FFIRM ; Opinion Filed Nov eniber 14, 2012.
In The uurt of \pprat,a Fift1! Ditrirt of cxa at t1at1a No 05-11-01195-CR No. 05-1 1-01196-CR
JOSEPh DARRYL WILSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 363rd Judicial District Court Dallas County, Texas Trial Court Cause Nos. F09-60022-W and F09-60023-W
OPINION Before Justices O’Neill, FitzGerald, and Lang-Miers Opinion By Justice Lang-Miers
In two cases arising out of the same incident and consolidated for trial, a jury convicted
appellant Joseph Darryl Wilson of burglary of a habitation and aggravated assault with a deadly
weapon. The trial court assessed punishment in each case at 15 years in prison and ordered the
sentences to run concurrently. In one issue on appeal appellant argues that his convictions “violate
double jeopardy.” We resolve appellant’s issue against him and affirm.
At trial appellant and the two complainants each gave different accounts of what occurred
on the night in question. In the interest ofclarity, we summarize appellant’s version first. According
to appellant, his ex—girl friend. Samantha Montelongo, called him around 7:30 p.m. and asked him to come pick her up from her house. It was his understanding at the time that Samantha was
pregnant with his baby. When he arrived Samantha was standing outside. Appellant got out of his
car and asked Samantha where her clothes were. She went inside to get them and a Mexican guy”
ran outside. asked appellant who he was, and started pushing him. At that point the two men started
fighting. Another person joined in and started beating up appellant. According to appellant he did
not have a gun and he never went inside Samantha’s house.
Samantha, on the other hand, testified that she had not talked to appellant for days and she
didnotthinkheknewwhere she was living until around 11:15 p.m. onthe nightin question. She
and her boyfriend Carlos Gomez were lying in bed talking when a log suddenly flew through the
bedroom window, breaking most ofthe glass. Appellant climbed through the broken window and
said. ‘[C]ome get in the car with me.” Samantha asked appellant to leave. Carlos told Samantha to
go call the police, and Carlos and appellant started fighting. Samantha testified that she had not told
appellant where she was living and did not ask appellant to come pick her up. Samantha also
testified that she never saw appellant’s gun. When she was questioned about why her written
statement to police said that “Carlos got the gun from [appellant],” she explained to the jury that she
lied to the police about seeing appellant’s gun because she did not want Carlos to be mad at her ‘br
not taking his side.” During cross-examination, Samantha acknowledged that she signed an affidavit
stating that she did not want to prosecute this case, and she explained, “The reason why is because
I don’t want him to go to prison. I believe people should get a second chance.”
Carlos testified that he and Samantha were lying in bed when he saw something fly through
the window that he later determined was a “two-by-four.” Appellant came into the room with a gun
in his right hand. Carlos thought it was just a “random burglary. robbery” until Samantha started
yelling appellant’s name and saying, don’t do it.” Appellant said to Carlos, “[W]hat are you
doing in bed with my woman, this is my woman.” Next appellant pointed his gun at Carlos and tried
—2— to shoot C’arlos. hut the gun did not fire. (hirlos wrestled the gun away from appellant and tried to
shoot him, hut the gun did not lire. During his testimony Carlos was asked. “Are von certain that
you saw a firearm in [appellant*s j hand’?” Carlos answered. “I’m very certain he had a gun when he
came in.”
Appellant was convicted of two oltenses: burglary ofa habitation and aggravated assault with
a deadl’ weapon. Under the disjunctive application paragraph of the jury charge. the jury could
convict appellant of burglary of a habitation under either of two theories: (I) entry with intent to
commit aggravated assault with a deadly weapon; or (2) entry and commission or attempted
commission of aggravated assault with a deadly weapon. The general verdict form did not require
the jury to specify which theory it relied upon.
Appellant argues for the first time on appeal that he received multiple punishments for the
same offense because the jury rested its verdict on the second burglary theory, which made the
aggravated assault with a deadly weapon a lesser included offense of burglary. In response, the State
argues that appellant failed to preserve his complaint for appellate review because he did not object
to the disjunctive jury charge at trial. We agree with the State.
