ACCEPTED
03-15-00301-CR
6442724
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/11/2015 11:57:32 AM
JEFFREY D. KYLE
CLERK
NO. 03-15-00301-CR
COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
FOR THE 8/11/2015 11:57:32 AM
JEFFREY D. KYLE
Clerk
THIRD SUPREME JUDICIAL DISTRICT
IN RE JOSE C. LOREDO,
Appellant
FROM THE HAYS COUNTY COURT AT LAW NO. 1 OF
HAYSCOUNTY,TEXAS-HONORABLEJUDGEROBERTUPDEGROVE
APPELLANT'S BRIEF
Respectfully submitted,
MENDOZA LAW OFFICES, PLLC
608 South Guadalupe Street
San Marcos, Te 78666
Tel: (512y157-8830
Fax: (YU)878-8426
c_ b
David A. Mendoza
State Bar No. 24046426
mendozaone@yahoo.com
ORAL ARGUMENT NOT REQUESTED
lndetification of Parties
Trial Counsel on Application for Writ of Habeas Corpus:
Representing State of Texas:
Ms. Rebecca Culpepper, SBN 24077 429
Assistant District Attorney
Hays County Government Center
712 S. Stagecoach Trail
San Marcos, Texas 78666
(512) 393-7600-Telephone
(512) 393-7619 - Facsimile
Representing Appellant Jose C. Loredo:
Mr. David A. Mendoza, SBN 24046426
Attorney for Appellant
608 South Guadalupe Street
San Marcos, Texas 78666
(512) 757-8830-Telephone
(512) 787-8426-Facsimile
Appellate Counsel:
Mr. Wesley Mau, SBN 00784539
Hays County Criminal District Attorney
Hays County Government Center
712 S. Stagecoach Trail
San Marcos, Texas 78666
(512) 393-7600-Telephone
(512) 393-7619-Facsimile
Attorney for Appellee State of Texas
Representing Appellant Jose C. Loredo:
Mr. David A. Mendoza, SBN 24046426
Attorney for Appellant, Jose C. Loredo
11
TABLE OF CONTENTS
TABLE OF CONTENTS.......................................................................................... m
STATEMENT OF ORAL ARGUMENT .......................... ..................... ID
INDEX OF AUTHORITIES .................................................................................... IV
STATEMENT OF THE CASE ................................................................................... 1
ISSUE ONE ................................................................................................................... 1
SUMMARY OF THE ARGUMENT ......................................................................... 2
FACTS ............................................................................................... .. 3
ARGUMENT ................................................................................................................ 5
ISSUE ONE
Appellant asserts a violation of the protections afforded him under the Double
Jeopardy Clause of the Fifth Amendment, because the subsequent prosecution in the
misdemeanor case amounts to a subsequent prosecution for the same offense after
conviction and multiple punishments for the same offense
........................................................................ 2.
CONCLUSION ........................................................................................................... 10
PRAYER...................................................................................................................... 11
CERTIFICATE OF SERVICE ................................................................................ 12
Statement of Oral Argument
Oral argument not requested.
iii
INDEX OF AUTHORITIES
CASES
Ex parte Milner, 394 S.W.3d 502 (Tex. Crim. App. 2013) ........................... 5, 6
Ex parte Schmidt, 109 S.W.3d 480 (Tex. Crim. App 2003) .............................. 6
Reyes v. State, 139 S.W.3d 448 (Tex. App. -Austin 2004, no pet.) ..................... 8
Shelby v. State, 448 S.W.3d 431 (Tex. Crim. App. 2014) ....................................... 6
Wilson v. State, No. 05-10-01207-CR, 2012 Tex. App.LEXIS 2192 (Tex. App.-
Dallas March 21, 2012, no pet.) (UNPUBLISHED) ................................. 9, 10
STATE STATUTES
ARTICLE 1.10, C.C.P ........................................................................ 6
U.S. CONSTITUTION
FIFTH AMENDMENT .................................................................. 5, 11
FOURTEENTH AMENDMENT .................................................... 5, 7, 11
TEXAS CONSTITUTION
ARTICLE I, §14 .......................................................................... 6, 11
lV
NO. 03-15-00301-CR
COURT OF APPEALS
FOR THE
THIRD SUPREME JUDICIAL DISTRICT
IN RE JOSE C. LOREDO,
Appellant
APPELLANT'S BRIEF
TO THE HONORABLE msTICE OF THE COURT OF APPEALS:
COMES NOW Jose C. Loredo, Appellant, by and through his Attorney, David
A. Mendoza, and files this Appeal of the denial of his Application for Writ of Habeas
Corpus and would show the Court the following:
STATEMENT OF THE CASE
Appellant was indicted for Aggravated Assault with a Deadly Weapon
[Family Violence] a Second Degree Felony. Appellant was also charged by
information and complaint with Assault Causing Bodily Injury - Family Violence.
