### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-15-00301- CR

Ex parte Jose C . Loredo

F ROM TH E CO UNTY COURT AT LAW NO . 1 O F H AY S CO UNTY NO. 095 790, H ONO RAB LE ROB ERT UP DEGROVE, J UDGE P RESIDING

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

J ose C

. L oredo was arrested fo r assaulting his ex-girlf riend April Najer a in a park. After his a

rre st, L oredo was indicted in a district c ourt for the felony offe nse of ag g ravated assault with a deadly wea

pon (fa mily violence)

. See Tex. Penal Code §§ 22.01(a) (setting out elements of assault), .02(a )(2) (providingthat assault is ag g ravated assault if person “uses or exhibi ts a dea dly

wea pon during the commi ssion of t he assault”), (b) (stating that offe nse i s second- deg ree felony ). I n addition to the felony offe nse, L oredo was char g ed in a county court at law with a class A misdemeanor assault (fa

mily violence) stemming fr om the incident in the park. See id. § 22.01(b) (spec ifying that assault “is a Class A misdemea nor”)

. As part of a plea barg ain, the State agree d to reduc e the char g e for the alleg ed felony offe nse to a misdemeanor assault char g e i n ex ch ange for L oredo ag ree ing to plead g uilty to the reduc ed char g e and nolo contende re to the orig inal class A misdemeanor that was pending in the county court. See id. § 22.01(a) (1). Fur thermore , the parties ag ree d that L oredo should be sentenc ed in both cases to 160 day s’ conf inement, should be g iven cr edit for 160 day s serve d, and should berele ased for time se rved. Moreove r, under the deal, L oredo voluntarily agree d to enter the pleas at

issue; to “g ive up all rig hts g iven to me by law, whether of form, substance or proce dure” ; to “wa ive
any Constit utional or statutory protec tions and privileg es ag ainst self-inc rimination”; and to waive his r ight to a

ppeal. Consist ent with the terms of the ag ree ment, L oredo enter ed a plea of g uilty for the re duced a ssault char g e in the district cour t and a plea of nolo c ontender e for the assault cha rg e in the county court, and the district court acc epted the plea ag ree ment and sentenc ed him in

acc ordanc e with the ter

ms of the ag ree ment. After L oredo enter ed his pleas and was sentenc ed, he filed an application for writ of habea s corpus in the county court asser ting that his conviction for the orig inal misdemeanor assault char g e by the county court was unconstitutional beca use it constituted double jeopar dy

. See Tex. Code Crim. Proc. art. 11.09 (stating that person confine d on misdemeanor char g e may apply for writ of habeas corpus). Ultimately , the county court denied L oredo’ s application. L oredo appea ls the county

court’s r uling. We will aff

irm the county

court’s or der de nying his wr it application.

STANDARD OF REVIEW Appellate courts revie w a trial court’s denial of habea s-cor pus relief under an abuseof-discr etion standard. Kniatt v. State , 206 S.W .3d 657, 664 (Tex. Crim. App. 2006). “A trial court abuses its discretion when its ruling is arbitra ry or unrea sonable.” Gaytan v. State , 331 S.W .3d 218, 223 (Tex. App.—Austin 2011, pet. ref ’d). But a trial court does not abuse its discretion if its ruling lies within “the zone of rea sonable disag ree ment.” Bigon v. State , 252 S.W .3d 360, 367 (Tex. Crim. App. 2008); see Lopez v. State , 86 S.W .3d 228, 230 (Tex. Crim. App. 2002). Under that standard,

we revie w “the rec ord evidenc e in the light m o s t fa vorable to the trial court’s ruling ,” Kniatt , 2206 S.W .3d at 664, and the applicant has the burden of proving his claims by a preponde ranc e of the

evidenc e, Ex parte Grav es , 271 S.W .3d 801, 803 (Tex. App.—Waco 2008, pet. re f’d)

.

DISCUSSIO N I n his sole issue on appea l, L oredo asser ts that his prosec ution for the misdemeanor assault offense in the county court v i o l at ed t h e Double J eopar dy Clause of the Fifth Amendment. See U.S. Const. amend. V. In particula r, L oredo notes t h at the “Double J eopar dy Clause protects criminal defe ndants from three things: 1) a second prosec ution for the same offe nse afte r acquittal; 2) a second prosec u t i on for the same offe nse afte r conviction; and 3) multipl e punishments for the same offe nse.” Ex parte Milner , 394 S.W .3d 502, 506 (Tex. Crim. App. 2013). In light of these protec tions, L oredo asser ts that the second a

nd third prong s are applicable in this case beca use his conviction by the county cour t co n s titutes a second prosec ution and a second punishment for the offe nse that he was convicted of by the district court. Moreove r, although L oredo acknow ledg es that he is no longe r incar cer ated, he asser ts that his second conviction may result in his deportation. 1 See Ex parte Sc hmidt , 109 S.W .3d 480, 481 (Tex. Crim. App. 2003) (explaining that article 11.09 is not limit ed to case s in which applicant is curr ently confine d). Ac cordingly , L oredo contends that “a wr i t of habea s corpus is a proper venue throug h which to challeng e” this err or, see Ex parte Milner , 394 S.W .3d at 506, and asks this Court to either reve rse the county court’s denial of his habea s petition or vacate his misdemeanor conviction for assault, see Shelby v. State , 448 S.W .3d

