1999, no pet.). See Tex. Pen. Code Ann. 6.03 (West 2005) (defining culpable mental states).

Id.

We likewise conclude that the two indictments allege four different, separate criminal acts, and the evidence at trial supports our conclusion. Count 3 in the first indictment alleges that Gonzales committed aggravated assault by cutting the complainants back with a knife. Count 4 alleged aggravated assault by Gonzaless threatening the complainant with imminent bodily injury with a knife. The second indictment alleged in the first paragraph that Gonzales committed serious bodily injury aggravated assault by striking the complainant with his hand or elbow. The second paragraph alleged aggravated assault by Gonzaless striking or strangling the complainant with this hand, which was used as a deadly weapon.

Listing both cause numbers at the top of the page, the trial court incorrectly submitted one general verdict form on the four separately charged acts of aggravated assault, without a unanimity instruction requiring all twelve jurors to find him guilty of the same act. Because the two indictments charged four separate offenses, error occurred in allowing for a non-unanimous verdict. Furthermore, because the jury was given only a single verdict form, we cannot tell whether the jury found him guilty based on one allegation, two allegations, three allegations, or four, even though the single verdict form has resulted in two judgments of conviction.

Under Ngo, the error depriving Gonzales of his right to a unanimous verdict is of constitutional magnitude. Ngo, 175 S.W.3d at 752 (We therefore agree that appellants constitutional and statutory right to a unanimous jury verdict was violated); see Ex parte White, --- S.W.3d ---, --- n.38, 2006 WL 475313, at *8 n.38 (Tex. Crim. App. Mar. 1, 2006) (stating that jury charge error in Ngo was constitutional). However, an unpreserved complaint about a charge error in a criminal case is reviewed for egregious harm. Almanza v. State, 686 S.W.2d 157, 171-72 (Tex. Crim. App. 1985) (op. on rehg). Because trial counsel did not timely object to the charge, Gonzales must show that he suffered egregious harm, a difficult standard that is determined on a case-by-case basis.[7] Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002). Errors that result in egregious harm are those that affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory. Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996) (citing Almanza, 686 S.W.2d at 172). The harm to Gonzales must be actual, not just theoretical. Almanza, 686 S.W.2d at 174. In deciding whether egregious harm exists, we look at (1) the charge itself, (2) the state of the evidence, including contested issues, (3) the arguments of counsel, and (4) any other relevant information revealed by the record of the trial as a whole. Hutch, 922 S.W.2d at 171; see Ngo, 175 S.W.3d at 749.

In voir dire, the State commented on the various allegations in the indictments: All these offenses are alleged to have occurred within the same time period. Really they are just different ways of charging, legal theories of charging the things that allegedly happened that night. So it is all one set of events. The State then summarized the two allegations of aggravated sexual assault and the four allegations of aggravated assault and concluded: So again we allege that all these things happened in one criminal episode. And it will be up to the jurors after they hear the evidence to determine which, if any, of those things they want to convict the defendant of.

In closing argument, the State commented as follows on the above-quoted aggravated assault application paragraph:

I would like to point out one thing to you. On Page Nine it talks about the offense of aggravated assault. Okay. If you heardas you heard the Judge read to you earlier, there are several different manner and means that were alleged how that aggravated assault occurred. Okay.

There was he threatened her with bodily injury, exhibited a knife. Or he recklessly caused serious bodily injury by striking her with his hand and elbow. Or he then and there intentionally, knowingly, and recklessly caused bodily injury by striking or strangling her with his hand.

I want to point out, make sure you look where the semi colons are. This is saying or, or, or. You dont have to find all of that true in order to find the defendant guilty of aggravated assault. These are all different manners and means that have been alleged by the State. There is just one aggravated assault here. It was alleged in different ways for it to have occurred. And you must agree that he is guilty of aggravated assault.

