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No. PD-1676-14

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

RORYKEITH JONES,

Appellant/Petitioner
VS. THE STATE OF TEXAS

Appellee/Respondent 

# ORIGIN/

COiltf FEB 27 2015
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# nni FILED IN 

# COURTOFCRIMINALAPPEALS [77^ fin ---•; f ;--> <W 4,.,J 

### /wi Acosta, Clerk

Petition in Cause No. F-2014-0079-C from the 211th Judicial District Court ofDenton County,Texas, and the Fourth Court of Appeals, Texas, No. 02-14-00068-CR

PETITION FOR DISCRETIONARYREVIEW

Respectfully submitted, Rory K. Jones Appellant/Petitioner, Pro se TDCJ-CID#01914710 Wynne Unit 810 FM 2821 Huntsville, Texas 77349INDEX

LIST OFAUTHORITIES 3 STATEMENTREGARDING ORAL ARGUMENT 4 STATEMENT OF THE CASE 4 STATEMENT OF PROCEDURAL HISTORY 6 QUESTIONFOR REVIEW 2
1. Whether the court of appeals erred by failing to find the evidence insufficient to support the conviction because of the State failed to disprove double-jeopardy attached beyond a reasonable doubt, violating Due Process and Petitioner's right to a fair trial, in violation ofArt. 1, §§ 13 & 19 ofthe Texas Constitution, Art. 

### 1.04, Texas Code ofCriminal Procedure. '

REASONS FOR REVIEW 7 ARGUMENT & AUTHORITIES 11-17 PRAYER FOR RELIEF 17 CERTIFICATE OF SERVICE 18 APPENDIXA Opinion

1Saxtonv. State, 116 S.W.2d 685 (Tex. App.

—Houston [14th Dist] 1989). 2LIST OF AUTHORITIES

CASE LAW: PAGE: Clayton v. State,235 S.W.3d 772, 778 (Tex. Crim. App. 2007) 13 Lanconv. State,253 S.W.3d 699, 705 (Tex. Crim. App. 2008) 13 Jackson v. Virginia, 443 U.S. 307, 319 (1979) 12 Saxtonv. State, 116 S.W.2d 685 (Tex. App. — Houston [14th Dist.] 1989) 2 Saxtonv. State, 804 S.W.2d 910, 914 (Tex. Crim. App.) 12 Westbrookv. State, 29 SW3d 103, 111 (Tex. Crim. App. 2000) 12 Williams v. State,235 S.W.3d 742, 750 (Tex. Crim. App. 2007) 13 Zulianiv. State., 97 S.W.3d 589, 594 (Tex. Crim. App. 2003) 12 STATUTES: PAGE: TEX. PENAL CODE §§ 19.02(b) (1) & (b) (2) 5 Tex. R.App. P. 66.3(a) 6 Tex. R. App. P. 66.3(b) 6,17 Tex. Penal Code Ann. § 19.02(b) , 11 Tex. Penal Code Ann. § 19.02(a) (l)-(2), (d) (West) 14 Tex. R. Evid.801(d) : 16 Tex. R. Evid. 802 16 Tex.R.Evid.803(2) 16No. PD-1676-14

PD-1676-14

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

RORYKEITH JONES,

Appellant/Petitioner
VS. THE STATE OF TEXAS

Appellee/Respondent

Petition in Cause No.F-2014-0079-C from the 211th Judicial District Court ofDenton 

### County, Texas, andtheFourthCourtofAppeals, Texas, No. 02-14-00068-CR

PETITIONFOR DISCRETIONARYREVIEW

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS: 

### Appellant-PetitionerRory K. Jones, (hereinafter "Petitioner"), petitions the Court to review the decision affirming thejudgment and sentence in cause number F-2004- 

### 0079-C, outofthe 211thJudicial DistrictCourtofDentonCounty, Texas.STATEMENT REGARDING ORAL ARGUMENT Petitioner is not an attorney and incarcerated. Oral argument would not be helpful
to the Court under these circumstances. STATEMENT OF THE CASE Petitioner Rory Keith Jones was charged, indicted and convicted for the felony offenses ofaggravated robbery, aggravated assault, and attempted kidnapping. See Tex. Penal Code-Ann. §§ 15.01, 20.04, 22.02(a)(2), 29.03 (West 2011). After Petitioner pleaded true to the prior-felony-conviction enhancement paragraph in each indictment, the jury assessed punishment at life in prison in each case and assessed fines in the amounts of$10,000 for the aggravated assault conviction and $2,500 for the attempted aggravated kidnapping conviction. The trial court sentenced Petitioner accordingly, ordering that the sentences run concurrently. In a single issue, Petitioner claims that convicting him for both aggravated robbery and aggravated assault violated the Fifth Amendment proscription against double jeopardy. The State concedes error on this issue and requests that we set aside Petitioner's conviction and punishment for aggravated assault. After conducting an independent evaluation, we will vacate and dismiss Petitioner's conviction for aggravated assault and affirm Petitioner's convictions for 

