NUMBER 13-12-00605-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
MARIA ALMAGUER, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 93rd District Court
of Hidalgo County, Texas.
ORDER OF ABATEMENT
Before Justices Garza, Benavides, and Perkes
Order by Justice Benavides
After a jury trial, appellant, Maria Almaguer, appeals her convictions for one count
of manslaughter, see TEX. PENAL CODE ANN. § 19.04 (West, Westlaw through 2013 3d
C.S.), a second-degree felony enhanced to a first-degree felony; one count of murder,
see id. § 19.02(b)(3) (West, Westlaw through 2013 3d C.S.), a first-degree felony; and
two counts of intentionally or knowingly causing serious injury to a child, each first-degree
felonies, see id. § 22.04(e) (West, Westlaw through 2013 3d C.S.). All of these charges
relate to the death of Almaguer’s 23-month-old son, Ismael. This case was submitted to
this Court on March 31, 2014. An opinion was issued on April 10, 2014, wherein we
affirmed in part and reversed and remanded in part. Almaguer and the State have each
filed motions for rehearing. For the reasons stated below, we abate and remand.
I. MULTIPLE PUNISHMENTS
Almaguer argues on appeal that her multiple convictions and punishments violate
the constitutional protections against double jeopardy. See U.S. CONST. amend. V, XIV;
TEX. CONST. art. I, § 14. This issue was raised by Almaguer’s counsel during the trial
court’s pronouncement of sentence and was overruled by the trial court; it was raised
again in a motion for new trial, which was denied by operation of law on January 3, 2013.
See TEX. R. APP. P. 21.8(c). The State concedes Almaguer’s point on appeal and agrees
that only one judgment in this case can stand and the others must be vacated. Therefore,
our sole inquiry in this issue is to determine which of the four judgments of conviction
remains. See TEX. R. APP. P. 47.1.
A. Applicable Law
It is undisputed in this case that all of Almaguer’s convictions are the “same” for
purposes of double jeopardy. When a defendant is convicted of multiple offenses that
are the “same” for double-jeopardy purposes, case law tells us that the conviction for the
“most serious” offense is retained and the other conviction is set aside. Ex parte Cavazos,
203 S.W.3d 333, 337 (Tex. Crim. App. 2006).
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Cavazos overruled prior case law which allowed courts to examine other factors—
i.e. the degree of the felony, range of punishment, and rules governing parole eligibility
and awarding of good-conduct time—as “tie breakers” in retaining the most serious
offense. See id. at 338 (overruling Landers v. State, 957 S.W.2d 558, 559–60 (Tex. Crim.
App. 1997) (en banc)); see also 41 GEORGE E. DIX & JOHN M. SCHMOLESKY, CRIMINAL
PRACTICE AND PROCEDURE § 19:16 (3d ed. 2013) (“The Court . . . had second thoughts
[after Landers] about entering the thicket of parole eligibility and awards of good time.”).
Under Cavazos, we look to one factor rather than several in determining the most serious
offense—that is, the most serious offense is the offense with the greatest sentence
assessed. Id. If the sentences are equal in terms of years, we may look to see if
restitution was added to an offense, and if so, that is the most serious offense. See id. at
338–39.
The court of criminal appeals re-visited this issue two years later, however, in
Bigon v. State, 252 S.W.3d 360, 372–73 (Tex. Crim. App. 2008). In Bigon, the defendant
was convicted of multiple offenses for the same conduct, which the Court held violated
the double-jeopardy provision. Id. at 372. The Court sought to set aside five of the
defendant’s six convictions under the Cavazos test, but the punishment assessed for
each conviction was equal. See id. at 373. As a result, the court of criminal appeals
looked to the degree of the felony for each offense to determine which was most serious.
See id. Thus, the Court affirmed the defendant’s first-degree felony murder conviction
and vacated the remaining second-degree felonies. See id. The Bigon Court further
reaffirmed the policy reasons behind applying the “most serious test” to double-jeopardy
violations—that is, (1) it eliminates arbitrary decisions based upon the order of the
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offenses in the charging instrument; and (2) public safety is insured through the deterrent
influence of penalties. Id. (citing Landers, 957 S.W.2d at 559).
