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Kuykendall v. State

Court of Appeals of Texas, First District

December 17, 2019

KYLE DEAN KUYKENDALL, Appellant
v.
THE STATE OF TEXAS, Appellee

          On Appeal from the 198th District Court Kerr County, [1] Texas Trial Court Case No. B15-684

          Panel consists of Justices Lloyd, Goodman, and Landau.

          OPINION

          RUSSELL LLOYD JUSTICE

         Appellant, Kyle Dean Kuykendall, pleaded guilty to two counts of the third-degree felony offense of failure to appear in Cause Number B15-684. At the conclusion of a presentence investigation (PSI) hearing, the trial court found appellant guilty and sentenced him to ten years' confinement on each count, with the sentences to run concurrently. In two points of error, appellant contends that (1) his convictions for failure to appear on two cases that were set for the same day and in the same court and were the subject of the same two-count indictment violate the Double Jeopardy Clause and (2) the evidence is insufficient to support the trial court's judgment ordering him to pay court-appointed attorney's fees. We vacate appellant's conviction on Count Two, modify the judgment on Count One, and affirm the judgment on Count One as modified.

         Background

         On December 15, 2015, a Kerr County grand jury returned a single indictment containing two counts against appellant for failure to appear in Cause Number B15-684.[2] As to each count, the indictment alleged:

On or about November 30, 2015, and before the presentment of this indictment, in said County and State, [appellant] did then and there, after being lawfully released from custody on a pending felony charge on condition that he subsequently appear in court, intentionally or knowingly fail to appear in accordance with the terms of his release, to-wit: . . . .

         Following this language, the indictment includes an image of the surety bail bond executed by appellant and the surety for each count.

         On May 30, 2018, appellant pleaded guilty to both counts of the indictment. The trial court ordered completion of a PSI report. On August 1, 2018, the trial court conducted a sentencing hearing at which the PSI report was admitted into evidence. At the conclusion of the hearing, the trial court sentenced appellant to ten years' confinement on each count, with the sentences to run concurrently. This appeal followed.

         Double Jeopardy Claim

         In his first point of error, appellant contends that his convictions violate the Double Jeopardy Clause because he was convicted of failure to appear on two cases that were set for the same day and in the same court and were the subject of the same two-count indictment.

         As a preliminary matter, we note that appellant did not present this double jeopardy claim to the trial court.[3] See Gonzalez v. State, 8 S.W.3d 640, 642 (Tex. Crim. App 2000) (explaining that, in general, defendant has burden to preserve double jeopardy objection); see also Tex Code Crim Proc art 114(b) (specifying that defendant waives right to appeal error in indictment if he does not object to error before trial commences) Typically, the failure to present an issue to the district court prevents the issue from being considered on appeal See Tex R App P 331(a) (requiring that complaint be made to trial court in order to preserve issue for appeal) However, the Court of Criminal Appeals has determined that "because of the fundamental nature of double jeopardy protections, a double jeopardy claim may be raised for the first time on appeal when the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and when enforcement of usual rules of procedural default serves no legitimate state interests" Gonzalez, 8 S.W.3d at 643 "A double-jeopardy claim is apparent on the face of the trial record if resolution of the claim does not require further proceedings for the purpose of introducing additional evidence in support of the double-jeopardy claim" Ex parte Denton, 399 S.W.3d 540, 544 (Tex Crim App 2013); see also Ex parte Marascio, 471 S.W.3d 832, 837 (Tex Crim App 2015) (Keasler, J, concurring) (noting, with exceptions, that under current state of law, "the clearly-apparent-from-the-record factor requires that we reach the merits of the claim before determining whether the claim is properly presented").[4]

         A. Is a Double Jeopardy Claim Apparent on the Face of the Record?

         The Double Jeopardy Clause of the Fifth Amendment, made applicable to the states through the Due Process Clause of the Fourteenth Amendment, protects an accused from being placed twice in jeopardy for the same offense. See U.S. Const. amend. V, XIV; see Ex parte Milner, 394 S.W.3d 502, 506 (Tex. Crim. App. 2013) ("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."). The Texas Constitution provides substantially identical protections. See Tex. Const. art. I, § 14 ("No person, for the same offense, shall be twice put in jeopardy of life or liberty; nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.").

         For purposes of a double jeopardy analysis, an accused is subject to multiple punishments in violation of the Double Jeopardy Clause when he is "convicted of more offenses than the legislature intended" under a given set of facts. Ervin v. State, 991 S.W.2d 804, 807 (Tex. Crim. App. 1999); see also Shelby v. State, 448 S.W.3d 431, 435 (Tex. Crim. App. 2014). In that regard, the Legislature determines whether two or more offenses are the same for purposes of double jeopardy by defining the "allowable unit of prosecution." Ex parte Cavazos, 203 S.W.3d 333, 336 (Tex. Crim. App. 2006) (quoting Ex parte Hawkins, 6 S.W.3d 554, 556 (Tex. Crim. App. 1999) (internal citation omitted)). Accordingly, an allowable unit of prosecution is an offense defined by "a distinguishable discrete act that is a separate violation of the penal statute in question." Harris v. State, 359 S.W.3d 625, 629 (Tex. Crim. App. 2011) (citing Cavazos, 203 S.W.3d at 336). Even when the offenses in question are defined by the same penal section, the protection against double jeopardy is ...


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