Brandon Keith Miles v. State

NO. 07-09-00114-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JUNE 9, 2010

BRANDON KEITH MILES, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

 FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

NO. 58,805-A; HONORABLE HAL MINER, JUDGE

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

Appellant, Brandon Keith Miles, was convicted of robbery[1] and sentenced to confinement in the Institutional Division of the Texas Department of Criminal Justice (ID-TDCJ) for a period of five years and assessed a fine of $1,500.  Appellant appeals alleging that the evidence was legally and factually insufficient.  We affirm.

Factual and Procedural Background

            On October 23, 2008, Ashley Harris and Patrick Ledford left their apartment at the Huntington Pointe Apartments to get something to eat.  When they got to Ledford’s car, Harris had the keys and was going to drive.  As Harris opened the car door, a black male approached her with a salutation and held out his hand as if to shake hands with her.  The assailant grabbed Harris and attempted to pull her toward him.  Harris was able to pull away and backed off from the assailant. Upon hearing and seeing what was happening, Ledford grabbed the assailant by the arm and attempted to spin him around to face Ledford.  The assailant pulled his shirt up and put his hand in the waist band of his pants stating, “All I want is your keys.  I need to go home.  I have a gun.”  Harris then threw the keys toward the assailant, who picked them up off the ground and hurried off around one of the buildings in the apartment complex. Harris and Ledford were both extremely frightened by the incident and, upon gaining access to a phone, called 911.

            The first officer to respond was Justin Castillo of the Amarillo Police Department.  Castillo arrived on the scene and obtained a description of the events and a partial description of the assailant.  Both witnesses described the assailant to be a black male, wearing a black “do-rag,” blue jersey-type T-shirt, and blue jeans.  The victims stated the assailant was between 6’ and 6’1” in height.  Each victim thought that they would be able to recognize the assailant if they saw him again, however, Harris was less sure of this than Ledford.  After taking down the information from the victims and reporting the incident, Castillo spoke to the apartment maintenance man, Armando Mondragon, who had arrived to change the locks on the victims’ apartment.[2] 

            Castillo quizzed Mondragon about knowing anyone within the apartment complex that might fit the general description of the assailant. Mondragon advised that he had seen someone that might fit the description on the other side of the apartment complex. Upon finding out the apartment where the possible suspect might be found, Castillo went to apartment 1102. At apartment 1102, Castillo questioned appellant, Boris Wyatt, and Mauricio Rubio.  None of the three individuals were dressed in clothing consistent with what the victims had described the assailant as wearing.  All three denied any knowledge of or involvement in the robbery. 

            Castillo then left the scene only to be called back a short time later.  Upon returning to the victims’ apartment, Castillo learned that the car that the keys went to had been stolen.  The victims described hearing the alarm on the car go off and seeing the car being driven out of the apartment’s parking lot.  Neither victim saw the perpetrator get in the vehicle.  Castillo reported the car as stolen and left the scene. Later, at about 6:15 to 6:30 a.m., Castillo returned to the apartment and advised the victims that the stolen car had been involved in a wreck near Wichita Falls and that a suspect, Boris Wyatt, was in custody.

            Detective Louis Sanchez of the Amarillo Police Department was assigned to the robbery case on October 27, 2008.  Upon learning about the wrecked car and capture of Boris Wyatt, Sanchez prepared a photo lineup that included Wyatt’s picture. Both Harris and Ledford came to the police department headquarters and viewed the photo lineup.  Neither was able to pick anyone out of the lineup.  A second lineup was prepared that same day and the victims were asked to come back to the police station to view it. At the time Harris and Ledford were shown the lineup, they were not allowed to speak with each other and each had their own individual copy of the photo lineup to view.  Each picked out appellant as the perpetrator of the robbery.

            Prior to trial, the record reflects that there was no motion filed that contested the fairness or validity of the lineup procedure used by the police.  Likewise, during trial, appellant’s counsel did not object to the introduction of the photo lineups that Harris and Ledford viewed.  At trial, both victims identified appellant as the perpetrator of the robbery.  Appellant’s trial counsel vigorously cross-examined both victims regarding their ability to see the perpetrator and what they had told the police on the night of the incident regarding their ability to identify the perpetrator. Even so, Harris and Ledford were steadfast in their identification of appellant.