### aggravatedrobberyandattemptedaggravatedkidnapping.2Thisproceedingfollowed.

STATEMENT OF PROCEDURAL HISTORY 

### Apanel of theSecondCourtofAppeals affirmedthejudgmentof thetrial courtin a decision rendered November 20, 2014. {See Jones v. State, No. 02-14-00068-CR). 2Although Petitionerappealedhisconvictionforattempted aggravatedkidnapping, hedidnotassertany error. Thus, thecourtofappeals affirmedtheconviction asamatterofcourse and includedthis fact ina footnote ofits memorandum opinion. Id. Fn. 2.Petitioner filed one motion for an extension oftime, which was granted by the Court allowing Petitioner up to and including, Friday, February 20, 2015, in which to file his pro se PDR. This PDR was deposited into the prison mailbox on February 19, 2015, making it timely. Additionally, as an incarcerated litigant, Petition filed a motion to suspend Rule 9(c), Tex. R. App. P., which the Court granted requiring him to only file one copy of the instant PDR. Petitioner now files his petition for discretionary review pursuantto Rule 68 ofthe Texas Rules ofAppellate Procedure. QUESTIONS PRESENTED FOR REVIEW 1. Whether the court ofappeals erred by failing to find the evidence insufficient to support the conviction because ofthe State failed to disprove double-jeopardy attached beyond a reasonable doubt, violating Due Process and Petitioner's right to a fair trial, in violation ofArt. 1, §§ 13 & 19 ofthe Texas Constitution, Art. 1.04, Texas Code ofCriminal Procedure. REASONS FOR REVIEW A. The Court ofAppeals' decision conflicts with other Court ofAppeals' decisions on the same issues. Tex. R. App. P. 66.3(a). B. The Court ofAppeals has erroneously decided important questions of state and federal law that have not been, but should be, settled by this Court. Tex. R. App. P. 66.3(b). C. The CourtofAppeals has decided important questionsofstate and federal law in conflict with applicable decisions ofthe Supreme Courtofthe United States. Tex. R. App. P. 66.3(c).
ARGUMENTIN SUPPORT OF REASONS FOR REVIEW Factual Background 

### After getting off work as a maid at the Best Value Inn in Lewisville, Texas, Modesta Sanchez-Montero saw Petitioner walk by where she was sitting. About twenty 

### minutes later, Petitionerapproachedherfrombehind, grabbedher, anddemandedmoney.Petitioner was wielding an object that appeared to be a screwdriver and threatened to stab Sanchez-Montero ifshe did not comply with his demands. He then began beating her and forcibly dragging her towards a truck in the parking lot. Sanchez-Montero broke free, ran to her room, and called the motel owner. The owner confronted Petitioner and told him to wait while the owner investigated the situation. Petitioner instead got into his truck and fled the motel. The State charged Petitioner with aggravated robbery, aggravated assault, and attempted aggravated kidnapping. The pertinent portion of Petitioner's aggravated robbery indictmentread:" [WJhile in the course ofcommitting theft ofproperty and with intent to obtain or maintain control of said property, [Petitioner did] intentionally or knowingly threaten or place ModestaSanchez-Montero in fear ofimminentbodily injury or death, and [Petitioner] did then and there use or exhibit a deadly weapon, to-wit: a screwdriver or an object unknown to the Grand Jury, that in the manner ofits use or intended use was capable ofcausing death or serious bodily injury." 

### The pertinent portion of Petitioner's aggravated assault indictment read: "[Petitioner did] intentionally or knowingly threaten Modesta Sanchez-Montero with imminent bodily injury, and did then and there during the commissionof said assault, use or exhibit a deadly weapon, to-wit: a screwdriver or an unknown object to the Grand Jury, that in themannerof its use orintended use orintended use wascapable ofcausing death or serious bodily injury. Question One Restated 1. Whether the court ofappeals erred by failing to find the evidence insufficient to 

