Ex Parte: Armando Avalos

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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No. 08-13-00369-CR
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Appeal from the
EX PARTE: ARMANDO AVALOS. §
County Court at Law No. 1
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of El Paso County, Texas
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(TC# 20120C00978)
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OPINION
Appellant Armando Avalos appeals the trial court’s denial of his writ of habeas corpus.
In his sole issue, Appellant contends that because he previously pleaded guilty to stealing certain
property found in his truck from one victim, the State is precluded, under the Double Jeopardy
Clause, from subsequently prosecuting him for any other separately stolen property discovered
during the course of the same arrest. We affirm.
BACKGROUND
In September 2011, Appellant pleaded guilty to felony theft of property worth more than
$1,500 but less than $20,000 in Cause No. 20110D01442. Specifically, Appellant admitted to
possessing a computer router and jewelry stolen from Brian Heller. Police found the computer
router and jewelry, along with property stolen from other people, in Appellant’s truck during a
traffic stop. The trial court sentenced Appellant to nine months in jail. Several months after
Appellant’s plea, the State then charged Appellant with misdemeanor theft of property worth
more than $50 but less than $500, alleging that he possessed computer equipment and jewelry
stolen from William Lockhart.1 Appellant filed for a pretrial writ of habeas corpus, arguing that
the instant prosecution violated the Double Jeopardy Clause because he already pleaded guilty to
felony charge arising out of the same transaction or occurrence. The trial court denied Appellant
relief. He appealed.
DISCUSSION
In one issue, Appellant argues that this prosecution violates double jeopardy because the
misdemeanor offense for which he was charged is a lesser-included offense of the felony theft
offense to which he previously pleaded guilty. Appellant also maintains that further prosecution
is barred because the stolen property at issue here was part of the same transaction or occurrence
as in the previous case. We disagree on both counts.
Standard of Review
We review the facts underlying the trial court’s habeas corpus decision “in the light most
favorable to the trial judge’s ruling and should uphold [that ruling] absent an abuse of
discretion.” Ex parte Quintana, 346 S.W.3d 681, 684 (Tex.App.--El Paso 2009, pet. ref’d). We
review de novo mixed questions of law and fact that do not hinge on credibility or demeanor
determinations. Ex parte Miller, No. 08-11-00245-CR, 2012 WL 5949741, at *2 (Tex.App.--
El Paso Nov. 28, 2012, no pet.)(not designated for publication).
Analysis
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In Cause No. 20120C07317, the State indicted Appellant for stealing between $50 and $500 worth of property—
specifically, a digital camera—from another person, Reema Singh. That property was also found in the truck during
the arrest. Appellant sought pretrial habeas relief in that case as well on identical grounds as this case. The trial
court denied relief in that cause number, and Appellant appealed. That case before this Court is Cause No. 08-13-
00368-CR.
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“The Double Jeopardy Clause protects criminal defendants from three things: 1) a second
prosecution for the same offense after acquittal; 2) a second prosecution for the same offense
after conviction; and 3) multiple punishments for the same offense.” Ex parte Milner, 394
S.W.3d 502, 506 (Tex.Crim.App. 2013).
At the outset, we note that Appellant’s assertion that the misdemeanor theft charge here is
a lesser-included offense of felony theft is incorrect under these facts. A person convicted of a
crime may not later be subject to prosecution for any of the spectrum of lesser-included offenses
whose elements are completely subsumed within the convicted offense. See Rubio v. State, No.
08-00-00341-CR, 2002 WL 125732, at *5 (Tex.App.--El Paso Jan. 31, 2002, no pet.)(not
designated for publication)(citing Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180,
182, 76 L. Ed. 306 (1932))(recognizing that if each criminal offense requires proof of at least one
element that the other does not, the offenses are distinct and prosecution for both is permissible).
An offense is a lesser-included offense where inter alia “it differs from the offense charged only
in the respect that a less serious injury or risk of injury to the same person, property, or public
interest suffices to establish its commission.” [Emphasis added]. TEX.CODE CRIM.PROC.ANN.
art. 37.09(2)(West 2006). Although misdemeanor theft would be subsumed within a felony theft
as an elemental matter under the Blockburger test, by definition, a crime committed against
another person and with respect to different property is not a lesser-included offense, but a
separate offense. This point is unavailing.
We also note that conviction for one offense does not necessarily preclude prosecution
for all offenses that occurred in a single transaction. “The protection against double jeopardy
does not apply to separate and distinct offenses that occur during the same transaction.” Ex parte
Milner, 394 S.W.3d 502, 506 (Tex.Crim.App. 2013). Where a defendant is accused of violating
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the same statute multiple times, we must determine what the appropriate “unit of prosecution” is
as defined by the Legislature to assess preclusion under double jeopardy. See Garfias v. State,
424 S.W.3d 54, 59 (Tex.Crim.App. 2014).
Case law conclusively demonstrates that for theft, each victim is an appropriate unit of
prosecution, and the State may charge a defendant with separate theft counts where property is
stolen from separate victims during a single criminal episode. In Iglehart v. State, 837 S.W.2d
122, 124 (Tex.Crim.App. 1992), overruled on other grounds as recognized by Bailey v. State, 87
S.W.3d 122, 128-29 (Tex.Crim.App. 2002), the defendant burglarized the home of Robert
LaVaye, stealing a pistol and a typewriter from LaVaye and a fur coat and stereo equipment
from his daughter Valerie. The State charged Iglehart with misdemeanor theft for taking the
items from LaVaye and felony theft for taking the items from Valerie. Iglehart pleaded nolo
contendere to the misdemeanor theft charge, then filed for a writ of habeas corpus, arguing that
subjecting her to the felony theft prosecution would constitute double jeopardy. Iglehart, 837
S.W.3d at 124-25. The Texas Court of Criminal Appeals held that the theft from LaVaye and the
theft from Valerie were separate offenses, even though they occurred within one criminal
transaction or episode.2 Id. at 127; see also Rubio, 2002 WL 125732, at *5-*6 (recognizing that
Inglehart allows for successive theft prosecution where property is stolen from different owners).
This case is indistinguishable from Iglehart. Here, Appellant was charged with
possession property stolen from one victim (William Lockhart) after pleading guilty to
possessing property stolen from Brian Heller. As such, the charged offense is a separate offense,
2
To the extent, Appellant relies on the “same conduct” test articulated in Grady v. Corbin, 495 U.S. 508, 110 S. Ct.
2084, 109 L. Ed. 2d 548 (1990)(forbidding the State from charging a defendant who was convicted of a crime from
being subject to later prosecution for other crimes arising out of the same criminal episode if the State is required to
re-prove conduct from the first conviction), we note that Grady was overruled three years later by United States v.
Dixon, 509 U.S. 688, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993). Dixon abolished the same conduct test as alternate
grounds for relief when a later-charged offense did not fit squarely within Blockburger’s elemental framework. See
Bailey, 87 S.W.3d at 129.
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and double jeopardy does not stand as a bar to prosecution.
Issue One is overruled. The judgment of the trial court is affirmed.
April 15, 2015
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rodriguez, and Hughes, JJ.
(Do Not Publish)
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