# William Black v. State

> Texas Court of Appeals, 3rd District (Austin) · February 11, 2021

URL: https://www.frixlaw.com/law-library/cases/4660262

## Case

- **Court:** Texas Court of Appeals, 3rd District (Austin)
- **Decided:** February 11, 2021
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4660262

## How later opinions describe it (automated extraction)

- explaining that when charged conduct involves multiple offenses in different statutory provisions, elements inquiry requires courts to compare elements of offenses under Blockburger same-elements test, using cognate-pleadings approach
- concluding that conviction of aggravated assault causing bodily injury “focused solely on the actual harm inflicted”
- observing that Court of Criminal Appeals “has found that the focus, or ‘gravamen,’ of the two offenses is the best indicator of the Legislature’s intent to treat the offenses as the same or different for double jeopardy purposes”

## Opinion text

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-19-00106-CR

William Black, Appellant

v.

The State of Texas, Appellee

FROM THE 450TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-DC-18-904301, THE HONORABLE BRAD URRUTIA, JUDGE PRESIDING

MEMORANDUM OPINION

A jury found appellant William Black guilty of one count of aggravated sexual

assault and two counts of aggravated assault all arising out of a single encounter between

appellant and the victim, Jane Doe. See Tex. Penal Code §§ 22.02(a), 22.021(a). Appellant

elected to have the trial court decide his punishment, and the court assessed his punishment,

enhanced pursuant to the habitual offender provision of the Penal Code, at confinement for

twenty-five years in the Texas Department of Criminal Justice for each offense, ordering the

sentences to run concurrently. See Tex. Code Crim. Proc. art. 37.07(2)(b); Tex. Penal Code

§§ 3.03(a), 12.42(d). On appeal, appellant complains about the imposition of multiple

punishments for the same offense in violation of the prohibition on double jeopardy. We affirm

the trial court’s judgments of conviction.
BACKGROUND

The evidence at trial showed that through Backpage, an online escort service,

appellant arranged to have a “car date” with nineteen-year-old Jane Doe, who was engaged in

prostitution. They agreed to meet at a bar in North Austin and that appellant would pay Doe

“upfront.” As Doe was driving to the “date,” the two talked by cell phone. At the last minute,

appellant changed the meeting location and directed Doe to an isolated area under a bridge.

Once she arrived at that location, Doe followed appellant’s instructions to act out

his fantasy or “fetish.” She parked her car, got out and put a condom on the roof of the car, got

into the back seat, removed her clothes, and began touching herself. Appellant approached the

car on the passenger side and put on the condom while he stood outside of the car watching Doe

through the front passenger window. He then opened the backseat passenger door, said she was

beautiful, and “hovered over” her “as if he was going to insert his penis in [her] vagina.” At that

point, Doe asked for her money. Appellant said that he would pay her “afterwards,” but she

insisted on payment first. According to Doe, appellant appeared to agree to her payment request

and reached into his pocket. But instead of getting money, he pulled out a folding knife.

Doe testified that appellant unfolded the knife, and “it was in [her] face” at first.

Appellant then held the knife up to her throat and then to her ribs. A struggle over the knife

ensued. Doe explained that she was “throwing [her] fists, kicking” and “fighting the best way

[she] could.” During the struggle, appellant lifted himself up and “slammed” his elbow into

Doe’s thigh, breaking her thighbone.

After appellant broke her leg, Doe stopped fighting. Appellant “got on top of

[her] and forced his penis in [her] vagina,” “thrusting” into her while he held the knife to her

throat. Doe said that she feared that he would kill her when he was finished. When appellant

2
was finished (Doe was unsure if he ejaculated), he backed out of the car, and Doe attempted to

grab the knife. Appellant “yanked” the knife, cutting Doe’s hand.

After appellant left the car, Doe pulled herself to the front seat and locked the

doors so appellant could not get back inside the car. She called her boyfriend, who did not

answer, and her sister because she was “so in shock” she did not feel like she could talk to 911

and “just needed to go where comfort was.”1 She was also scared and nervous because she was

engaged in prostitution and thought the police “wouldn’t come as quick as [she] needed them to

because of prostitution” and “probably wouldn’t think it was actually rape.” Doe managed to

drive, still naked, first to a corner store and then to her sister’s house. Her sister then got in

Doe’s car and drove her to the hospital.

