NUMBER 13-17-00646-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

ROY NANEZ JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 24th District Court

of Victoria County, Texas.

MEMORANDUM OPINION

Before Justices Benavides, Longoria, and Hinojosa

Memorandum Opinion by Justice Longoria

Appellant Roy Nanez, Jr. was convicted for aggravated assault with a deadly 

weapon, aggravated assault, and unlawful restraint of someone less than seventeen 

years of age. See TEX. PEN. CODE ANN. §§ 22.02(a)(2), 22.02(a)(1), 20.02(2) (West, 

Westlaw through 2017 1st C.S.). By a single issue, Nanez argues that his convictions for 
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aggravated assault with a deadly weapon and aggravated assault constituted a multiple 

punishment double jeopardy violation. We reverse and render judgment of acquittal as 

to count two for aggravated assault and affirm as modified as to count one for aggravated 

assault with a deadly weapon.

I. BACKGROUND

Nanez was indicted for the offense of aggravated assault with a deadly weapon, a 

second-degree felony (count 1), aggravated assault, a second-degree felony (count 2), 

assault of a family/house member by impeding breath or circulation, a third-degree felony 

(count 3), unlawful restraint of someone less than seventeen years of age, a state jail 

felony (count 4), and injury to a child/elderly/disabled person with intent to cause bodily 

injury, a third-degree felony (count 5). See TEX. PEN. CODE ANN. §§ 22.02(a)(2), 

22.02(a)(1), 22.01(c), 20.02(2), 22.04(f) (West, Westlaw through 2017 1st C.S.).

On November 2, 2017, the jury returned a guilty verdict on counts 1, 2, and 4. On 

count 1, the jury sentenced Nanez to fifty-five years’ imprisonment in the Institutional 

Division of the Texas Department of Criminal Justice. On count 2, the jury sentenced 

Nanez to twenty-five years’ imprisonment in the Institutional Division of the Texas 

Department of Criminal Justice and a $10,000 fine. On count 4, the jury returned a 

sentence of ten years’ imprisonment in the Institutional Division of the Texas Department 

of Criminal Justice and a $10,000 fine. The trial court pronounced sentence as assessed

by the jury on counts 1 and 2; on count 4, the trial court pronounced sentence as twelve 

years’ imprisonment in the Institutional Division of the Texas Department of Criminal 

Justice and a $10,000 fine. This appeal ensued.

II. DOUBLE JEOPARDY
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In his sole issue, Nanez argues that his conviction on both count 1 and count 2 

constituted a double jeopardy violation.1

A. Standard of Review and Applicable Law

Generally, a double jeopardy claim must be raised in the trial court to preserve the 

error for appellate review. Gonzalez v. State, 8 S.W.3d 640, 643–46 (Tex. Crim. App. 

2000). An exception to this general rule applies if (1) the undisputed facts show the 

double jeopardy violation is clearly apparent from the face of the record and (2) the 

enforcement of the usual rules of procedural default serves no legitimate state purpose. 

Id. A double jeopardy claim is apparent on the face of the trial record if resolution of the 

claim does not require further proceedings for the purpose of introducing additional 

evidence to support the claim. Ex parte Knipp, 236 S.W.3d 214, 216, n. 3 (Tex. Crim. 

App. 2007).

The Double Jeopardy Clause of the United States Constitution provides no person 

shall be subjected to twice having life or limb in jeopardy for the same offense. U.S. 

CONST., amend. V. Generally, this clause protects against (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. Brown v. Ohio, 432 U.S. 

161, 165 (1977); Ex parte Cavazos, 203 S.W.3d 333, 336 (Tex. Crim. App. 2006). “When 

the same act or transaction violates two different penal statutes, the two offenses are the 

same for double-jeopardy purposes if one of the offenses contains all the elements of the 

other; they are not the same if each offense has a unique element.” Duvall v. State, 59 

 1 Nanez does not challenge his conviction or sentence for unlawful restraint on count 4.
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S.W.3d 773, 777 (Tex. App.—Austin 2001, pet. ref’d) (citing Blockburger v. U.S., 284 U.S. 

299, 304 (1932)).

B. Analysis

The State concedes that punishing Nanez under both count 1 and count 2 

constitutes a double jeopardy violation in this case. Both counts involve the same exact 

assaultive incident, wherein Nanez attacked the same person, on the same date (March 

1, 2017), by the same means (his hand, foot, boot, and broomstick). The State also 

concedes that there was no break in Nanez’s attack such that it would have divided the 

attack into two distinguishable assaults.

As both Nanez and the State acknowledge, the proper remedy for a multiple 

punishment double jeopardy violation is to affirm the conviction for the most serious 

offense and vacate the other conviction. See Bigon v. State, 252 S.W.3d 360, 372 (Tex. 

Crim. App. 2008). The most serious offense is the offense of conviction for which the 

greatest sentence was assessed. See Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex. 

Crim. App. 2006). In this case, the most serious offense is count 1 because Nanez was 

assessed fifty-five years’ imprisonment on count 1 compared to the twenty-five years’ 

imprisonment he received on count 2. Therefore, we affirm Nanez’s conviction on count 

1 for aggravated assault with a deadly weapon and reverse and render acquittal of

Nanez’s conviction on count 2 for aggravated assault. We sustain Nanez’s sole issue.

III. CONCLUSION

We reverse and render judgment of acquittal as to count two for aggravated 

assault and affirm as modified as to count one for aggravated assault with a deadly 

weapon.
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 NORA L. LONGORIA

 Justice 

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the

28th day of February, 2019.