### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-03-00490-CR

Randy Reece, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT

NO. 2011766, HONORABLE CHARLES F. CAMPBELL, JR., JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

A jury found appellant Randy Reece guilty of aggrava ted assault and aggravated

assault on a public servant. See Tex. Pen. Code Ann. § 22.02(a), (b)(2) (West Supp. 2004). For

these offenses, the jury assessed prison terms of fifteen and twenty years, respectively. Because

appellant was convicted twice for the same offense, we wil l reverse the aggravated assault

conviction. We will overrule appellant’s contention that his trial counsel was ineffective and affirm

the conviction for aggravated assault on a public servant.

The double jeopardy issue is raised by appellant’s second point of error. Count one

of the indictment alleged that appellant caused serious bodily injury to a person appellant knew was

a public servant lawfully discharging an official duty. Count three alleged the same assault without

the public servant allegation. The State concedes that the offense alleged in count three is included2

within the offense alleged in count one, and that appellant’s conviction on both counts violated the

double jeopardy guarantee against multiple punishments for the same offense. S ee Hutchins v. State

,

992 S.W.2d 629, 631 (Tex. App.—Austin 1999, pet. ref’d, untimely filed). Point of error two is

sustained.

The proper remedy when a defendant is convicted of two offenses that are the same

for double jeopardy purposes is to uphold the conviction for the offense carrying the most serious

punishment and set aside the other. L anders v. State

, 957 S.W.2d 558, 560 (Tex. Crim. App. 1997);

Hutchins

, 992 S.W.2d at 632. Appellant urges that we not apply the L anders rule. He argues for

an exception when the lesser offense is, as a matter of statutory definition, always included within

the greater (as distinguished from cases in which the greater/lesser relationship depends on the

particular facts). We find no basis in L and ers for this proposed exception. In fact, L anders

expressly states that the “most serious punishment” rule “will apply to all cases in which a double

jeopardy violation arises from the prosecution and conviction, in a single criminal action, of two or

more offenses that constitute the same offense.” In accord with L anders

, we will set aside

appellant’s conviction for aggravated assault, for which the lesser punishment was assessed.

In point of error one, appellant contend s that he was denied effective assistance of

trial counsel because his attorneys did not inform him of a two-year plea-bargain offer from the

prosecutor. S ee Hanzelka v . State , 682 S.W.2d 385, 387 (Tex. App.—Austin 1984, no pet.).

Appellant relies on evidence adduced at the hearing on his amended motion for new trial, in which

he first raised the issue. The amended motion for new trial was filed sixty-seven days after sentence

was imposed. The motion was untimely; an amended motion for new trial must be filed within thirty3

days of sentencing. Tex. R. App. P. 21.4(b); F lores v. State , 18 S.W.3d 796, 798 (Tex.

App.—Austin 2000, no pet.). Evidence adduced at a hearing on an untimely amended motion for

new trial may not be considered on appeal. L icon v. State

, 99 S.W.3d 918, 926-27 (Tex. App.—El

Paso 2003, no pet.); Groh v. State

, 725 S.W.2d 282, 285 (Tex. App.—Houston [1st Dist.] 1986, pet.

ref’d).

Even if we consider the hearing record, there is no merit to appellant’s contention.

At the hearing, the prosecutor was asked if there had been a two-year plea bargain offer. She replied,

“I believe that there was.” She added, however, “I can’t state with 100 percent certainty that there

was a two-year offer made. That’s my recollection. I have reviewed my files and I don’t find any

documentation to that effect, which norm ally I would do that but not all [the] time.” Appellant’s

lead counsel testified that he did not recall a two-year off er, adding that he would have made a

written record if such an offer had been made. Appellant’s other trial attorney testified that he

recalled a ten-year offer and that there may have been a five-year offer, but he did not remember a

two-year offer.

The grant or denial of a motion for new trial lies within the discretion of th e trial

court, which is the trier of fact at any hearing on the motion. L ewis v. State

, 911 S.W.2d 1, 7 (Tex.

Crim. App. 1995). Viewing the testimony below in the light most favorable to the court’s ruling,

it was not an abuse of discretion for the court to find that no two-year plea-bargain offer was made.

If the offer was not made, there is no basis for concluding that counsel was ineffective. Point of error

one is overruled.4 The district court prepared separate judgments for each count. The judgment

c onvicting appellant on count one for aggravated assault on a public servant is af firmed. The

judgment convicting appellant on count three for aggravated assault is re versed and that count is

dismissed.

__________________________________________

David Puryear, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed in Part; Reversed and Dismissed in Part

Filed: July 29, 2004

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