Ramses Luis Licano v. The State of Texas

El Paso, TX - Criminal defense attorney represented Ramses Luis Licano with a charge.

The underlying facts resulting in Licano's convictions are not in dispute. During trial,

Officer Oswaldo Ordonez of the El Paso Police Department testified he initiated a traffic stop after

observing a car that appeared to be speeding and swerving. During the stop, the driver identified

as Licano, told Officer Ordonez he had a weapon in his glove box. Officer Ordonez recovered a

.40-caliber handgun in the vehicle and, after conducting standardized field sobriety tests,

determined Licano was operating a vehicle in a public place while intoxicated. Officer Ordonez

placed Licano under arrest for driving while intoxicated.

Licano was charged by information with a single count of unlawful carrying of a weapon.

Licano was also charged by information with driving while intoxicated. A jury convicted Licano

of both charges. The trial court sentenced Licano to one year in jail for the UCW offense and 180

days in jail for the DWI, each probated for a period of one year.

II. DISCUSSION

In a single issue on appeal, Licano contends that imposing punishment for both DWI and

also UCW while committing a DWI, both arising from the same incident, subject him to multiple

punishments not clearly authorized by the Texas Legislature. With a two-part argument, the State

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counters: First, the appeal of the UCW charge is moot because Licano is not seeking reversal or

amendment of his conviction of that charge; and second, that the two offenses are not the same

offense for double jeopardy purposes and multiple punishments are not against legislative intent.

A. Standard of Review and Applicable Law

The Double Jeopardy Clause of the Fifth Amendment states that no person shall be placed

twice in jeopardy for the same offense. U.S. CONST. amend. V. The Double Jeopardy clause

protects from second prosecutions for the same offense after acquittal, a second prosecution for

the same offense after conviction, and multiple punishments for the same offense. U.S. CONST.

amend. V; Garfias v. State, 424 S.W.3d 54, 58 (Tex. Crim. App. 2014); Langs v. State, 183 S.W.3d

680, 685 (Tex. Crim. App. 2006); see also Brown v. Ohio, 432 U.S. 161, 164 (1977) (making the

double jeopardy clause applicable to the states by the Fourteenth Amendment). The multiple

punishments claim arises when either the same conduct is punished twice under the lesser-included

offense context, or when the same criminal act is punished twice under distinct statutes when there

was clear legislative intent that the conduct only be punished once. Langs, 183 S.W.3d at 685.

When a double jeopardy violation is determined to have occurred, the remedy is to set aside the

less serious offense and retain the more serious one. Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex.

Crim. App. 2006); Cucuta v. State, No. 08-15-00028-CR, 2018 WL 1026450, at *8 (Tex. App.—

El Paso February 23, 2018, no pet.) (not designated for publication).

B. Mootness

We first address the State's argument that Licano's appeal of this case is moot as he has

presented no controversy for this Court. The State argues that since Licano does not challenge the

UCW charge in any manner, nor seek any modification or other action altering his UCW

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conviction or punishment, there is no controversy to resolve. See Ex parte Flores, 130 S.W.3d 100,

104-105 (Tex. App.—El Paso 2003, pet. ref'd). Specifically, Licano requests his UCW conviction

be retained and his DWI conviction be dismissed or reformed to reflect a verdict of "not guilty.”

Generally, a case becomes moot "when the issues presented are no longer live or the parties

lack a legally cognizable interest in the outcome.” Murphy v. Hunt, 455 U.S. 478, 481 (1982)

(internal quotations omitted). If a controversy ceases to exist and the decision of an appellate court

would be a mere academic exercise, the court may not decide the appeal. Flores, 130 S.W.3d at

104-105; Hung Dasian Truong v. State, 580 S.W.3d 203, 207 (Tex. App.—Houston [1st Dist.]

2019, no pet.). Two exceptions to the mootness doctrine exist: (1) the "capable of repetition yet

evading review” exception and (2) the "collateral consequences” exception. See Flores, 130

S.W.3d at 105. The first exception applies when the challenged act is of such short duration that a

party cannot obtain review before the issue becomes moot. Id. The second exception applies when

courts perceive that prejudicial events have occurred whose effects continue to stigmatize long

after the judgment has ceased to operate. Id.

Here, we conclude that Licano's appeal of the UCW conviction is moot because he has

presented no controversy for this Court to decide as to that conviction or as to its punishment, and

no exception to the mootness doctrine otherwise applies. Id. Licano does not challenge his UCW

conviction in any manner nor does he seek a different judgment regarding that case. Instead, he

merely argues in briefing that the sentence imposed for his UCW conviction was greater than the

sentence imposed for his DWI conviction. Thus, Licano seeks no remedy whatsoever in this appeal

as to his UCW conviction or punishment. See Cavazos, 203 S.W.3d at 337; see also Cucuta, 2018

WL 1026450, at *8 (observing that the remedy for a double jeopardy violation, if any, where a

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defendant is given multiple punishments for what is determined to be the same offense, is to set

aside the less serious offense and retain the more serious one). Licano concedes that his UCW

conviction should be retained, in any event, and he presents no controversy to be addressed in this

appeal.

Licano's sole issue is overruled as moot.

We dismiss this appeal as moot.