In addition to her broken leg, Doe sustained multiple injuries during the encounter

with appellant, including a large “gash” on her upper inner thigh, a smaller cut on her upper

thigh, and a cut to her hand at the base of her thumb—which all required multiple sutures—along

with several smaller cuts to some of her fingers and an injury and possible fracture to her pinky

finger. Her fractured femur required orthopedic surgery for an intramedullary nail

stabilization—a titanium rod placed in the middle of the femur with screws above and below the

break to lock the bone in place and give it a chance to heal. It took Doe several months to regain

the ability to walk, first with a walker and then with crutches. At the time of trial, one year later,

she walked with a limp. She explained that “a lot of things are harder now.” She still

experienced leg pain at times and has limitations on her leg movement—she cannot do “squats,”

cannot run without painful “consequences afterwards,” and cannot wear high heels. In addition,

1Doe explained that the call to her sister was a “Facetime call” because she “couldn’t
call her over the phone to tell her what happened” but needed to show her sister “all the blood on
[her] hands” so she could know it was “serious.”
3
due to the pinky-finger injury and scar tissue on her hand, Doe cannot bend her pinky and is

“constantly jamming” it because “it always stays up,” she cannot make a fist, and she has

difficulty lifting things with that hand.

Appellant was arrested and subsequently charged by a three-count indictment

with one count of aggravated sexual assault and two counts of aggravated assault. The case

proceeded to trial, and the jury found appellant guilty of all three offenses. After finding the

enhancement allegations of prior sequential felony convictions for robbery and theft to be true,

the trial court assessed appellant’s punishment at twenty-five years’ imprisonment for each

offense and ordered the sentences to run concurrently. Appellant now appeals.

DISCUSSION

In his sole point of error, appellant asserts that his convictions for both aggravated

sexual assault in Count I and aggravated assault in Count II violate the prohibition against double

jeopardy because he was subjected to multiple punishments for the same offense.

As relevant here, the Double Jeopardy Clause of both the United States and Texas

Constitutions forbid multiple punishments for the same offense in a single prosecution. See

U.S. Const. amend. V; Tex. Const. art. 1, § 14; see also Bien v. State, 550 S.W.3d 180, 184 (Tex.

Crim. App. 2018); State v. Donaldson, 557 S.W.3d 33, 41 (Tex. App.—Austin 2017, no pet.).

Generally, to preserve a multiple-punishments double-jeopardy claim for appellate review, a

defendant must object at or before the time the charge is submitted to the jury. Gonzalez v. State,

8 S.W.3d 640, 642 (Tex. Crim. App. 2000). An appellate court must consider the merits of a

defendant’s multiple-punishments double-jeopardy claim raised for the first time on appeal

“when (1) the undisputed facts show that the double jeopardy violation is clearly apparent on the

4
face of the record, and (2) enforcement of the usual rules of procedural default serves no

legitimate state interests.” Garfias v. State, 424 S.W.3d 54, 58 (Tex. Crim. App. 2014) (citing

Gonzalez, 8 S.W.3d at 643); see Langs v. State, 183 S.W.3d 680, 682 (Tex. Crim. App. 2006)

(“[T]he face of the trial court record must clearly show a double jeopardy violation before a

defendant may successfully raise a ‘multiple punishment’ double jeopardy claim for the first

time on appeal.”). Appellant raises his double-jeopardy claim for the first time on appeal.

Therefore, we must evaluate whether the face of the trial record clearly shows a double-jeopardy

violation. See Garfias, 424 S.W.3d at 58; Langs, 183 S.W.3d at 687.

The threshold question in evaluating a double-jeopardy claim is whether the

defendant is being punished for the “same offense.” State v. Perez, 947 S.W.2d 268, 270 (Tex.

Crim. App. 1997) (citing United States v. Dixon, 509 U.S. 688, 696 (1993)); Donaldson,

557 S.W.3d at 41. The Court of Criminal Appeals has explained that there are two relevant

inquiries in a double-jeopardy analysis when considering whether the offenses at issue are “the

same”: legal sameness and factual sameness. Ex parte Castillo, 469 S.W.3d 165, 172 (Tex.

