Ernest Ray Longoria III v. the State of Texas ( 2024 )

NUMBER 13-23-00309-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ERNEST RAY LONGORIA III, Appellant,
v.
THE STATE OF TEXAS, Appellee.
ON APPEAL FROM THE 36TH DISTRICT COURT
OF ARANSAS COUNTY, TEXAS
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Tijerina and Peña
Memorandum Opinion by Chief Justice Contreras
Appellant Ernest Ray Longoria III challenges his convictions for aggravated assault
with a deadly weapon and aggravated robbery. See TEX. PENAL CODE ANN.
§§ 22.02(a)(1), 29.03. The jury assessed life confinement for both counts. On appeal,
Longoria contends that double jeopardy protects him against multiple punishments for the
same offense because aggravated assault with a deadly weapon is a lesser-included
offense of aggravated robbery. We affirm in part and reverse and render in part.
I. BACKGROUND
The evidence at trial showed that on November 22, 2021, Longoria went to Keith
Nauret’s RV home in Rockport, Texas to purchase heroin. According to Longoria, Nauret
believed his money was counterfeit, which caused Nauret to get upset and point a pistol
at him. Longoria testified that he tried to disarm Nauret, which resulted in the accidental
discharge of the pistol, causing Nauret’s death. After the incident, Longoria left with
Nauret’s black rifle bag, believing his money was inside.
Longoria was indicted by a grand jury for: murder, a first-degree felony (Count 1);
aggravated assault with a deadly weapon, a second-degree felony (Count 2); aggravated
robbery, a first-degree felony (Count 3); and theft of a firearm, a state jail felony (Count
4). See id. §§ 19.02(c), 22.02(b), 29.03(b), 31.03(e)(4)(C). The indictment included
enhancement paragraphs alleging Longoria was a habitual felony offender, which
increased the punishment range for Count 2 to twenty-five to ninety-nine years or life
imprisonment, and for Count 4 to that of a second-degree felony. See id. §§ 12.42(d),
12.425(c). Longoria pleaded not guilty to all counts and was found not guilty as to Count
1 but guilty as to Counts 2–4. The jury found the enhancement paragraphs to be true and
assessed his punishment at twenty years’ confinement for Count 4, and life imprisonment
for Counts 2 and 3. The trial court ordered that the sentences run concurrently with 536
days credited to his sentence.
Within thirty days of his conviction, Longoria filed a combined motion for new trial
and motion in arrest of judgment. The motions were overruled by operation of law, and
this appeal followed.
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II. DISCUSSION
By a single issue on appeal, Longoria contends that his convictions for aggravated
assault with a deadly weapon and aggravated robbery violate his double jeopardy rights. 1
A. Standard of Review & Applicable Law
The Double Jeopardy Clause of the Fifth Amendment, which is applicable to the
states through the Fourteenth Amendment, protects a person from multiple punishments
for the same offense. U.S. CONST. amends. V, XIV; Garfias v. State, 424 S.W.3d 54, 58
(Tex. Crim. App. 2014). A multiple-punishments double jeopardy violation occurs if both
a greater and a lesser-included offense are alleged, and the same conduct is punished
once for the greater offense and a second time for the lesser. Langs v. State, 183 S.W.3d
680, 685 (Tex. Crim. App. 2006) (noting that multiple punishments claim can arise in “the
lesser-included offense context, in which the same conduct is punished twice; once for
the basic conduct, and a second time for that same conduct plus more (for example,
attempted assault of Y and assault of Y; assault of X and aggravated assault of X)”); see
Brown v. Ohio, 432 U.S. 161, 168 (1977) (“The greater offense is . . . by definition the
‘same’ for purposes of double jeopardy as any lesser offense included in it.”). A lesser-
included offense is one that “is established by proof of the same or less than all the facts
required to establish the commission of the offense charged.” TEX. CODE CRIM. PROC.
ANN. art. 37.09(1).
Whether offenses are the “same” for double jeopardy purposes is a matter of
legislative intent. Littrell v. State, 271 S.W.3d 273, 276 (Tex. Crim. App. 2008). Ordinarily,
1 Longoria did not raise a double jeopardy claim in the trial court, but he may do so for the first time
on appeal because (1) the undisputed facts show the double jeopardy violation is clearly apparent from the
face of the record, and (2) enforcement of the usual rules of procedural default would serve no legitimate
state interest. See Garfias v. State, 424 S.W.3d 54, 57–58 (Tex. Crim. App. 2014).
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we presume that the Legislature “did not regard two statutorily defined offenses to be the
same if ‘each provision requires proof of a fact which the other does not.’” Id. (quoting
Blockburger v. United States, 284 U.S. 299, 304 (1932)). In asking that question, the
focus is on the elements alleged in the charging instrument, and not on the offense as
defined in the penal code. Garfias, 424 S.W.3d at 58; Ex parte Denton, 399 S.W.3d 540,
546 (Tex. Crim. App. 2013). Even so, “[a]n accused may be punished for two offenses
that would be regarded as the same under a Blockburger analysis if the Legislature has
otherwise made manifest its intention that he should be.” Littrell, 271 S.W.3d at 276.
Therefore, whether the two offenses at issue are the “same” under Blockburger is
irrelevant if the Legislature intended to authorize multiple punishments for both. See id.;
Reina v. State, 940 S.W.2d 770, 775–76 (Tex. App.—Austin 1997, pet. ref’d) (“A court
may impose cumulative punishment in a trial for the violation of two statutes, regardless
of whether those two statutes proscribe the ‘same’ conduct under the other two types of
double jeopardy prohibitions, if the legislature so intends.”).
