Polanco v. State

690 S.W.3d 421

Humberto POLANCO, Appellant

v.The STATE of Texas, Appellee

No. 11-23-00015-CR

Court of Appeals of Texas, Eastland.

May 16, 2024

On Appeal from the 161st District Court, Ector County, Texas, Trial Court Cause No. B-21-0298-CR Dusty Gallivan, District Attorney, Michelle Townsend, Assistant, Jennifer Rossmeier Brown, Assistant, for Appellee.

Mike Holmes, Odessa, for Appellant.

Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.

OPINION

W. STACY TROTTER, JUSTICE

In this appeal, we address the Fifth Amendment’s prohibition against double jeopardy and how, in this context, multiple offenses may be submitted to the jury. Appellant, Humberto Polanco, was convicted of murder, failure to stop and render aid resulting in the death of a person,¹ and tampering with physical evidence. See Tex Penal Code Ann. §§ 19.02(b)(1)–(2), 37.09(a)(1) (West Supp. 2023); Tex. Transp. Code Ann §§ 550.021, 550.023 (West Supp. 2023). After Appellant pled "true" to the State’s enhancement allegation, the jury found the enhancement to be "true" and assessed Appellant’s punishment at imprisonment for life in the Institutional Division of the Texas Department of Criminal Justice for the murder and failure to stop and render aid convictions, and twenty years’ imprisonment for the tampering conviction. The jury further assessed a $10,000 fine for each offense. The trial court sentenced Appellant accordingly and ordered that the sentences be served concurrently.

In three issues on appeal, Appellant contends that: (1) his convictions for murder and failure to stop and render aid violate the Double Jeopardy Clause of the Fifth Amendment; (2) the trial court erred when it charged the jury on both the murder and failure to stop and render aid offenses because this allowed the jury to convict Appellant of both offenses in violation of the Double Jeopardy Clause; and (3) the trial court erred when it imposed a $10,000 fine for each conviction without first inquiring on the record as to whether Appellant had the financial ability to immediately pay these fines, as required by Article 42.15(a-1) of the Texas Code of Criminal Procedure. See Tex Code Crim Proc Ann. art. 42.15(a-1) (West Supp. 2023). We affirm.

I. Factual Background

Appellant does not challenge the sufficiency of the evidence to support his convictions. Therefore, we only recite the facts that are necessary to address the issues that he has raised on appeal.

Maria Carrasco was approaching an intersection in Odessa around 9:30 p.m. when she saw Appellant’s black Chevrolet Tahoe advancing directly toward her. Carrasco also saw Veronica Carrillo—Appellant’s girlfriend of nearly two years—walking along the side of the roadway. After Appellant’s Tahoe crossed the center line into oncoming traffic, it struck Carrillo; Appellant then reentered his lane of travel and fled. Based on what she observed, Carrasco believed that Appellant intentionally struck Carrillo with his Tahoe and then fled. Carrasco stopped and called 9-1-1; she also checked on Carrillo, who was still breathing, but was "really mangled." When Deputy Cory Wester with the Ector County Sheriff’s Office arrived at the scene, Carrillo was lying in the roadway, had no pulse, and was no longer breathing.

After Appellant’s Tahoe struck Carrillo, he drove it to a local bar where he became too intoxicated to drive home. Appellant’s mother drove him home in the Tahoe but, at Appellant’s direction, stopped at a car wash on the way. The following morning, Appellant was arrested for the murder of Carrillo; he was also charged with failure to stop and render aid resulting in death and tampering with physical evidence because his Tahoe was washed after he struck Carrillo with it.

II. Double Jeopardy

In his first issue, Appellant contends for the first time on appeal that his convictions for murder and failure to stop and render aid resulting in the death of a person violate the constitutional prohibition against double jeopardy because he was subjected to multiple punishments for the same offense.

A. Preservation of Complaint

[1, 2] To preserve a multiple punishments double jeopardy complaint for appellate review, it is generally required that a defendant assert the necessary objections when, or before, the trial court’s charge is submitted to the jury. Gonzalez v. State, 8 S.W.3d 640, 642 (Tex. Crim. App. 2000). However, because double jeopardy concerns affect fundamental, constitutional rights, they may be raised for the first time on appeal if: (1) the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record; and (2) the enforcement of the usual rules of procedural default serve no legitimate state interests. Sledge v. State, 666 S.W.3d 592, 599 (Tex. Crim. App. 2023) (citing Gonzalez, 8 S.W.3d at 643).