Generally, to preserve a multiple-punishments double jeopardy claim for appellate review,
a defendant must object at or before the time the charge is submitted to the jury. Gonzalez v. State.
8 S.W.3d 640, 642 (Tex. Crim. App. 2000). A timely objection allows the trial court and the
prosecution an opportunity to remove the basis of the objection and allows the prosecution a chance
to obtain a conviction “without the risk of an unnecessary retrial in the face of a valid multiple
punishments claim.” Id. at 645—46. An appellant is excused from this preservation requirement and
allowed to raise a multiple-punishments double jeopardy claim for the first time on appeal only if
two conditions are met: (1) the undisputed facts show the double jeopardy violation is clearly
apparent on the face of the record. and (2) enforcement of the usual rules of procedural default serves no legitimate state interests, Id. at 643 see also Langs v. State. 163 SW$d 680, 6X2 (Tex. Crim.
App. 2006 (“[[Ihe thee of the trial court record must clearly show a double jeopardy violation
before a de lèndant max’ successfully raise a multiple punishment’ double jeopardy claim for the first
time on appeaL).
One of the ways in which a multiple-punishments double jeopardy claim arises is in the lesser
included otiènse context. in which the same conduct is punished twice—once [‘or particular conduct,
and a second time for that same conduct plus more (for example, attempted assault and assault of
the same complainant in the course of the same criminal episode). Longs. 183 S.W.3d at 685. When
a defendant is convicted of burglary and another felony committed during that burglary, whether the
defendant’s multiple punishments violate the Double Jeopardy Clause depends on the type of
burglary charged. Jd. at 686. For example. if the burglary allegation is that the defendant entered
a habitation without the consent of the owner and then committed or attented to commit assault
within the habitation as defined in section 30.02(a)(3) of the penal code, then the assault is a lesser
included offense of the burglary and the defendant may not be punished tbr both the burglary and
the assault. See id. But if the burglary allegation is that the defendant entered a habitation without
consent of the owner and with the intent to commit assault as defined in section 30.02(a)(1), then
the burglary and the assault are two separate offenses and the defendant may be punished for both:
The entry of the home with felonious intent and the felony committed within are two distinct criminal acts, and each requires the State to prove an element that the other does not.
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FFIRM ; Opinion Filed Nov eniber 14, 2012.
In The uurt of \pprat,a Fift1! Ditrirt of cxa at t1at1a No 05-11-01195-CR No. 05-1 1-01196-CR
JOSEPh DARRYL WILSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 363rd Judicial District Court Dallas County, Texas Trial Court Cause Nos. F09-60022-W and F09-60023-W
OPINION Before Justices O’Neill, FitzGerald, and Lang-Miers Opinion By Justice Lang-Miers
In two cases arising out of the same incident and consolidated for trial, a jury convicted
appellant Joseph Darryl Wilson of burglary of a habitation and aggravated assault with a deadly
weapon. The trial court assessed punishment in each case at 15 years in prison and ordered the
sentences to run concurrently. In one issue on appeal appellant argues that his convictions “violate
double jeopardy.” We resolve appellant’s issue against him and affirm.
At trial appellant and the two complainants each gave different accounts of what occurred
on the night in question. In the interest ofclarity, we summarize appellant’s version first. According
to appellant, his ex—girl friend. Samantha Montelongo, called him around 7:30 p.m. and asked him to come pick her up from her house. It was his understanding at the time that Samantha was
pregnant with his baby. When he arrived Samantha was standing outside. Appellant got out of his
car and asked Samantha where her clothes were. She went inside to get them and a Mexican guy”
ran outside. asked appellant who he was, and started pushing him. At that point the two men started
fighting. Another person joined in and started beating up appellant. According to appellant he did
not have a gun and he never went inside Samantha’s house.
