Joseph Martinez v. State

                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-112-CR


JOSEPH MARTINEZ                                                      APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE

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           FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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      In two issues, appellant Joseph Martinez contends that his convictions

for possession and delivery of the same ten pounds of marijuana are the same

for double jeopardy purposes and that the trial judge erred by refusing to include

a jury question on possession of marijuana under five pounds. We reverse the




      1
          … See Tex. R. App. P. 47.4.
judgment as to the possession charge and acquit appellant on that charge only;

however, we affirm the judgment as to the delivery charge.

         The State concedes appellant’s first issue and asks that we delete

appellant’s conviction for possession. Accordingly, we sustain appellant’s first

issue.

         In his second issue, appellant contends the trial court erred by failing to

include a question on possession of under five pounds.            But because by

sustaining appellant’s first issue, we must reverse the conviction for

possession, his second issue is now moot and we need not address it.2 See

Tex. R. App. P. 47.1; Dixon v. State, 932 S.W.3d 567, 571 (Tex. App.—Tyler

1995, no pet.).

         Having sustained appellant’s first issue and having determined that his

second issue is therefore moot, we affirm the trial court’s judgment as to the

conviction for delivery of marijuana, but we reverse the trial court’s judgment




         2
      … When an appellant is convicted of two offenses that are the same for
double jeopardy purposes, we retain the conviction for the most serious
offense, which is the offense of conviction for which the greatest sentence was
assessed. Ex parte Cavazos, 203 S.W.3d 333, 337–38 (Tex. Crim. App.
2006). Here, that is the sentence of ten years’ confinement for delivery.

                                          2
as to the conviction for possession of marijuana and render a judgment of

acquittal as to that offense only.




                                         TERRIE LIVINGSTON
                                         JUSTICE

PANEL: LIVINGSTON, GARDNER, and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 11, 2008




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