W e n o t e t h at the plea ag ree ment stated in multipl e locations that pleas of guilty and 1 n o l o co n t en dere “may result in deportation, the exclusion from admission to this country , or the denial of naturalization under fe dera l law.” 3431, 440 (Tex. Crim. App. 2014) (explaining that if defe ndant is subjected to multipl e punishments

for same offe nse, reme dy is to aff irm most serious conviction and vacate other ones); W ilson v. State , Nos. 05-10-01207- CR, -08-C R , -09-CR, -10-CR, -11-CR, -12-CR, 05-11-00087- CR, 2012 Tex. App. L EXI S 2192, at *9-10 (Tex. App.—Dallas Mar. 21, 2012, no pet.) (mem. op., not desig nated for publication) (same) ; cf. Ex parte Benne tt, Nos. WR -80,778-01, -02, -03, 2014 Tex. Crim. App. Unpub. L EXI S 166, at *4 (Tex. Crim. App. Fe b. 26, 2014) (not desig nated for publication) (orde ring trial court t o m ak e finding s reg arding whether some of defe ndant’s six convictions for burg lary under plea barg ain that disposed of case s toge ther constituted double-jeopa rdy violation and whet

her only violative convictions or all convictions should be set aside). In response , the State asser ts that there is no double-jeopa

rdy violation, that L oredo waived his double-jeopa rdy rig hts by enter ing into the plea- barg ain ag ree ment, and that L oredo failed to prese rve any potential claim reg arding the alleg ed violation by

failingto bring it to the trial court’s attention bef ore e nteringhis plea. Although the court of criminal appea ls has explained that a g uilty plea, without more, “does not waive a claim of double jeopar dy ,” the court has rec og nized that there are circ umstances in which the rig ht to be fre e from double jeopar dy may be waived. Ex parte Birdwell , 7 S.W .3d 160, 163-64 (Tex. Crim. App. 1999); see Menna v. New Y ork , 423 U.S. 61, 63 n.2 (1975) (cla rifying that Court did “not hold that a double jeopar dy claim may never be waived” ). In particula r, the court of criminal appea ls conclude d in Birdwell that the applicant seeking habea s relief “wa ived his rig ht to be fre e from a second prosec ution” wher e the rec ord showed that the applicant ag ree d to plead g uilty

to two offe nses u n d er t h e terms of a plea- barg ain ag ree ment and wher e he “agree d to subject h i m s el f to a second trial for the same offe nse” in order “to rec eive a lesser sentence wh i ch h e

4had alre ady ear ned en o u gh cre dit to have discharg ed.” Ex parte Birdwell , 7 S.W .3d at 161, 164;
compare E

x p a r t e Marascio , Nos. WR -80,939-01, -02, -03, 2015 Tex. Crim. App. L EXI S 1052,

at *16 (Tex. Crim. App. Oct. 7, 2015) (Ke asler, J ., concur ring ) (noting that defe ndant may waive double-jeopa

rdy rig hts “by ag ree ing to subject hi mself to double j eopar dy if it benef its him” as i n

case s wher e plea barg ain resulted in lesser sentenc e being imposed), and Oltivero v. State , No. 07- 14-00318-CR, 2015 Tex. App. L EXI S 9789, at *8-9 (Tex. App.—Amar illo Sept. 17, 2015, no pet. h.) (mem. op., not desig nated for publication) (dete rmining that defe ndant waived double-jeopa rdy righ t s wh er e h e pleade d guilty to offe nse without plea ag ree ment but wher e waiver of rig hts specific ally listed double-jeopa rdy rig h t s ), w i th Ex parte Milner , 394 S.W .3d at 505, 510 (g ranting habea s relief wher e court deter mined that double-j eo p ar d y violation occur red and wher e applicant was g iven three consec utive life sentenc es under plea barg ain), Ex parte Marrufo , No. WR -80,822-01, 2014 Tex. Crim. App

. Un p u b. L EXI S 356, at *2-3 (Tex. Crim. App. Apr. 9, 2014) (not desig nated for publication) (Ke ller, J ., dissenting) (agree ing with majority that habea s relief should be g rante d beca use both convictions violated double jeopar dy but explaining that since it was plea- barg ain case , majority should not have v acated and set aside single conviction and instead should have rema nded to dete rm i n e wi th parties’ input whether whole plea should be

u n d o n e) , and W

ilson , 2012 Tex. App. L EXI S 2192, at *4, *6-9 (addr essing double-jeopa rdy complaint even though it was not prese nted to trial court, in part, beca use waiver s in plea ag ree ments reg arding defe cts in indictments did not bar double-jeopa rdy claim that he could not be prosec uted twice f or same c onduct).