### support the conviction because of the State failed to disprove double-jeopardy attached beyond areasonable doubt, violating Due Process and Petitioner's right to a fair trial, in violation ofArt. 1, §§ 13 & 19 of the Texas Constitution, Art. 1.04, Texas Code ofCriminal Procedure.The Double Jeopardy Clause of the United States Constitution provides that no person shall be subjected to twicehaving life or limb in jeopardy for the sameoffense. U.S. Const, amend. V. A doublejeopardy claim may be raised for the first time onappeal "when theundisputed facts show the doublejeopardyviolation is clearlyapparent on the face ofthe record and when enforcement ofusual rules ofprocedural default serves no legitimate stateinterests." Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000) (footnotesomitted);seeLangs v. State, 183 S.W.3d 680, 686-87 (Tex. Crim. App. 2006). Impermissible multiple punishments occur when the same criminal act is punished twice under two distinct statutory provisions and the legislature intended that the conduct be punished only once. Bigon v. State, 252 S.W.3d 360, 370 (Tex. Crim. App. 2008). To determine whether there have beenmultiple punishments for the same offense, we apply the "sameelements" testfrom Blockburger v. UnitedStates, 284U.S. 299, 304, 52 S. Ct. 180, 182 (1932). See Ex ParteDenton, 399 S.W.3d 540, 545 (Tex. Crim. App. 2013). We focus on the elements alleged in the charging instrument to determine whether the offenses as charged require proofofthe same elements. Bigon, 252 S.W.3d at 370. Double-jeopardy challenges should be made even to offenses that have differing elements under the Blockburger test "ifthe same 'facts required' are 

### alleged in theindictment." Id. (citing Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 

### 2007)). Iftwo offenses donot have thesame elements undertheBlockburgertest, butif otherindiciamanifest alegislativeintentthatanaccusednotbepunishedfortwo offenses 

### arising from the course of asingle transaction, anaccused may notbepunished for both offenses.See Gonzales v. State, 304 S.W.3d 838, 845-46 (Tex. Crim. App. 2010).Here, the indictments for aggravated robbery and aggravated assault both alleged that Petitioner intentionally or knowingly threatened Modesta Sanchez- Montero with imminent bodily injury and used a screwdriver or unknown object that in its manner of use or intended use was capableofcausing death or serious bodily injury. The indictment for aggravated robbery further alleged thatPetitioner committed theft. Whenfaced with the same double jeopardy issue as we have here and almost identical indictments, the court ofcriminal appeals in Dentonexplained, [A]s plead, aggravated assault is a lesser-included offense ofaggravated robbery because"it is established by proof of the same or less than all the facts required to establish the commissionofthe offense charged[.]" "If. . . the prosecution, in proving the elements of one charged offense, also necessarily proves another charged offense, then that other offense is a lesser-included offense." Ifthere is no clear legislative intent to punish the offenses separately, multiple punishments for the criminal act that is the subject of the prosecution is barred. No such intent has been shown here. We conclude that applicant has shown that [his convictions for aggravated robbery and aggravated assault] are in violation of his constitutional double-jeopardy protections that preclude multiple punishments for the same offense. 399 S.W.3d at 547. Here, as in Denton, the aggravated assault, as charged, is a lesserincluded offense of the aggravated robbery, and Jones's convictions for both offenses 

### violated doublejeopardy. See id; cf. Garfias v. State, 424S.W.3d 54,63-64 (Tex. Crim. 

### App.) (holdingthat aggravated assaultbycausing bodily injury was notalesser-included offense ofaggravated robbery bythreat), cert, denied, 2014 WL 3753800 (2014). While it is true that the court ofappeals vacated Petitioner's aggravated assault conviction, Petitioner avers that it should havevacated both the aggravated robbery andaggravated assault convictions, versusjustthe one. Petitioner respectfully submits that this Court should settle these weighty constitutional questions, ofgrave concern to Texas' citizens and ofgreat importance to Texasjurisprudence. Tex. R. App. P. 66.3(b).

PRAYER FOR RELIEF Petitioner respectfully prays that this Honorable Court grant his Petition for Discretionary Review and reverse the decision ofthe Court ofAppeals. 

### Signedonthis the 19thday ofFebruary2015.
Respectfully submitted,

10



## rDCJ-q"' Wynne LMit 

## 810FM/2821 Huntsville, Texas 77349CERTIFICATE OF SERVICE I, Rory K. Jones, TDCJ-CID#01914710, Petitioner, pro se, herein certifies that a true and correct copy ofthe above and foregoing Petition for Discretionary Review was sent to the Denton County District Attorney, and The State Prosecuting Attorney, by 

### placing same, inthe prison mail box, first-class, postage paid, on this the 191 day of February, 2015..

### Appendix A

12RORY JONES COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-14-00068-CR 02-14-00069-CR 02-14-00070-CR

