NO. 03-15-000301-CR

COURT OF APPEALS

FOR THE

AUSTIN THIRD SUPREME JUDICIAL DISTRICT

EX PARTE JOSE C. LOREDO,

Appellant

APPEAL FROM COUNTY COURT AT LAW NO. 1

HAYS COUNTY, TEXAS

TRIAL COURT CAUSE NO. 095790

ORAL ARGUMENT IS

NOT REQUESTED

STATE'S BRIEF

Ralph Guerrero

First Assistant Criminal District Attorney

Hays County Government Center

712 South Stagecoach Trail, Suite 2057

San Marcos, Texas 78666

Ph: (512) 393-7600/Fax; (512) 393-7619

State Bar No. 24041021

ralph.guerrero@co.hays.tx.us

Attorney for the State ofTexas

Emily E.L. Landeros

Law Clerk

Associate Member ofthe State Bar ofTexas

State Bar No. 24095477

emily.landeros@co.hays.tx.us

ACCEPTED

03-15-00301-CR

7353683

THIRD COURT OF APPEALS

AUSTIN, TEXAS

10/13/2015 2:42:18 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 10/14/2015 2:42:18 PM JEFFREY D. KYLE Clerk
IDENTITY OF PARTIES AND COUNSEL

Appellant:

Appellate Counsel:

Writ Counsel:

Trial Counsel:

Appellee:

Counsel:

Appellate Counsel:

Post-Conviction Counsel:

Trial Counsel:

Jose Concepcion Loredo

David Mendoza

608 S. Guadalupe Street

San Marcos, Texas 78666

David Mendoza

Lawrence Souza

101 Stumberg

San Antonio, Texas 78204

State ofTexas

Wes Mau, Criminal District Attorney

712 S. Stagecoach Trail, Ste. 2057

San Marcos, TX 78666

Ralph Guerrero, First Assistant

Criminal District Attorney

Angie D. Roberts-Huckaby, Assistant

District Attorney

Amy Lockhart, Assistant District

Attorney

Chris Johnson, Assistant District

Attorney
TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL i

INDEX OF AUTHORITIES iu

STATEMENT OF THE CASE 2

STATEMENT REGARDING ORAL ARGUMENT 3

ISSUE PRESENTED 3

STATEMENT OF FACTS 3

SUMMARY OF THE ARGUMENT 5

ARGUMENT AND AUTHORITIES 8

STATE'S RESPONSE TO APPELLANT'S SOLE ISSUE 8

I. THE TRIAL COURT PROPERLY DENIED HABEAS CORPUS

RELIEF BECAUSE A DOUBLE JEOPARDY ISSUE DOES NOT EXIST

IN THIS CASE..... 9

H. THE TRIAL COURT PROPERLY DENIED HABEAS CORPUS

RELIEF BECAUSE APPELLANT WAIVED ANY DOUBLE JEOPARY

CLAIM IN HIS PLEA AGREEMENT 11

HI. THE TRIAL COURT PROPERLY DENIED HABEAS CORPUS

RELIEF BECAUSE APPELLANT WAIVED ANY DOUBLE JEOPARDY

CLAIM BY FAILING TO RAISE A CLAIM AT TRIAL 13

CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. PROC. 9.4 17

CERTIFICATE OF SERVICE 17

11
INDEX OF AUTHORITIES

Federal Cases

Menna v. New York, 423 U.S. 61 (1975) 11

State Cases

ExparteMarascio, Nos. WR-80,939-01, WR-80,939-02, & WR-80,939-03, 2015

WL 5853202 (Tex. Grim. App. Oct. 7, 2015) 11, 14

ExparteMilner, 394 S.W.3d 502 (Tex. Grim. App. 2013) 6, 9

State V. Moore, 240 S.W.3d 248 (Tex. Grim. App. 2007) 13

Kniatt v. State, 206 S.W.3d 657 (Tex. Grim. App. 2006) 8

Gonzales v. State, 8 S.W.3d 640 (Tex. Grim. App. 2000) 7, 13, 14

Exparte Birdwell, 7 S.W.3d 160 (Tex. Grim. App. 1999) 6, 11

Exparte Williams, 637 S.W.2d 943 (Tex. Grim. App. 1982) 13

Exparte Valenzuela-Rodriguez, No. 03-13-00249-GR, 2014 WL 4363140 (Tex.