            The appellant’s defense was that the witnesses were simply mistaken in their identification.  Appellant’s argument was that, since it was Wyatt who was found in the wrecked car, it must have been Wyatt who accosted the victims in the parking lot and took the keys.  The jury convicted appellant, thereby impliedly rejecting his contention, and sentenced appellant to five years in the ID-TDCJ and assessed a fine of $1,500. By four issues, appellant attacks the legal and factual sufficiency of the evidence.  Disagreeing with appellant, we find the evidence legally and factually sufficient and affirm the judgment of the trial court.

Sufficiency of the Evidence

            Appellant challenges both the legal and factual sufficiency of the evidence.  Therefore, we are required to conduct an analysis of the legal sufficiency of the evidence first and then, only if we find the evidence to be legally sufficient, do we analyze the factual sufficiency of the evidence.  See Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996).

Standard of Review

Legal Sufficiency

In assessing the legal sufficiency of the evidence, we review all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L. Ed. 2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004). In conducting a legal sufficiency review, an appellate court may not sit as a thirteenth juror, but rather must uphold the jury’s verdict unless it is irrational or unsupported by more than a mere modicum of evidence.  Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988).  We measure the legal sufficiency of the evidence against a hypothetically correct jury charge.  See Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997).

Factual Sufficiency

            When an appellant challenges the factual sufficiency of the evidence supporting his conviction, the reviewing court must determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding the appellant guilty beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006).  In performing a factual sufficiency review, we must give deference to the fact finder’s determinations if supported by evidence and may not order a new trial simply because we may disagree with the verdict.  See id. at 417.  As an appellate court, we are not justified in ordering a new trial unless there is some objective basis in the record demonstrating that the great weight and preponderance of the evidence contradicts the jury’s verdict.  See id.  Additionally, an appellate opinion addressing factual sufficiency must include a discussion of the most important evidence that appellant claims undermines the jury’s verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).  The Texas Court of Criminal Appeals has recently declared that, when reviewing the evidence for factual sufficiency, the reviewing court should measure the evidence in a neutral manner against a “hypothetically correct jury charge.”  Vega v. State, 267 S.W.3d 912, 915 (Tex.Crim.App. 2008) (citing Wooley v. State, 273 S.W.3d 260, 268 (Tex.Crim.App. 2008)).

Analysis

            To sustain a conviction for the offense of robbery, the State had to prove beyond a reasonable doubt that 1) appellant, 2) on or about the 26^th day of October, 2008, 3) while in the course of committing theft of property, and with intent to obtain and maintain control of said property, 4) intentionally or knowingly, 5) threatened or placed Ashley Renee Harris in fear of imminent bodily injury or death.  As stated above, the only contested issue at trial was the identity of appellant as the perpetrator of the crime.  The record establishes all of the other elements of the offense without any objection or challenge by appellant. 

            In addressing the issue of identity, appellant contends that the victims’ testimony was not reliable because neither one gave a detailed description of the assailant at the scene, Harris had stated that the assailant was wearing a blue jersey-type T-shirt, while at trial she said it was a red jersey-type T-shirt; and both witnesses said they did not get a good look at the assailant because the event happened so fast. Additionally, appellant seems to be contending that the identification during trial was not reliable.

            Prior to addressing appellant’s issue on the legal sufficiency of the evidence, the question of reliability of the in-court identification should be considered.  As noted in the factual and procedural background portion of this opinion, appellant never challenged the in-court identification of appellant by the witnesses by way of a pretrial motion or an objection.  Therefore, to the extent that appellant may be attempting to now challenge the in-court identification based upon some alleged taint in the photo lineup, that issue was waived by appellant’s inaction before and during trial.  See Tex. R. App. P. 33.1(a)(1). 

Legal Sufficiency

            The testimony at trial established that both witnesses identified appellant in a photo lineup within a few days of the robbery. At trial, both witnesses again identified appellant as the perpetrator of the crime.  Appellant’s trial counsel conducted a very thorough cross-examination of both witnesses.  During the cross-examination, trial counsel pointed out some inconsistencies between the witnesses’ trial testimony and what they told the initial officer on the scene.  At the end of the day, each witness was solid in their identification of appellant, both in the photo lineup and at trial.  In this case, there are two eyewitnesses, whereas we are instructed that the testimony of a single eyewitness is sufficient to support the conviction of an accused.  See Aguilar v. State, 468 S.W.2d 75, 77 (Tex.Crim.App. 1971); Walker v. State, 180 S.W.3d 829, 832 (Tex.App.—Houston [14^th Dist.] 2005, no pet.).