V. THE STATE OF TEXAS APPELLANT

STATE

FROM THE 211TH DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO. F-2014-0079-C, F-2014-0080-C, F-2014-0081-C

MEMORANDUM OPINION

I. Introduction 

### A jury convicted Appellant Rory Jones of aggravated robbery, aggravated 

### assault, and attempted aggravated kidnapping. See Tex. Penal Code Ann. §§ 15.01, 20.04, 22.02(a)(2), 29.03 (West 2011). AfterJones pleaded true to the 

### 1SeeTex. R. App. P. 47.4.prior-felony-conviction enhancement paragraph in each indictment, the jury assessed punishment at life in prison in each case and assessed fines in the 

### amounts of $10,000 for the aggravated assault conviction and $2,500 for the attempted aggravated kidnapping conviction. The trial court sentenced Jones accordingly, ordering that the sentences run concurrently. In a single issue, Jones claims that convicting him for both aggravated robbery and aggravated assault violated the Fifth Amendment proscription against double jeopardy. The State concedes error on this issue and requests that we set aside Jones's conviction and punishment for aggravated assault. After conducting an independent evaluation, we will vacate and dismiss Jones's conviction for 

### aggravated assault and affirm Jones's convictions for aggravated robbery and 

### attempted aggravated kidnapping.2
II. Factual and Background 

### After getting off work as a maid at the Best Value Inn in Lewisville, Texas, Modesta Sanchez-Montero saw Jones walk by where she was sitting. About 

### twenty minutes later, Jones approached her from behind, grabbed her, and demanded money. Jones was wielding an object that appeared to be a screwdriver and threatened to stab Sanchez-Montero ifshe did not comply with 

### his demands. He then began beating her and forcibly dragging her towards a 

### 2Although Jones appealed his conviction for attempted aggravated kidnapping, he did not assert any error. Thus, we affirm the conviction as a matter ofcourse and include ithere only inthe interest of clarity.

### truck in the parking lot. Sanchez-Montero broke free, ran to her room, and called the motel owner. The owner confronted Jones and told him to wait while the


### owner investigated the situation. Jones instead got into his truck and fled the motel.The State charged Jones with aggravated robbery, aggravated assault, 

### and attempted aggravated kidnapping. The pertinent portion of Jones's aggravated robbery indictment read: [Wjhile in the course of committing theft of property and with intent to 

### obtain or maintain control of said property, [Jones did] intentionally 

### or knowingly threaten or place Modesta Sanchez-Montero in fear of imminent bodily injury or death, and [Jones] did then and there use or exhibit a deadly weapon, to-wit: a screwdriver or an object unknown to the Grand Jury, that in the manner of its use or intended use was capable of causing death or serious bodily injury. 

### The pertinent portion ofJones's aggravated assault indictment read: [Jones did] intentionally or knowingly threaten Modesta SanchezMontero with imminent bodily injury, and did then and there during the commission of said assault, use or exhibit a deadly weapon, towit: a screwdriver or an unknown object to the Grand Jury, that in the manner of its use or intended use was capable of causing death or serious bodily injury. III. Double Jeopardy 

### Jones argues, and the State agrees, that convicting him of aggravated assault and aggravated robbery, both by threat, forthe same criminal act violated 

### the double jeopardy protections guaranteed by the Fifth Amendment. See U.S. Const, amend. V, cl. 2. We agree. See Saldano v. State, 70 S.W.3d 873, 884(Tex. Crim. App. 2002) (explaining that the State's confession of error is not conclusive on review and conducting an independent review on the merits). 

### The Double Jeopardy Clause of the United States Constitution provides that no person shall be subjected to twice having life or limb injeopardy for the
same offense. U.S. Const, amend. V. A double jeopardy claim may be raised 

### for the first time on appeal "when the undisputed facts show the doublejeopardy 

### violation is clearly apparent on the face of the record and when enforcement of usual rules of procedural default serves no legitimate state interests." Gonzalez


### v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000) (footnotes omitted); see Langs v. State, 183 S.W.3d 680, 686-87 (Tex. Crim. App. 2006). 