App.—^Austin Aug. 26, 2014, no pet.) (mem. op.) 8

Moore v. State, 262 S.W.3d 99 (Tex. App.—^Fort Worth 2008) 12

State V. Shastid, 940 S.W.2d405 (Tex. App.—FortWorth 1997, no pet.) (per

curiam) 9

Matter ofM.C., 915 S.W.2d 118 (Tex. App—San Antonio 1996, no writ) 8

Rules

Tex. R. App. Proc. 39.1 3

Tex. R. App. Proc. 39.7 3

111
NO. 03-15-000301-CR

COURT OF APPEALS

FOR THE

AUSTIN THIRD SUPREME JUDICIAL DISTPQCT

EX PARTE JOSE C. LOREDO,

Appellant

APPEAL FROM COUNTY COURT AT LAW NO. 1

HAYS COUNTY, TEXAS

TmAL COURT CAUSE NO. 095790

STATE'S BRIEF

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

COMES NOW the State of Texas, by and through her First Assistant

District Attorney, Ralph Guerrero, and Law Clerk, Emily Landeros, and

respectfully submits this Brief in Opposition to Appellant's Brief pursuant to Rule

38.2 of the Texas Rules of Appellate Procedure and would show the Court the

following:
STATEMENT OF THE CASE

Jose Concepcion Loredo ("Appellant") was charged by information and

complaint with Assault Bodily Injury - Family Violence, a Class A misdemeanor,

on May 5, 2010, (C.R. 9, 10). A Hays County Grand Jury indicted Appellant for

Aggravated Assault With a Deadly Weapon - Family Violence on October 14,

2010 (C.R. 44).

On September 8, 2011, Appellant entered a plea agreement for the felony

offense in which he pled guilty to the lesser-included offense of Assault Causing

Bodily Injury - Family Violence, a Class A misdemeanor. (C.R. 46). The plea

agreement included the special terms that Appellant would also plead guilty to the

misdemeanor assault charge pending in county court. (C.R. 46).

On the same day. Appellant entered a plea of nolo contendere to Assault

Causing Bodily Injury - Family Violence in county court. (C.R. 16). He was

sentenced to 160 days for both offenses and given 160 days credit in both

judgments for time served. (C.R. 16-17, 55-56).

On March 6, 2015, Appellant filed an Application for Writ of Habeas

Corpus Seeking Relief from Double Jeopardy. (C.R. 18-21). The trial court

entered its order denying the application on June 29, 2015. (C.R. Suppl. 6).

Appellant appeals said denial. (C.R. 76).
STATEMENT REGARDING ORAL ARGUMENT

Appellant has not requested oral argument in this case. The facts and legal

arguments are adequately presented in the briefs and record, and oral argument

would not aid the decisional process. See Tex. R. App. Proc. 39.1. However,

should the Court desire the parties to appear and argue, the State would appear for

oral argument. See Tex. R. App. Proc. 39.7.

ISSUE PRESENTED

Did the trial court properly deny habeas corpus relief in response to an

alleged double jeopardy violation when the State prosecuted Appellant for two

separate felony and misdemeanor offenses, Appellant entered a plea agreement in

the felony case in which he pled guilty to a lessermisdemeanor offense. Appellant,

pursuant to that agreement, pled guiltyto the pendingmisdemeanor chargein order

to receive a lesser sentence, and Appellant failed to preserve his double jeopardy

claim at trial?

STATEMENT OF FACTS

On Sunday, May 10, 2009, an officer with the San Marcos Police

Department responded to a call by victims April and Conchita Najera

("Conchita"). (C.R. 11-12). April informed the officer that she had gone to a park

with her child where she was assaulted by her ex-boyfnend. Appellant. (C.R. 11-

3
12). April claimed that Appellant approached her and "pulled her by the hair and

then grabbed her face along the jaw line." (C.R. 11-12). She escaped, but

Appellant grabbed her again by the hair and by the waist area and began to hit and

push her. (C.R. 12).

