Quinton Deondrae Henry v. State

IN THE

TENTH COURT OF APPEALS

No. 10-11-00443-CR

QUINTON DEONDRAE HENRY,

Appellant v. THE STATE OF TEXAS,

Appellee

From the 54th District Court McLennan County, Texas Trial Court No. 2011-1922-C2

MEMORANDUM OPINION

Appellant, Quinton Deondrae Henry, was charged by indictment with one count of murder, a first-degree felony, and five counts of aggravated assault with a deadly weapon, a second-degree felony. See TEX. PENAL CODE ANN. §§ 19.02, 22.02 (West 2011). On appeal, Henry challenges two of his aggravated-assault-with-a-deadly-weapon convictions. We reverse Henry’s convictions in Counts 2 and 5 of the indictment and render judgments of acquittal in those counts; we affirm Henry’s remaining convictions.

I. BACKGROUND AND DISCUSSION

Counts 2 and 3 of the indictment alleged the same offense—aggravated assault with a deadly weapon—occurring on the same date and involving the same victim— Latoya Hamilton. The only difference between these two counts is the manner and means in which the alleged offenses were committed. Counts 4 and 5 of the indictment also allege the same offense—aggravated assault with a deadly weapon—occurring on the same date and involving the same victim—Jamie Toney. And, once again, the only difference between these two counts is the manner and means in which the alleged offenses were committed.

On appeal, Henry argues that the Double Jeopardy Clause to the Fifth Amendment of the United States Constitution was violated in this case because Counts 2 and 3 allege the same offense, involve the same victim, and differ only in the manner and means in which each offense was committed, and because section 22.02 of the Texas Penal Code “has only one ‘allowable unit of prosecution’ for each victim.” 1 Henry makes identical arguments with respect to Counts 4 and 5 of the indictment.2

The State concedes that Counts 2 and 3 and Counts 4 and 5 violate the Double Jeopardy Clause. See U.S. CONST. amend. V. As such, the State requests that we reverse Henry’s convictions in Counts 2 and 5, vacate Henry’s sentences in Counts 2 and 5, and affirm the remaining four convictions in Counts 1, 3, 4, and 6. After reviewing the record, we agree that Counts 2 and 3 and Counts 4 and 5 violated the Double Jeopardy Clause, see id.; accordingly, we sustain Henry’s issue on appeal.

II. CONCLUSION Having sustained Henry’s issue on appeal, we reverse and render judgments of acquittal as to Counts 2 and 5 of the indictment and affirm all remaining counts. See Bigon v. State, 252 S.W.3d 360, 372 (Tex. Crim. App. 2008) (“When a defendant is subjected to multiple punishments for the same conduct, the remedy is to affirm the conviction for the most serious offense and vacate the other convictions.”) (citing Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex. Crim. App. 2006); Landers v. State, 957 S.W.2d 558, 559-60 (Tex. Crim. App. 1997)).

AL SCOGGINS Justice

Before Chief Justice Gray,

Justice Davis, and Justice Scoggins

Affirmed, in part, and reversed and rendered, in part Opinion delivered and filed June 27, 2012 Do not publish [CRPM]