### Impermissible multiple punishments occur when the same criminal act is punished twice under two distinct statutory provisions and the legislature intended that the conduct be punished only once. Bigon v. State, 252 S.W.3d 

### 360, 370 (Tex. Crim. App. 2008). To determine whether there have been multiple punishments for the same offense, we apply the "same elements" test from Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932). See Ex Parte Denton, 399 S.W.3d 540, 545 (Tex. Crim. App. 2013). We focus 

### on the elements alleged in the charging instrument to determine whether the 

### offenses as charged require proof of the same elements. Bigon, 252 S.W.3d at 

### 370. Double-jeopardy challenges should be made even to offenses that have 

### differing elements under the Blockburger test "if the same 'facts required' are alleged in the indictment." Id. (citing Hall v. State, 225 S.W.3d 524 (Tex. Crim.App. 2007)). If two offenses do not have the same elements under the Blockburgertest, but ifother indicia manifest a legislative intent that an accused not be punished for two offenses arising from the course of a single transaction,
an accused may not be punished for both offenses. See Gonzales v. State, 304 S.W.3d 838, 845-46 (Tex. Crim. App. 2010). Here, the indictments for aggravated robbery and aggravated assault both alleged that Jones intentionally or knowingly threatened Modesta SanchezMontero with imminent bodily injury and used a screwdriver or unknown object that in its manner of use or intended use was capable of causing death or serious bodily injury. The indictment for aggravated robbery further alleged that Jones committed theft. When faced with the same double jeopardy issue as we have here and almost identical indictments, the court of criminal appeals in Denton explained, 

### [A]s plead, aggravated assault is a lesser-included offense of aggravated robbery because "it is established by proof of the same or less than all the facts required to establish the commission of the offense charged[.]" "If... the prosecution, in proving the elements of one charged offense, also necessarily proves another charged offense, then that other offense is a lesser-included offense." If there is no clear legislative intent to punish the offenses separately, 

### multiple punishments for the criminal act that is the subject of the prosecution is barred. No such intent has been shown here. We 

### conclude that applicant has shown that [his convictions for 

### aggravated robbery and aggravated assault] are in violation of his constitutional double-jeopardy protections that preclude multiple punishments for the same offense. 

### 399 S.W.3d at 547. Here, as in Denton, the aggravated assault, as charged, is a 

### lesser-included offense of the aggravated robbery, and Jones's convictions for

### both offensesviolated doublejeopardy.3 See id.; cf. Garfias v. State, 424S.W.3d 54, 63-64 (Tex. Crim. App.) (holding that aggravated assault by causing bodily injury was not a lesser-included offense of aggravated robbery by threat), cert, denied, 2014 WL 3753800 (2014). When a defendant has been prosecuted and convicted in a single criminal action of two or more offenses that constitute the same offense, in violation of doublejeopardy, the remedy is to apply "the most serious offense" test and retain the conviction for the "most serious" offense. Denton, 399 S.W.3d at 547. The "most serious" offense is the offense for which the greatest sentence was 

### assessed. Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App. 2006); see also Evans v. State, 299 S.W.3d 138, 141 (Tex. Crim. App. 2009); Bigon, 252 S.W.3d at 372-73. But when the punishment for each conviction is identical, we 

### cannot look to only the sentences imposed to determine the most serious 

### offense. See Bigon, 252 S.W.3d at 373. Instead, we have to look to other criteria, including the degree of felony for each offense, to determine which offense is the most serious. Id.; White v. State, 395 S.W.3d 828, 832 (Tex. App.—Fort Worth 2013, no pet.). In this case, Jones received a life sentence for both the aggravated assault 

### and aggravated robbery convictions. Because aggravated robbery is a first

### 3Jones did not raise a double jeopardy claim in the trial court, but as both parties assert on appeal, the double jeopardy violation is clearly apparent on the face ofthe record and enforcement of usual rules of procedural default serves no 

### legitimate state interests. See Gonzalez, 8 S.W.3d at 643.degree felony and aggravated assault is a second-degree felony, aggravated 

### robbery is the most serious offense here.4 See Tex. Penal Code Ann. §§ 22.02(b), 29.03(b). As such, we will vacate Jones's conviction for aggravated assault. See Bigon, 252 S.W.3d at 373; White, 395 S.W.3d at 833. We sustain Jones's sole issue. IV. Conclusion Having sustained Jones's sole issue, we vacate and dismiss his conviction 

### for aggravated assault and affirm the convictions for aggravated robbery and attempted aggravated kidnapping.

/s/ Sue Walker SUE WALKER JUSTICE PANEL: LIVINGSTON, C.J.; WALKER and GABRIEL, JJ. DO NOT PUBLISH Tex. R. App. P. 47.2(b) DELIVERED: November 20, 2014



### 4Both offenses were enhanced with a prior felony conviction. Thus, the aggravated robbery offense was enhanced to a "hybrid" first-degree felony with a punishment range of not less than fifteen years or more than ninety-nine years or 

### life in prison. See Tex. Penal Code Ann. § 12.42(c)(1) (West Supp. 2014). The 

### aggravated assault offense was enhanced to a first-degree felony. See id. § 12.42(b)., ->i* It

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