Duran v. State

Decision Date22 June 2016
Docket NumberNO. PD–0429–15,PD–0429–15
Citation492 S.W.3d 741
PartiesFrancisco Duran, Jr., Appellant v. The State of Texas
CourtTexas Court of Criminal Appeals

Joseph Moreno, The Law Office of Joseph Moreno, Harlingen, TX, Attorneys for Appellant.

Rene B. Gonzalez, Assistant District Attorney, Brownsville, TX, Lisa C. McMinn, State's Attorney, Austin, Attorneys for The State.

OPINION
NEWELL

, J., delivered the opinion of the Court in which MEYERS, JOHNSON, HERVEY, ALCALA, AND RICHARDSON, JJ., joined.

In this case, a jury convicted Appellant of both burglary of a habitation and aggravated assault in two separate counts. The jury found Appellant guilty of both counts, but the State abandoned the aggravated assault conviction prior to the punishment phase of the trial. We are asked to determine whether the court of appeals erred by 1) upholding the conviction on the aggravated assault charge even though the State had abandoned that charge prior to punishment; and 2) upholding the trial court's modification to the judgment to include a deadly-weapon finding.

We reverse. The court of appeals should have vacated the conviction for aggravated assault because the State unequivocally abandoned the charge in the middle of trial and after jeopardy had attached. Moreover, the court of appeals improperly held that the deadly-weapon finding was proper based upon the jury's finding of guilt on the burglary charge. Finally, we disagree with the State that the trial court could rely upon the abandoned jury verdict in the aggravated assault case to support the entry of a deadly weapon finding in Appellant's burglary case.

Facts

In this case, the victim, Gonzalo Gonzalez, threw something at Appellant and his friends. Later that same day, Appellant and his friends retaliated by breaking into Gonzalo's apartment and throwing a DVD player at him. The State indicted Appellant for the offenses of burglary of a habitation and aggravated assault in two separate counts. In Count I, the State charged Appellant with burglary of a habitation, alleging that Appellant had entered the victim's residence without consent and either committed or attempted to commit the felony offense of aggravated assault. Tex. Penal Code Ann. § 30.02(a)(3)

(West 2011). In Count II, the State charged Appellant with the separate offense of aggravated assault with a deadly weapon, alleging that Appellant had intentionally, knowingly, or recklessly caused bodily injury to Gonzalo Gonzalez by striking him in the head and using or exhibiting a deadly weapon in the process. Tex. Penal Code Ann. § 22.02(a)(2) (West 2011). The indictment also included an enhancement count.

The jury charge properly tracked the language of the indictment. Neither the indictment nor the jury charge contained language concerning the use of a deadly weapon in the burglary charge. It did, however, ask the jury to determine whether Appellant had committed or attempted to commit an aggravated assault as part of the burglary. And, the jury charge also instructed the jury to find Appellant guilty of aggravated assault if it found that Appellant used or exhibited a deadly weapon.

The jury found Appellant guilty on both counts. Before proceeding to punishment, the State abandoned the aggravated assault conviction out of concern that imposing punishment for it would violate the Double Jeopardy Clause by subjecting Appellant to two punishments for the same offense. At the beginning of the punishment phase, the State's attorney rose and announced, “At this time the State is abandoning the second charge of aggravated assault with a deadly weapon due to the fact that the Defendant cannot be punished on both charges. It is double jeopardy, so we are going forward solely on the burglary of a habitation [charge].” The jury found the enhancement allegation of a prior felony to be true, and assessed punishment on the first count at twenty-five years' imprisonment.1

Despite the State's abandonment of the aggravated assault charge, the judgment reflected that the jury convicted Appellant of both burglary of a habitation and aggravated assault with a deadly weapon, with a sentence of 25 years. It did not contain a deadly-weapon finding. The State later moved to modify the judgment to have the trial court enter a deadly-weapon finding. The State argued that the jury had necessarily made a finding that a deadly weapon was used in the commission of the crime by finding Appellant guilty of aggravated assault, even though the State had voluntarily abandoned that count after the jury returned the verdict. The trial court granted the motion over Appellant's objections and modified the judgment to include the following: “Finding on Special Issue: Affirmative Finding that a deadly weapon was used or exhibited during the commission of this offense was made by the Jury.”