Crim. App. 2015); see Aekins v. State, 447 S.W.3d 270, 283 (Tex. Crim. App. 2014) (Keller, P.J.,

concurring) (“For offenses to be the ‘same’ for double-jeopardy purposes, they must be the same

both in ‘law’ and in ‘fact.’”). “The legal-sameness inquiry depends on only the pleadings and

statutory law—not the record—to ascertain whether two offenses are the same.” Castillo,

469 S.W.3d at 172. If the offenses are legally the same, the next step is to determine whether the

offenses are factually the same. Id. at 169; Ex parte Benson, 459 S.W.3d 67, 72 (Tex. Crim.

App. 2015). “The factual-sameness inquiry requires a reviewing court to examine the entire

record to determine if the same offenses have been alleged.” Castillo, 469 S.W.3d at 172. “To

5
prevail on a double jeopardy claim, the claimant must prove both legal sameness and factual

sameness.” Id. at 169.

A multiple-punishments double-jeopardy claim arises under two scenarios: (1) in

the context of lesser included offenses, where the same conduct is punished under both a greater

and a lesser included offense, and (2) when the same conduct is punished under two distinct

statutes where the legislature intended for the conduct to be punished only once. Garfias,

424 S.W.3d at 58; Langs, 183 S.W.3d at 685. “[T]he true inquiry in a multiple-punishments

case is whether the Legislature intended to authorize the separate punishments.” Garfias,

424 S.W.3d at 58 (citing Ex parte Ervin, 991 S.W.2d 804, 814 (Tex. Crim. App. 1999)); see

Stevenson v. State, 499 S.W.3d 842, 850 (Tex. Crim. App. 2016) (explaining that in multiple-

punishments case, “the double-jeopardy analysis hinges on whether the Legislature intended

multiple punishments”).

“There are two ways in which legislative intent can be ascertained: by analyzing

the elements of the offenses in question, or by identifying the appropriate ‘unit of prosecution’

for the offenses.” Garfias, 424 S.W.3d at 58; see Ex parte Hawkins, 6 S.W.3d 554, 557 n.8

(Tex. Crim. App. 1999) (noting distinction between “units” test and “elements” test). The Court

of Criminal Appeals “has held that an ‘elements’ analysis is appropriate when the offenses in

question come from different statutory sections, while a ‘units’ analysis is employed when the

offenses are alternative means of committing the same statutory offense.”2 Garfias, 424 S.W.3d

2 The unit of prosecution is relevant in an elements analysis but only in the abstract:

In determining whether offenses are the same or different under such an
inquiry, the Blockburger test sets out the starting presumption, but, at least in the
multiple-punishments context, that presumption can be rebutted by other indicia
clearly manifesting a legislative intent to the contrary. Under Blockburger,
6
at 58 (internal citations omitted); see Loving v. State, 401 S.W.3d 642, 645 (Tex. Crim. App.

2013) (explaining that when charged conduct involves multiple offenses in different statutory

provisions, elements inquiry requires courts to compare elements of offenses under Blockburger

same-elements test, using cognate-pleadings approach). In this case, appellant complains of

convictions stemming from different statutory provisions, so we conduct an “elements” analysis

to determine whether the offenses are the same and multiple-punishments principles have been

violated. See Garfias, 424 S.W.3d at 58.

The starting point of an “elements” analysis is the “same-elements” test set forth

in Blockburger v. United States. Philmon v. State, 609 S.W.3d 532, 535 (Tex. Crim. App. 2020);

Garfias, 424 S.W.3d at 58; see Blockburger v. United States, 284 U.S. 299, 304 (1932). Under

that test, “two offenses are not the same if ‘each provision requires proof of a fact which the

other does not.’” Philmon, 609 S.W.3d at 535 (quoting Bien, 550 S.W.3d at 184); see

Blockburger, 284 U.S. at 304. In Texas, the Blockburger “same-elements” test is informed only

by the pleadings, and a reviewing “court may not consider the evidence presented at trial” to

“where the same act or transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there are two offenses or
only one, is whether each provision requires proof of a fact which the other does
not.” In the multiple[-]punishments context, if the offenses have the same
elements under Blockburger, then an analysis can occur under Missouri v. Hunter
to determine whether the Legislature nevertheless intended to allow multiple
punishments. Conversely, if the offenses have different elements under
Blockburger, then an analysis can occur under Ex parte Ervin to determine
whether the Legislature nevertheless intended the offenses to be treated as the
same. The Hunter/Ervin analysis is part of the elements aspect of Double
Jeopardy law. The allowable unit of prosecution prescribed for the offenses is a
relevant consideration under an Ervin analysis, but only in the abstract, in an
effort to determine whether, under the law and the charging instrument, the
offenses are considered to be the same elementally.