Because Appellant did not assert a double jeopardy objection in the trial court below, we must determine whether a double jeopardy violation is apparent on the face of the record. See id.; Garfias v. State, 424 S.W.3d 54, 58 (Tex. Crim. App. 2014); see also Stinecipher v. State, 438 S.W.3d 155, 159 (Tex. App.—Tyler 2014, no pet.).

B. Applicable Law

[3] The Fifth Amendment’s Double Jeopardy Clause provides: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb[.]" U.S. Const Amend V. Simply put, a person may not be prosecuted twice for the same offense. Hence, the guarantee against double jeopardy affords the accused three distinct protections against: (1) a second prosecution for the, "same" offense after an acquittal; (2) a second prosecution for the "same" offense after a conviction; and (3) multiple punishments for the "same" offense. Nawaz v. State, 663 S.W.3d 739, 743 (Tex. Crim. App. 2022). The protection against multiple punishments for the "same" offense is the double jeopardy issue that we must address in this appeal. See id.

[4–7] "A multiple-punishments double-jeopardy violation may arise either in the context of lesser-included offenses (when the same conduct is punished under both a greater and a lesser-included statutory offense) or when the same criminal act is punished under two distinct statutory provisions, but the legislature intended only [for] one punishment [to apply]." Aekins v. State, 447 S.W.3d 270, 274 (Tex. Crim. App. 2014). To determine "whether the double-jeopardy protection against multiple punishments for the same offense has been infringed, courts must seek to understand how many punishments the law permits." Nawaz, 663 S.W.3d at 743. As such, we must ascertain what the legislature has prescribed with respect to how many times an offender may be punished. Id.; see Ex parte Benson, 459 S.W.3d 67, 71 & n.8 (Tex. Crim. App. 2015) (in the multiple punishments context, the state legislature may prescribe how many times an offender may be punished) (citing Missouri v. Hunter, 459 U.S. 359, 368, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983)). Whether the legislature intended to authorize separate punishments is measured in two ways: (1) by analyzing the elements of the charged offenses; and (2) by identifying the appropriate "unit of prosecution" for the offenses. Garfias, 424 S.W.3d at 58. "When two distinct statutory provisions are at issue, the offenses must be considered the same under both an ‘elements’ analysis and a ‘units’ analysis for a double-jeopardy violation to occur." Benson, 459 S.W.3d at 71.

[8–11] The Blockburger test is "[t]he traditional starting point for determining ‘sameness’ " in the multiple punishments double jeopardy analysis. Ramos v. State, 636 S.W.3d 646, 651 (Tex. Crim. App. 2021) (citing Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932)). "Under Blockburger, two separately defined statutory offenses are presumed not to be the same so long as each requires proof of an elemental fact that the other does not." Id. In comparing the elements of different statutory provisions, we examine not only "the statutory elements in the abstract but we also compare the offenses as pleaded, to determine whether the pleadings have alleged the same ‘facts required.’" Shelby v. State, 448 S.W.3d 431, 436 (Tex. Crim. App. 2014) (quoting Bigon v. State, 252 S.W.3d 360, 370 (Tex. Crim. App. 2008)). "[I]n Texas, when resolving whether two crimes are the same for double-jeopardy purposes, we focus on the elements alleged in the charging instrument." Bigon, 252 S.W.3d at 370.

[12–15] In combining the "cognatepleadings approach" with the Blockburger "same-elements" test, we must ask whether each offense, as pled in the charging instrument, contains at least one element that the other does not. Nawaz, 663 S.W.3d at 744 (quoting Benson, 459 S.W.3d at 72). If not, we presume that the two offenses are the same for multiple punishment double jeopardy purposes. Id. However, if each offense does contain an element that the other does not, it is then presumed that the offenses are different, and we must determine whether other considerations may operate to defeat that presumption. Id. (citing Benson, 459 S.W.3d at 72-73); Ervin v. State, 991 S.W.2d 804, 814 (Tex. Crim. App. 1999). In this regard, we look only to the pleadings and the relevant statutory provisions in conducting this analysis, rather than the evidence presented at trial. Id.

[16] "In deciding whether the presumption has been rebutted, we must conduct an analysis of various factors under Ervin to determine whether the legislature nevertheless clearly intended [for] the offenses to be treated as the same." See Benson, 459 S.W.3d at 73, 76; see also Garfias, 424 S.W.3d at 58–59 (citing Ervin, 991 S.W.2d at 814). The Court of Criminal Appeals in Ervin set forth the following non-exclusive factors that are designed to assist the courts in their analysis of whether, in the absence of clear legislative guidance, the legislature intended to allow the same conduct to be punished twice under different statutes:

(1) whether offenses

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