Anthony Jerome Carter v. State ( 2014 )

IN THE
TENTH COURT OF APPEALS
No. 10-12-00134-CR
ANTHONY JEROME CARTER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2011-1713-C1
MEMORANDUM OPINION
Appellant Anthony Jerome Carter entered an open plea of guilty to two counts of
evading arrest or detention in a motor vehicle with a deadly weapon and pleaded true
to the enhancement and habitual paragraphs. After a punishment hearing, the trial
court assessed Carter’s punishment at life imprisonment for each count and signed a
judgment on each count. This appeal ensued.
In his sole issue, Carter contends for the first time that convicting him twice for
only one incident of evading violates the Double Jeopardy Clause of the Fifth
Amendment to the U.S. Constitution; Article I, Section 14 of the Texas Constitution; and
article 1.10 of the Code of Criminal Procedure.1 The State concedes error, responding
that, as the law currently stands, there can be only one conviction for one act of evading,
even if the act causes more than one death; therefore, one of Carter’s judgments must be
vacated. We agree.
Carter’s open plea of guilty does not forfeit his double-jeopardy claim because
the judgment of conviction was not rendered independent of the double-jeopardy
violation as “the claim is that the State may not convict petitioner no matter how validly
his factual guilt is established.” See Reyes v. State, 139 S.W.3d 448, 449 (Tex. App.—
Austin 2004, no pet.) (quoting Menna v. New York, 423 U.S. 61, 62 n.2, 96 S. Ct. 241, 46
L. Ed. 2d 195 (1975)); see also Wilson v. State, Nos. 05-10-01207-CR to 05-10-01212-CR, 05-
11-00087-CR, 2012 WL 983119, at *3 (Tex. App.—Dallas Mar. 21, 2012, no pet.) (mem.
op., not designated for publication). Furthermore, an appellant may raise a double-
jeopardy claim for the first time on appeal when, as here, (1) the undisputed facts show
the double-jeopardy claim violation is clearly apparent from the face of the record, and
(2) enforcement of the usual rules of procedural default serve no legitimate state
purpose. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000); Rangel v. State, 179
S.W.3d 64, 70 (Tex. App.—San Antonio 2005, pet. ref’d).
“A defendant suffers multiple punishments in violation of the Double Jeopardy
Clause when he is convicted of more offenses than the legislature intended.” Ervin v.
1Although included in Carter’s brief in the statement of his issue presented, article 1.10 of the Code of
Criminal Procedure is not mentioned in the substance of Carter’s argument. Moreover, citing Phillips v.
State, 787 S.W.2d 391, 393 n.2 (Tex. Crim. App. 1990), Carter states that the U.S. and Texas Constitution
double-jeopardy provisions are treated identically.
Carter v. State Page 2
State, 991 S.W.2d 804, 807 (Tex. Crim. App. 1999) (citing Ball v. United States, 470 U.S.
856, 105 S. Ct. 1668, 84 L. Ed. 2d 740 (1985)). “The legislature … determines whether
offenses are the same for double-jeopardy purposes by defining the ‘allowable unit of
prosecution.’” Ex parte Cavazos, 203 S.W.3d 333, 336 (Tex. Crim. App. 2006) (quoting
Sanabria v. United States, 437 U.S. 54, 69, 98 S. Ct. 2170, 57 L. Ed. 2d 43 (1978)). “The
legislature also decides whether a particular course of conduct involves one or more
distinct offenses under a given statute.” Id. Consequently, the scope of the Double
Jeopardy Clause’s protection against multiple punishments under the evading-arrest-
or-detention statute (TEX. PENAL CODE ANN. § 38.04 (West Supp. 2013)) depends on
ascertaining the allowable unit of prosecution. See Ex parte Cavazos, 203 S.W.3d at 336.
“Absent an explicit statement that ‘the allowable unit of prosecution shall be such-and-
such,’ the best indicator of legislative intent with respect to the unit of prosecution
seems to be the focus or ‘gravamen’ of the offense.” Jones v. State, 323 S.W.3d 885, 889
(Tex. Crim. App. 2010).
The gravamen of “evading arrest” is the evasion of an arrest. Jackson v. State, 718
S.W.2d 724, 726 (Tex. Crim. App. 1986); see In re D.X.S., No. 13-12-00446-CV, 2013 WL
5522722, at *4 (Tex. App.—Corpus Christi Oct. 3, 2013, pet. denied) (mem. op.). Thus,
the allowable unit of prosecution for evading arrest is the evasion of arrest. See Jones,
323 S.W.3d at 889; Jackson, 718 S.W.2d at 726.
In this case, Carter was charged in two separate indictments, each with its own
cause number, of evading arrest or detention in a motor vehicle with a deadly weapon.
In both indictments, the grand jury alleged that Carter, on or about June 23, 2011, “did
Carter v. State Page 3
then and there intentionally flee from Eric Trojanowski, a person the Defendant knew
was a peace officer who was attempting lawfully to arrest or detain the Defendant”;
however, one indictment alleged that
as a direct result of the attempt by the said Eric Trojanowski to apprehend
the Defendant while the Defendant was in flight, MAE JEAN ECKLES
suffered death as a result of the Defendant failing to control his motor
vehicle and/or by failing to keep his vehicle on the roadway and/or by
driving a motor vehicle at an excessive speed
while the other indictment alleged that
as a direct result of the attempt by the said Eric Trojanowski to apprehend
the Defendant while the Defendant was in flight, JESUS ESPINOZA
suffered death as a result of the Defendant failing to control his motor
vehicle and/or by failing to keep his vehicle on the roadway and/or by
driving a motor vehicle at an excessive speed.
The State’s Motion to Consolidate Prosecution of Offenses was subsequently granted
and the indictments became two counts with one cause number. Carter pleaded guilty
to each count in the consolidated indictment, but there is no dispute that both counts
involved only one incident of evading arrest or detention and that each count merely
alleged a separate fatality victim. Carter’s two evading-arrest-or-detention convictions
based on the same evasion of arrest therefore violate the Double Jeopardy Clause. We
sustain Carter’s sole issue.
When a defendant is convicted in a single criminal action of two offenses that are
the “same” for double jeopardy purposes, the remedy is to vacate one of the
convictions. Ball, 470 U.S. at 864, 105 S.Ct. at 1673. In making that determination, we
retain the conviction for the “most serious” offense and set aside the other conviction.
Ex parte Cavazos, 203 S.W.3d at 337. When the offenses and punishments are identical,
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we may uphold the conviction for the first offense listed in the indictment and vacate
the conviction for the second offense alleged. See Lopez v. State, 80 S.W.3d 624, 629 (Tex.
App.—Fort Worth 2002), aff’d on other grounds, 108 S.W.3d 293 (Tex. Crim. App. 2003).
Because the two offenses and punishments are identical in this case, we vacate the trial
court’s judgment convicting Carter under Count II for evading arrest or detention in a
motor vehicle with a deadly weapon and affirm the trial court’s judgment convicting
him under Count I.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed in part, vacated in part
Opinion delivered and filed April 24, 2014
Do not publish
[CRPM]
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