Ex parte Denton, 399 S.W.3d 540, 548–49 (Tex. Crim. App. 2013) (Keller, P.J., concurring)
(internal citations omitted).
7
make the determination. Philmon, 609 S.W.3d at 535–36; Bien, 550 S.W.3d at 184. “If both

offenses, as pleaded, have different elements under the Blockburger test, a judicial presumption

arises that the offenses are different for double jeopardy purposes, and the defendant may be

convicted and punished separately for each offense.” Philmon, 609 S.W.3d at 535; accord Bien,

550 S.W.3d at 184–85. “That presumption, however, can be rebutted if it can be shown that the

Legislature clearly intended only one punishment for both offenses.” Philmon, 609 S.W.3d at

535; accord Bien, 550 S.W.3d at 185.

Appellant argues that his Count II aggravated-assault conviction is for the “same

offense” as the aggravated-sexual-assault conviction because the “conduct as alleged in Count II,

aggravated assault causing serious bodily injury, and in Count III [sic], causing bodily injury and

using or exhibiting a deadly weapon are acts that are part and parcel of the aggravated sexual

assault.”3 However, simply because an individual engaged in only one “culpable act” does not

mean he is precluded from conviction and punishment for more than one offense. Philmon,

609 S.W.3d at 535; see United States v. Dixon, 509 U.S. 688, 704 (1993) (rejecting “same

conduct” test of Grady v. Corbin, 495 U.S. 508 (1990)).

Under the “same elements” test, “lesser-included offenses are legally the same as

a greater offense, and are wholly subsumed by the elements of the greater offense, unless the

potential lesser-included offense requires proof of a fact not required to establish the greater

3 In his brief, appellant mistakenly refers to the aggravated-assault count as separate
counts (Count II and Count III). However, the conduct he references—“aggravated assault
causing serious bodily injury” and “causing bodily injury and using or exhibiting a deadly
weapon”—are the alternative manners and means that were charged in the two paragraphs of
Count II. The aggravated assault charged in Count III alleged that appellant “intentionally or
knowingly threaten[ed] Jane Doe with imminent bodily injury” and “used or exhibited a deadly
weapon, a knife, during the commission of the said assault.” See Tex. Penal Code
§§ 22.01(a)(2), 22.02(a)(2). Appellant does not assert a double-jeopardy violation as to the
conviction for the Count III aggravated assault.
8
offense.” Castillo, 469 S.W.3d at 168–69; see Brown v. Ohio, 432 U.S. 161, 168 (1977); see

also Tex. Code Crim. Proc. art. 37.09(1). To determine if an offense is a lesser-included offense

of another, courts employ the cognate-pleading approach, which requires the court to compare

the elements of the greater offense as pled to the statutory elements of the potential lesser-

included offense in the abstract. Castillo, 469 S.W.3d at 169 (citing Hall v. State, 225 S.W.3d 524,

535 (Tex. Crim. App. 2007)); see Bien, 550 S.W.3d at 185. This analysis is a legal question and

does not depend on the evidence offered at trial. Castillo, 469 S.W.3d at 169; Hall, 225 S.W.3d

at 535.

Count I of the indictment in this case, which charged appellant with first-degree

aggravated sexual assault, alleged that appellant intentionally or knowingly caused the

penetration of Doe’s sexual organ by his sexual organ without her consent and, “in the course of

the same criminal episode” either used or exhibited a deadly weapon, a knife, or caused serious

bodily injury to her “by breaking her leg.” See Tex. Penal Code § 22.021(a)(1)(A)(i), (2)(A)(i),

