Ervin factors in Texas

2023Thus, having determined that the two offenses are not the same under the Blockburger test, we now turn to the Ervin factors to determine “whether the Legislature intended to allow the same conduct to be punished under both of the statutes in question.” Shelby, 448 S.W.3d at 436 ; see Ex parte Ervin, 991 S.W.2d at 814 .

2023Thus, having determined that the two offenses are not the same under the Blockburger test, we now turn to the Ervin factors to determine “whether the Legislature intended to allow the same conduct to be punished under both of the statutes in question.” Shelby, 448 S.W.3d at 436 ; see Ex parte Ervin, 991 S.W.2d at 814 .

2023Id. at 371 . 38 Turning to the Ervin factors, we must also determine whether the offenses at issue share a common focus or gravamen.

2023Id. at 371 . 38 Turning to the Ervin factors, we must also determine whether the offenses at issue share a common focus or gravamen.

2024Thus, in sum, the combination of the first four Ervin factors weighs against treating these offenses as the same for double jeopardy purposes.4 See Garfias, 424 S.W.3d at 61 .

2023Shelby went on to note that certain elements of the Ervin test that focus on the gravamen of the offense are the truest indication of legislative intent: The fifth factor [of the Ervin test], which requires a court to examine the “focus” or “gravamen” of a penal provision, should be regarded as the best indicator of legislative intent when determining whether a multiple- punishments violation has occurred. [Garfias, 424 S.W.3d at 59 .] And the sixth factor described above particularly requires a court to consider the allowable unit of prosecution for the offenses when conducting an “elements”

2013See Hall, 225 S.W.3d at 533 n. 39 (recognizing that Hunter involved a cognate-pleadings analysis); Bigon, 252 S.W.3d at 372 (under an Ervin analysis, looking at charging instrument allegations to determine the underlying felony in felony-murder prosecution); Ervin, 991 S.W.2d at 807 (recognizing "the inverse conclusion” from Hunter). .

2013See Hall, 225 S.W.3d at 533 n. 39 (recognizing that Hunter involved a cognate-pleadings analysis); Bigon, 252 S.W.3d at 372 (under an Ervin analysis, looking at charging instrument allegations to determine the underlying felony in felony-murder prosecution); Ervin, 991 S.W.2d at 807 (recognizing "the inverse conclusion” from Hunter). .

2017Ex parte Benson, 459 S.W.3d at 72-73 (discussing Ervin factors). 1.

2017While Rodriguez makes a persuasive argument, we cannot agree that application of the Ervin factors shows “the legislature clearly intended only one punishment.” Ex parte Benson, 459 S.W.3d at 72 .

2013App. 2011); Gonzales, 304 S.W.3d at 848 . 10 Consideration of the first four Ervin factors here does not indicate that the legislature intended for these offenses to be treated the same for double jeopardy purposes or to disallow multiple punishments.

2012In Gonzales v. State, the court of criminal appeals indicated, but did not expressly state, that the Ervin factors should be applied only when conduct constitutes two separate offenses under Blockburger . 6 See 304 S.W.3d at 845-46 .

2015See id. at 60; Villanueva v. State, 227 S.W.3d 744, 747 (Tex.Crim.App.2007).

2015See id. at 60; Villanueva v. State, 227 S.W.3d 744, 747 (Tex. Crim.

2010See Guerrero v. State, 305 S.W.3d 546 (Tex.Crim.App.2009).

2010See Guerrero v. State, 305 S.W.3d 546 (Tex.Crim.App.2009).

2025Patterson v. State, 606 S.W.3d 3 , 38–39 (Tex. App.—Corpus Christi–Edinburg 2020, pet. ref’d) (first citing Tex. Penal Code Ann. §§ 31.03 (a), 32.45; and then citing Talamantez, 790 S.W.2d at 37 (“Any person may commit theft,” but “[o]nly one in a position of trust may commit misapplication of fiduciary property”)); see Rubio v. State, No. 08-18-00006-CR, 2020 WL 3481566 , at *5 (Tex. App.—El Paso June 26, 2020, pet. ref’d) (not designated for publication) (“Appellant has failed to show that the legislature intended that these two offenses[—theft and misapplication of fiduciary 8 property—]are

2025Patterson v. State, 606 S.W.3d 3 , 38–39 (Tex. App.—Corpus Christi–Edinburg 2020, pet. ref’d) (first citing Tex. Penal Code Ann. §§ 31.03 (a), 32.45; and then citing Talamantez, 790 S.W.2d at 37 (“Any person may commit theft,” but “[o]nly one in a position of trust may commit misapplication of fiduciary property”)); see Rubio v. State, No. 08-18-00006-CR, 2020 WL 3481566 , at *5 (Tex. App.—El Paso June 26, 2020, pet. ref’d) (not designated for publication) (“Appellant has failed to show that the legislature intended that these two offenses[—theft and misapplication of fiduciary 8 property—]are

2015Even if an analysis of the Ervin factors were inconclusive, applicant’s double-jeopardy claim would fail, because the presumption established by the offenses having different elements under the Blockburger analysis would remain unrebutted.136 When the Blockburger same-elements test indicates that the offenses are different, the evidence that the legislature intended only one punishment must be clear in order to rebut that presumption.137 Whatever else one might say, one cannot say that the legislature clearly intended only one punishment for the offenses of felony DWI and intoxication assault.