Direct Appeal

On appeal, Appellant first argued that the trial court had improperly included the aggravated assault conviction in the judgment because the State had abandoned the allegation prior to punishment. The State agreed that the judgment should not reflect that the jury convicted Appellant of aggravated assault. However, the court of appeals held that it was unnecessary to completely delete the aggravated assault conviction from the judgment because Appellant was, in fact, convicted of it.

Duran v. State, No. 13–12–00344–CR, 2013 WL 3378327 at *4 (Tex.App.—Corpus Christi July 3, 2013)

(not designated for publication). Instead, the court of appeals held that the judgment should be modified to reflect the State's abandonment of the aggravated assault allegation prior to punishment and affirmatively state that punishment was assessed only on Appellant's burglary conviction. Id.

Appellant also argued that the trial court erred in modifying the judgment to include a deadly-weapon finding because the jury verdict on the burglary of a habitation allegation did not amount to an affirmative finding that Appellant had used or exhibited a deadly weapon during the offense. The State responded that the deadly-weapon finding was appropriate because the jury had convicted Appellant of aggravated assault with a deadly weapon. According to the State, that verdict reflected an affirmative finding by the jury on the deadly-weapon issue even though the State had voluntarily and unequivocally abandoned the entire allegation. The court of appeals held that the jury's conviction in Appellant's burglary case was sufficient to authorize the entry of a deadly-weapon finding, obviating any need to address the State's argument.2

The Judgment Should Not Include a Conviction for an Abandoned Allegation

The State may, with the consent of the trial court, dismiss, waive, or abandon a portion of the indictment. Ex parte Preston, 833 S.W.2d 515, 517 (Tex.Crim.App.1992)

. However, if the State dismisses, waives, or abandons a charge after a jeopardy has attached (after a jury is impaneled and sworn in a jury trial), it is tantamount to an acquittal, as the State is barred from later litigating those allegations. Id. ; see also

Lewis v. State, 889 S.W.2d 403, 406 (Tex.App.—Austin 1994, pet. ref'd) (citing Black v. State, 143 Tex.Crim. 318, 158 S.W.2d 795, 796 (Tex.Crim.App.1942) ). Moreover, a defendant may not be punished for both a burglary with the commission of a felony during the burglary and the underlying felony itself. Langs v. State, 183 S.W.3d 680, 686 (Tex.Crim.App.2006). And the appropriate remedy when a defendant is subjected to multiple punishments for the same conduct is to affirm the conviction on the most serious offense and vacate the other convictions. Bigon v. State, 252 S.W.3d 360, 372 (Tex.Crim.App.2008). We agree with both the State and Appellant that the court of appeals should have vacated the aggravated-assault conviction that the State unequivocally abandoned to avoid running afoul of the constitutional prohibition against multiple punishments. We reverse the court of appeals holding in this regard and vacate Appellant's conviction for aggravated assault contained in the judgment.

When Is It Appropriate to Enter a Deadly–Weapon Finding?

The entry of a deadly weapon in a judgment not only curtails a trial court's ability to order community supervision, it also affects a defendant's eligibility for parole. Section 508.145(d) of the Texas Government Code

states that “an inmate serving a sentence ... for an offense for which the judgment contains an affirmative finding under

Section 3g(a)(2) of [Article 42.12, Code of Criminal Procedure

]” must serve a longer period, without consideration of good conduct time, before he may be released on parole. Tex. Gov't.Code Ann. § 508.145(d) (West 2010). For a trial court to enter a deadly-weapon finding in the judgment, the trier of fact must first make an “affirmative finding” to that effect. Tex.Code Crim. Proc. Ann. art. 42.12 § 3g (a)(2) (West 2010). Under the text of the statute, a trial court is authorized to enter a deadly-weapon finding in the following circumstances:

[W]hen it is shown that a deadly weapon as defined in Section 1.07, Penal Code

, was used or exhibited during the commission of a felony offense or during immediate flight therefrom, and that the defendant used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited. On an affirmative finding under this subdivision, the trial court shall enter the finding in the judgment of the court.