(iv). Count II, which charged appellant with second-degree aggravated assault, alleged that

appellant intentionally, knowingly, or recklessly caused bodily injury to Doe while using or

exhibiting a deadly weapon, a knife, or, in the alternative, that appellant intentionally,

knowingly, or recklessly caused serious bodily injury to Doe “by striking and by kicking [her]

leg.” See id. §§ 22.01(a)(1), 22.02(a)(1)–(2). The record reflects that both counts were based on

appellant’s encounter with Doe during their “car date.”4

4
Ordinarily, when separate theories for an offense are submitted to the jury disjunctively
in the jury charge, a double-jeopardy violation is not clearly apparent on the face of the record if
one of the theories charged would not constitute a double-jeopardy violation and there is
sufficient evidence to support that valid theory. Langs v. State, 183 S.W.3d 680, 687 (Tex. Crim.
App. 2006); Gonzalez v. State, 8 S.W.3d 640, 641–42 (Tex. Crim. App. 2000). The fact that the
jury’s verdict could have relied on a theory that would violate the Double Jeopardy Clause is not
9
Appellant’s double-jeopardy claim is based on the inclusion of both aggravating

factors for aggravated assault—the use or exhibition of a deadly weapon and the causing of

serious bodily injury—as aggravating elements of the aggravated-sexual-assault offense.

However, “simply because there is a substantial overlap in proof required for both

offenses does not mean the offenses are the same for double jeopardy purposes.” Philmon,

609 S.W.3d at 537; see Ex parte McWilliams, 634 S.W.2d 815, 824 (Tex. Crim. App. 1980) (“At

trial there may be a substantial overlap in the proof of each offense; however, it is the separate

statutory elements of each offense which must be examined under [the Blockburger] test.”).

Appellant’s argument overlooks a critical distinction between the two offenses: one is a “nature

of conduct” offense; the other is a “result of conduct” offense. As a result, “each provision

requires proof of a fact which the other does not.” See Bien, 550 S.W.3d at 184 (quoting

Blockburger, 284 U.S. at 304).

Aggravated sexual assault “is a conduct-oriented offense in which the legislature

criminalized very specific conduct of several different types.” Vick v. State, 991 S.W.2d 830,

832 (Tex. Crim. App. 1999); see Gonzales v. State, 304 S.W.3d 838, 848 (Tex. Crim. App. 2010)

(explaining that “the aggravated sexual assault statute defines a ‘conduct-oriented’ crime”);

Huffman v. State, 267 S.W.3d 902, 906 (Tex. Crim. App. 2008) (observing that sex offenses

are “nature of conduct crimes”). “When ‘specific acts are criminalized because of their very

sufficient to show a constitutional violation clearly apparent on the face of the record. Langs,
183 S.W.3d at 687; Gonzalez, 8 S.W.3d at 643.

Here, the alternative theories of the Count II aggravated assault were submitted
disjunctively to the jury. However, in the jury charge, the trial court required the jury to
unanimously agree on the aggravating factor for the Count I aggravated sexual assault, and the
jury verdict form indicates that the jury unanimously agreed that appellant committed aggravated
sexual assault both “[b]y use or exhibition of deadly weapon” and “[b]y causing serious bodily
injury to Jane Doe by breaking her leg.”
10
nature, [the] culpable mental state must apply to committing the act itself.’” Price v. State,

457 S.W.3d 437, 441 (Tex. Crim. App. 2015) (quoting McQueen v. State, 781 S.W.2d 600, 603

(Tex. Crim. App. 1989)). Therefore, the Count I aggravated-sexual-assault charge, with either

aggravating factor (using or exhibiting a deadly weapon or causing serious bodily injury),

required proof that appellant intentionally or knowingly penetrated Doe’s sexual organ with his

penis without her consent. The Count II aggravated-assault charge did not require proof of

that fact.

On the other hand, aggravated assault with the underlying crime of assault

causing bodily injury—the aggravated assault charged in Count II—is a result-oriented offense.

Landrian v. State, 268 S.W.3d 532, 540 (Tex. Crim. App. 2008); see Garfias, 424 S.W.3d at 60.

“[U]nspecified conduct that is criminalized because of its result requires culpability as to that

result.” Price, 457 S.W.3d at 441 (quoting McQueen, 781 S.W.2d at 603). “In the context of

aggravated assault, the ‘single criminal act’ requiring a culpable mental state is the act of

‘causing bodily injury.’” Rodriguez v. State, 538 S.W.3d 623, 629 (Tex. Crim. App. 2018)

(citing Landrian, 268 S.W.3d at 537–39). Thus, the Count II aggravated assault, with either

aggravating factor, required proof of appellant culpably causing bodily injury to Doe—

his intentional, knowing, or reckless infliction of bodily injury to her. The Count I

aggravated-sexual-assault charge did not require proof of that fact.

