Terrance Omar Carter v. the State of Texas ( 2024 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-23-00306-CR
___________________________
TERRANCE OMAR CARTER, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 372nd District Court
Tarrant County, Texas
Trial Court No. 1767868
Before Birdwell, Bassel, and Womack, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
I. Introduction
In his sole issue, Appellant Terrance Omar Carter contends that he received
multiple convictions and punishments in violation of the Double Jeopardy Clause of
the United States Constitution and Section 25.11(c) of the Texas Penal Code.
Appellant contends that he is being impermissibly punished for convictions for both
family violence and continuous family violence when the two convictions are
predicated on the same conduct. The State concedes that Appellant’s multiple
punishments and convictions were error, and we agree. Accordingly, we reverse the
judgment on Count One (family violence) and render a judgment of acquittal, and we
affirm the judgment on Count Two (continuous family violence).
II. Background
In Count One, the reindictment in this matter charged Appellant with the
offense of assault on a family member with a previous conviction. See Tex. Penal
Code Ann. § 22.01(b)(2)(A). Specifically, the indictment alleges
THAT TERRANCE OMAR CARTER, HEREINAFTER CALLED
DEFENDANT, ON OR ABOUT THE 6TH DAY OF MAY 2021, IN
THE COUNTY OF TARRANT, STATE OF TEXAS, DID
INTENTIONALLY, KNOWINGLY, OR RECKLESSLY CAUSE
BODILY INJURY TO [Z.M.], A MEMBER OF THE
DEFENDANT’S FAMILY OR HOUSEHOLD OR A PERSON
WITH WHOM THE DEFENDANT HAD A DATING
RELATIONSHIP, BY STRIKING OR PUSHING HER WITH THE
DEFENDANT’S HAND, OR BY STRIKING OR SCRATCHING
HER WITH A FORK, OR BY PUSHING HER BODY OR HEAD
INTO A WALL WITH THE DEFENDANT’S HAND,
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[and continues with an allegation of a prior conviction for family
violence].
Count Two of the reindictment alleged the offense of continuous family
violence. See id. § 25.11(c). One of the several acts of conduct alleged for the count
of continuous family violence is the same act alleged in Count One of the
reindictment.
Appellant was convicted on both counts. For each count, the jury assessed
Appellant’s punishment at fifteen years in the Institutional Division of the Texas
Department of Criminal Justice and a $5,000 fine. The judgments of conviction
imposed sentences in accordance with the jury’s verdicts and ordered that Appellant’s
sentences would run concurrently.
III. Discussion
The State concedes that Appellant’s two convictions and punishments violate
the Double Jeopardy Clause of the United States Constitution and Section 25.11(c) of
the Texas Penal Code. See U.S. Const. amends. V, XIV; Tex. Penal Code Ann.
§ 25.11(c). 1 We agree. Specifically, Appellant suffered a double-jeopardy violation
because he is being punished for the same conduct as both the discrete act of family
violence alleged in Count One of the reindictment and as one of the multiple acts of
1
Because the State’s concession of error is not conclusive, we set forth a
discussion of the issue. See Saldano v. State, 70 S.W.3d 873, 884 (Tex. Crim. App. 2002)
(“A confession of error by the prosecutor in a criminal case is important, but not
conclusive, in deciding an appeal.”).
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family violence alleged to constitute continuous family violence in the reindictment’s
Count Two.
Both parties cite to our recent opinion in Aguilar v. State to explain why a
double-jeopardy violation occurred. No. 02-22-00271-CR, 2023 WL 6631526 (Tex.
App.—Fort Worth Oct. 12, 2023, pet. ref’d) (mem. op., not designated for
publication). As we explained in Aguilar,
The Double Jeopardy Clause, contained within the Fifth Amendment
and applicable to the states through the Fourteenth Amendment,
protects an accused against a second prosecution for the same offense.
U.S. Const. amends. V, XIV; Littrell v. State, 271 S.W.3d 273, 275 (Tex.
Crim. App. 2008). In addition to protecting against multiple
prosecutions, this provision also protects against multiple punishments
for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221,
2225 (1977); Ex parte Adams, 586 S.W.3d 1, 4 (Tex. Crim. App. 2019);
Speights v. State, 464 S.W.3d 719, 722 (Tex. Crim. App. 2015).
