Joseph Martinez v. State ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-112-CR
JOSEPH MARTINEZ APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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In two issues, appellant Joseph Martinez contends that his convictions
for possession and delivery of the same ten pounds of marijuana are the same
for double jeopardy purposes and that the trial judge erred by refusing to include
a jury question on possession of marijuana under five pounds. We reverse the
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… See Tex. R. App. P. 47.4.
judgment as to the possession charge and acquit appellant on that charge only;
however, we affirm the judgment as to the delivery charge.
The State concedes appellant’s first issue and asks that we delete
appellant’s conviction for possession. Accordingly, we sustain appellant’s first
issue.
In his second issue, appellant contends the trial court erred by failing to
include a question on possession of under five pounds. But because by
sustaining appellant’s first issue, we must reverse the conviction for
possession, his second issue is now moot and we need not address it.2 See
Tex. R. App. P. 47.1; Dixon v. State, 932 S.W.3d 567, 571 (Tex. App.—Tyler
1995, no pet.).
Having sustained appellant’s first issue and having determined that his
second issue is therefore moot, we affirm the trial court’s judgment as to the
conviction for delivery of marijuana, but we reverse the trial court’s judgment
2
… When an appellant is convicted of two offenses that are the same for
double jeopardy purposes, we retain the conviction for the most serious
offense, which is the offense of conviction for which the greatest sentence was
assessed. Ex parte Cavazos, 203 S.W.3d 333, 337–38 (Tex. Crim. App.
2006). Here, that is the sentence of ten years’ confinement for delivery.
2
as to the conviction for possession of marijuana and render a judgment of
acquittal as to that offense only.
TERRIE LIVINGSTON
JUSTICE
PANEL: LIVINGSTON, GARDNER, and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 11, 2008
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