During that time, April's mother, Conchita, drove to the park and witnessed

Appellant assaulting her daughter. (C.R. 12). When Conchita asked Appellant why

he had assaulted her daughter, Appellant, just a few feet away from Conchita's

vehicle, said that it was none of her business and pulled out a knife with a silver

blade. (C.R. 12). Conchita told April to call the police. Appellant then ran to his

vehicle and left. (C.R. 12). The responding officer obtained several photographs of

April's injuries, which showed bruises to her face and left eye as well as scratches

to her nose. (C.R. 12). Both April and Conchita provided written statements. (C.R.

12).

Appellant was thereafter indicted for Aggravated Assault with a Deadly

Weapon - Family Violence, a second degree felony. (C.R. 44). Appellant was also

charged by information and complaint with Assault Causing Bodily Injury -

Family Violence, a Class A misdemeanor. (C.R. 10, 11).

On September 8, 2011, a plea agreement was entered for the felony offense.

(C.R. 46). By agreement, Appellant pled guilty to the lesser-included offense of
Assault - Family Violence, a Class A misdemeanor. (C.R. 46). The plea included

the special terms that Appellant would also plead guilty to the Assault - Family

Violence charge pending in county court. (C.R. 46-53).

On the same day. Appellant entered a plea of nolo contendere to Assault

Bodily Injury - Family Violence in county court for the misdemeanor charge.

(C.R. 13-14, 16). He was sentenced to 160 days in county jail for both offenses

and given 160 days credit for time served. (C.R. 16-17, 55-56). Appellant was

represented by counsel, Lawrence Souza, when he entered both pleas. (C.R. 13-14,

46).

On January 28, 2015, Appellant filed an Application for Writ of Habeas

Corpus in the felony case. (C.R. Cause No. CR-10-0816-A). However, Appellant

withdrew said application on February 4, 2015. (C.R. Cause No. CR-10-0816-A).

On March 6, 2015, Appellant filed an Application for Writ of Habeas Corpus

Seeking Relief from Double Jeopardy in the misdemeanor case. (C.R. 18-21).

Appellant filed notice of appeal on May 14, 2015. (C.R. 76). The trial court entered

its order denying relief on June 29, 2015. (C.R. Suppl. 6).

SUMMARY OF THE ARGUMENT

The trial court properly denied Appellant's Application for Writ of Habeas

Corpus because (1) no double jeopardy issue exists, (2) Appellant waived any
double jeopardy protections in his plea agreement, and (3) Appellant waived his

double jeopardy claim by failing to assert the claim at trial. The Double Jeopardy

Clause of the Fifth Amendment 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." Ex parte Milner,

394 S.W.3d 502, 506 (Tex. Crim. App. 2013).

Appellant was prosecuted for two different offenses: a Class A misdemeanor

Assault in county court and Aggravated Assault in district court. In the felony case,

Appellant voluntarily pled to the lesser-included offense ofAssault Causing Bodily

Injury - Family Violence, a Class A misdemeanor, under a special agreement that

he would also plead guilty to the separate Class A misdemeanor assault charge

pending in county court. Therefore, no double jeopardy claim exists and the Court

should affirm the trial court's ruling.

Furthermore, Appellant waived any potential claim of double jeopardy by

voluntarily agreeing to the second assault prosecution as part of a plea agreement

resulting in a lesser sentence. See Ex parte Birdwell, 1 S.W.3d 160, 163-64 (Tex.

Crim. App. 1999). By pleading guilty to both charges in exchange for lesser

sentences. Appellant gave up any potential double jeopardy protections.
Finally, Appellant failed to preserve his double jeopardy claim at the trial

court. An appellant may raise a double jeopardy claim for the first time on appeal

or collateral attack only when (1) "the undisputed facts show the double jeopardy

violation is clearly apparent on the face of the record," and (2) "enforcement of

usual rules of procedural default serves no legitimate state interests." Gonzales v.