            When applying the standard of reviewing the evidence in the light most favorable to the jury’s verdict, we cannot say that this jury acted irrationally when it found appellant guilty beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Ross, 133 S.W.3d at 620. Accordingly, we overrule appellant’s contention that the evidence was legally insufficient.

Factual Sufficiency

            In reviewing the record for the factual sufficiency of the evidence, we do so without the prism of “in the light most favorable to the jury’s verdict.”  Watson, 204 S.W.3d at 415.  Appellant contends that, based upon the cross-examination of the identity witnesses, the identification was unreliable.  This is so for a number of reasons.  First, the officer’s identification of the jersey the assailant wore as blue differed from Harris’s trial testimony that it was red.  Second, each witness told the officer they were not sure if they could identify the assailant and that they did not get a good look at the assailant.  Finally, Wyatt, who was around the scene of the robbery with appellant, was later found in possession of the car stolen from Ledford by using the keys that the assailant had previously obtained.  See Sims, 99 S.W.3d at 603 (requiring a reviewing court to address the most important evidence that appellant contends undermines the confidence of the court in the jury’s verdict.)  Appellant’s analysis totally ignores the fact that both witnesses viewed a photo lineup with Wyatt’s picture in it and neither of them identified Wyatt as having been the perpetrator of the robbery.  In fact, upon viewing a subsequent photo lineup containing appellant’s picture, each witness quickly identified appellant as the assailant.  The factual sufficiency of the evidence as to identification simply boils down to the jury’s reconciling some conflicting testimony.  It is the jury’s job to reconcile the conflicts in the testimony.  See Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000).  Further, the weight to be given the evidence is also within the province of the jury.  Id. Finally, as stated in the legal sufficiency portion of this opinion, the testimony of a single eyewitness is sufficient to convict a defendant.  Aguilar, 468 S.W.2d at 77; Walker, 180 S.W.3d at 832.

            Therefore, we cannot say that the jury acted irrationally in finding appellant guilty beyond a reasonable doubt nor can we say that the great weight and preponderance of the evidence contradicts the jury’s verdict.  Watson, 204 S.W.3d at 415.  Accordingly, we overrule appellant’s issues regarding the factual sufficiency of the evidence. 

Conclusion

            Having overruled appellant’s issues, we affirm the judgment of the trial court.

                                                                                                                                                                                                                                                            Mackey K. Hancock

                                                                                                            Justice

Do not publish. 

---

[1] See Tex. Penal Code Ann. § 29.02(a)(2) (Vernon 2003).

[2] The lock change was required because the apartment key was on the same key ring with the car keys.

ellE>Tex.Crim.App. 2006).  The trial court could have, therefore, reasonably concluded that the probative value of Hamilton’s statement on the video recording was not substantially outweighed by the danger of unfair prejudice.  We find the trial court did not abuse its discretion by admitting the evidence over appellants’ Rule 403 objection.  We overrule appellants’ fourth issue.

Failure to Instruct on Lesser Included Offense

            By their fifth issue, appellants contend the trial court erred by failing to instruct the jury on the lesser-included offense of criminal trespass of a habitation.

An offense is a lesser included offense if:

(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;

(2) 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;

(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or

(4) it consists of an attempt to commit the offense charged or an otherwise included offense.

Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 2006).

            To determine if a defendant is entitled to a lesser included offense instruction, a two-pronged test applies: (1) the lesser-included offense must be included within the proof necessary to establish the offense charged, and (2) the record must contain some evidence that if the defendant is guilty, he is guilty only of the lesser-included offense.  See Rousseau v. State, 855 S.W.2d 666, 672 (Tex.Crim.App. 1993).  The first prong of the Rousseau test is a question of law, wholly independent of the evidence adduced at trial.  Hall v. State, 225 S.W.3d 524, 535 (Tex.Crim.App. 2007).  In analyzing the second prong, we review all the evidence admitted at trial.  Enriquez v. State, 21 S.W.3d 277, 278 (Tex.Crim.App. 2000).  If more than a scintilla of evidence from any source raises the issue that the defendant is guilty only of the lesser-included offense, the instruction is proper on request.  Forest v. State, 989 S.W.2d 365, 367 (Tex.Crim.App. 1999).  “Credibility of the evidence and whether it conflicts with other evidence is not to be considered when determining whether the jury should have been charged with a lesser-included offense.”  Paz v. State, 44 S.W.3d 98, 100 (Tex.Crim.App. 2001).

