Cubillas, Ex Parte Jorge Alberto ( 2010 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,469
EX PARTE JORGE ALBERTO CUBILLAS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. CR36053 IN THE 238 TH CRIMINAL DISTRICT COURT
FROM MIDLAND COUNTY
Per curiam.
OPINION
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the
clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty and was convicted
of one count of aggravated sexual assault of a child and three counts of indecency with a child. He
was sentenced to ten year’s imprisonment for each count, running concurrently. Applicant did not
appeal his convictions.
Applicant contends, inter alia, that his convictions violate the Double Jeopardy Clause of the
US Constitution. Counts one and two arose from the same incident against the same victim. The
actions which constituted count two, indecency with a child by contact, were a part of the same
actions necessary to prove count one, aggravated sexual assault of a child. Count two is therefore
subsumed in count one and Applicant is entitled to relief. Patterson v. State, 152 S.W.3d 88 (Tex.
Crim. App. 2004).
Relief is granted. The judgment in count two of Cause No. CR36053 in the 238th Judicial
District Court of Midland County is vacated and set aside. All challenges to the judgments in counts
one, three, and four are denied based both on the trial court’s findings and this Court’s examination
of the record.
Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional
Institutions Division and Parole Division.
Delivered: December 15 ,2010
Do Not Publish