Tex.Code Crim. Proc. Ann . art. 42.12 § 3g (a)(2) (West 2010)

. As we explained in Polk v. State, the term “affirmative finding” means the trier of fact's express determination that a deadly weapon or firearm was actually used or exhibited during the commission of the offense. 693 S.W.2d 391 (Tex.Crim.App.1985). Courts do not look to the facts of the case to “imply” an affirmative deadly-weapon finding; we look to the charging instrument, the jury charge, and the jury verdict to evaluate the propriety of an entry of a deadly-weapon...

To continue reading

Request your trial
54 cases
  • Malbrough v. State
    • United States
    • Texas Court of Appeals
    • 1 Septiembre 2020
    ...to the submission of a special issue during the punishment phase of trial.See Polk , 693 S.W.2d at 396 ; see also Duran v. State , 492 S.W.3d 741, 746 (Tex. Crim. App. 2016) ; Edwards , 2019 WL 2426710, at *17.Here, the indictment did not use the words "deadly weapon" or allege the use of a......
  • Ex parte Chapa
    • United States
    • Texas Court of Appeals
    • 22 Agosto 2018
    ...399 S.W.3d at 544 (citing Langs v. State, 183 S.W.3d 680, 687 (Tex. Crim. App. 2006); Gonzalez, 8 S.W.3d at 643)); Duran v. State, 492 S.W.3d 741, 745 (Tex. Crim. App. 2016) (remedy for double-jeopardy violation in multiple-punishments context is to affirm conviction for most serious offens......
  • Van Do v. State
    • United States
    • Texas Court of Criminal Appeals
    • 29 Septiembre 2021
    ...trial, and if it is, that possibility would suggest that Appellant forfeited any such error in this case.30 Duran v. State , 492 S.W.3d 741, 745 (Tex. Crim. App. 2016) ("State may, with the consent of the trial court, dismiss, waive, or abandon a portion of the indictment.") (citing Ex part......
  • Stevens v. State
    • United States
    • Texas Court of Appeals
    • 11 Agosto 2023
    ...to which courts can rely upon deductive reasoning to determine whether the jury entered an affirmative deadly-weapon finding." Duran, 492 S.W.3d at 747. In Crumpton, case involving a conviction for criminally negligent homicide, the Court affirmed the court of appeals' decision that the jur......
  • Request a trial to view additional results
6 books & journal articles
  • Double Jeopardy
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 1 - 2020 Contents
    • 16 Agosto 2020
    ...those allegations. If a charge is abandoned in this fashion, it should not be included in a judgment as a conviction. Duran v. State, 492 S.W.3d 741, 745 (Tex. Crim. App. 2016). The prosecution must take affirmative steps on the record to validly waive, dismiss or abandon that portion of a ......
  • Double Jeopardy
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 1 - 2021 Contents
    • 16 Agosto 2021
    ...those allegations. If a charge is abandoned in this fashion, it should not be included in a judgment as a conviction. Duran v. State, 492 S.W.3d 741, 745 (Tex. Crim. App. 2016). The prosecution must take affirmative steps on the record to validly waive, dismiss or abandon that portion of a ......
  • Double jeopardy
    • United States
    • James Publishing Practical Law Books Texas Criminal Lawyer's Handbook. Volume 1-2 Volume 1
    • 5 Mayo 2022
    ...those allegations. If a charge is abandoned in this fashion, it should not be included in a judgment as a conviction. Duran v. State, 492 S.W.3d 741, 745 (Tex. Crim. App. 2016). The prosecution must take affirmative steps on the record to validly waive, dismiss or abandon that portion of a ......
  • Double Jeopardy
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 1 - 2018 Contents
    • 17 Agosto 2018
    ...those allegations. If a charge is abandoned in this fashion, it should not be included in a judgment as a conviction. Duran v. State, 492 S.W.3d 741, 745 (Tex. Crim. App. 2016). The prosecution must take affirmative steps on the record to validly waive, dismiss or abandon that portion of a ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT