Llorens v. State

520 S.W.3d 129, 2017 WL 1534208, 2017 Tex. App. LEXIS 3569
CourtCourt of Appeals of Texas
DecidedApril 21, 2017
DocketNO. 03-16-00257-CR
StatusPublished
Cited by13 cases

This text of 520 S.W.3d 129 (Llorens v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Llorens v. State, 520 S.W.3d 129, 2017 WL 1534208, 2017 Tex. App. LEXIS 3569 (Tex. Ct. App. 2017).

Opinion

OPINION

David Puryear, Justice

After Dara Marie Llorens and Greg Allen got divorced, Llorens moved to Mexico with their young daughter, S.A., and remained there for twelve years before being discovered by authorities. Eventually, Llorens was arrested and charged with kidnapping and with interference with child custody. See Tex. Penal Code §§ 20.03(a) (setting out elements of offense of kidnapping), 25.03(a) (governing offense of interference with child custody). Llorens entered a guilty plea to both charged offenses and requested that the district court assess her punishment for both offenses. Following a sentencing hearing, the district court sentenced Llo-rens to two years’ imprisonment for the interference charge and to six years’ imprisonment for the kidnapping charge. See id. §§ 20.03(c) (stating that kidnapping is third-degree felony), 25.03(d) (providing that interference with child custody is state-jail felony); see also id. §§ 12.34-.35 (setting out permissible, punishment ranges for third-degree felonies and for state-jail felonies). After Llorens’s sentencing, the district court certified that Llo-rens had the right to appeal her convictions. In two issues on appeal, Llorens contends that her convictions for both offenses violated her double-jeopardy guarantee against multiple punishments for the same offense and that there was no basis for some of the court costs imposed by the district court. We will modify the district court’s judgment pertaining to the kidnapping conviction to remove some of the court costs imposed and, as modified, affirm that judgment and affirm the judg[133]*133ment pertaining to the interference-with-child-custody conviction.

DISCUSSION

Double Jeopardy

In her first issue on appeal, Llorens contends that her “convictions for kidnapping and interference with child custody violated the Double Jeopardy Clause because they punish her twice for the same conduct in contravention of legislative intent.”

In resolving this issue on appeal, we note, as a preliminary matter, that Llorens did not present this double-jeopardy claim to the district court. See Gonzalez v. State, 8 S.W.3d 640, 642 (Tex. Crim. App. 2000) (explaining that, in general, defendant has burden to preserve double-jeopardy objection); see also Tex. Code Crim. Proc. art. 1.14(b) (specifying that defendant waives right to appeal error in indictment if he does not object to error before trial commences). Typically, the failure to present an issue to the district court prevents the issue from being considered on appeal. See Tex. R. App. P. 33.1(a) (requiring that complaint be made to trial court in order to preserve issue for appeal). However, the court of criminal appeals has determined that “because of the fundamental nature of double jeopardy protections, a double jeopardy claim may be raised for the first time on appeal ... when the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and when enforcement of usual rules of procedural default serves no legitimate state interests.” Gonzalez, 8 S.W.3d at 643. “A double-jeopardy claim is apparent on the face of the trial record if resolution of the claim does not require further proceedings for the purpose of introducing additional evidence in support of the double-jeopardy claim.” Ex parte Denton, 399 S.W.3d 540, 544 (Tex. Crim. App. 2013); see also Ex parte Marascio, 471 S.W.3d 832, 837 (Tex. Crim. App. 2015) (Keasler, J., concurring) (noting, with exceptions, that under current state of law, “the clearly-apparent-from-the-record factor requires that we reach the merits of the claim before determining whether the claim is properly presented”).

The “Double Jeopardy Clause protects criminal defendants from three things: 1) a second prosecution for the same offense after acquittal; 2) a second prosecution for the same offense after conviction; and 3) multiple punishments for the same offense.” Ex parte Milner, 394 S.W.3d 502, 506 (Tex. Crim. App. 2013). “When a defendant is convicted of two or more crimes in a single trial, only the third of these protections is implicated.” Duvall v. State, 59 S.W.3d 773, 777 (Tex. App.Austin 2001, pet. ref’d). “A double jeopardy claim based on multiple punishments arises when the State seeks to punish the same criminal act twice under two distinct statutes under circumstances in which the Legislature intended the conduct to be punished only once.” Shelby v. State, 448 S.W.3d 431, 435 (Tex. Crim. App. 2014). “While double jeopardy precludes a defendant from being punished twice for the same offense, it does not prevent a second punishment for the same conduct.” McCrary v. State, 327 S.W.3d 165, 178 (Tex. App.-Texarkana 2010, no pet.).

The indictment in this case alleged that Llorens committed the crime of kidnapping “on or about the 29th day of April A.D. 2002” by “intentionally or knowingly” abducting S.A. “by restricting the movements of [S.A.] without her consent, so as to interfere substantially with her liberty, by moving her from one place to another or by confining her, with intent to prevent her liberation by secreting or holding her in a place where she was not likely to be [134]*134found.” Further, the indictment alleged that Llorens committed the crime of interfering with child custody “on or about the 15th day of August A.D. 2014” by “intentionally or knowingly tak[ing] or retainting] [S.A.], a child younger than 18 years of age, knowing that the taking or retention violated the express terms of a judgment or order ... disposing of the child’s custody,” or by “intentionally or knowingly tak[ing] or retain[ing] [S.A.], a child younger than 18 years of age, outside of the United States with intent to deprive ... Allen of possession or access to [S.A.], and without the permission of ... Allen,” who “was entitled to possession of or access to” S.A.

When entering her guilty pleas, Llorens signed a judicial confession stating that she committed the offenses “as alleged in the indictment.” See Chindaphone v. State, 241 S.W.3d 217, 218, 220 (Tex. App.-Fort Worth 2007, pet. refd) (concluding that judicial confession was sufficient to support plea where it stated as follows: “I have read the' indictment or information filed in this case and I committed each and every act alleged therein”). Accordingly, it would seem that error might not be apparent on the face of the record because the indictment alleged two offenses that occurred twelve years apart from one another. Cf. Collins v. State, No. 02-09-00303-CR, 2010 WL 3433281, at *5 (Tex. App.Fort Worth Aug. 31, 2010, pet. ref'd) (mem. op., not designated for publication) (determining that defendant failed to preserve double-jeopardy claim where error did not appear on face of record because indictment alleged that offenses occurred on dates in different years and because testimony at trial established that abuse occurred over several year period).

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Cite This Page — Counsel Stack

Bluebook (online)
520 S.W.3d 129, 2017 WL 1534208, 2017 Tex. App. LEXIS 3569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/llorens-v-state-texapp-2017.