Implicit in appellant’s argument is the contention that both offenses required

proof that appellant culpably—that is, intentionally, knowingly, or recklessly—caused serious

bodily injury to Doe. However, while the serious-bodily-injury aggravating factor for both

offenses uses the language “cause serious bodily injury,” the Court of Criminal Appeals has

explained that “[i]n the context of an offense that otherwise does prescribe a culpable mental

11
state, the lack of express language requiring an additional mens rea with respect to other

elements is a ‘compelling’ indication that the Legislature did not intend an additional culpable

mental state.” White v. State, 509 S.W.3d 307, 311 (Tex. Crim. App. 2017); see Rodriguez,

538 S.W.3d at 628 (reiterating that, short of explicitly dispensing with culpable mental state,

prescription of mental state as to one element and not as to others is “perhaps the strongest

indicator of the Legislature’s intent [to dispense with mental state as to those other elements] that

one may find”).

For that reason, the Court of Criminal Appeals has concluded that aggravated

assault with serious bodily injury—that is, aggravated assault with the underlying offense of

assault causing bodily injury with the aggravating factor of serious bodily injury—does not

require a culpable mental state with respect to the element of serious bodily injury. Rodriguez,

538 S.W.3d at 627–29; see id. at 629 (“Whether a deadly weapon is utilized or serious bodily

injury results, ‘[i]t is still the same single criminal act and still the same single bodily injury to

the victim.’” (quoting Landrian, 268 S.W.3d at 539)). Similarly, while one of the aggravating

factors for the aggravated sexual assault charged here required proof that appellant caused

serious bodily injury to Doe, no culpable mental state is associated with the aggravating factor of

causing serious bodily injury in the aggravated-sexual-assault statute.5 Given the lack of express

5 Specifically, for the Count I offense charged in this case, with regard to that
aggravating factor, the aggravated-sexual-assault statute provides:

(a) A person commits an offense:
(1) if the person:
(A) intentionally or knowingly:
(i) causes the penetration of the anus or sexual organ of another
person by any means, without that person’s consent; [and]

...
12
language in the aggravated-sexual-assault statute requiring a mental state with respect to causing

serious bodily injury, the Count I aggravated sexual assault did not require proof that appellant

culpably—that is, intentionally, knowingly, or recklessly—caused serious bodily injury to Doe.

Contrary to appellant’s implicit contention, neither of the offenses required proof that appellant

intentionally, knowingly, or recklessly caused serious bodily injury to Doe.

In sum, in comparing the elements of the two offenses, the Count I aggravated

sexual assault, with either aggravating factor, required proof of a sexual act (that appellant

intentionally or knowingly penetrated Doe’s sexual organ with his penis without her consent)

that the Count II aggravated assault, with either aggravating factor, did not. Further, the Count II

aggravated assault, as charged in either paragraph, required proof of a culpably injurious act (that

appellant intentionally, knowingly, or recklessly caused bodily injury to Doe) that the Count I

aggravated sexual assault, with either aggravating factor, did not. Therefore, after applying the

Blockburger “same elements” test, because the two offenses, as pleaded, have different elements

and because the potential lesser-included offense of aggravated assault in Count II requires proof

of a fact not required to establish the charged offense of aggravated sexual assault, we presume

that the charged offenses are not the same offense for double-jeopardy purposes. See Philmon,

609 S.W.3d at 536; Bien, 550 S.W.3d at 185; Benson, 459 S.W.3d at 72.

(2) if:
(A) the person:
(i) causes serious bodily injury or attempts to cause the death of
the victim or another person in the course of the same criminal
episode; . . .

