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 

### FirstAssistant Criminal DistrictAttorney Hays County Government Center 712 South StagecoachTrail, 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 BarNo. 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

CLERKIDENTITY OF PARTIES AND COUNSEL Appellant: Appellate Counsel:

Writ Counsel: Trial Counsel:

Appellee:
Counsel:
Appellate Counsel:

Post-Conviction Counsel:

Trial Counsel: Jose ConcepcionLoredo 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 DistrictAttorney 712 S. Stagecoach Trail, Ste. 2057 San Marcos, TX 78666 Ralph Guerrero, FirstAssistant 

### Criminal DistrictAttorney Angie D. Roberts-Huckaby, Assistant 

### DistrictAttorney Amy Lockhart, AssistantDistrict Attorney Chris Johnson, AssistantDistrict AttorneyTABLE 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

11INDEX 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 

### Kniattv. 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 ExparteBirdwell, 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.—^AustinAug. 26, 2014, no pet.) (mem. op.) 8 

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

### StateV. Shastid, 940 S.W.2d405 (Tex.App.—FortWorth 1997, no pet.) (per curiam) 9 

### Matterof M.C., 915 S.W.2d 118(Tex.App—SanAntonio 1996,no writ) 8 Rules Tex. R. App. Proc. 39.1 3 Tex. R. App. Proc. 39.7 3

111NO. 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 LAWNO. 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 Briefin Opposition to Appellant's Briefpursuant to Rule 38.2 ofthe Texas Rules ofAppellate 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 ofAssault 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 chargepending in county court. (C.R. 46). On the same day. Appellant entered a plea ofnolo 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. SeeTex. 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 misdemeanoroffenses, Appellant entered a plea agreement in 

### thefelony case in which he pled guilty to a lessermisdemeanoroffense. Appellant, pursuantto thatagreement, pled guiltyto the pendingmisdemeanorchargein order 

### to receive a lessersentence, andAppellant failed to preserve his doublejeopardy 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 theofficerthat she hadgone to a park with herchild where shewas assaulted by herex-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 pushher. (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 ofher 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 showedbruises to her face and left eye as well as scratches to hernose. (C.R. 12). Both April and Conchitaprovided 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

- FamilyViolence, 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 ofAssault

- 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 chargepending in county court. (C.R. 46-53). On the same day. Appellant entered a plea ofnolo 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 countyjail for both offenses and given 160 days credit for time served. (C.R. 16-17, 55-56). Appellant was 

### representedby counsel, Lawrence Souza, whenhe enteredbothpleas. (C.R. 13-14, 46). On January 28, 2015, Appellant filed an Application for Writ ofHabeas 

### 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 ofappeal on May 14, 2015. (C.R. 76). The trial court entered 

### its order denying reliefon June 29, 2015. (C.R. Suppl. 6).
SUMMARY OF THE ARGUMENT 

### The trial court properly denied Appellant's Application for Writ ofHabeas 

### 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 ofthe 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 

### Assaultin county court and Aggravated Assaultin district court. In the felony case, Appellantvoluntarilypledto 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 doublejeopardy claim exists and the Court should affirmthe trial court's ruling. 

### Furthermore, Appellant waived any potential claim ofdouble jeopardy by voluntarily agreeing to the second assault prosecution as part ofa plea agreement resulting in a lesser sentence. See Exparte 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 doublejeopardyprotections.

### Finally, Appellant failed to preserve his doublejeopardy claim at the trial court. An appellant may raise a doublejeopardy claim for the first time on appeal
or collateral attack only when (1) "the undisputed facts show the doublejeopardy violation is clearly apparent on the face ofthe record," and (2) "enforcement of usual rules ofprocedural 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 affirmthe trial court's denial ofreliefARGUMENT AND AUTHORITIES STATE'S RESPONSE TO APPELLANT'S SOLE ISSUE In his sole issue, Appellant argues that he is unlawfully restrained ofhis 

### 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 doublejeopardy claim in his plea agreement by agreeing to subject himselfto 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 ofdiscretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); Exparte 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 ofM.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 oflaw applicable to the case." State v. Shastid, 940 S.W.2d 

### 405, 407 (Tex. App.—^FortWorth 1997, no pet.) (percuriam). 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 thesame offense afterconviction, and 3)multiple punishments for 

### thesame offense." ExparteMilner, 394S.W.3d 502, 506 (Tex. Crim. App. 2013). Appellant argues that he is unlawfully restrained of his liberty by andthrough a subsequent conviction for thesame offense. (Appellant's Br. 5).However, none of 

### the above-mentioned doublejeopardy 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 wasprosecuted for twodifferent offenses, which is evidencedby the nonconforming language contained in the charging instruments. He was prosecuted and convicted of AssaultCausing Bodily Injury - FamilyViolence, a 

### Class Amisdemeanorincounty court, causenumber 95790. (C.R. 16-17). Hewas also prosecuted forAggravated Assaultwith aDeadlyWeapon

- FamilyViolencein cause number CR-10-0816. 

