The Law Office of Joseph Moreno

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Francisco Duran was convicted by a jury of 1 count of Burglary of a Habitation and 1 count of Aggravated Assault with a Deadly Weapon.  After the jury's decision but before sentencing, the State of Texas abandoned the Aggravated Assault with a Deadly Weapon count and proceeded to sentencing only on the conviction for Burglary of a Habitation.  Mr. Duran was sentenced to 25 years in a Texas Department of Criminal Justice Facilty.  After his sentence was pronounced, the State moved to amend the judgment of conviction to include a Deadly Weapon finding, over the defendant's objection.

On appeal, the 13th Court of Appeals upheld the deadly weapon finding.  Mr. Duran filed a petition for discretionary review and argued that the court of appeals erred when it upheld the conviction on the Aggravated Assault charge even though the State abandoned that charge prior to sentencing and upheld the trial court's modification to the judgment to include a deadly weapon finding.  

The Texas Court of Criminal Appeals agreed with Mr. Duran and reversed the court of appeals' decision.  The Texas Court of Criminal Appeals held that because the State unequivocally abandoned the Aggravated Assault, in the middle of trial, after jeopardy had attached,the court of appeals should have vacated the Aggravated Assault charge.  Additionally, the Texas Court of Criminal Appeals found that because the indictment, in Count 1, did not allege use of a deadly weapon, modification of the judgment to include a deadly weapon finding was improper.

The Texas Court of Criminal Appeals' decision in this case was important to Mr. Duran because an inmate serving a sentence for an offense which is considered a 3g offense under section 3(g)(a)(2) of Article 42.12 of the Texas Code of Criminal Procedure must serve a longer period of his or her sentence before they may be considered for parole. Although the sentence of 25 years stands, Mr. Duran will not be required to serve as long a period of time before he is considered parole eligible.  

For case references please see PD-0429-15.

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