Tex. Penal Code § 22.021(a). The statute prescribes a mental state for the criminalized conduct
of “penetration of the . . . sexual organ of another person by any means, without that person’s
consent” but prescribes no mental state for the aggravating element of “caus[ing] serious
bodily injury.”
13
Once a presumption is raised that offenses are different offenses under the

Blockburger “same-elements” test, a court considers a non-exclusive set of factors listed in

Ex parte Ervin to determine whether the Legislature clearly intended only one punishment for

these separate offenses:

whether the offenses provisions are contained within the same statutory section,
whether the offenses are phrased in the alternative, whether the offenses are
named similarly, whether the offenses have common punishment ranges, whether
the offenses have a common focus (i.e. whether the “gravamen” of the offense is
the same) and whether that common focus tends to indicate a single instance of
conduct, whether the elements that differ between the offenses can be considered
the “same” under an imputed theory of liability which would result in the offenses
being considered the same under Blockburger (i.e. a liberalized Blockburger
standard utilizing imputed elements), and whether there is legislative history
containing an articulation of an intent to treat the offenses as the same or different
for double jeopardy purposes.

Philmon, 609 S.W.3d at 536 (quoting Ervin, 991 S.W.2d at 814).

The first two factors address the statutory placement of the offenses. We note that

both offenses are found in Chapter 22 of the Penal Code, which is entitled “Assaultive

Offenses.” The Court of Criminal Appeals “[has] suggested that the presence of two offenses in

the same chapter of the Penal Code is a factor in favor of treating them as the same offense.”

Benson, 459 S.W.3d at 77. But the court also advised that courts “must further ask not merely

whether the offenses are in the same chapter, but how they are structured within that chapter.”

Id. at 78. This inquiry involves the first factor, which asks whether the offenses are contained in

the same statutory section, and the second factor, which asks whether the two offenses are

phrased in the alternative. See id. Here, the offenses, while in the same Penal Code chapter, are

not in the same statutory section. Nor are the offenses phrased in the alternative. There is no

way to construe the sexual offense defined by section 22.021(a)(1)(A)(i), (2)(A)(i), (iv)—

14
aggravated sexual assault by causing the penetration of the victim’s sexual organ without her

consent and, in the same criminal episode, using or exhibiting deadly weapon or causing serious

bodily injury—and section 22.02(a)—aggravated assault with the underlying offense of assault

causing bodily injury—to suggest that the legislative intent was for the two statutory provisions

to pose alternative ways of committing one single offense.

The third factor considers whether both offenses are named similarly. While both

offenses have the words “aggravated” and “assault” in the title, the additional language of the

Count I offense is dissimilar and specifies that the focus is not merely assaultive conduct. The

Count I aggravated-sexual-assault offense includes the word “sexual” in the title, which specifies

that the offense is a sex offense that involves the violation of the victim in a sexual manner.

The fourth factor looks at whether the two offenses have similar punishment

ranges. Aggravated sexual assault is a first-degree felony with a punishment range of

incarceration between five and ninety-nine years or life. See Tex. Penal Code §§ 12.32(a),

22.021(e). Aggravated assault is a second-degree felony with a punishment range of

incarceration between two and twenty years. See id. §§ 12.33(a), 22.02(b). The offenses do not

have a similar punishment range.6

The fifth factor considers whether the two offenses have a common focus, and if

so, whether that common focus tends to indicate a single instance of conduct. While the two

offenses here both, on the surface, appear to concern assaultive conduct, the focus of each of the

offenses is, in actuality, different. See Weinn v. State, 326 S.W.3d 189, 193 (Tex. Crim. App.

6 Both offenses do have the same optional punishment of a fine not to exceed
$10,000, see Tex. Penal Code §§ 12.32(b), 12.33(b), but we consider the mandatory
incarceration punishment of the offenses when looking at this factor. See, e.g., Philmon v. State,
609 S.W.3d 532, 539 (Tex. Crim. App. 2020); Garfias v. State, 424 S.W.3d 54, 61 (Tex. Crim.
App. 2014).
15
2010) (explaining that common-focus factor “includes whether the gravamens of the offenses are

the same”). In fact, as we noted earlier, “the offenses at issue in this case each have a different

type of focus.” See Benson, 459 S.W.3d at 81. As noted previously, aggravated assault with the

underlying crime of assault causing bodily injury is a result-oriented offense. Landrian,

268 S.W.3d at 540. Consistent with being a result-oriented offense, aggravated assault focuses

on bodily injury to the victim, with the victim injured being the allowable unit of prosecution.