            Here, appellants were charged with burglary pursuant to Texas Penal Code § 30.02(a)(3) which specifies a person commits an offense if, without the effective consent of the owner, the person “enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.”  Tex. Penal Code Ann. § 30.02(a)(3) (Vernon 2003).  A person commits criminal trespass if he enters or remains on or in property of another without effective consent and had notice that the entry was forbidden or received notice to depart but failed to do so.  See Tex. Penal Code Ann. § 30.05(a) (Vernon Supp. 2009).

            The offense of criminal trespass can be a lesser included offense of burglary.  Phillips v. State, 178 S.W.3d 78, 82 (Tex.App.--Houston [1st Dist.] 2005 pet. refused).  For our disposition of appellant’s argument, we assume the first prong of the Rousseau analysis is satisfied.  But under the second prong the evidence must raise an issue that the defendant, if guilty, is guilty only of the lesser offense of criminal trespass of a habitation. See Pickens v. State, 165 S.W.3d 675, 679 (Tex.Crim.App. 2005); Aguilar, 682 S.W.2d at 558.

            Graves testified she was dressing in her apartment when the door broke open. Scroggs stood in the doorway as Gariepy walked across the living room.  She pushed Graves onto the bed, pulled her hair, and slapped her. According to Gariepy, she went to the door of Graves’ apartment and repeatedly knocked but Graves did not answer.  Gariepy then instructed Scroggs to force open the door.  According to his statement, Scroggs did so with sufficient force to break the chain lock and the two entered.  Gariepy argued with Graves and pushed her onto the bed.  Gariepy repeatedly struck Graves on the face.  On this record, no rational juror could find that if appellants were guilty, they were guilty only of criminal trespass.

            The trial court did not err by denying appellants’ request for an instruction on criminal trespass of a habitation.  We overrule appellants’ fifth issue.

Double Jeopardy Violation

We find record indication of unassigned error which we address on our own motion.  From the face of the record it appears appellants’ convictions for burglary of a habitation violate the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution.[10]  “Appellate courts have the jurisdiction and authority to review unassigned error.  In the case of a double-jeopardy violation, the issue may be addressed as an unassigned error when the violation is apparent from the face of the record.”  Bigon v. State, 252 S.W.3d 360, 369 (Tex.Crim.App. 2008) (citations omitted).[11] 

The indictments allege two counts of burglary of a habitation by appellants.  Tex. Penal Code Ann. § 30.02(a)(3) (Vernon 2003).  According to count two, appellants “intentionally or knowingly entered[ed] a habitation, without the effective consent of Monique Graves, the owner thereof, and attempted to commit or committed an assault against Monique Graves.”  Count three alleged appellants “intentionally or knowingly enter[ed] a habitation, without the effective consent of Monique Graves, the owner thereof, and attempted to commit or committed the felony offense of aggravated kidnapping or kidnapping.”  It is undisputed that the charged burglaries sprang from a single unlawful entry by appellants of Graves’ apartment.

The Double Jeopardy Clause of the Fifth Amendment consists of three separate protections: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments.  North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L. Ed. 2d 656 (1969).  Here we are concerned with the third protection, that from multiple punishments.

“A defendant suffers multiple punishments in violation of the Double Jeopardy Clause when he is convicted of more offenses than the legislature intended.”  Ervin v. State, 991 S.W.2d 804, 807 (Tex.Crim.App. 1999) (citing Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L. Ed. 2d 740 (1985)).  “The legislature . . . determines whether offenses are the same for double-jeopardy purposes by defining the ‘allowable unit of prosecution.’”  Ex parte Cavazos, 203 S.W.3d at 336 (quoting Sanabria v. United States, 437 U.S. 54, 69, 98 S.Ct. 2170, 57 L. Ed. 2d 43 (1978)).  “The legislature also decides whether a particular course of conduct involves one or more distinct offenses under a given statute.”  Ex parte Cavazos, 203 S.W.3d at 336.  Thus it is the allowable unit of prosecution that determines the scope of double jeopardy’s protection from multiple punishments under the burglary statute.  Id.

