COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

MILTON TORRES

,

Appellant,

v.

THE STATE OF TEXAS

,

Appellee

. §

§

§

§

§ No. 08

- 2 2

- 00 00 4

- CR

Appeal from the

13th Judicial District Court

of Navarro County, Texas

(TC# D40902

- CR )



### O P I N I O N

A jury convicted Appellant Milton Torres of : (1) two counts of aggravated sexual assault

of an elderly person ; (2) one count of burglary of a habitation with the comm ission or attempted

commission of injury to an elderly person; and (3) one count of injury to an elderly person

, by

intentionally or knowingly causing her bodily injury

, all of which arose from a single prolonged

home invasion

. On appeal, Appellant argues that his two convictions for aggravated sexual

assault

, as well as his convictions for burglary of a habitation and injury to an elderly person

,

violated the Double Jeopardy Clause ’ s prohibition against imposing multiple punishments for the

same offense

. For the following reasons, we reverse one of Appellant ’ s convictions for

aggravated sexual assault

, and reverse his conviction for injury to an elderly person

. We affirm2

his remaining convictions

. 1



### I. B ACKGROUND

In separate counts in the indictment, the State alleged that on or about June 14, 2015,

Appellant committed the following offenses against Sylvia Singleton

, an elderly person :

Count I : aggravated sexual assault of an elderly person by penetration of S ylvia ’ s sexual

organ by Appellant ’ s sexual organ;

Count II : aggravated sexual assault of an elderly person by penetration of S ylvia ’ s mouth

by Appellant ’ s sexual organ;

Count III : aggravated sexual assault of an elderly person by contact of S ylvia ’ s sexual

organ by Appellant ’ s sexual organ;

Count IV : Paragraph One: burglary of a habitation with the commission or attempted

commission a felony, namely injury to an elderly person

,

Count IV : Paragraph Two: burglary of a habitation with the commission or attempted

commission of a felony, namely sexual assault;

Count V : injury to an elderly person

.

The indictment also contained an enhancement paragraph that alleged Appellant had a prior final

conviction for the felony offense of domestic violence by strangulation.

The evidence at trial showed that shortly after midnight on the date of the crime that a

person called 911 to report a n attempted sexual assault of a woman (not S ylvia ) in a mobile home

park in Rice, Texas

. Several hours later

, and a fter law enforcement had already been sent to the

scene to investigate that offense

, the 911 dispatcher received another call from S ylvia ’ s friend

,

who report ed that S ylvia had been sexual ly assault ed in her trailer in the same mobile home park

.

The 911 dispatcher called S ylvia who answered the phone in a “ very distraught ” tone

. Sylvia

reported that a man

, later identified as Appellant, came into her residence

, who physically and

1 This case was transferred from our sister court in Waco

, and we decide it in accordance with the precedent of that

c ourt to the extent required by T EX .R.A PP .P. 41.3

.3

sexually assaulted her over the course of several hours

.

S ylvia was transported to the hospital where a nurse observed bruises to her face, knees,

back, wrists, and thighs ; all caused by Appellant ’ s fists. The State also presented testimony from

a sexual assault nurse examiner who conducted a sexual assault examination of S ylvia and

discovered that she had injuries to her vagina that were consistent with nonconsensual sex.

During the examination, S ylvia told nurse examiner that Appellant came into her trailer while she

was asleep, told her that he had a gun and threatened to kill her, forced her to remove her clothing,

penetrated her vagina with his penis, and continually threw her around inside the trailer. The

assault continued until daylight, but S ylvia did not recall when Appellant left the trailer because

she lost consciousness before he left.

In addition to the nurse testimon y

, t he State also introduced S y l via ’ s medical records that

established the presence of bruises on her body and a subarachnoid hemorrhage (i.e., a brain bleed),

as well as photographs of S ylvia ’ s injuries that were taken at the hospital. One law enforcement

officer opined that S ylvia ’ s bruises to her back were consistent with being thrown down. The

State a lso admitted into evidence a law enforcement officer ’ s interview with S ylvia

, during which

she described the nature of the sexual assault and the injury to her shoulder that Appellant caused

by slamming her against a board in her trailer

. S ylvia

, who was 73 years old at the time of the

offenses, passed away before the trial and did not testify.

