Rogers v. State

Appellant, Ronald David Rogers, appeals a judgment that convicts him for the second-degree felony offense of aggravated assault with a deadly weapon of Tammy Goldsmith in appellate cause number 01-04-01252-CR, which is trial court cause number 39154A; and a judgment that convicts him for the second-degree felony offense of attempted aggravated sexual assault of Goldsmith in appellate cause number 01-04-01253-CR, which is trial court cause number 39155. See Tex. Penal Code Ann. § 15.01 (Vernon 2003), §§ 22.02, 22.021 (Vernon Supp. 2008). Appellant pleaded guilty to both offenses before a single jury. The jury found true a punishment enhancement paragraph and determined appellant’s punishment for aggravated assault at 60 years in prison and a $5,000 fine. The jury determined appellant’s punishment for attempted aggravated sexual assault at 15 years in prison and a $5,000 fine.

In three issues pertaining to each of the two appeals, appellant contends (1) the attempted aggravated sexual assault is barred by double jeopardy because aggravated assault with a deadly weapon is a lesser-included offense of attempted aggravated sexual assault, (2) the aggravated assault with a deadly weapon is barred by double jeopardy because it is a lesser-included offense of attempted aggravated sexual assault, and (3) appellant was deprived of counsel at a critical stage of proceedings, the 30-day window for filing a motion for new trial. We conclude aggravated assault is not a lesser-included offense of attempted aggravated sexual assault as alleged in the indictment, and that appellant was not deprived of counsel during the 30-day window for filing a motion for new trial. We, therefore, affirm.