Shelby v. State, 448 S.W.3d 431, 439 (Tex. Crim. App. 2014); Landrian, 268 S.W.3d at 537; see

Garfias, 424 S.W.3d at 61 (concluding that conviction of aggravated assault causing bodily

injury “focused solely on the actual harm inflicted”). By contrast, aggravated sexual assault is a

nature-of-conduct offense. Vick, 991 S.W.2d at 832. The offense focuses on prohibited sexual

conduct, with each specified type of act constituting a discrete offense. Gonzales, 304 S.W.3d at

849; Huffman, 267 S.W.3d at 906; Vick, 991 S.W.2d at 833. Thus, the two offenses at issue here

do not have the same or a similar focus and do not prescribe the same unit of prosecution.7

The sixth factor considers whether the elements that differ between the two

offenses could be the same under an imputed theory of liability. Even under an imputed theory

of liability, the differing elements, as charged in this case, cannot be considered the same

7 The Court of Criminal Appeals recognized that in every case in which the court has
found the offenses to be the same under an Ervin analysis, the focus of each of the offenses and
the units of prosecution for the offenses have been the same. Ex parte Benson, 459 S.W.3d 67,
80 (Tex. Crim. App. 2015); see, e.g., Ex parte Ervin, 991 S.W.2d 804, 816 (Tex. Crim. App.
1999) (offenses of manslaughter and intoxication manslaughter are both result-oriented offenses
with common focus (death of individual) and identical units of prosecution (each victim killed));
Bigon v. State, 252 S.W.3d 360, 371 (Tex. Crim. App. 2008) (offenses of felony murder and
intoxication manslaughter are both result-oriented offenses with same focus (death of individual)
and identical units of prosecution (each victim killed)); Shelby v. State, 448 S.W.3d 431, 438–39
(Tex. Crim. App. 2014) (offenses of aggravated assault with deadly weapon against public
servant and intoxication assault are both result-oriented offenses with same focus (bodily injury
to individual) and same unit of prosecution (each victim injured)).
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because the element of intentionally, knowingly, or recklessly causing bodily injury, even under

a liberalized Blockburger standard, cannot be imputed to the element of penetrating the sexual

organ of the victim without her consent. “The different elements are not at all related.” See

Philmon, 609 S.W.3d at 540.

The last factor looks at whether there is legislative history articulating an intent to

treat the offenses as the same or different. With respect to these two offenses, there is no

legislative history explicitly suggesting either way.

While a few of the Ervin factors weigh in favor of the Legislature intending the

two offenses to be punished as one—that both offenses are found in the same chapter of the

Penal Code and the similarity in the offense names—those factors hold little weight given the

different foci and dissimilar gravamina of the two offenses. See Garfias, 424 S.W.3d at 59

(observing that Court of Criminal Appeals “has found that the focus, or ‘gravamen,’ of the two

offenses is the best indicator of the Legislature’s intent to treat the offenses as the same or

different for double jeopardy purposes”). After considering the non-exclusive Ervin factors, it is

not apparent that the Legislature clearly intended only one punishment for these two offenses.

Consequently, the judicial presumption that the two offenses, having different elements, are

different for double-jeopardy purposes is not rebutted. Therefore, we conclude that the two

offenses are not legally the same for double-jeopardy purposes.

Accordingly, the convictions for the Count I aggravated sexual assault and the

Count II aggravated assault, and the multiple punishments imposed for them, do not violate the

prohibition on double jeopardy. See Philmon, 609 S.W.3d at 536 (“If, as pleaded, the offenses

each have at least one element the other does not, and if, according to the relevant statutory

provisions, it is not clear that the Legislature intended both offenses to be punished as one, then

17
separate convictions and punishments for each offense does not violate one’s right against

double jeopardy.”). Because double-jeopardy principles were not violated in this case, no

double-jeopardy violation is clearly apparent from the face of the record, and appellant cannot

raise his double-jeopardy multiple-punishments claim for the first time on appeal. See Garfias,

424 S.W.3d at 64. We overrule appellant’s sole point of error.

CONCLUSION

Having concluded that appellant’s convictions for aggravated sexual assault in

Count I and for aggravated assault in Count II do not violate the double-jeopardy prohibition

against multiple punishments for the same offense, we affirm the trial court’s judgments

of conviction.

__________________________________________
Melissa Goodwin, Justice

Before Chief Justice Byrne, Justices Goodwin and Smith

Affirmed

Filed: February 11, 2021

Do Not Publish

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4660262. Public record. Not legal advice.