Samantha, on the other hand, testified that she had not talked to appellant for days and she
didnotthinkheknewwhere she was living until around 11:15 p.m. onthe nightin question. She
and her boyfriend Carlos Gomez were lying in bed talking when a log suddenly flew through the
bedroom window, breaking most ofthe glass. Appellant climbed through the broken window and
said. ‘[C]ome get in the car with me.” Samantha asked appellant to leave. Carlos told Samantha to
go call the police, and Carlos and appellant started fighting. Samantha testified that she had not told
appellant where she was living and did not ask appellant to come pick her up. Samantha also
testified that she never saw appellant’s gun. When she was questioned about why her written
statement to police said that “Carlos got the gun from [appellant],” she explained to the jury that she
lied to the police about seeing appellant’s gun because she did not want Carlos to be mad at her ‘br
not taking his side.” During cross-examination, Samantha acknowledged that she signed an affidavit
stating that she did not want to prosecute this case, and she explained, “The reason why is because
I don’t want him to go to prison. I believe people should get a second chance.”
Carlos testified that he and Samantha were lying in bed when he saw something fly through
the window that he later determined was a “two-by-four.” Appellant came into the room with a gun
in his right hand. Carlos thought it was just a “random burglary. robbery” until Samantha started
yelling appellant’s name and saying, don’t do it.” Appellant said to Carlos, “[W]hat are you
doing in bed with my woman, this is my woman.” Next appellant pointed his gun at Carlos and tried
—2— to shoot C’arlos. hut the gun did not fire. (hirlos wrestled the gun away from appellant and tried to
shoot him, hut the gun did not lire. During his testimony Carlos was asked. “Are von certain that
you saw a firearm in [appellant*s j hand’?” Carlos answered. “I’m very certain he had a gun when he
came in.”
Appellant was convicted of two oltenses: burglary ofa habitation and aggravated assault with
a deadl’ weapon. Under the disjunctive application paragraph of the jury charge. the jury could
convict appellant of burglary of a habitation under either of two theories: (I) entry with intent to
commit aggravated assault with a deadly weapon; or (2) entry and commission or attempted
commission of aggravated assault with a deadly weapon. The general verdict form did not require
the jury to specify which theory it relied upon.
Appellant argues for the first time on appeal that he received multiple punishments for the
same offense because the jury rested its verdict on the second burglary theory, which made the
aggravated assault with a deadly weapon a lesser included offense of burglary. In response, the State
argues that appellant failed to preserve his complaint for appellate review because he did not object
to the disjunctive jury charge at trial. We agree with the State.
Generally, to preserve a multiple-punishments double jeopardy claim for appellate review,
a defendant must object at or before the time the charge is submitted to the jury. Gonzalez v. State.
8 S.W.3d 640, 642 (Tex. Crim. App. 2000). A timely objection allows the trial court and the
prosecution an opportunity to remove the basis of the objection and allows the prosecution a chance
to obtain a conviction “without the risk of an unnecessary retrial in the face of a valid multiple
punishments claim.” Id. at 645—46. An appellant is excused from this preservation requirement and
allowed to raise a multiple-punishments double jeopardy claim for the first time on appeal only if
two conditions are met: (1) the undisputed facts show the double jeopardy violation is clearly
apparent on the face of the record. and (2) enforcement of the usual rules of procedural default serves no legitimate state interests, Id. at 643 see also Langs v. State. 163 SW$d 680, 6X2 (Tex. Crim.
App. 2006 (“[[Ihe thee of the trial court record must clearly show a double jeopardy violation
before a de lèndant max’ successfully raise a multiple punishment’ double jeopardy claim for the first
time on appeaL).