Both the indictment and the information alleged the same offense date, the same
victim, and the same manner and means.
Page 1
Appellant pleaded guilty in the felony case to the lesser included offense of
Assault Causing Bodily Injury-Family Violence, a Class A misdemeanor. On the
same day in the misdemeanor case, Appellant pleaded guilty to the offense of Assault
Causing Bodily Injury-Family Violence, a Class A misdemeanor. Appellant's
punishment in both cases was assessed at 160 days, credit for time served.
Appellant complains that the prosecution in the county court was a violation of
the Double Jeopardy protection afforded him under the Fifth Amendment to the
United States Constitution. Appellant filed an Application for Writ of Habeas
Corpus seeking relief from the double jeopardy violation. The application was
denied and this appeal ensued.
ISSUE
Appellant asserts a violation of the protections afforded him under the Double
Jeopardy Clause of the Fifth Amendment, because the subsequent prosecution in the
misdemeanor case amounts to a subsequent prosecution for the same offense after
conviction and multiple punishments for the same offense.
SUMMARY OF THE ARGUMENT
Appellant's Application for Writ of Habeas Corpus should have been granted,
because the prosecution in the county court is a violation of the Double Jeopardy
Page2
protection afforded Appellant under the Fifth Amendment to the United States
Constitution.
The felony and misdemeanor charge are practically mirror images of each
other. The indictment charges Aggravated Assault with a Deadly Weapon-Family
Violence and the information charges Assault Causing Bodily Injury - Family
Violence. However, both the indictment and the information alleged the same
offense date, the same victim, and the same manner and means. The prosecution and
punishment of Appellant in the second, less severe case amounts to violation of the
double jeopardy protection afforded Appellant under the Fifth Amendment to the
United States Constitution.
FACTS
In Cause No. CR-10-0816, Appellant was charged with Aggravated Assault
with a Deadly Weapon [Family Violence] a Second Degree Felony. 1
In Cause No. 095790, Appellant was charged with Assault Causing Bodily
Injury [Family Violence], a Class A Misdemeanor. 2 The victim in both the felony
case and the misdemeanor case is the same person, April Najera. 3 Similarly, the
alleged act occurred on the same date in both cases, May 10, 2009. 4
1
Clerk's Record (hereinafter "CR") page 44.
2
CR9.
3
CR9,44.
Page3
In the felony indictment, the state alleged that Appellant brandished a knife
while in the commission of an assault on the victim, which occurred by grabbing the
victim's hair and face with Appellant's hand or hands. 5
In the misdemeanor complaint, the State alleged that the Appellant assaulted
the victim by grabbing the victim about the face or pulling the hair of the victim or by
striking the victim. 6
On September 8, 2011, in the felony case, Appellant pleaded Guilty to the
lesser included offense of Assault Causing Bodily Injury-Family Violence, a Class A
misdemeanor. 7
On the same day in the misdemeanor case, Appellant pleaded Guilty to the
offense of Assault Causing Bodily Injury-Family Violence, a Class A misdemeanor. 8
The punishment in both cases is 160 days, credit for time served.
4 Id..
5
CR44.
6
CR9.
7
CR28-29.
8
CR 13-14.
Page4
ARGUMENT & AUTHORITY
Appellant is unlawfully restrained of his liberty by and through a subsequent
conviction and punishment for the same occurrence. In Cause No. CR-10-0816,
Appellant was convicted of the lesser included offense of Assault Causing Bodily
Injury-Family Violence, a Class A Misdemeanor. In Cause No. 095790, Appellant
was convicted of Assault Causing Bodily Injury-Family Violence, also a Class A
misdemeanor. The victim and date are the same. Other than the assault for which he
was twice convicted, Appellant was not charged with any other crime against April
Najera on May 10, 2009, either by indictment, complaint, information or counts or
paragraphs.