State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000). Appellant failed to raise his

double jeopardy claim prior to taking advantage of the plea agreement which

necessarily waived that claim. Therefore, no violation is clearly apparent from this

record, and the legitimate state interest in giving effect to negotiated pleas would

be undermined by allowing him to make this claim after lying behind the log until

now. Consequently, the Court should affirm the trial court's denial ofrelief
ARGUMENT AND AUTHORITIES

STATE'S RESPONSE TO APPELLANT'S SOLE ISSUE

In his sole issue, Appellant argues that he is unlawfully restrained of his

liberty by and through a subsequent conviction and punishment for the same

offense. (App. Br., p. 5). A double jeopardy issue does not exist in this case

because Appellant was prosecuted for two different offenses. Alternatively, even if

a double jeopardy issue did exist, Appellant waived any double jeopardy claim in

his plea agreement by agreeing to subject himself to the same offense in order to

receive a lesser sentence. Finally, Appellant waived his double jeopardy claim by

failing to assert it at the trial court and therefore, he cannot raise his claim for the

first time on collateral attack.

On appeal, the appellate court reviews the habeas corpus decision ofthe trial

court in the light most favorable to the ruling and shall uphold the ruling absent a

clear abuse of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App.

2006); Ex parte Valenzuela-Rodriguez, No. 03-13-00249-CR, 2014 WL 4363140,

at *1 (Tex. App.—^Austin Aug. 26, 2014, no pet.) (mem. op.). In granting or

denying habeas corpus relief, the trial court is presumed to have acted correctly.

See Matter of M.C., 915 S.W.2d 118, 119 (Tex. App.—San Antonio 1996, no

writ). Further, the appellate court will affirm the trial court's decision if it "is
correct on any theory of law applicable to the case." State v. Shastid, 940 S.W.2d

405, 407 (Tex. App.—^Fort Worth 1997, no pet.) (per curiam).

I. THE TRIAL COURT PROPERLY DENIED HABEAS

CORPUS RELIEF BECAUSE A DOUBLE JEOPARDY

ISSUE DOES NOT EXIST IN THIS CASE

"The Double Jeopardy Clause protects criminal defendants 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." Exparte Milner, 394 S.W.3d 502, 506 (Tex. Crim. App. 2013).

Appellant argues that he is unlawfully restrained of his liberty by and through a

subsequent conviction for the same offense. (Appellant's Br. 5). However, none of

the above-mentioned double jeopardy issues exist. A second prosecution for the

same offense after acquittal did not occur. A second prosecution for the same

offense after conviction did not occur. Appellant did not receive multiple

punishments for the same offense.

Appellant was prosecuted for two different offenses, which is evidenced by

the nonconforming language contained in the charging instruments. He was

prosecuted and convicted of Assault Causing Bodily Injury - Family Violence, a

Class A misdemeanor in county court, cause number 95790. (C.R. 16-17). He was

also prosecuted for Aggravated Assault with a Deadly Weapon - Family Violence
in cause number CR-10-0816.

The felony indictment accused Appellant of acts separate and distinct from

the acts alleged in the misdemeanor information and complaint. The indictment

accused Appellant of brandishing a deadly weapon during, or in the irnmediate

flight therefrom, an assault on April involving Appellant "grabbing her hair and

face with [his] hands." (C.R. 44). Conversely, the information and complaint

accused Appellant of causing bodily injury to April "by grabbing April Najera

about the face," "pulling [her] hair," or "striking" her. (C.R. 9, 10). Because the

felony indictment alleges criminal acts separate and distinct from the acts alleged

in the information and complaint. Appellant was prosecuted for two different

offenses.

Subsequently, Appellant reached a plea agreement in the felony case in

which he voluntarily pled to the lesser offense of Assault Causing Bodily Injury -

Family Violence, a Class A misdemeanor. (C.R. 46-53, 55-56). The special terms

of the plea agreement specifically state that Appellant would also plead guilty to

the Assault - Family Violence case pending during that time in county court.

