Gonzalez v. State

• Decision Date: 16 July 1998
• Docket Number: No. 03-97-00669-CR,03-97-00669-CR
• Citation: 973 S.W.2d 427
• Parties: Alfred GONZALEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 427

973 S.W.2d 427

Alfred GONZALEZ, Appellant, v. The STATE of Texas, Appellee.

No. 03-97-00669-CR.

Court of Appeals of Texas Austin.

July 16, 1998.

Linda Icenhauer-Ramirez, Icenhauer-Ramirez & Hubner, P.C., Austin, for Appellant.

Ronald Earle, District Attorney, Philip A. Nelson, Jr., Assistant District Attorney, Austin, for Appellee.

Before POWERS, KIDD and B.A. SMITH, JJ.

KIDD, Justice.

Appellant Alfred Gonzalez was convicted of aggravated robbery and injury to an elderly person and was sentenced to life imprisonment on each count in the Texas Department of Criminal Justice Institutional Division. See Tex. Penal Code Ann. §§ 22.04, 29.03 (West 1994). On appeal, appellant argues that his conviction for both aggravated robbery and injury to an elderly person violates the double jeopardy clauses of the federal and state constitutions. See U.S. Const. amends. V, XIV; Tex. Const. art. I, § 14. We will affirm the convictions.

BACKGROUND

It is undisputed that eighty-five-year-old Lora Thurman was robbed and beaten on or about August 30, 1993. The record shows that appellant and three others entered Thurman's house on that night and brutally attacked both Thurman and her grandson with a baseball bat and a crowbar. The record shows that Thurman suffered severe facial injuries including a broken nose that "split all the way to the skull." Based on this incident, appellant was arrested and indicted on one count of aggravated robbery, with three alternative statutory aggravating allegations, and one count of injury to an elderly person. The pertinent parts of the indictment are discussed below.

The case was tried to a jury. At the conclusion of the evidence, the jury was charged on both aggravated robbery and injury to an elderly person. The court's charge set out the three alternative statutory aggravating allegations to the aggravated robbery count, disjunctively. After deliberation, the jury returned a general verdict finding appellant guilty of both aggravated robbery and injury to an elderly person. The trial court assessed a life sentence for each offense and judgment was rendered accordingly.

DISCUSSION

In points of error one and two, appellant contends that the double jeopardy clauses of the United States and Texas constitutions were violated because the convictions for aggravated robbery and injury to an elderly person as alleged in the indictment constituted the same offense arising out of the same transaction. U.S. Const. amends. V, XIV; Tex. Const. art. I, § 14. Appellant does not separately argue his state and federal constitutional claims, and proffers no argument or authority to support a holding that, in the context of this cause, the Texas Constitution's double jeopardy clause differs meaningfully from the Fifth Amendment. We therefore overrule point of error one, the state double jeopardy claim, and will conduct our analysis under the federal constitution. See Ex parte Granger, 850 S.W.2d 513, 515 n. 6 (Tex.Crim.App.1993); Queen v. State, 940 S.W.2d 781, 783 (Tex.App.--Austin 1997, pet. ref'd).

The Fifth Amendment guarantee against double jeopardy embodies three protections: (1) against a second prosecution for the same offense following conviction; (2) against a second prosecution for the same offense following acquittal; and (3) against multiple punishments for the same offense. See Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); Cervantes v. State, 815 S.W.2d 569, 572 (Tex.Crim.App.1991); Queen, 940 S.W.2d at 783. Appellant invokes the third of these protections. Appellant did not raise his double jeopardy claim below; but, under the circumstances presented, the alleged violation may be raised for the first time on appeal. See Shaffer v. State, 477 S.W.2d 873, 876 (Tex.Crim.App.1971); Queen, 940 S.W.2d at 783; Casey v. State, 828 S.W.2d 214, 216 (Tex.App.--Amarillo 1992, no pet.).

The double jeopardy guarantee against multiple punishments for the same offense does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended. Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); Ex parte Kopecky, 821 S.W.2d 957, 959 (Tex.Crim.App.1992); Queen, 940 S.W.2d at 783. When the same conduct violates more than one distinct penal statute and each statute requires proof of a fact that the other does not, it is presumed that the two offenses are not the same and that the legislature intended to authorize multiple punishments. Hunter, 459 U.S. at 366, 103 S.Ct. 673; Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Conversely, if all the elements of one statutory offense are contained within the other, it is presumed that the two offenses are the same and that the legislature did not intend to authorize punishment for both. Whalen v. United States, 445 U.S. 684, 693-94, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980).

The Texas Court of Criminal Appeals recently observed that "[t]he core meaning of Blockburger is now evidently more in dispute than ever before," and that "the only proposition upon which everyone seems to agree is that greater inclusive and lesser included offenses are the same for jeopardy purposes." Parrish v. State, 869 S.W.2d 352, 354 (Tex.Crim.App.1994). The court went on to state:

In Texas, an offense is considered to be included within another if, among other things, "it is established by proof of the same or less than all the facts required to establish the commission of the offense charged[.]" Tex.Code Crim. Proc. Ann. art. 37.09(1) (West 1981). Our statute law thus describes includedness in much the same way Blockburger describes sameness. Yet we have long considered more than merely statutory elements to be relevant in this connection.... We likewise think it reasonably clear from the various opinions in Dixon that the essential elements relevant to a jeopardy inquiry [under Blockburger ] are those of the charging instrument, not of the penal statute itself.

Id. (discussing United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993)). Therefore, after the decision in Parrish, we have referred to the indictment or the charging instrument to determine the essential elements relevant to the jeopardy inquiry. See Queen, 940 S.W.2d at 784.

In this cause, count one of the indictment charged aggravated robbery with three alternative statutory aggravating allegations which were ultimately submitted in the jury charge disjunctively. In pertinent part, count one alleged that [Appellant] ... did then and there while in the course of committing theft of property and with intent to obtain and maintain control of the property,

[Paragraph One] intentionally and knowingly caused serious bodily injury to Lora Thurman, by striking her with a crowbar....

[Paragraph Two] intentionally and knowingly threatened and placed Lora Thurman in fear of imminent bodily injury and death by using and exhibiting a deadly weapon, namely a crowbar, which in the manner of its use and intended use is capable of causing serious bodily injury and death....

[Paragraph Three] intentionally and knowingly caused bodily injury to Lora Thurman, a person older than 65 years of age by striking her with a crowbar.

Count two alleged:

[Appellant] ... did then and there, intentionally and knowingly cause serious bodily injury, and disfigurement and deformity to Lora Thurman, an elderly individual, a person over the age of 65, by striking Lora Thurman with a deadly weapon, a crowbar, which in the manner of its use and intended use was capable of causing serious bodily injury and intended use was capable of causing serious bodily injury or death.

Thus, count one charged appellant with aggravated robbery and count two charged him with injury to an elderly person. See Tex. Penal Code §§ 22.04, 29.03.

Appellant contends that, as charged in the indictment, injury to an elderly person is a lesser included offense of the aggravating element of aggravated robbery. The State argues that aggravated robbery and injury to an elderly person cannot constitute double jeopardy because unlike injury to an elderly person, theft is an essential element of aggravated robbery, and unlike aggravated robbery, sixty-five years of age is an essential element of injury to an elderly person.

Appellant responds that had theft or robbery, and not aggravated robbery, been alleged in conjunction with injury to an elderly person, there would have been no double jeopardy violation; however, when the aggravating elements are considered, the two convictions constitute double punishment for the same offense. In making this argument, appellant persuasively points to the similarities between the allegations in...