Prior to submitting the case to the jury

, the State abandoned Paragraph Two of Count IV

of the indictment ( burglary of a habitation with the commission or attempted commission of a

felony, namely sexual assault )

. The jury acquitted Appellant of Count II ( aggravated sexual

assault of an elderly person by penetration of S ylvia ’ s mouth by Appellant ’ s sexual organ )

. The

jury, however, convicted Appellant of Counts I ( aggravated sexual assault of an elderly person by4

penetration of S ylvia ’ s sexual organ by Appellant ’ s sexual organ )

, III ( aggravated sexual assault

of an elderly person by contact of S ylvia ’ s sexual organ by Appellant ’ s sexual organ )

, IV ( burglary

of a habitation with the commission or attempted commission a felony, namely injury to an elderly

person )

, and V (injury to an elderly person)

. The jury assessed punishment of 40 years ’

imprisonment on Count I

, 15 years ’ imprisonment on Count III

, 15 years ’ imprisonment on Count

IV

, and 10 years ’ imprisonment on Count V

. The trial court sentenced Appellant in accordance

with the jury ’ s verdicts, with each sentence running concurrently

.

On appeal, Appellant challenges his convictions in two issues, arguing in Issue One that

his punishments for both Count s I (aggravated sexual assault by penetration ) and I II (sexual assault

by contact ) constitute a violation of the Double Jeopardy Clause ’ s prohibition against imposing

multiple punishments for the same criminal act

. In Issue Two, Appellant argues that his

convictions for Counts IV (burglary of a habitation with intent to commit injury to an elderly

person ) and V (injury to an elderly person ) also violate double jeopardy because injury to an elderly

person is a lesser

- included offense of burglary of a habitation with the commission or attempted

commission of a felony

.

The State does not contest either of Appellant ’ s double jeopardy issues, but rather asserts

that overturning Appellant ’ s conviction for Count III and V “ will not affect the State ’ s legitimate

interests ” because Appellant ’ s conviction for Count I

, with the longer sentence, would be retained.

Although the State in effect confesses error on th ese matter s and such confession carries “ great

weight, ” we as a reviewing court also have a duty to conduct an independent examination of the

merits of the claim s of error. See Saldano v. State

, 70 S.W.3d 873, 884 (Tex.Crim.App. 2002)

( “ When presented with confessions of error, we have agreed frequently that the able prosecutors

have correctly concluded that error was presented. But we have always done so after an5

independent examination of the merits of the claim of error

. ” ) ; Gallegos v. State

, No. 08

- 14

- 00275

-

CR, 2015 WL 8334835, at *2 (Tex.App.

-- El Paso Dec. 9, 2015, no pet.) (not designated for

publication) ( “ We are required to independently examine the error confessed because the proper

administration of the criminal law cannot be left merely to the stipulation of parties

. ” ). As such,

we will consider the merits of Appellant ’ s claim.

Prior to addressing these contentions, we address the general principles associated with the

Double Jeopardy Clause and whether Appellant has properly preserved his claims for our review

.



### II. D ISCUSSION

A. General Double Jeopardy Principles

The Double Jeopardy Clause of the Fifth Amendment provides: “ [N]or shall any person be

subject for the same offence to be twice put in jeopardy of life or limb[.] ” U.S. Const. amend. V

.

The Double Jeopardy Clause guards against three distinct scenarios : (1) prosecution for a second

time for the same offense after an acquittal; (2) prosecution for a second time for the same offense

after conviction; and (3) multiple punishments for the same offense. Ramos v. State

, 636 S.W.3d

646, 651 (Tex.Crim.App. 2021) ; Licano v. State

, No. 08

- 19

- 00230

- CR, 2021 WL 508345, at *2

(Tex.App.