(C.R. 46). Therefore, no double jeopardy claim exists and the trial court's order

should be affirmed.

10
II. THE TRIAL COURT PROPERLY DENIED HABEAS

CORPUS RELIEF BECAUSE APPELLANT WAIVED

ANY DOUBLE JEOPARY CLAIM IN HIS PLEA

AGREEMENT

Even if a double jeopardy issue would normally exist, Appellant waived any

double jeopardy claim. Double jeopardy is not an absolute right; a defendant may

freely choose "to subject himself to a potential double jeopardy violation because,

in his judgment, it results in a beneficial outcome." Ex parte Marascio, Nos. WR80,939-01, WR-80,939-02, & WR-80,939-03, 2015 WL 5853202, at *6 (Tex.

Grim. App. Oct. 7, 2015) (Keasler, J., concurring). Further, although a plea

agreement does not by itself waive double jeopardy protections, a defendant

waives any double jeopardy claim if he agrees to subject himself to the same

offense in order to receive a lesser sentence for which he has already earned

enough to credit to have discharged. See Menna v. New York, 423 U.S. 61, 62-63

(1975); Ex parte Birdwell, 7 S.W.3d 160, 163-64 (Tex. Grim. App. 1999). In Ex

parte Birdwell, the applicant pled guilty after subjecting himself to a second trial

for an offense for which he had previously been convicted, and he did so

intentionally in order to receive a lesser sentence that he had already earned

sufficient credit to discharge. Id. The court held that under these circumstances, the

applicant waived his right to be free from a second prosecution for the same

offense. Id.

11
Similarly, in this case. Appellant was indicted for Aggravated Assault with a

Deadly Weapon - Family Violence, a felony offense. (C.R. 44). As part ofthe plea

agreement, he voluntarily agreed to plead guilty to the lesser-included offense of

Assault Causing Bodily Injury - Family Violence, a Class A misdemeanor, under

the special terms that he would also plead guilty to the Assault Causing Bodily

Injury - Family Violence case pending in county court. (C.R. 46, 47-53). By

entering this agreement. Appellant avoided a possible felony sentence. He also

received 160-day sentences for each offense, both of which were credited a full

160 days for time served. (C.R. 16-17, 55-56). Therefore, Appellant agreed to

subject himself to the same offense for the purposes ofreceiving a lesser sentence

for which he had already earned enough credit to have discharged. Appellant thus

waived any double jeopardy claim in this matter.

Additionally, the fact that Appellant (1) entered both pleas on the same day,

and (2) was represented by an attorney throughout the plea bargaining process,

when he entered both pleas, and when he was convicted of both offenses, is further

evidence that Appellant intelligently, knowingly, and voluntarily waived any

double jeopardy claim. In Texas, plea agreements may contain a wide variety of

stipulations. Moore v. State, 262 S.W.3d 99, 104 (Tex. App.—^Fort Worth 2008),

rev'd on other grounds, 295 S.W.Sd 329 (Tex. Crim. App. 2009). Furthermore, a

12
defendant "is deemed to have entered into the agreement knowingly and

voluntarily unless he shows otherwise." State v. Moore, 240 S.W.3d 248, 251 (Tex.

Crim. App. 2007); see also Ex parte Williams, 637 S.W.2d 943, 948 (Tex. Crim.

App. 1982). Appellant does not argue that he entered into an invalid plea

agreement. Therefore, Appellant, while represented by counsel, knowingly and

voluntarily entered into the plea agreement in which he agreed to subject himselfto

the same offense pending in county court in order to receive a lesser sentence,

thereby waiving any double jeopardy claim. Consequently, the Court should affirm

the trial court's denial ofrelief.

III. THE TRIAL COURT PROPERLY DENIED HABEAS

CORPUS RELIEF BECAUSE APPELLANT WAIVED

ANY DOUBLE JEOPARDY CLAIM BY FAILING TO

RAISE A CLAIM AT TRIAL

Finally, Appellant waived any double jeopardy claim by failing to raise a

double jeopardy claim at trial. Generally, a defendant has the burden of preserving

a double jeopardy claim by raising the claim at or before trial. See Gonzales v.