### The felony indictment accused Appellant ofacts separate and distinct from the acts alleged in the misdemeanor information and complaint. The indictment accused Appellant ofbrandishing 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 ofAssault Causing Bodily Injury - Family Violence, a Class A misdemeanor. (C.R. 46-53, 55-56). The special terms ofthe 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.

10II. THE TRIAL COURT PROPERLY DENIED HABEAS CORPUS RELIEF BECAUSE APPELLANT WAIVED ANY DOUBLE JEOPARY CLAIM IN HIS PLEA AGREEMENT 

### Even ifa doublejeopardyissue would normally exist, Appellant waived any double jeopardy claim. Doublejeopardy is not an absolute right; a defendant may freely choose "to subject himselfto a potential doublejeopardy violation because, in his judgment, it results in a beneficial outcome." Exparte 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. SeeMenna v. New York, 423 U.S. 61, 62-63 

### (1975); Exparte Birdwell, 7 S.W.3d 160, 163-64 (Tex. Grim. App. 1999). In Ex parte Birdwell, the applicant pled guilty after subjecting himselfto 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 creditto discharge. Id. The courtheldthatunderthese circumstances, the 

### applicant waived his right to be free from a second prosecution for the same offense. Id. 11

### Similarly, in this case. Appellantwas indicted for Aggravated Assault with a DeadlyWeapon

- FamilyViolence, 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 ofwhich were credited a full 160 days for time served. (C.R. 16-17, 55-56). Therefore, Appellant agreed to subject himselfto 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 doublejeopardy claimin 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 enteredbothpleas, and whenhe was convicted ofboth offenses, is further evidence that Appellant intelligently, knowingly, and voluntarily waived any doublejeopardy 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 Exparte 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 agreementin which he agreed to subject himselfto the same offense pending in county court in order to receive a lesser sentence, 

### therebywaiving any doublejeopardy 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 ofpreserving 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" doublejeopardy claim, such as in 

### this case, apre-trial writ ofhabeas 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, ifa 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 Exparte 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 

### theappellant failed to meet his burden inpresenting a recordshowing on its face a "multiplepunishments" violation. See id at 645.Instead, appellantcould only show that it was ''possible he was multiply punished for the same offense" based on the 

### jury's general verdict convicting him ofaggravated robbery and a lesser offense. 

### Id. at641. As aresult, the courtaffirmedthe 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" doublejeopardy violation. Instead, the record shows that Appellantwas prosecuted for two separate offenses. Alternatively, even 

### if a double jeopardy violation would normally exist, Appellant affirmatively waived his doublejeopardy 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 doublejeopardyviolation is not "clearly apparent from the 

### face ofthe record." The legitimate state interest in giving effect to negotiated pleas would be gravely underminedby allowing Appellantto make this claim after lying 

### behind the log until now. Appellant failed to preserve his claim ofdoublejeopardy at trial, and thus, he cannot raise it on direct appeal or through a post-trial writ of habeas corpus. The Court shouldtherefore affirmthe trial court's denial ofrelief

15CONCLUSION AND PRAYER FOR RELIEF 

### Wherefore, premises considered, the State respectfully prays that this honorable Court ofAppeals affirm the trial court's judgment denying habeas corpus relief, and grantto the State all reliefto which it isjustlyentitled. Respectfully Submitted,

Bv: Ralph Guerrero FirstAssistant Criminal DistrictAttorney Hays County Government Center 712 S. StagecoachTrail, Suite 2057 San Marcos, Texas 78666 State Bar No. 24041021 ralph.guerrero@co.hays.tx.us Attorney for the State ofTexas

By: 

### EmilyE.L. timderos Law Clerk Associate Member ofthe State Bar ofTexas State Bar No. 24095477 emily.landeros@co.hays.tx.us

16CERTIFICATE 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 ofauthorities, statement ofthe case, statement ofissues presented, 

### statement ofjurisdiction, statement of procedural history, signature, proof of service, certification, certificate ofcompliance, and appendix.
Ralph Guerrero FirstAssistant Criminal DistrictAttorney

CERTIFICATE OF SERVICE I certifythat atrue copy ofthe foregoing briefhas been e-delivered to:
David A. Mendoza 608 S. Guadalupe Street SanMarcos, Texas 78666 

### attomeydavidmendoza@gmail.com on this the 13th day ofOctober, 2015.


### Ralph Guerrero^ FirstAssistant Criminal DistrictAttorney

17