The double jeopardy clause in the Fifth Amendment is extended to state
criminal prosecutions through the 14th Amendment. Double Jeopardy protects
citizens from three things: 1) a second prosecution for the same offense after
acquittal; 2) a second prosecution for the same offense after conviction; and 3)
multiple punishments for the same offense. Ex parte Milner, 394 S.W.3d 502, 506
(Tex. Crim. App. 2013) (finding "[w]hen a double-jeopardy violation has occurred, a
writ of habeas corpus is a proper venue through which to challenge the error).
Appellant claims that the State has violated the latter two prohibitions, because
he was subjected to a subsequent prosecution for the same offense after conviction,
and he was also subjected to multiple punishments for the same offense.
Page 5
Thus, the appropriate remedy is to leave intact the more serious conviction and
vacate the less serious offense. As the Court of Criminal Appeals surmised in
Shelby, "[w]hen an individual is convicted of two offenses that are the "same" for
double jeopardy purposes, the appropriate remedy is to affirm the conviction for the
"most serious" offense and to vacate the other conviction." Shelby v. State, 448
S.W.3d431, 440 (Tex. Crim. App. 2014).
Accordingly, Appellant requests that the misdemeanor conviction in Cause
No. 095790 be vacated and declared null and void, because the subsequent
prosecution and punishment is barred by the Double Jeopardy Clauses of the Fifth
and Fourteenth Amendments of the United States Constitution, Article I, § 14 of the
Texas Constitution, and Article I.IO of the Texas Code of Criminal Procedure.
Jurisdiction and Illegal Restraint. Pursuant to article 11.09, Code of
Criminal Procedure, an application for writ of habeas corpus is properly before the
County Court at Law when a person is confined on the charge of a misdemeanor.
However, actual constraint is not required. Ex parte Schmidt, 109 S.W.3d 480 (Tex.
Crim. App 2003) (reversing denial of application for writ of habeas corpus from
Harris County Criminal Court, because defendant was restrained due to enhancement
provisions in DWI laws); see also Ex parte Milner, 394 S.W.3d 502 (Tex. Crim.
App. 2013) (finding that when a double jeopardy violation has occurred, a writ of
habeas corpus is the appropriate venue to challenge the violation). Jose Loredo is
Page 6
constrained of his liberty, because the second conviction for assault causing bodily
injury-family violence may result in Jose Loredo's deportation. Mr. Loredo has an
immigration hearing scheduled for June 2015.
Second Prosecution and Multiple Punishments. The double jeopardy
clause in the Fifth Amendment is extended to state criminal prosecutions through the
14th Amendment. Double Jeopardy protects citizens from three things: 1) a second
prosecution for the same offense after acquittal; 2) a second prosecution for the same
offense after conviction; and 3) multiple punishments for the same offense. When
the State subjected Jose Loredo to a second prosecution and punishment for the same
assault against April Najera, it was a violation of the double jeopardy clause.
In its trial brief, the State argued that Jose Loredo's double jeopardy claim is
improper, because the charges started out differently, e.g. Aggravated Assault in
district court and Class A assault in county court. 9 The State's argument, however,
ignored the end result in the record, i.e., two misdemeanor assault prosecutions and
convictions for the same crime. April Najera is the victim in both cases.
Furthermore, the evidence in the record is that Jose Loredo committed only one
assault on April Najera on May 10th, 2009.
Alternatively, the State argued that if double jeopardy occurred, Jose Loredo
voluntarily waived his rights to the protections afforded under the double jeopardy
Page7
clause. 1° First, there is absolutely no express or implied waiver in the plea bargain
agreements to the rights afforded by the double jeopardy clause.
Moreover, in Reyes v. State, 139 S.W.3d 448 (Tex. App. - Austin 2004, no
pet.), the Austin Court of Appeals ruled that:
[w]hether entered with or without an agreed recommendation of
punishment by the State, a valid plea of guilty or nolo contendere
"waives" or forfeits the right to appeal a claim of error only when
the judgment of guilt was rendered independent of and is not
supported by, the error.
Reyes, 139 S.W.3d at 448. Reyes had pleaded guilty to aggravated sexual assault of
a child and a second charge of indecency with a child. The state conceded that the
two charges were integral and violated double jeopardy, because both charges
stemmed from one incident.