B. Analysis
The analysis conducted for multiple punishments context begins with the
Blockburger same-elements test. Price v. State, 434 S.W.3d 601, 609 (Tex. Crim. App.
2014). That test asks “whether each provision requires proof of a fact which the other
does not.” Blockburger, 284 U.S. at 304. The application of the Blockburger same-
elements test in Texas is governed by the cognate-pleadings approach, which entails
comparing the elements of the greater offense as pleaded to the statutory elements of
the lesser offense. Ex parte Amador, 326 S.W.3d 202, 206 n.5 (Tex. Crim. App. 2010). If
the two offenses have the same elements under the cognate-pleadings approach, then a
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judicial presumption arises that the offenses are the same for purposes of double
jeopardy and the defendant may not be convicted of both offenses. Bien v. State, 550
S.W.3d 180, 184 (Tex. Crim. App. 2018).
Aggravated assault may be a lesser-included offense of aggravated robbery,
depending upon the facts proved. Ex parte Denton, 399 S.W.3d at 545. As charged in the
indictment in this case, aggravated robbery requires proof that Longoria, while committing
theft of property and with the intent to obtain or maintain control of the property,
intentionally, knowingly, or recklessly caused bodily injury to Nauret and used or exhibited
a deadly weapon. See TEX. PENAL CODE ANN. § 29.03. By comparison, aggravated
assault with a deadly weapon under § 22.02(a)(1) requires proof that the defendant
intentionally, knowingly, or recklessly caused serious bodily injury to another and used or
exhibited a deadly weapon. See id. § 22.02(a)(1).
Here, Counts 2 and 3 both alleged that Longoria (1) intentionally, knowingly or
recklessly caused bodily injury to Nauret “by discharging a firearm in or near the direction
of” Nauret, and (2) “did then and there use or exhibit a deadly weapon, namely a firearm.”2
Count 3 further alleged that Longoria engaged in these acts “while in the course of
committing theft of property with intent to obtain or maintain control of the property.” Thus,
2 The indictment for Counts 2 and 3, respectively, alleged:
[T]hat ERNEST LONGORIA . . . did then and there intentionally, knowingly or recklessly
cause bodily injury to Keith Nauret by discharging a firearm in or near the direction of Keith
Nauret, and [Longoria] did then and there use or exhibit a deadly weapon, namely a firearm
during the commission of the assault.
....
And, that ERNEST LONGORIA . . . did then and there while in the course of
committing theft of property with intent to obtain or maintain control of the property,
intentionally, knowingly or recklessly cause bodily injury to Keith Nauret by discharging a
firearm in or near the direction of Keith Nauret, and [Longoria] did then and there use or
exhibit a deadly weapon, namely a firearm.
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as pleaded, 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.” TEX. CODE CRIM. PROC. ANN. art
37.09(1); Girdy v. State, 213 S.W.3d 315, 319 (Tex. Crim. App. 2006) (“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.”).
“Aggravated assault and aggravated robbery share a common focus . . . . [T]he
gravamen of robbery offenses, including aggravated robbery, is the defendant’s
assaultive conduct.” Garfias, 424 S.W.3d at 60. Although aggravated assault and
aggravated robbery are not the same offense in all situations, under the circumstances
of this case, both offenses resulted in Nauret’s death, and “the sameness of the result is
an indication that the Legislature did not intend to impose multiple punishments.” Bigon,
252 S.W.3d at 371. 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 are barred.
See Girdy, 213 S.W.3d at 319. No such intent has been shown here. 3 See Ex parte
Denton, 399 S.W.3d at 547. Therefore, we conclude that Longoria has shown that his
convictions for Counts 2 and 3 are in violation of his constitutional double jeopardy
protections that preclude multiple punishments for the same offense. Longoria’s issue on
appeal is sustained.
Generally, when a defendant is convicted in a single criminal trial of two offenses
3 The State observes that the statute defining the offense of assault states: “If conduct constituting
an offense under this section also constitutes an offense under another section of this code, the actor may
be prosecuted under either section or both sections.” TEX. PENAL CODE ANN. § 22.01(g). But Longoria was
not convicted of assault under § 22.01; rather, he was convicted of aggravated assault under § 22.02 and
aggravated robbery under § 29.03. See id. § 22.02, 29.03. Those statutes do not contain any provision
similar to § 22.01(g).
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that are considered the same for double jeopardy purposes, “the remedy is to affirm the
conviction for the most serious offense and vacate the other convictions.” Bigon, 252
S.W.3d at 372–73 (citing Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App.
2006)); Bien, 550 S.W.3d at 188. The most serious offense is the “offense in which the
greatest sentence was assessed.” Bigon, 252 S.W.3d at 373. Here, the punishments
imposed for Counts 2 and 3 are identical; for each offense, Longoria was sentenced to
life imprisonment, no fine was assessed, and no restitution was ordered. Thus, we cannot
determine the most serious offense by the general rule.
In such instances, we may look to other distinguishing factors, such as the degree
of each offense or an affirmative deadly weapon finding. See id. Aggravated robbery,
which is a first-degree felony, is a more serious offense than aggravated assault, which
is a second-degree felony with an enhanced punishment range in this case due to a
habitual felony offender finding. See TEX. PENAL CODE ANN. §§ 12.42(d), 22.02(b),
29.03(b). We therefore vacate the conviction of aggravated assault with a deadly weapon
and affirm the conviction for aggravated robbery.
III. CONCLUSION
We reverse the judgment of conviction for Count 2 of aggravated assault with a
deadly weapon and render judgment vacating that count. The judgments on the remaining
counts are affirmed.
DORI CONTRERAS
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
25th day of July, 2024.
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