-- El Paso Feb. 11, 2021, no pet.) (not designated for publication). T his case solely

implicates the prohibition against multiple punishments

. A multiple

- punishments claim arises

when either the same conduct is punished twice under the lesser

- included offense context, or when

the same criminal act is punished twice under distinct statutes when there was a clear legislative

intent to only be punished once. Langs v. State

, 183 S.W.3d 680, 685 (Tex.Crim.App. 2006)

.

To determine what constitutes the “ same offense, ” we apply the two well

- known

Blockburger tests. See Blockburger v. United States

, 284 U.S. 299

, 301

- 02, 304 (1932)

. Under

the first test, we determine whether each criminal act is a separate and distinct one, separated by6

time; if the offense is a single continuous impulse

, with a single act in which several different

statutory provisions are necessarily violated, the offenses merge together under the “ merger

doctrine ” or, in Texas, “ the doctrine of subsumed acts. ” Aekins v. State

, 447 S.W.3d 270, 274

- 75

(Tex.Crim.App. 2014)

, citing Blockburger

, 284 U.S. at 301

- 02 ; Patterson v. State

, 152 S.W.3d 88,

92 (Tex.Crim.App. 2004)

. Thus, if more than one statutory offense is necessarily committed by

a single criminal act and impulse, then the offenses merge and the defendant may be subject ed to

only one punishment. Id

. at 275

.

Under the second Blockburger test, “ T o decide if conviction on multiple counts stemming

from a single criminal act is constitutionally permitted, we compare the elements of the two

offenses to determine if each requires proof of an element that the other does not. If so, the

statutory offense is presumably not the same and both offenses generally may be prosecuted. ” Id.

at 274

. In Texas, courts employ the cognate

- pleadings test, which provides that “‘ when the facts

necessary to prove one offense are included within the proof necessary to establish another, the

offenses are considered the ‘ same ’ for double

- jeopardy purposes, and multiple punishments are

barred unless the L egislature has clearly and specifically authorized them. ’” Id

. a t 280

, quoting

Garfias v. State

, 424 S.W.3d 54, 63 (Tex.Crim.App. 2014) (internal quotation marks omitted) ; see

also Licano

, 2021 WL 508345, at *2

.

B

. Preservation

The record indicates, and Appellant concedes, that he did not raise either of his double

jeopardy claim s in the trial court

. Therefore, we must determine whether the double

- jeopardy

claims are reviewable

. See Mays v. State

, 285 S.W.3d 884, 889 (Tex.Crim.App. 2009) ( “ [I]t [is]

incumbent upon [an appellate court]

. . . to take up error preservation as a threshold issue. ” ).

“ [A] double

-

jeopardy claim may be raised for the first time on appeal or on collateral attack7

if two conditions are met: ( 1) the undisputed facts show that the double

- jeopardy violation is

clearly apparent on the face of the record; and ( 2) when enforcement of the usual rules of

procedural default serves no legitimate state interest. ” Ex parte Denton

, 399 S.W.3d 540, 544

(Tex.Crim.App. 2013) ; see also Gonzalez v. State

, 8 S.W.3d 640, 643 (Tex.Crim.App. 2000)

.

Regarding the first prong, a double

- jeopardy claim is apparent on the face of the record if its

resolution does not require additional proceedings for the purpose of introducing more evidence

to support it and the record contains all the information needed to address the merits of the double

jeopardy claim

. Ex parte Denton

, 399 S.W.3d at 544

- 45

. “ W hile the [S] tate may have an interest

in maintaining the finality of a conviction,

. . . [there is] no legitimate interest in maintaining a

conviction when it is clear on the face of the record that the conviction was obtained in

contravention of constitutional double

- jeopardy protections. Id

. at 545. “ Society ’ s interest, of

course, is not simply to convict the guilty. Rather its interest is ‘ in fair trials designed to end in

just judgments. ’” Id.