In a multiple-punishments double-jeopardy case, the relevant
inquiry is always whether the legislature intended to permit multiple
punishments. Loving v. State, 401 S.W.3d 642, 646 (Tex. Crim. App.
2013). Thus, in such a case, we must assess whether an appellant has
been “convicted of more offenses than the legislature intended.” Ex
parte Milner, 394 S.W.3d 502, 507 (Tex. Crim. App. 2013) (quoting Ervin
v. State, 991 S.W.2d 804, 807 (Tex. Crim. App. 1999)); see Ball v. United
States, 470 U.S. 856, 861, 105 S. Ct. 1668, 1671–72 (1985).
Penal Code Section 25.11, the continuous-violence-against-the-
family statute, expressly provides that unless certain statutory conditions
are met, “[a] defendant may not be convicted in the same criminal action
of another offense the victim of which is an alleged victim of the
[continuous-violence offense] and an element of which is any conduct
that is alleged as an element of the [continuous-violence offense].” Tex.
Penal Code Ann. § 25.11(c). By including this provision, “the legislature
indicated its clear intent: a person cannot be convicted in the same
criminal action of continuous violence against a victim and also be
convicted of additional, discrete instances of bodily-injury assault against
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that same victim if those discrete assaults could have been charged as
part of the continuous count.” Birdo v. State, No. 02-22-00142-CR, 2023
WL 4630627, at *5 (Tex. App.—Fort Worth July 20, 2023, no pet.)
(mem. op., not designated for publication) (first citing Tex. Penal Code
Ann. § 25.11(c); then citing Ellison v. State, 425 S.W.3d 637, 647 (Tex.
App.—Houston [14th Dist.] 2014, no pet.); and then citing Soliz v. State,
353 S.W.3d 850, 851–52 (Tex. Crim. App. 2011)). However, “the State
may charge the additional, discrete acts alternatively or as lesser-included
offenses.” Id. (citing Tex. Penal Code Ann. § 25.11(c)).
Id. at *4. The multiple convictions and punishments in this case are indistinguishable
from those suffered by the appellant in Aguilar. The principles referenced in Aguilar
establish that it was error to punish Appellant for his conviction on both counts in the
reindictment.
The remedy for impermissible multiple convictions and punishments “is to
retain the most serious offense and [to] vacate the other, the more serious offense
ordinarily being defined as the offense for which the greatest sentence was assessed.”
Id. at *5 (citing Littrell, 271 S.W.3d at 279 n.34). Here, Appellant received the same
punishment for both convictions.
“When the sentences are the same for both convictions, we may look to other
distinguishing factors, such as the degree of each offense or an affirmative deadly
weapon finding.” Id. In Aguilar, we concluded that a discrete act of bodily-injury
assault may be charged as a lesser-included offense of a continuous-violence offense,
and “[g]iven that characterization, [the] conviction for continuous violence against the
family . . . is the more serious offense.” Id. at *6; see also Weber v. State, 536 S.W.3d 31,
37–38 (Tex. App.—Austin 2017, pet. ref’d) (citing Carmichael v. State, 505 S.W.3d 95,
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101 (Tex. App.—San Antonio 2016, pet. ref’d), and concluding that appellant’s
continuous-sexual-abuse conviction was a more serious offense than his discrete
aggravated-sexual-assault convictions despite the offenses’ identical sentences because
the individual acts of abuse are lesser-included offenses of the greater offense of
continuous sexual abuse). Accordingly, the proper remedy in this matter is to vacate
the judgment for the Count One family-violence conviction and to uphold the
judgment for the Count Two continuous-family-violence conviction.
In light of the foregoing, we sustain Appellant’s sole issue, we reverse the
judgment of conviction on Count One, and we render a judgment of acquittal solely
on Count One.
IV. Conclusion
Having sustained Appellant’s sole issue, we reverse the trial court’s judgment of
conviction on Count One and render a judgment of acquittal on that count, but we
affirm the trial court’s judgment on Count Two.
/s/ Dabney Bassel
Dabney Bassel
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: July 11, 2024
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