COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00068-CR
02-14-00069-CR
02-14-00070-CR
RORY JONES APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 211TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. F-2014-0079-C, F-2014-0080-C, F-2014-0081-C
----------
MEMORANDUM OPINION1
----------
I. INTRODUCTION
A jury convicted Appellant Rory Jones of aggravated robbery, aggravated
assault, and attempted aggravated kidnapping. See Tex. Penal Code Ann.
§§ 15.01, 20.04, 22.02(a)(2), 29.03 (West 2011). After Jones pleaded true to the
1
See Tex. R. App. P. 47.4.
prior-felony-conviction enhancement paragraph in each indictment, the jury
assessed punishment at life in prison in each case and assessed fines in the
amounts of $10,000 for the aggravated assault conviction and $2,500 for the
attempted aggravated kidnapping conviction. The trial court sentenced Jones
accordingly, ordering that the sentences run concurrently. In a single issue,
Jones claims that convicting him for both aggravated robbery and aggravated
assault violated the Fifth Amendment proscription against double jeopardy. The
State concedes error on this issue and requests that we set aside Jones’s
conviction and punishment for aggravated assault. After conducting an
independent evaluation, we will vacate and dismiss Jones’s conviction for
aggravated assault and affirm Jones’s convictions for aggravated robbery and
attempted aggravated kidnapping.2
II. FACTUAL AND BACKGROUND
After getting off work as a maid at the Best Value Inn in Lewisville, Texas,
Modesta Sanchez-Montero saw Jones walk by where she was sitting. About
twenty minutes later, Jones approached her from behind, grabbed her, and
demanded money. Jones was wielding an object that appeared to be a
screwdriver and threatened to stab Sanchez-Montero if she did not comply with
his demands. He then began beating her and forcibly dragging her towards a
2
Although Jones appealed his conviction for attempted aggravated
kidnapping, he did not assert any error. Thus, we affirm the conviction as a
matter of course and include it here only in the interest of clarity.
2
truck in the parking lot. Sanchez-Montero broke free, ran to her room, and called
the motel owner. The owner confronted Jones and told him to wait while the
owner investigated the situation. Jones instead got into his truck and fled the
motel.
The State charged Jones with aggravated robbery, aggravated assault,
and attempted aggravated kidnapping. The pertinent portion of Jones’s
aggravated robbery indictment read:
[W]hile in the course of committing theft of property and with intent to
obtain or maintain control of said property, [Jones did] intentionally
or knowingly threaten or place Modesta Sanchez-Montero in fear of
imminent bodily injury or death, and [Jones] did then and there use
or exhibit a deadly weapon, to-wit: a screwdriver or an object
unknown to the Grand Jury, that in the manner of its use or intended
use was capable of causing death or serious bodily injury.
The pertinent portion of Jones’s aggravated assault indictment read:
[Jones did] intentionally or knowingly threaten Modesta Sanchez-
Montero with imminent bodily injury, and did then and there during
the commission of said assault, use or exhibit a deadly weapon, to-
wit: a screwdriver or an unknown object to the Grand Jury, that in the
manner of its use or intended use was capable of causing death or
serious bodily injury.
III. DOUBLE JEOPARDY
Jones argues, and the State agrees, that convicting him of aggravated
assault and aggravated robbery, both by threat, for the same criminal act violated
the double jeopardy protections guaranteed by the Fifth Amendment. See U.S.
Const. amend. V, cl. 2. We agree. See Saldano v. State, 70 S.W.3d 873, 884
3
(Tex. Crim. App. 2002) (explaining that the State’s confession of error is not
conclusive on review and conducting an independent review on the merits).
The Double Jeopardy Clause of the United States Constitution provides
that no person shall be subjected to twice having life or limb in jeopardy for the
same offense. U.S. Const. amend. V. 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
v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000) (footnotes omitted); see
Langs v. State, 183 S.W.3d 680, 686–87 (Tex. Crim. App. 2006).
Impermissible multiple punishments occur when the same criminal act is
punished twice under two distinct statutory provisions and the legislature
intended that the conduct be punished only once. Bigon v. State, 252 S.W.3d
360, 370 (Tex. Crim. App. 2008). To determine whether there have been
multiple punishments for the same offense, we apply the “same elements” test
from Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932).