The gravamen of a burglary is an unauthorized entry with the requisite mental state.  Ex parte Cavazos, 203 S.W.3d at 337.[12]  The harm of burglary results from the unauthorized entry.  Id.  The offense is complete from entry.  Id.  Because burglary is a crime against property and not a person, the allowable unit of prosecution for a burglary is the unlawful entry.  Id. On the face of this record, we find appellants were punished twice for a single unlawful entry.

On finding a double-jeopardy violation, we retain the conviction with the “most serious punishment,” and vacate any remaining convictions that are the “same” for double jeopardy purposes.  Landers v. State, 957 S.W.2d 558, 560 (Tex.Crim.App. 1997) overruled on other grounds, Ex parte Cavazos, 203 S.W.3d at 338.  See Bigon, 252 S.W.3d at 372-73 (discussing Landers).  The most serious offense is the offense for which the greatest sentence was assessed. Ex parte Cavazos, 203 S.W.3d at 338 (overruling Landers to the extent it allowed consideration of other factors such as the degree of the felony, range of punishment, and rules governing parole eligibility and awarding good-conduct time).  But here, appellants received identical sentences for their two burglary convictions.  We, therefore, break the apparent tie, by affirming the offense first named in the verdict form; burglary predicated on assault.  See Ex parte Cavazos, 203 S.W.3d at 339 n.8 (court noted some of its cases may have suggested this as a tie breaker but did not address the question).  We vacate the judgments convicting appellants of burglary of a habitation predicated on commission of aggravated kidnapping.

Sentencing Error

            In their sixth issue, appellants claim various errors in the judgments of the trial court.  Appellants’ complaint of sentencing error for their convictions under count three is rendered moot by our finding of a double jeopardy violation.

            Appellants assert the trial court abused its discretion by imposing cumulative sentencing, not adjusting the classification of aggravated kidnapping downward to a second degree felony on the jury’s finding that Graves was voluntarily released at a safe place, and not probating the fines for counts two and three as assessed in the verdicts of the jury.

            For each appellant, the first page of each judgment states, “This sentence shall run consecutive to the case below.”  We interpret this means on completion of the sentence imposed for count one, appellants begin service of the sentence imposed under count two. 

            It is not disputed that the offenses for which appellants were indicted and convicted arose from the same criminal episode.  See Tex. Penal Code Ann. § 3.01 (Vernon 2003). Subject to exceptions not applicable here, Penal Code § 3.03(a) requires concurrent sentencing when an accused is found guilty of more than one offense arising from the same criminal episode and prosecuted in a single criminal action.  Tex. Penal Code Ann. § 3.03(a) (Vernon Supp. 2009). The trial court’s imposition of consecutive sentences runs afoul of the statutory requirement, and constitutes an abuse of its discretion.  

            The judgments under count one, for aggravated kidnapping, classify the offense a first degree felony.  While this classification is generally correct, the Penal Code, however, provides an exception.  Tex. Penal Code Ann. § 20.04(c) (Vernon 2003).  Section 20.04(d) classifies aggravated kidnapping a second degree felony if the defendant proves he voluntarily released the victim in a safe place.  Tex. Penal Code Ann. § 20.04(d) (Vernon 2003).  The jury found appellants voluntarily released Graves in a safe place.  Accordingly, the judgments as to count one should have classified the offense a second degree felony.

            In its verdicts on punishment, the jury assessed fines of $5,000 for counts two and three but recommended probation of each.  The judgments, however, order payment of a fine of $5,000 on counts two and three.  We will reform the judgments of count two to conform to the verdicts of the jury.  Because the court included the fines in its calculation of payments ordered by the judgments on count two and because we vacate the judgments under count three, we remand in part with instructions for the trial court to recalculate the total amount owed and monthly installment due of each appellant.

Equal Protection Claim

            In their seventh issue, appellants argue they were denied equal protection of the law under the Constitutions of the United States and Texas. Their complaint is the trial court denied their defenses of immunity, defense of third person, and necessity because Graves’ child was not, at the time of the events giving rise to the indictment, yet born alive.  They imply one protecting a child born alive from ingestion of Oxycontin would be entitled to immunity and justification defenses. 

