In Re: Lloyd Murray--Appeal from 3rd District Court of Anderson County

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State: Texas

Court: Texas Northern District Court

Docket No: 12-05-00374-CV

Case Date: 12/07/2005

Plaintiff: Yane Mondragon Gonzalez

Defendant: The State of Texas--Appeal from 194th District Court of Dallas County

Preview:Yane Mondragon Gonzalez v. The State of Texas--
Appeal from 194th District Court of Dallas County
11th Court of Appeals
Eastland, Texas
Opinion
Yane Mondragon Gonzalez
Appellant
Vs. Nos. 11-03-00109-CR & 11-03-00110-CR B Appeals from Dallas County
State of Texas
Appellee
This appeal is from two separate convictions of aggravated sexual assault. Appellant pleaded guilty to both charges
before a jury. After a hearing, the jury assessed punishment at confinement for 20 years and a $10,000 fine for each
offense. We modify and affirm.
Appellant was charged under two indictments. Each indictment alleged separate but identical offenses that took place
on or about July 1, 2001. Each indictment provided that appellant did:
[U]nlawfully then and there intentionally and knowingly cause the penetration of the female sexual organ of [V.M.], a
child, who was not then the spouse of defendant, by an object, to-wit: the sexual organ of said defendant.
Appellant complains in his sole issue on appeal that the State violated his constitutional right against double jeopardy
when it convicted and punished him twice for the same offense. Appellant did not raise this issue at trial or when he
was sentenced to consecutive terms of confinement. See TEX.R.APP.P. 33.1. A double jeopardy violation could be
raised for the first time on appeal if the record on its face showed multiple punishments for one offense. Gonzalez v.
State, 8 S.W.3d 640 (Tex.Cr.App.2000).
Here, the record on its face does not show that there was a double jeopardy violation. The indictments allege two
separate assault violations. Appellant pleaded guilty and signed judicial confessions for each violation. Appellant=s
double jeopardy claim should have been raised at trial, and he waived it by raising it for the first time on appeal.
Furthermore, there was not a violation of appellant=s double jeopardy rights. Double jeopardy is prohibited under both
Amendment V of the United States Constitution, and Article I, section 14 of the Texas Constitution. The double
jeopardy clause embodies three essential guarantees: (1) it protects against a successive prosecution for the Asame
offense@ after acquittal; (2) it protects against a successive prosecution for the Asame offense@ after conviction; and
(3) it protects against multiple punishments for the Asame offense.@ See Iglehart v. State, 837 S.W.2d 122, 126-27
(Tex.Cr.App.1992). When a defendant is convicted of two or more crimes in a single trial, only the multiple
punishment clause is implicated. See Ex parte Herron, 790 S.W.2d 623, 624 (Tex.Cr.App.1990). When a defendant is
charged with multiple violations of the same statute, the Asame elements test@ set out in Blockburgerv. United States,
284 U.S. 299 (1932), does not apply. Ex parte Hawkins, 6 S.W.3d 554 (Tex.Cr.App.1999); Montgomery v. State, 91
S.W.3d 426 (Tex.App. B Eastland 2002, pet=n ref=d). Instead, we determine if each alleged violation was a separate
Aallowable unit of prosecution.@ If each violation of the statute alleged is a separate Aallowable unit of
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prosecution,@ then there is no double jeopardy violation. Ex parte Hawkins, supra; Montgomery v. State, supra. An
Aallowable unit of prosecution@ is a Adistinguishable discrete act that is a separate violation of the statute.@ Ex parte
Hawkins, supra at 556.
A person commits the offense of aggravated sexual assault if the person knowingly or intentionally causes the
penetration of the sexual organ of a child by any means. TEX. PENAL CODE ANN. ' 22.021(a)(1)(B)(i) (Vernon
Supp. 2004). Several acts of aggravated sexual assault over a period of time is not a single offense. Each separate
assault against the same victim is a separate punishable offense. Goodbread v. State, 912 S.W.2d 336 (Tex.App. B
Houston [14th Dist.] 1995), aff=d, Ex parte Goodbread, 967 S.W.2d 859 (Tex.Cr.App.1998); David v. State, 808
S.W.2d 239 (Tex.App. - Dallas 1991, no pet=n).
V.M. testified that appellant had sexually assaulted her both in her room and in his room. She also testified that he
sexually assaulted her in a hotel room in Dallas. Appellant pleaded guilty to both charges and signed a judicial
confession admitting that he had committed two separate sexual assaults against V.M. Appellant also testified that he
had had sex with V.M. in several different rooms in the Dallas apartment. There is evidence of two different sexual
assaults of V.M. The trial court did not assess multiple punishments for one offense and did not violate appellant=s
constitutional right against double jeopardy. Appellant=s sole issue on appeal is overruled.
The judgment in both cases contain language that appellant was to begin each sentence after he had completed the
other. The trial court announced on the record that the sentence in 11-03-00110-CR would begin first and that the
sentence in 11-03-00109-CR would start only after appellant had completed the sentence in 11-03-00110-CR. The
judgment in Cause No. 11-03-00109-CR is modified to delete the language stating that the sentence would begin after
the sentence in Cause No. 11-03-00110-CR ended and to show that this sentence began on February 19, 2003. As
modified, the judgment in Cause No. 11-03-00109-CR is affirmed.
The judgment in Cause No. 11-03-00110-CR is affirmed.
JIM R. WRIGHT
JUSTICE
February 5, 2004
Do not publish. See TEX.R.APP.P. 47.2(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.
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