When convictions entail the same punishment and are of same degree, courts may
use other factors in determining the most serious offense. For example, in Villanueva v.
State, 227 S.W.3d 744, 749 (Tex. Crim. App. 2007), the court of criminal appeals utilized
an affirmative finding of use of a deadly weapon in one first-degree felony to vacate
another equal first-degree felony where an affirmative finding of use of a deadly weapon
was not made.
In Ruth v. State, No. 13-10-00250-CR, 2011 WL 3840503, at **6–9 (Tex. App.—
Corpus Christi Aug. 29, 2011, no pet.) (mem. op., not designated for publication), this
Court faced a situation in which a defendant was subject to multiple punishments for the
same offense in violation of the double jeopardy provision. In determining which of three
convictions should be retained, we noted that each of the convictions were identical under
the Cavazos, Bigon, and Villanueva holdings. Id. at *8. As a result, we faced “an
unsettled question” of law, and chose to return to pre-Cavazos case law, which retained
the “first-indicted offense” to “break the tie” when all else was equal since the court of
criminal appeals expressly declined to address the issue in Cavazos. See id. (citing Ex
parte Cravens, 805 S.W.2d 790, 791 (Tex. Crim. App. 1991) (en banc); Ex parte Siller,
686 S.W.2d 617, 620 (Tex. Crim. App. 1985) (en banc)).
B. Discussion
Almaguer was convicted of: (1) one count of manslaughter, a lesser-included
offense to capital murder and a second-degree felony enhanced to a first-degree felony
based upon a finding of “true” that Almaguer had once been before convicted of a felony
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offense, see TEX. PENAL CODE ANN. § 19.04; (2) one count of felony murder, a first-degree
felony regardless of enhancements, see id. § 19.02(b)(3); (3) intentionally or knowingly
causing serious bodily injury to a child by act, a first-degree felony regardless of
enhancements, see id. § 22.04(e); and (4) intentionally or knowingly causing serious
bodily injury to a child by omission, a first-degree felony regardless of enhancements, see
id. The jury assessed punishment for each count at life imprisonment with a $10,000 fine
and no restitution.
First, we are unable to utilize Cavazos’s greatest-sentence-only test in this case
because the punishment for each conviction is equal. See Cavazos, 203 S.W.3d at 338.
However, by applying Bigon and Villanueva, we conclude that Almaguer’s manslaughter
conviction, as a second-degree felony before enhancements, should not be considered.
See Bigon, 252 S.W.3d at 372–73; Villanueva, 227 S.W.3d at 749. We note that the
State takes an identical position in its briefing.
By not considering Almaguer’s manslaughter charge, we are now left to determine
which one of the three remaining first-degree felonies is the most serious offense. Here,
all three convictions are equal in: (1) the assessment of punishment, see Cavazos, 203
S.W.3d at 338; (2) the degree of offense, see Bigon, 252 S.W.3d at 372–73; and (3)
deadly weapon findings, see Villanueva, 227 S.W.3d at 749. Furthermore, we distinguish
our holding in Ruth and find it inapplicable to this particular case. Generally, when
applying the rule announced in Ruth, the conviction that should be affirmed “is the offense
named in the first verdict form,” and typically will be the offense described in Count I of
the indictment. See Cavazos, 203 S.W.3d at 339 n.8. Here, the offense named in the
first verdict form and likewise described in Count I of the indictment was the offense of
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capital murder, under which the jury found Almaguer guilty of the lesser included offense
of manslaughter. However, because we are not considering Almaguer’s manslaughter
conviction for purposes of this analysis, we are unable to utilize the “first-indicted offense”
test in this case.