            We have discussed why the trial court did not err by denying appellants’ motions for directed verdict and refusing jury submission of their proposed instructions on immunity and justification defenses.  Because the trial court did not abuse its discretion in denying appellants’ motions and requests on non-constitutional grounds, it is not necessary to review their constitutional argument.  Cf. Turner v. State, 754 S.W.2d 668, 675 (Tex.Crim.App. 1988) (courts do not address the constitutionality of a statute unless consideration is essential to decision). A decision of issue seven is unnecessary to our disposition of the appeal.  Tex. R. App. P. 47.1.

Conclusion

            We render judgment vacating the judgments of the trial court on count three of the indictments, burglary of a habitation predicated on aggravated kidnapping. 

The remaining judgments of the trial court are modified to provide the sentences assessed against appellants under each judgment shall run concurrently; the classification of offense under count one is a second degree felony; and the fines of $5,000 for count two are probated. 

Both cases on appeal are remanded in part with instructions to the trial court to recalculate the amounts owed and monthly installment payments due of each appellant in light of our vacation of the judgments under count three and the probation of fines assessed for count two.  Otherwise, and as modified, we affirm the judgments of the trial court.

                                                            James T. Campbell

                                                                 Justice

Publish.   

---

[1] Tex. Penal Code Ann. § 20.04(b) (Vernon 2003).

[2] Tex. Penal Code Ann. § 30.02(a)(3) (Vernon 2003) (attempt or commission of assault and a felony (kidnapping)).

[3] See Tex. Penal Code Ann. § 30.02(a)(3) (Vernon 2003).  A person commits assault if the person inter alia “intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse.”  See Tex. Penal Code Ann. § 22.01(a)(1) (Vernon Supp. 2009).

[4]  Because of our disposition of this appeal, discussion of the legal and factual sufficiency of the evidence supporting appellants’ convictions under count three of the indictment, burglary predicated on a felony (aggravated kidnapping), is unnecessary.  See Tex. R. App. P. 47.1.

[5]  Appellants filed a pre-trial motion to dismiss which was denied.  They re-urged this motion at trial in the course of making an oral motion for instructed verdict.  The basis of their argument is the evidence was conclusive that under Family Code § 261.106 they were immune from criminal prosecution for the conduct giving rise to the indicted offenses.  Tex. Fam. Code Ann. § 261.106 (Vernon 2008). 

[6] In relevant part this section provides:

A person acting in good faith who reports or assists in the investigation of a report of alleged child abuse or neglect or who testifies or otherwise participates in a judicial proceeding arising from a report, petition, or investigation of alleged child abuse or neglect is immune from civil or criminal liability that might otherwise be incurred or imposed.

Tex. Fam. Code Ann. § 261.106(a) (Vernon 2008).

[7] The State argues the “child abuse or neglect” referred to in Family Code Chapter 261 does not refer to unborn children so § 261.106 has no application in this case.  We do not reach the State’s argument. 

[8] Courts interpret a statute in accordance with the plain meaning of its words unless they are ambiguous or the plain meaning leads to absurd results.  Mosley v. State, 983 S.W.2d 249, 256 (Tex.Crim.App. 1998). 

[9]  See State v. Harrod, 81 S.W.3d 904 (Tex.App.—Dallas 2002, pet. refused) (finding limits to statute’s grant of immunity).

[10]  No person shall “be subject for the same offense to be twice put in jeopardy of life or limb.”  U.S. Const., Amdt. 5.

[11]  In Bigon, as here, there was no double-jeopardy objection at trial and on the issue error was not assigned in the court of appeals.  Bigon, 252, S.W.3d at 369.  Cf. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex.Crim.App. 2000) (double jeopardy claim may be raised for first time on appeal if undisputed facts show double jeopardy violation clearly apparent on face of record and enforcement of usual rules of procedural default would serve no legitimate state interest). 

[12]  Appellants were indicted under Penal Code § 30.02(a)(3) which dispenses with the intent requirement of § (a)(1) and allows the State to prove after unlawful entry the defendant actually committed or attempted to commit a felony, theft, or assault.  Tex. Penal Code Ann. § 30.02(a)(3) (Vernon 2003).  See DeVaughn v. State, 749 S.W.3d 62, 65 (Tex.Crim.App. 1988) (gravamen of burglary is unlawful entry accompanied by requisite mental state, § 30.02(a)(1) & (2), or requisite acts or omissions under § 30.02(a)(3)).