However, the State in the Reyes case argued on appeal that Reyes waived the
double jeopardy violation by pleading guilty.
The Austin Court went on to find that the lower court's judgment was not
rendered independent of the double jeopardy violation, because the State could not
9
CR38-40.
IO Id.
Page 8
convict the defendant of the second crime no matter how validly his factual guilt is
established. Id. at 449.
Similarly, Jose Loredo did not waive his double jeopardy protections, because
the second prosecution and second punishment is for the same crime. Thus, the
second judgment is directly supported by the facts in the first prosecution and first
punishment. In other words, the second judgment in Jose Loredo's case is not
independent of the other misdemeanor assault, i.e., the double jeopardy violation.
The State cannot convict Jose Loredo of the second Assault no matter how validly his
factual guilt is established. The misdemeanor assault and felony assault allege the
same victim on the same date and there is no evidence that there is a second assault
on April Najera.
In Wilson v. State, No. 05-10-01207-CR, 2012 Tex. App.LEXIS 2192 (Tex.
App.- Dallas March 21, 2012, no pet.) (UNPUBLISHED), the defendant pleaded
guilty to two burglary of a habitations wherein the State changed the consentor in the
second burglary. The habitation was the same in both cases and the date alleged was
the same in both cases. The difference was the person who gave consent. One case
said without the effective consent of Jean Black and the other case said with effective
consent of Twaya Michelle Wilson.
Page9
The Wilson court found that same offense means identical criminal act and that
in their case the indictments alleged entry into two different habitations. Wilson at
*3. However, the undisputed facts were that the two convictions were based on the
same conduct, which was one entry into the habitation. Likewise, in our case Jose
Loredo pleaded guilty to a misdemeanor assault against April Najera on May 10th and
he also pleaded guilty to a misdemeanor assault against April Najera on May 10th.
The undisputed evidence is that Jose Loredo committed one assault against April
Najera on May 10th. The Wilson court held that "two convictions based on a single
unlawful entry violate double jeopardy." Wilson at *9.
Jose Loredo is asking this Court to find that two convictions based on a single
assault likewise violates double jeopardy.
CONCLUSION
Appellant's Application for Writ of Habeas Corpus seeking relief from a
violation of the Double Jeopardy clause should have been granted, because Appellant
was subjected to a subsequent prosecution for the same offense after conviction, and
he was also subjected to multiple punishments for the same offense.
Page 10
PRAYER
WHEREFORE, PREMISES CONSIDERED, Jose C. Loredo prays that this
Court reverse the trial court's denial of the Application for Writ of Habeas Corpus, or
Grant Appellant's Application and Order that that the misdemeanor conviction in
Cause No. 095790 be vacated and declared null and void, because the subsequent
prosecution and punishment is barred by the Double Jeopardy Clauses of the Fifth
and Fourteenth Amendments of the United States Constitution, Article I, § 14 of the
Texas Constitution, and Article 1.10 of the Texas Code of Criminal Procedure, and to
grant any further relief to which Applicant may be entitled.
Respectfully submitted,
MENDOZA LAW OFFICES, PLLC
608 South Guadalupe Street
San Marcos, Texas 78666
Tel: (512) 757-8830---
Fax: (512)!:426
c_ L
David A. Mendoza
State Bar No. 24046426
mendozaone@yahoo.com
Page 11
CERTIFICATE OF SERVICE
I certify that a true copy of the foregoing brief has been mail-delivered to:
Ms. Rebecca Culpepper, SBN 24077 429
Assistant District Attorney
Hays County Government Center
712 S. Stagecoach Trail
San Marcos, Texas 78666
(512) 393-7600-Telephone
(512) 393-7619 - Facsimile
Mr. Wesley Mau, SBN 00784539
Hays County Criminal District Attorney
Hays County Government Center
712 S. Stagecoach Trail
San Marcos, Texas 78666
(512) 393-7600-Telephone
(512) 393-7619-Facsimile
Attorney for Appellee
on this the 9 day of August, 20~-5_. -0
David A. Mendoza
CERTIFICATE OF PAGE/WORD LIMIT
I certify that this brief, exclusive of the Cover Page, Table of Contents, Index,
and Certificate of Service, contains 2,036 words.
David A. Mendoza
Page 12