5Simi lar to the applicant in Birdwell , L oredo ag ree d to plead g uilty t o t h e ch arge

pending in the district court and to plead nolo contende re to the char g e befor e the county court under

t h e t erms of a plea ag ree ment in exchang e for the felony ag g ravated assault char g e being reduc ed to a misdemeanor

assault cha

rg e and in e x chang e for

a lesser sentenc e in both char g es that he ha d alre ady ear

ned enoug h cre dit to discharg e with time serve d. See Ex parte Birdwell , 7 S.W .3d at 164. Moreove r, the rec ord reve als that as part of the plea barg ain, L oredo agree d t o g ive up all of his constitutional and statutory protec tions that would apply and ag ree d to g ive up any rig ht to appea l his convictions. Given the simil arities betwee n this case and Birdwell , we must conclude that L oredo

2 waived h i s ri gh t to challeng e his conviction befor e the county court on double-jeopa rdy g rounds and conclude that the county court did not abuse its d i s cr et i o n b y deny ing L oredo’ s application for wr it of habea s corpus. See id. ; compare Y ount v. State , No. 03-96-00565- CR, 1998 Te x . App. L EXI S 25, at *4-5 (Tex. App.—Austin J an . 8 , 1998, no pet.) (not desig nated for publication) (d et er m ining that appellate court did not have jurisdiction to consider double-jeopa rdy claim “following a barg ained g uilty plea” ), with Rey es v. State , 139 S.W .3d 448, 449 (Tex. App.—Austin 2004, no pet.) (addr essing double-jeopa rdy cla i m ra ised for first time on appea l wher e there was g uilty plea but no plea ag ree ment and wher e trial court cer tified that case was not plea- barg ain case and that def

endant ha d rig ht to appeal)

. 3

I n his brief, L oredo notes that althoug h the plea barg ain g ener ally waives constitutional and 2 statutory rig hts, the ag ree ment does not specific ally mention double jeopar dy

. Howeve r, nothing in the Birdwell opinion sug g ests that the waiver s at issue in that case specific ally listed double-jeopa rdy rig hts. See 7 S.W .3d 160, 163-64 (Te x . Crim. App. 1999). The c ourt of cr iminal appeals ha s expl ained that “ a double jeopar dy claim may be raised 3 for the first time on appea l or even for the first time on collater al attack when the undisputed fa cts show the double jeopar dy violation is clea rly appar ent on the fac e of the rec ord and wh en 6I n light of the prec eding , we ove rrule L oredo’ s issue on appea l.

CONCLUSION Having overr

uled L oredo’ s sole issue on appea l, we aff irm the county court’s order denying L oredo’ s application for writ of habe as cor

pus.

David Pury ear , J ustice Be fore J ustices Pury ear , Goodwin, and B ourland Affir med Filed: Nove mber 13, 2015 Do Not Publish

enfor ceme nt of us u al ru les of proce dural defa ult serve s no leg itimate state interests.” Gonzalez v. State , 8 S.W .3d 640, 643 (Tex. Crim. App. 2000). Howeve r, th at ca s e dealt with proce dural d ef ault and was not a waiver case . See Oltivero v. State , No. 07-14-00318- CR, 2015 Tex. Ap p . L EXI S 9789, at *8-9 (T ex . Ap p .—Amarillo Sept. 17, 2015, no pet. h.) (mem. op., not desig nated for publication); see also id. at *6 (stating that rig ht to be fre e from double jeopar dy from multipl e punishments for same offen s e i s rig ht that is “to be implemented upon reque st” and is “subjec t to proce dural defa

ult”); Barker v. State , No. 08-13-00223- CR, 2015 Tex. App. L EXI S 7309, at *15-16 (T ex . App.—El Paso J uly 15, 2015, no pet.) (not desig nated for publication) (explaining that althoug h it is rig ht of constitutional dimension, “rig ht to be fre e from double jeopar dy is not a sy stemic rig ht that may be raised at will on appea l, nor are double jeopar dy protec tions c onsidered to be ‘wa ivable’ rig hts that may be addre ssed on appea l absent a knowing , voluntary , and intelligent waiver in the trial court” ). 7