, quoting Oregon v. Kennedy

, 456 U.S. 667, 682 n.7 (1982) (internal

quotation marks omitted).

In this case, Counts I and III alleged two offenses for aggravated sexual assault of an elderly

person

. Count I alleg ed penetration of S ylvia ’ s sexual organ by Appellant ’ s sexual organ and

Count III alleg ed contact of S ylvia ’ s sexual organ by Appellant ’ s sexual organ

. The record does

not indicate any instances of Appellant causing contact only, so we can fairly assume that the jury

found that he committed contact when committing the act of penetration

. B ecause his convictions

for both counts subjects him to multiple punishments for the same offense, the record does not

require further development for us to decide this issue and the double

- jeopardy violation is

apparent on the face of the record

. See Rogers v. State

, 527 S.W.3d 329, 336 (Tex.App.

-- Corpus

Christi

- Edinburg 2017), rev ’ d on other grounds, 550 S.W.3d 190 (Tex.Crim.App. 2018) (double

-8

jeopardy violation was clear from the face of the record whe n punishing the defendant for two

counts alleging the same act subjected the defendant to multiple punishments for the same act).

As for Counts IV and V, the State alleged burglary of a habitation under s ection 30.02(a)(3)

of the Penal Code

, which

, as we explain in greater detail below, renders the underlying felony a

lesser

- included offense. See Langs

, 183 S.W.3d at 686

. Regarding the second prong, the State

concedes that its “ legitimate interests ” will not be affected by sustaining Appellant ’ s double

jeopardy claims, and thus we consider the second prong satisfied as to both claims

. For these

reasons, we conclude that Appellant may raise his double

- jeopardy claims for the first time on

appeal.

C

. Counts I and III

In Issue One, Appellant contends that his punishments for Count s I and III violated double

jeopardy because the act alleged in Count III (causing Appellant ’ s sexual organ to contact S ylvia ’ s

sexual organ) formed the basis of and merged into the act alleged in Count I (causing Appellant ’ s

sexual organ to penetrate S ylvia ’ s sexual organ)

, thus constituting multiple punishments for what

amounts to the same criminal act

.

In support of his argument, Appellant cites Aekins v. State

, where the Texas Court of

Criminal Appeals considered whether the defendant ’ s convictions for two counts of sexual assault

constituted multiple punishments

. In that case

, the defendant was convicted of one count alleging

the penetration of the victim ’ s sexual organ by the defendant ’ s mouth and one count alleging

contact of the victim ’ s sexual organ by the defendant ’ s mouth. See Aekins

, 447 S.W.3d at 2 7 3

.

The court recognized that generally, “ [a] person who commits more than one sexual act against

the same person may be convicted and punished for each separate and discrete act, even if those

acts were committed in close temporal proximity. ” Id

. at 278

. N evertheless, “ The key is that9

one act ends before another begins

. . . . This is true for acts violating not only different statutes,

but different subsections of a single statute, and even different discret e ly prohibited acts within the

same subsections. ” Id. (citations omitted). The court held that separate convictions for sexual

assault based on the defendant ’ s contact of the victim ’ s sexual organ with his mouth and the

penetration of the victim ’ s sexual organ with his mouth, both of which arose out of “ essentially a

single continuous act ” over a span of minutes, violated the protection against double jeopardy. Id

.

at 281, 283

. In coming to its conclusion, the court relied on the “ merger rule, ” which states:

“ Where two crimes are such that the one cannot be committed without necessarily committing the

other, the n the y stand in the relationship of greater and lesser offenses, and the defendant cannot

be punished for both. ” Id

. at 280

, citing Ex parte Pruitt

, 233 S.W.3d 338, 348 (Tex.Crim.App.

2007) ; see also Patterson

, 152 S.W.3d at 91

- 92 (holding that the legislature intended only one

conviction for a completed sexual assault where the defendant exposes his penis incident to penile

penetration).

