Ruben Orozco v. State

• Court: Court of Appeals of Texas
• Decided: January 27, 1993
• Docket: 10-92-00092-CR
• Status: Published

Opinion

Orozco v. State

IN THE

TENTH COURT OF APPEALS

No. 10-92-092-CR

     RUBEN OROZCO,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the 351st District Court

Harris County, Texas

Trial Court # 601,252

                                                                                                    

O P I N I O N

                                                                                                    

      In this case the Appellant was charged by indictment with the felony offense of retaliation under the provisions of V.T.C.A. Penal Code Section 36.06, with two prior felony convictions alleged for the purpose of enhancing the punishment. Appellant waived his right to trial by jury and proceeded to trial before the court. The trial court found Appellant guilty, whereupon Appellant was arraigned on the two enhancement paragraphs of the indictment. Appellant pleaded "true" to the first enhancement paragraph and "not true" to the second enhancement paragraph. After the punishment phase was tried, the trial court found both enhancement allegations to be true and assessed Appellant's punishment at thirty-five years confinement in the Texas Department of Criminal Justice, Institutional Division, from which conviction Appellant makes this appeal.

      Appellant comes to this court on four points of error. The first point of error asserts that the evidence is insufficient to support the conviction. Since we are of the opinion and hold that the evidence is insufficient, we sustain Appellant's first point of error and thereby reverse and remand the case to the trial court with instructions that Appellant be acquitted. This being our disposition, Appellant's remaining three points become moot.

      Omitting the formal parts, the indictment alleges that on or about June 16, 1991, the Appellant did intentionally and knowingly harm and threaten to harm S.V Pinkstone by an unlawful act, namely, stating, "I'm coming back to get you, bitch," in retaliation for and on account of the service of S.V. Pinkstone as a public servant. Following the main charge of the indictment were allegations of two prior felony convictions.

      The State has filed no brief in this case. The offense of "Retaliation" with which Appellant is charged in the primary portion of the indictment is defined in V.T.C.A. Section 36.06(a) of the Penal Code as follows:

"(a)A person commits an offense if he intentionally or knowingly harms or threatens to harm another by an unlawful act in retaliation for or on account of the service of another as a public servant, witness, prospective witness, informant, or a person who has reported the occurrence of a crime."

The only witness to testify was S.V. Pinkstone, the complainant, who testified that he was employed by the Houston Police department as a police officer, and had been so employed for eight and one-half years. At the time of the alleged offense, he was not working in his official capacity as a police officer, but was off duty and working an extra job at the Lizard Lounge, although he was still wearing his police uniform.

      Pinkstone first observed Appellant drinking from a bottle of Budweiser beer on a parking lot on the north side of the Lizard Lounge at four o'clock in the morning. Pinkstone further testified that drinking a bottle of beer at that time and place was not permitted by either the club or the law. When Pinkstone walked toward him, Appellant dropped the bottle and began walking away, at which time Pinkstone called Appellant back. At this point Pinkstone formed the opinion that Appellant was intoxicated. After a discussion with Appellant, Pinkstone arrested Appellant for public intoxication and consuming alcohol during prohibited hours and took Appellant to the office of the Lizard Lounge so he could fill out the necessary paperwork and keep Appellant away from other people. Appellant resisted and cursed Pinkstone and generally misbehaved. Pinkstone further testified that while in the office, prior to being transported to jail, Appellant made the statement: "I'm coming back to get you, bitch," which statement was the basis for this prosecution. Pinkstone took Appellant's comment to mean that Appellant was going to cause him some bodily injury. Pinkstone said that if he had not seen Appellant consuming alcohol in the parking lot during prohibited hours, he would not even have approached Appellant; moreover, Pinkstone concluded that if he had not arrested Appellant, that Appellant probably would not have made the statements that he did. At one point Pinkstone testified that Appellant's statement was a threat to come back and haunt him; and then, in answer to the State's leading question, he testified he interpreted Appellant's words to mean that Appellant was threatening to come back and cause him bodily injury. There were other people present when Appellant made the statement as well as the cursing, but Pinkstone decided that Appellant's comment was directed at him because Appellant was looking at him at the time.

      The following statutory definitions are pertinent to our discussion:

Sec. 1.07(a)(16) Penal Code, V.T.C.A. provides:

"`Harm' means anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested."

      Sec, 1.07(a)(30) Penal Code, V.T.C.A. provides:

 

"`Public servant' means a person elected, selected, appointed, employed, or otherwise designated as one of the following, even if he had not yet qualified for office or assumed his duties:

(A) an officer, employee or agent of government; . . . ."