Thus, in both voir dire and closing argument, the State referred to the charge error, but the States comments did not rise to the level of accentuation of the error that occurred in Ngo. There the court noted that during voir dire, the State, with respect to three disjunctively joined credit-card-abuse offenses, told jurors [I]f three of you . . . feel like he stole the credit card and used it, six of you think that he received it and three of you think he presented it, it doesn't matter which one you think he did. It can be a mix and match, whichever one you believe. Ngo, 175 S.W.3d at 750. Moreover, in Ngo the court noted that during the defendants voir dire, when defense counsel attempted to assert that the State must prove all three criminal acts, the State objected, and the trial court told the jurors: Theres three ways alleged that the offense can be committed. . . . [T]he State may prove one to the satisfaction of part of the jury, another one to the satisfaction of others, the third one to the satisfaction of another part of the jury. Id.
Thus, in addition to the trial courts and States misstatements at the very end of the trial, the court in Ngo recognized that both the State and the trial court had also misstated the law at the very beginning of the case. Id. The court noted that the jury was affirmatively told, on three occasions, twice by [the State] and once by the trial judge, that it need not return a unanimous verdict. Id.

Furthermore, unlike Ngo, where two of the offenses were mutually exclusive, none of the four acts of aggravated assault in this case were mutually exclusive. Instead, this case is similar to two recent cases finding that erroneous disjunctive charges were not egregious harm. See Marinos, --- S.W.3d ---, 2006 WL 66435 (finding no egregious harm from erroneously submitting aggravated bodily injury assault and aggravated assault by threat disjunctively); Martinez v. State, --- S.W.3d ---, 2006 WL 66659 (Tex. App.Houston [1st Dist.] Jan. 12, 2006, pet. filed) (finding no egregious harm from erroneously submitting sexual contact with complainants sexual organ and with complainants anus disjunctively).

Additionally, the state of the evidence, including contested issues, persuades us that the charge error did not deny Gonzales a fair trial. It was not contested that the complainant suffered severe bruising and bleeding about her eyes (including a right eye orbital blow-out fracture), a bleeding nose, scratching and bruising on her throat, and a cut on her shoulder blade that required stitches on the night of the occasion in question. Photographs amply demonstrated these injuries, and the bloody knife that police found in the front yard was in evidence. The contested issue at trial was whether Gonzales inflicted those injuries or whether they were self-inflicted, which was Gonzaless defensive theory. The charge error could not have affected this contested issue. The jury was faced with two mutually exclusive theories: the States theory that Gonzales inflicted the complainants injuries, or the defense theory that those injuries were self-inflicted. An individual juror would either have found that Gonzales committed the aggravated assaults or that he had not assaulted the complainant at all. See Marinos, --- S.W.3d at ---, 2006 WL 66435, at *6; Martinez, --- S.W.3d at ---, 2006 WL 66659, at *5. In finding Gonzales guilty of aggravated assault, the jury plainly accepted the States theory.[8]

The charge error did not deny Gonzales a fair trial, go to the very basis of the case, or affect Gonzaless defensive theory. We conclude, therefore, that Gonzales did not suffer egregious harm as a result of the charge error. Issue one in each appeal is overruled.

Sufficiency of the Evidence

In each appeal, Gonzales challenges the sufficiency of the evidence. In No. 10-00222-CR, he asserts that the evidence is legally and factually insufficient to sustain the aggravated assault conviction because there is no or insufficient evidence to show that a knife was used or exhibited as a deadly weapon. In No. 10-00223-CR, Gonzales asserts that the evidence is legally and factually insufficient to sustain the aggravated assault conviction because there is no or insufficient evidence to show that the complainant suffered serious bodily injury as a result of being struck by Gonzaless hand or elbow.

When reviewing a challenge to the legal sufficiency of the evidence to establish the elements of a penal offense, we must determine whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). The standard is the same for both direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999).

We do not resolve any conflict of fact or assign credibility to the witnesses, as this was the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). Instead, our duty is to determine if the findings of the trier of fact are rational by viewing all of the evidence admitted at trial in the light most favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); Matson, 819 S.W.2d at 843.