As a result, we explore this issue further herein due to the absence of clarity in the
controlling authorities and recurrent problems in applying these authorities in different
scenarios where the offenses are equal no matter which factors are applied to determine
the most serious offense. Both Almaguer and the State agree that only one conviction
should remain; but neither party directs us to any authority to make that determination on
direct appeal. More specifically, the State “defers to this Court” in its briefing.
We have applied all of the existing controlling authority from the majority opinions
of the court of criminal appeals, as well as precedent from this Court, and we must
therefore seek guidance from Presiding Judge Keller’s dissent in Bigon.1 In it, she states
the following:
Although I authored Landers, the practical impossibility of determining in
some cases which offense is really the most serious has convinced me that
it would be preferable to simply give the local prosecutor the option to
choose which conviction to retain. Making the matter a function of
prosecutorial discretion seems to be most consistent with our prior
recognition that a prosecutor in this type of situation is entitled to “submit
both offenses to the jury for consideration” and receive “the benefit of the
1 We note that the Austin Court issued a post-Cavazos opinion that utilized parole and good time
considerations as a tie-breaker when all other tie-breakers yielded an equal result. See Williams v. State,
240 S.W.3d 293, 300 (Tex. App.—Austin 2007, pet. ref'd); but see Ex parte Williams, No. WR-69021-04,
2013 WL 5872880, at *1 (Tex. Crim. App. Oct. 30, 2013) (granting Williams the opportunity to file an out-
of-time petition for discretionary review of the judgment of the Third Court of Appeals’ decision).
We do not read Cavazos as expansively as the Williams Court and decline to extend its holding
today. However, even if we were to utilize parole and good time considerations as a tie-breaker in this
case, the three remaining convictions would nevertheless remain equal. Pursuant to government code
section 508.145(d)(1), see TEX. GOV’T CODE ANN. § 508.145(d)(1) (West, Westlaw through 2013 3d C.S.),
read in conjunction with article 42.12 of the code of criminal procedure, see TEX. CODE CRIM. PROC. ANN.
art. 42.12 § 3g(a)(1)(A), (I) (West, Westlaw through 2013 3d C.S.), Almaguer is not eligible for release on
parole for any of the remaining three convictions for 30 calendar years.
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most serious punishment obtained.” If a subjective decision is to be made,
let the local prosecutor who exercised the decision to bring the case make
it. Indeed, doing so would be consistent with at least one of our decisions—
Ex parte Ervin, [991 S.W.2d 804, 817 (Tex. Crim. App. 1999),] the very case
relied upon to find a double-jeopardy violation here.
Bigon, 252 S.W.3d at 374 (Keller, P.J., dissenting); Cf. Ball v. U.S., 470 U.S. 856, 864–
65 (1985) (remanding a defendant’s sentences under the federal firearm statutes to the
district court to exercise its discretion to vacate one of the convictions). Therefore, absent
any authority to the contrary, we adopt Presiding Judge Keller’s suggestion and remand
to the trial court for the local prosecutor's office to decide which conviction should be
retained as the “most serious.” See id.
II. CONCLUSION
We abate this appeal for thirty days and remand this cause to the trial court to hold
a hearing and give the local prosecutor’s office an opportunity to decide which of the
following convictions (counts two, three, and four of trial court cause number CR–217–
09–B) is the most serious offense. The trial court is ordered to conduct a hearing
consistent with this order and solely for this limited purpose. The trial court’s ruling and
new judgment shall be included in a supplemental clerk’s record and transmitted to this
Court along with a reporter’s record of the hearing.
This appeal is abated and will be reinstated on this Court's active docket only when
the supplemental clerk's record is filed in this Court. The Court will consider an
appropriate motion to reinstate the appeal filed by either party, or the Court may reinstate
the appeal on its own motion. After reinstatement, the Court will consider the issues on
appeal. It is the State’s responsibility to request a hearing date from the trial court and to
schedule a hearing in compliance with this Court's order. If the parties do not request a
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hearing, the court coordinator of the trial court shall set a hearing date and notify the
parties of such date.
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
9th day of May, 2014.
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