The facts before us are akin to those in Aekins

. Count I alleged aggravated sexual assault

by penetration of S ylvia ’ s sexual organ with Appellant ’ s sexual organ. See T EX .P ENAL C ODE

A NN

. § 22.011(a)(1)(A) ( “ A person commits an offense if the person intentionally or knowingly

causes the penetration of the anus or sexual organ of another person by any means, without that

person ’ s consent. ” )

. Count III alleged aggravated sexual assault by contacting S ylvia ’ s sexual

organ with Appellant ’ s sexual organ. See i d. § 22.011(a)(1)(C) ( “ A person commits an offense if

the person intentionally or knowingly causes the sexual organ of another person, without that

person ’ s consent, to contact or penetrate the mouth, anus, or sexual organ of another person,

including the actor. ” )

. Applying the cognate

- pleadings test to this case, the facts necessary to

prove the offense in Count III (contact) are necessarily included within the proof to establish the10

offense in Count I (penetration)

. As such, these offenses are considered the same for double

jeopardy purposes. See Aekins

, 447 S.W.3d at 28 1

.

W e must also consider the temporal relationship between the contact and penetration. See

id

. at 278 ; see also Villareal v. State

, 551 S.W.3d 843, 847 (Tex.App.

-- San Antonio 2018, no pet.)

(considering whether contact and penetration each occurred in the same incident or on separate

occasions). Here, the evidence shows that Appellant committed the alleged offenses over a span

of several hour s by penetrating S ylvia ’ s vagina with his penis on at least one occasion

. Nothing

in the record indicates that there was a significant temporal gap between Appellant contacting

S ylvia ’ s vagina and penetrating her vagina; rather, the evidence suggests a single prolonged

encounter with at least one act of penetration that did not appear to be substantially disconnected

from contact. Neither did S ylvia describe to law enforcement or medical personnel that Appellant

caused contact, waited for a time, and su bsequently caused contact and penetration.

Thus, the evidence before us demonstrates that the incident or incidents of contact and

penetration were one continuous act a nd merge for double

- jeopardy purposes. W e agree that

Appellant ’ s multiple punishments for the same act violated the Double Jeopardy Clause. See

Aekins

, 447 S.W.3d at 283 ; Gutierrez v. State

, No. 04

- 15

- 00603

- CR, 2016 WL 3625566, at *1

- 2

(Tex.App.

-- San Antonio July 6, 2016, no pet.) (mem. op., not designated for publication) (holding

that a defendant ’ s convictions for aggravated sexual assault by penetration and indecency with a

child by contact that both arose out of the same act violated double jeopardy where there was “ no

evidence of any independent instance of contact ” that would have solely supported the indecency

charge ).

Because Appellant received 40 years ’ imprisonment on Count I and 15 years ’

imprisonment on Count III, we retain Appellant ’ s conviction under Count I and set aside his11

conviction under Count III. See Ex parte Cavazos

, 203 S.W.3d 333, 337 (Tex.Crim.App. 2006)

(when a defendant is convicted of two offenses that are the same for double jeopardy purposes,

the conviction for which the greatest sentence was assessed is retained and the other conviction is

set aside).

Appellant ’ s Issue One is sustained

.

D

. Counts IV and V

In Issue Two, Appellant argues that his convictions for Counts IV (burglary of a habitation

with the commission or attempted commission of injury to an elderly person ) and V (injury to an

elderly person ) also constituted multiple punishments for the same criminal act and violated double

jeopardy. Rather than relying on the merger doctrine above, Appellant ’ s argument is that injury

to an elderly person is a lesser

- included offense of burglary of a habitation with the commission

or attempted commission of a felony

, which also precludes multiple punishments for the same act.

See Licano

, 2021 WL 508345, at *2

.