One of the ways in which a multiple-punishments double jeopardy claim arises is in the lesser
included otiènse context. in which the same conduct is punished twice—once [‘or particular conduct,
and a second time for that same conduct plus more (for example, attempted assault and assault of
the same complainant in the course of the same criminal episode). Longs. 183 S.W.3d at 685. When
a defendant is convicted of burglary and another felony committed during that burglary, whether the
defendant’s multiple punishments violate the Double Jeopardy Clause depends on the type of
burglary charged. Jd. at 686. For example. if the burglary allegation is that the defendant entered
a habitation without the consent of the owner and then committed or attented to commit assault
within the habitation as defined in section 30.02(a)(3) of the penal code, then the assault is a lesser
included offense of the burglary and the defendant may not be punished tbr both the burglary and
the assault. See id. But if the burglary allegation is that the defendant entered a habitation without
consent of the owner and with the intent to commit assault as defined in section 30.02(a)(1), then
the burglary and the assault are two separate offenses and the defendant may be punished for both:
The entry of the home with felonious intent and the felony committed within are two distinct criminal acts, and each requires the State to prove an element that the other does not. A person charged with burglary under Section 30.02(a)(1) is guilty of that offense the moment he crosses the threshold ofa habitation without consent and with the intent to commit the underlying felony. It matters not whether he actually does commit that felony or even if he attempts to commit it.
Id. (footnote citations omitted).
When both theories of burglary described above are submitted to the jury disjunctively, a
double jeopardy violation is not clearly apparent on the lhce of the record if there is sufficient
—4— evidence to support the theory that would not constitute a double jeopardy violation. Longs, 1 83
S.W.3d at 687 Applying this law to the facts of this case. a double jeopardy violation would not be
apparent on the hice of the record if there is sufficient evidence to support the theory that appellant
entered Samantha’s home with the intent to commit aggravated assault with a deadly weapon.
Appellant argues that there is insufficient evidence that he entered Samantha’s home with
the intent to commit aggravated assault with a deadly weapon because Sarnantha’s testimony
indicates that the assault arose only when Sarnantha refused to leave with appellant. We disagree.
According to Carlos’s testimony, appellant threw a two-by-four through Carlos and Samantha’s
bedroom window, entered the bedroom with a gun in his hand. and tried to shoot Carlos. We
conclude that there is sufficient evidence to support a finding that appellant entered the home with
intent to commit aggravated assault with a deadly weapon. See, e.g.. Morel v. State. 12 S.W.3d 505.
507 (Tex. App.—San Antonio 1999, pet. ref d) (evidence was sufficient to prove defendant entered
home with intent to commit aggravated assault because evidence showed defendant “hurled himself
through a downstairs window of the house” and yelled “where is she, where is she” while carrying
a knife and handgun). Because appellant could have been convicted under section 30.02(a)(l), a
doublejeopardy violation is not apparent on the face ofthe record. As a result, appellant has not met
the first prong of the exception to the preservation requirement set forth in Gonzalez. 8 S.W.3d 643.
We conclude that appellant has not preserved his double jeopardy claim for our review.
We resolve appellant’s sole issue against him and affirm.
r / I
UZAETH LANG-MIERS ‘UST1E Do Not Publish FEX. R. App. P. 47 111 195F.U05 tiitrt tf pIaI! Fift1 Jitrirt uf ixwi it Ja1Ia JUDGMENT JOSEPIl DARRYL WILSON, Appellant Appeal from the 363rd Judicial District Court of Dallas County, Texas. (Tr.Ct.N o. No. 05-11-01195-CR V F09-60022-W). Opinion delivered by Justice Lang-Miers, THE STATE OF TEXAS, Appellee Justices O’Neill and FitzGerald participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFLRMED.
Judgment entered November 14, 2012. (1 /
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/ — —— — — — —-
JLIZi,BET11 LANG-MIEkS f’JJC E Ji.iitrt uf iprala .1ifth Jiitrirt of rxa at aI1a&
JUDGMENT JoSEPH [)ARRYL WILSON, Appellant Appeal from the 363rd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. No. 05-1 1-01 196-CR V. F09-60023 -W). Opinion delivered by Justice Ling-Miers, THE STATE OF TEXAS, Appellee Justices ONei1l and FitzGerald 11rt icipati ng.
Based on the Court’s opinion of this date, the judgment oIthe trial court is AFFIRMED.
Judgment entered November 14, 2012.
/ ,c - -<-‘ /, E1JAE3ETH LANG-MIERS J(JST1E ii /‘