In a factual sufficiency review, we view all of the evidence in a neutral light and consider only whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). However, there are two ways in which the evidence may be insufficient. Id. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Id. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. Id. at 485. This standard acknowledges that evidence of guilt can preponderate in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Id. Stated another way, evidence supporting guilt can outweigh the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard. Id.

Zuniga also reminds us that we must defer to the jurys determination. See id. at 481 (citing Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997)). The jury determines the credibility of the witnesses and may believe all, some, or none of the testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). It is the jury that accepts or rejects reasonably equal competing theories of a case. Goodman v. State, 66 S.W.3d 283, 285 (Tex. Crim. App. 2001). The evidence is not factually insufficient merely because the factfinder resolved conflicting views of evidence in favor of the State. Cain, 958 S.W.2d at 410.

Knife as a Deadly Weapon

The knife at issue was a kitchen knife that a police officer and a physician said was capable of causing death or serious bodily injury. The record contains a photograph of the knife. The complainant testified that Gonzales forced her to sit on the toilet and perform oral sex on him while he held the knife to her throat and also poked her in the chest with it. Gonzales cut her on the shoulder blade with the knife while he was slapping her with it. This evidence is legally and factually sufficient to support a finding that the knife was used or exhibited as a deadly weapon during the aggravated assault. We overrule issues two and three in No. 10-00222-CR.

Serious Bodily Injury

Serious bodily injury means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Tex. Pen. Code Ann. 1.07 (46) (Vernon Supp. 2005). In determining whether the evidence supports a finding of serious bodily injury, the relevant issue is the quality of the injury as it was inflicted, not the quality of the injury after its effects are ameliorated with medical treatment. See Brown v. State, 605 S.W.2d 572, 575 (Tex. Crim. App. 1980); Boney v. State, 572 S.W.2d 529, 531-32 (Tex. Crim. App. 1978).

The complainant testified that Gonzales hit her in the face multiple times with his hands and elbows and choked her. She said that after Gonzales hit her in the face with his hands and elbows, she lost consciousness briefly. The neighbor whose house the complainant fled to said that she appeared to have a concussion, collapsed on the neighbors couch, and kind of passed out. The complainants treating physician testified that she had lacerations, multiple bruises, a right orbital blow-out fracture, and a closed-head injury (a concussion). He said the orbital fracture is a dangerous injury because it is caused by a pretty good force and is places the victim at risk for head injury, brain damage, and potentially death. He also said that the complainants reported loss of consciousness showed significant injury from either a blow to the head or choking. He concluded that the injury to the complainants face and head created a substantial risk of death, that the complainant was seriously injured, and that the complainants serious bodily injuries could have been caused by hands and elbows. On cross-examination, the physician admitted that after he examined the complainant and diagnostic tests had been performed, he did not think she had a serious risk of death. He also was not aware if she had suffered any permanent disfigurement or loss or impairment.

This evidence is legally and factually sufficient to support a finding that the complainant suffered serious bodily injury as a result of being struck by Gonzaless hand or elbow. See Brown, 605 S.W.2d at 575 (broken nose was serious bodily injury because it would be disfigured and impaired if not treated); Dusek v. State, 978 S.W.2d 129, 133 (Tex. App.Austin 1998, pet. refd) (broken leg was serious bodily injury). We overrule issues two and three in No. 10-00223-CR.

One Judgment and Conviction, or Two?

We are left with one issue of unassigned error resulting from the erroneous charge that we have found to be harmless.[9] After the jury returned its punishment decision, the trial court, after remarking to Gonzales that the jury had found him guilty in Cause No. 2002-274-C and in Cause No. 2003-689-C (and stating those causes having been tried by agreement of the parties together), sentenced Gonzales: It is the sentence of the Court that you be confined to the Texas Department of Criminal Justice, Institutional Division for a term of twenty years and fined ten thousand dollars.