See Ex Parte Denton, 399 S.W.3d 540, 545 (Tex. Crim. App. 2013). We focus
on the elements alleged in the charging instrument to determine whether the
offenses as charged require proof of the same elements. Bigon, 252 S.W.3d at
370. Double-jeopardy challenges should be made even to offenses that have
differing elements under the Blockburger test “if the same ‘facts required’ are
alleged in the indictment.” Id. (citing Hall v. State, 225 S.W.3d 524 (Tex. Crim.
4
App. 2007)). If two offenses do not have the same elements under the
Blockburger test, but if other indicia manifest a legislative intent that an accused
not be punished for two offenses arising from the course of a single transaction,
an accused may not be punished for both offenses. See Gonzales v. State, 304
S.W.3d 838, 845–46 (Tex. Crim. App. 2010).
Here, the indictments for aggravated robbery and aggravated assault both
alleged that Jones intentionally or knowingly threatened Modesta Sanchez-
Montero with imminent bodily injury and used a screwdriver or unknown object
that in its manner of use or intended use was capable of causing death or serious
bodily injury. The indictment for aggravated robbery further alleged that Jones
committed theft. When faced with the same double jeopardy issue as we have
here and almost identical indictments, the court of criminal appeals in Denton
explained,
[A]s plead, aggravated assault is a lesser-included offense of
aggravated robbery because “it is established by proof of the same
or less than all the facts required to establish the commission of the
offense charged[.]” “If . . . the prosecution, in proving the elements
of one charged offense, also necessarily proves another charged
offense, then that other offense is a lesser-included offense.” If
there is no clear legislative intent to punish the offenses separately,
multiple punishments for the criminal act that is the subject of the
prosecution is barred. No such intent has been shown here. We
conclude that applicant has shown that [his convictions for
aggravated robbery and aggravated assault] are in violation of his
constitutional double-jeopardy protections that preclude multiple
punishments for the same offense.
399 S.W.3d at 547. Here, as in Denton, the aggravated assault, as charged, is a
lesser-included offense of the aggravated robbery, and Jones’s convictions for
5
both offenses violated double jeopardy.3 See id.; cf. Garfias v. State, 424 S.W.3d
54, 63–64 (Tex. Crim. App.) (holding that aggravated assault by causing bodily
injury was not a lesser-included offense of aggravated robbery by threat), cert.
denied, 2014 WL 3753800 (2014).
When a defendant has been prosecuted and convicted in a single criminal
action of two or more offenses that constitute the same offense, in violation of
double jeopardy, the remedy is to apply “the most serious offense” test and retain
the conviction for the “most serious” offense. Denton, 399 S.W.3d at 547. The
“most serious” offense is the offense for which the greatest sentence was
assessed. Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App. 2006); see
also Evans v. State, 299 S.W.3d 138, 141 (Tex. Crim. App. 2009); Bigon, 252
S.W.3d at 372–73. But when the punishment for each conviction is identical, we
cannot look to only the sentences imposed to determine the most serious
offense. See Bigon, 252 S.W.3d at 373. Instead, we have to look to other
criteria, including the degree of felony for each offense, to determine which
offense is the most serious. Id.; White v. State, 395 S.W.3d 828, 832 (Tex.
App.—Fort Worth 2013, no pet.).
In this case, Jones received a life sentence for both the aggravated assault
and aggravated robbery convictions. Because aggravated robbery is a first-
3
Jones did not raise a double jeopardy claim in the trial court, but as both
parties assert on appeal, the double jeopardy violation is clearly apparent on the
face of the record and enforcement of usual rules of procedural default serves no
legitimate state interests. See Gonzalez, 8 S.W.3d at 643.
6
degree felony and aggravated assault is a second-degree felony, aggravated
robbery is the most serious offense here.4 See Tex. Penal Code Ann.
§§ 22.02(b), 29.03(b). As such, we will vacate Jones’s conviction for aggravated
assault. See Bigon, 252 S.W.3d at 373; White, 395 S.W.3d at 833. We sustain
Jones’s sole issue.
IV. CONCLUSION
Having sustained Jones’s sole issue, we vacate and dismiss his conviction
for aggravated assault and affirm the convictions for aggravated robbery and
attempted aggravated kidnapping.
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: LIVINGSTON, C.J.; WALKER and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 20, 2014
4
Both offenses were enhanced with a prior felony conviction. Thus, the
aggravated robbery offense was enhanced to a “hybrid” first-degree felony with a
punishment range of not less than fifteen years or more than ninety-nine years or
life in prison. See Tex. Penal Code Ann. § 12.42(c)(1) (West Supp. 2014). The
aggravated assault offense was enhanced to a first-degree felony. See id.
§ 12.42(b).
7