      Under the statute defining the offense involved, and the indictment in the instant case, the State was required to prove beyond a reasonable doubt that:

(1)Appellant either

(a)harmed S.V. Pinkstone by an unlawful act, or

(b)threatened to harm S.V. Pinkstone by an unlawful act.

(2)On account of S.V. Pinkstone's service as a public servant.

      In reviewing the sufficiency of the evidence, the appellate court must determine, after viewing the evidence in the light most favorable to the verdict, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

      When we evaluate the State's burden of proof of the necessary elements of the instant case in the light of the Jackson v. Virginia rule, we are of the opinion and hold that the evidence is insufficient to support the trial court's finding of guilt on the part of Appellant.

      In summary, the State's proof of the elements of this offense are uncertain in several aspects to the extent that the evidence is insufficient to sustain the conviction. For example, Mr. Pinkstone was at the time of the commission of the alleged offense, performing a private service for the Lizard Lounge, even though he was wearing his police uniform while off duty and in private employment. There is a serious question as to whether Mr. Pinkstone was acting as a public servant at the time in question. Additionally, there is no showing whether the parking lot upon which Appellant was drinking the beer was a public parking lot or a private parking lot. If it was a private parking lot, it is uncertain whether it belonged to Lizard Lounge or someone else. There was no evidence of a city ordinance nor any presentation of any law showing that the drinking of a beer at four o'clock in the morning under these circumstances was a violation of the law. Mr. Pinkstone testified that in his opinion the Appellant was intoxicated; however, the offense of public intoxication requires that a person be intoxicated to the degree that he may endanger himself or another. V.T.C.A. Sec. 42.08(a) Penal Code. Although Appellant was uncooperative, it is not clear whether he was intoxicated to the degree that he might endanger himself or another.

      The Appellant cursed and threatened the manager of Lizard Lounge and another party, the latter being under arrest at and near the same time that he said the threatening words in question; however, Mr. Pinkstone testified that at the time Appellant uttered the words in question, that Appellant was looking at Mr. Pinkstone.

      Appellant's language, "I'm coming back to get you, bitch," can be interpreted as threatening or not threatening. It can be interpreted that Appellant was going to do something unlawful or possibly something that was not unlawful. The point is that the only way that we may find that harm was threatened is by speculation.

      In short, we believe the evidence is insufficient to prove the elements of the subject offense beyond a reasonable doubt as required by Jackson v. Virginia, cited hereinabove.

      For these reasons, we hereby reverse the judgment of conviction and remand the case to the trial court with instructions to enter a judgment of acquittal.

                                                                                     JOHN A. JAMES, JR.

                                                                                     Justice (Retired)

Before Justice Cummings,

      Justice Vance, and

      Justice James (Retired)

Reversed and remanded with instructions for acquittal

Opinion delivered and filed January 27, 1993

Do not publish

st 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.) (defendant’s two aggravated sexual assault convictions for conduct on same day in allegedly penetrating victim’s sexual organ and victim’s 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 defendant’s 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 defendant’s 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. ref’d).  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 complainant’s back with a knife.  Count 4 alleged aggravated assault by Gonzales’s 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 Gonzales’s 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 appellant’s 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 reh’g).  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 heard—as 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 don’t 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 State’s 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 defendant’s 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:  “There’s 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 court’s and State’s 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 complainant’s sexual organ and with complainant’s 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 Gonzales’s defensive theory.  The charge error could not have affected this contested issue.  The jury was faced with two mutually exclusive theories:  the State’s theory that Gonzales inflicted the complainant’s 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 State’s theory.[8]

The charge error did not deny Gonzales a fair trial, go to the very basis of the case, or affect Gonzales’s 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 Gonzales’s 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 jury’s 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 neighbor’s couch, and “kind of passed out.”  The complainant’s 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 complainant’s reported loss of consciousness showed significant injury from either a blow to the head or choking.  He concluded that the injury to the complainant’s face and head created a substantial risk of death, that the complainant was seriously injured, and that the complainant’s 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 Gonzales’s 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. ref’d) (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 conviction—one in each trial court cause—were 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. ref’d) (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 Gonzales’s issues in each appeal.  We vacate the trial court’s judgment in Cause No. 2003-689-C, but we affirm the trial court’s judgment in Cause No. 2002-274-C.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

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 Code’s “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. App—Fort Worth 1997, pet. ref’d); 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.   (State’s 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 State’s 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. ref’d).  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 State’s 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 court’s 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 court’s 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 person’s parole-eligibility date, generally requiring that one-half of the sentence be served for parole eligibility.  See Tex. Gov’t Code Ann. § 508.145(d) (Vernon Supp. 2005); Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (Vernon Supp. 2005).