However, two identical judgments of convictionone in each trial court causewere entered by the trial court on the one aggravated assault guilty verdict. With two judgments and each reflecting a conviction, are there two convictions? Was Gonzales convicted twice for the same offense? Is he serving two sentences, one for each judgment? This issue and the error are mostly academic in this case because there appears to be no present harm to Gonzales, but we believe that it warrants correction because the State and the trial court considered there to have been the commission of one aggravated assault, the jury charge submitted it as such, and the jury returned one verdict of guilty. There should thus be one conviction and one judgment showing that one conviction, rather than two.[10]

The next questions to answer are which aggravated assault offense was Gonzales convicted of, and which judgment should be vacated as a remedy. We held above that Gonzales was charged with the commission of four aggravated assaults, but the State, the trial court, and the jury charge treated the four offenses as one. And because of the erroneous jury charge, we do not know if the jury found Gonzales guilty of one, two, three, or four aggravated assault offenses. All we know is that he was found guilty of aggravated assault.

Not long ago we addressed a meritorious double jeopardy claim and reviewed the competing most serious offense test in Ex parte Pena and the most serious punishment test in Landers v. State to determine the proper remedy. See Harris v. State, 34 S.W.3d 609, 612-13 (Tex. App.Waco 2000, pet. refd) (discussing Ex parte Pena, 820 S.W.2d 806 (Tex. Crim. App. 1991), and Landers v. State, 957 S.W.2d 558 (Tex. Crim. App. 1997)); see also Ochoa v. State, 982 S.W.2d 904, 908 (Tex. Crim. App. 1998) (when jury improperly convicts accused of greater offense and lesser-included offense, proper remedy is to reform judgment by vacating lesser conviction and sentence). But because we have four aggravated assault offenses, three of which include deadly weapon allegations,[11] none of these tests provide an answer. Ex parte Pena discusses the various methods that had been used to determine which conviction to uphold, including the offense that was alleged first in the indictment. Ex parte Pena, 820 S.W.2d at 808 (citing Beaupre v. State, 526 S.W.2d 811 (Tex. Crim. App. 1975)). Under the circumstances in these appeals, we conclude that the conviction for the offense with the most serious punishment that was alleged first in the indictment is the conviction that should be upheld.

Count 3 of the first indictment in Cause No. 2002-274-C charged Gonzales with bodily injury aggravated assault and the use of a deadly weapon in cutting the complainant with a deadly weapon (knife). Accordingly, we affirm the judgment of conviction for this offense in Cause No. 2002-274-C, and we vacate the judgment of conviction in Cause No. 2003-689-C.

Conclusion

We overrule all of Gonzaless issues in each appeal. We vacate the trial courts judgment in Cause No. 2003-689-C, but we affirm the trial courts judgment in Cause No. 2002-274-C.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Reyna

(Chief Justice Gray dissenting)

(Dissenting opinion to follow)

One judgment affirmed, one judgment vacated

Opinion delivered and filed April 5, 2006

Publish

[CR25]

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[1] A defendant may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode. Tex. Pen. Code Ann. 3.02(a) (Vernon 2003). But each count (offense) is submitted to the jury in a separate verdict. Tex. Code Crim. Proc. Ann. art. 37.07, 1(c) (Vernon Supp. 2005). While the common law rule is one conviction per indictment, multiple convictions are permissible either based upon one charging instrument or several as long as the offenses meet the Penal Codes criminal episode definition and are tried in a single trial. Watson v. State, 900 S.W.2d 60, 63 (Tex. Crim. App. 1995) (citing LaPorte v. State, 840 S.W.2d 412, 413 (Tex. Crim. App. 1992)).

[2] The term "count" is used to charge a separate offense; a paragraph is a portion of a count and charges a method of committing an offense. Watkins v. State, 946 S.W.2d 594, 601 (Tex. AppFort Worth 1997, pet. refd); see Tex. Code Crim. Proc. Ann. art. 21.24 (Vernon 1989). The substance of the allegation, rather than its label, determines whether it is a count or a paragraph. Watkins, 946 S.W.2d at 601.

[3] The jury charge generally instructed the jury that its verdict must be by unanimous vote.