State, 8 S.W.3d 640, 642 (Tex. Crim. App. 2000). When the defendant alleges a

"successive prosecutions for the same offense" double jeopardy claim, such as in

this case, a pre-trial writ of habeas corpus is the appropriate procedural vehicle.

See id. at 643, n.9. A double jeopardy claim may be raised for the first time on

13
appeal or collateral attack only when (1) "the undisputed facts show the double

jeopardy violation is clearly apparent on the face of the record," and (2)

"enforcement of usual rules of procedural default serves no legitimate state

interests." Id. at 643. Finally, if a writ applicant could have properly brought the

double jeopardy claim on direct appeal, "then the claim's merits will not be

entertained on habeas." Exparte Marascio, 2015 WL 5853202, at *7 (Keasler, J.,

concurring) (discussing Ex parte Townsend, 137 S.W.3d 79, 81 (Tex. Crim. App.

2004)).

Appellant cannot properly assert a double jeopardy claim on direct appeal or

on collateral attack in this case, and thus waived his claim by failing to assert it at

the trial court because a double jeopardy violation is not "clearly apparent on the

face ofthe record." See Gonzales, 8 S.W.3d at 643. In Gonzales, the court held that

the appellant failed to meet his burden in presenting a record showing on its face a

"multiplepunishments" violation. See id at 645.Instead, appellant could only show

that it was ''possible he was multiply punished for the same offense" based on the

jury's general verdict convicting him of aggravated robbery and a lesser offense.

Id. at 641. As a result, the court affirmed the lower court's denial ofrelief, holding

that the appellant waived his claim on appeal by failing to timely raise it at trial. Id.

at 645-46.

14
In this case, Appellant has likewise failed to present a record which shows

on its face a "multiple punishments" double jeopardy violation. Instead, the record

shows that Appellant was prosecuted for two separate offenses. Alternatively, even

if a double jeopardy violation would normally exist, Appellant affirmatively

waived his double jeopardy rights by voluntarily entering into a plea agreement in

which he agreed to be twice convicted of assault in order to receive a lesser

sentence. As a result, a double jeopardy violation is not "clearly apparent from the

face ofthe record." The legitimate state interest in giving effect to negotiated pleas

would be gravely undermined by allowing Appellant to make this claim after lying

behind the log until now. Appellant failed to preserve his claim of double jeopardy

at trial, and thus, he cannot raise it on direct appeal or through a post-trial writ of

habeas corpus. The Court should therefore affirm the trial court's denial ofrelief

15
CONCLUSION AND PRAYER FOR RELIEF

Wherefore, premises considered, the State respectfully prays that this honorable

Court of Appeals affirm the trial court's judgment denying habeas corpus relief,

and grant to the State all reliefto which it is justly entitled.

Respectfully Submitted,

Bv:

Ralph Guerrero

First Assistant Criminal District Attorney

Hays County Government Center

712 S. Stagecoach Trail, Suite 2057

San Marcos, Texas 78666

State Bar No. 24041021

ralph.guerrero@co.hays.tx.us

Attorney for the State ofTexas

By:

Emily E.L. timderos

Law Clerk

Associate Member ofthe State Bar ofTexas

State Bar No. 24095477

emily.landeros@co.hays.tx.us

16
CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. PROC. 9.4

I certify that this brief contains 1,772 words, exclusive of the caption,

identity of parties and counsel, statement regarding oral argument, table of

contents, index of authorities, statement ofthe case, statement of issues presented,

statement of jurisdiction, statement of procedural history, signature, proof of

service, certification, certificate of compliance, and appendix.

Ralph Guerrero

First Assistant Criminal District Attorney

CERTIFICATE OF SERVICE

I certify that a true copy ofthe foregoing brief has been e-delivered to:

David A. Mendoza

608 S. Guadalupe Street

San Marcos, Texas 78666

attomeydavidmendoza@gmail.com

on this the 13th day of October, 2015.

Ralph Guerrero^

First Assistant Criminal District Attorney

17