In support of his argument, Appellant directs our attention to Langs v. State

, where the

defendant was charged with burglary of a habitation

. 183 S.W.3d at 686

. There, the Court of

Criminal Appeals affirmed the rule “ a defendant may not be punished for both the underlying

felony and the burglary if the burglary allegation is that the defendant entered a home without the

consent of the owner and then committed the underlying felony within the home as defined in

[Section] 30.02(a)(3). ” Id .; see also T EX .P ENAL C ODE A NN

. § 30.02(a)(3) ( “ A person commits an

offense if, without the effective consent of the owner, the person enters a building or habitation

and commits or attempts to commit a felony, theft, or an assault. ” ) ; Morgan v. Devine

, 237 U.S.

632, 638 (1915) ( “ An allegation simply of breaking, entering, and stealing states the burglary in a

form which makes it single, and a conviction therefor e will bar an indictment for the larceny or12

the burglary alone. ” )

. This is distinct from burglary of a habitation charged under s ection

30.02(a)(1) of the Penal Code which criminalizes the unauthorized entry of a habitation with the

intent to commit the underlying felony, which constitute two distinct offenses for double

- jeopardy

purposes. Langs

, 183 S.W.3d at 686

, citing Jones v. State

, 514 S.W.2d 255, 256 (Tex.Crim.App.

1974); Garcia v

. State

, 571 S.W.2d 896, 899 (Tex.Crim.App. 1978); see also T EX .P ENAL C ODE

A NN

. § 30.02(a)(1) ( “ A person commits an offense if, without the effective consent of the owner,

the person enters a habitation

. . . not then open to the public, with intent to commit a felony, theft,

or an assault. ” ).

Here, the State alleged in p aragraph o ne of Count IV that Appellant “ intentionally or

knowingly enter[ed] a habitation, without the consent of [S ylvia ], the owner thereof, and attempted

to commit or committed the felony offense of Injury to an Elderly or Disabled Individual. ” The

State further alleged in Count V that Appellant “ intentionally, knowingly and recklessly cause[d]

bodily injury to [S ylvia ], an individual who was then and there 65 years of age or older. ” As such,

Count IV of the indictment alleges burglary of a habitation with the actual or attempted

commission of a felony (injury to an elderly person )

, a charge that falls under s ection 30.02(a)(3)

.

See T EX .P ENAL C ODE A NN

. § 30.02(a)(3). Under Langs and Blockburger

, the injury to an elderly

person offense serves as a lesser

- included offense to burglary of a habitation because although the

latter offense requires proof of a fact that the injury to an elderly person charge does not (i.e., entry

without consent), the State must prove all the elements of the injury to an elderly person charge in

order to prove the burglary offense, and thus the injury to an elderly person charge would not

require proof of an additional element that the burglary offense does not also require. See Langs

,

183 S.W.3d at 686 ; Matter of T.D.N.

, 620 S.W.3d 433, 441 (Tex.App.

-- El Paso 2020, no pet.)

( recognizing double jeopardy ’ s prohibition of convictions for both burglary of a habitation and the13

underlying felony).

Because the injury to an elderly person offense in Count V served as the underlying felony

for the burglary of a habitation offense charged under s ection 30.02(a)(3)

, we hold that Appellant ’ s

convictions for both offenses violate d double jeopardy ’ s prohibition against multiple punishments

for the same criminal act. Given that Appellant received 15 years ’ imprisonment on Count IV

and 10 years ’ imprisonment on Count V, we retain Appellant ’ s conviction under Count IV and set

aside his conviction under Count V. See Ex parte Cavazos

, 203 S.W.3d at 337

.

Appellant ’ s Issue Two is sustained

.



### III. C ONCLUSION

We reverse Appellant ’ s convictions under Count III (aggravated sexual assault of an

elderly person by contact ) and Count V (injury to a n elderly person ) and render judgments of

acquittal for those convictions. We affirm the trial court ’ s judgment s supporting Appellant ’ s

convictions under Count I (aggravated sexual assault of an elderly person by penetration ) and

Count IV ( burglary of a habitation with the commission of a felony )

.

JEFF ALLEY, Justice

July 27 , 2022

Before Rodriguez, C.J., Palafox, and Alley, JJ.

(Do Not Publish)