[4] The State does not address how the single verdict form and disjunctive submission, allowing for only one conviction, resulted in two judgments of conviction. (States Brief at 8).

[5] These Penal Code provisions are the same as those in effect at the time of the offenses.

[6] Archie involved a double jeopardy claim premised on the States alleged failure to elect which of the two assault counts it would proceed on, but its analysis on how many assaultive offenses occurred is consistent with this opinion.

[7] We recognize that some courts would analyze this kind of error for harm under Rule of Appellate Procedure 44.2(a). See Tex. R. App. P. 44.2(a); see, e.g., Warner v. State, 2005 WL 2313591, at *4 (Tex. App.Austin Sept. 22, 2005, pet. granted) (mem. op.) (not designated for publication); Dixon v. State, 171 S.W.3d 432, 435 (Tex. App.Houston [14th Dist.] 2005, pet. refd). But Ngo and subsequent similar cases involving unpreserved jury charge error affecting unanimity apply only the egregious harm test. See Ngo, 175 S.W.3d at 750-52; Marinos, --- S.W.3d at ---, 2006 WL 66435, at *5-7; Martinez v. State, --- S.W.3d ---, ---, 2006 WL 66659, at *3-6 (Tex. App.Houston [1st Dist.] Jan. 12, 2006, pet. filed). We will do the same.

[8] Also, the error benefited Gonzales because he was subject to conviction for four offenses, and the States failure to make an election benefits Gonzales by protecting him against future prosecution. See Rodriguez v. State, 104 S.W.3d 87, 92 (Tex. Crim. App. 2003); Ex parte Goodbread, 967 S.W.2d 859, 860-61 (Tex. Crim. App. 1998). In a motion for new trial, Gonzales recognized that the indictments allege four offenses.

[9] We have authority to entertain unassigned error. See Sanchez v. State, 182 S.W.3d 34, 58-64 (Tex. App.San Antonio 2005, pet. filed) (opinion by Judge John F. Onion, Jr.) (sustaining unassigned error of trial courts erroneous submission of ten separate offenses disjunctively with a general verdict, which created the possibility of a non-unanimous jury verdict) (citing Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990); Perry v. State, 703 S.W.2d 668, 670 (Tex. Crim. App. 1986); Carter v. State, 656 S.W.2d 468, 468-70 (Tex. Crim. App. 1983)). For example, it is well settled that we have the authority to review unpreserved fundamental charge error. Saldano v. State, 70 S.W.3d 873, 887 (Tex. Crim. App. 2002) (The courts of every jurisdiction in this country have some doctrine that permits appellate courts to consider claims that such fundamental rights were violated without objection. . . . One such class of fundamental errors has been recognized by the legislature. A statute permits our appellate courts to consider claims that an error in the courts charge to the jury, to which no objection was made, was so grave as to deny a defendant a fair trial.) (citing Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981)).

[10] A judgment is the written declaration of the trial court showing the conviction or acquittal of the defendant. Tex. Code Crim. Proc. Ann. art. 42.01, 1 (Vernon Supp. 2005). However, the written judgment is not itself the conviction; it is only evidence of the conviction. A conviction occurs when the defendant is adjudged guilty by the pronouncement of sentence. 4 Barry P. Helft & John M. Schmolesky, Texas Criminal Practice Guide 81.01[1][a] (2005); see Hurley v. State, 130 S.W.3d 501, 505 (Tex. App.Dallas 2004, no pet.) (whatever else a conviction may be, it must include an adjudication of guilt); Ex parte Aviles, 78 S.W.3d 677, 685 (Tex. App.Austin 2002, no pet.) (judgment in criminal case merely documents fact of, and certain important events associated with, process leading to conviction or acquittal).

[11] An affirmative deadly weapon finding affects a convicted persons parole-eligibility date, generally requiring that one-half of the sentence be served for parole eligibility. See Tex. Govt Code Ann. 508.145(d) (Vernon Supp. 2005); Tex. Code Crim. Proc. Ann. art. 42.12, 3g(a)(2) (Vernon Supp. 2005).