2015Even if an analysis of the Ervin factors were inconclusive, applicant’s double-jeopardy claim would fail, because the presumption established by the offenses having different elements under the Blockburger analysis would remain unrebutted.136 When the Blockburger same-elements test indicates that the offenses are different, the evidence that the legislature intended only one punishment must be clear in order to rebut that presumption.137 Whatever else one might say, one cannot say that the legislature clearly intended only one punishment for the offenses of felony DWI and intoxication assault.

2014Garfias II, 381 S.W.3d at 635 (“We recognize that some of the [Ervin factors] weigh in favor of a conclusion that the legislature intended multiple punishments....").

2014The court of appeals freely acknowledged that the Ervin factors weighed against its decision, but chose to ignore them and reach the opposite result.67 In doing so, it departed from long- standing double-jeopardy jurisprudence, which requires courts to analyze double-jeopardy 65 Parrish, 869 S.W.2d at 354 ; see also Patterson, 152 S.W.3d at 94 (Hervey, J., concurring). 66 Patterson, 152 S.W.3d at 92 . 67 Garfias II, 381 S.W.3d at 635 (“We recognize that some of the [Ervin factors] weigh in favor of a conclusion that the legislature intended multiple punishments . . . .”).

2012See Zuliani v. State, 353 S.W.3d 872, 872 (Tex. Crim.

2012See Zuliani v. State, 353 S.W.3d 872, 872 (Tex. Crim.

2012Compare Weinn v. State, 326 S.W.3d 189, 192-94 (Tex.Crim.App.2010) (applying Ervin factors where offenses have different elements under Blockburger); Gonzales, 304 S.W.3d at 846-47 ; Bigon v. State, 252 S.W.3d 360, 370 (Tex.Crim.App.2008), with Littrell v. State, 271 S.W.3d 273, 278 (Tex.Crim.App.2008) (applying “clear-expression” standard where offenses have same elements under Blockburger); Garza, 213 S.W.3d at 351-52 ; Patterson, 152 S.W.3d at 91-92 .

2012App. 2008), with Littrell v. State , 271 S.W.3d 273, 278 (Tex. Crim.

2012As the court explained in Huffman v. State, “the focus or ‘gravamen’ of the offense seems to be one of the best indicators of the allowable unit of prosecution prescribed by the legislature.” See 267 S.W.3d 902, 907 (Tex.Crim.App.2008).

2012As the court explained in Huffman v. State, “the focus or ‘gravamen’ of the offense seems to be one of the best indicators of the allowable unit of prosecution prescribed by the legislature.” See 267 S.W.3d 902, 907 (Tex. Crim.

2011This analysis can occur in both the multiple prosecution and the multiple punishment contexts. 18 See Hall, 225 S.W.3d at 533 n.39 (recognizing that Hunter involved a cognate pleadings analysis); Bigon, 252 S.W.3d at 372 (under an Ervin analysis, looking at charging instrument allegations to determine the underlying felony in felony murder prosecution); Ervin, 991 S.W.2d at 807 (recognizing “the inverse conclusion” from Hunter). 19 Bigon, 252 S.W.3d at 371-72 . 20 See Sanabria v. United States, 437 U.S. 54, 69-70 , 69 n.24 (1978); Saenz v. State, 166 S.W.3d 270, 272-74 (Tex. Crim.

2011This analysis can occur in both the multiple prosecution and the multiple punishment contexts. 18 See Hall, 225 S.W.3d at 533 n.39 (recognizing that Hunter involved a cognate pleadings analysis); Bigon, 252 S.W.3d at 372 (under an Ervin analysis, looking at charging instrument allegations to determine the underlying felony in felony murder prosecution); Ervin, 991 S.W.2d at 807 (recognizing “the inverse conclusion” from Hunter). 19 Bigon, 252 S.W.3d at 371-72 . 20 See Sanabria v. United States, 437 U.S. 54, 69-70 , 69 n.24 (1978); Saenz v. State, 166 S.W.3d 270, 272-74 (Tex. Crim.

2023See Blockburger v. U.S., 284 U.S. 299, 304 , 52 S. Ct. 180, 182 (1932); Ervin v. State, 991 S.W.2d 804, 807 (Tex. Crim.

2023See Blockburger v. U.S., 284 U.S. 299, 304 , 52 S. Ct. 180, 182 (1932); Ervin v. State, 991 S.W.2d 804, 807 (Tex. Crim.

2023Thus, having determined that the two offenses are not the same under the Blockburger test, we now turn to the Ervin factors to determine “whether the Legislature intended to allow the same conduct to be punished under both of the statutes in question.” Shelby, 448 S.W.3d at 436 ; see Ex parte Ervin, 991 S.W.2d at 814 .

2023Thus, having determined that the two offenses are not the same under the Blockburger test, we now turn to the Ervin factors to determine “whether the Legislature intended to allow the same conduct to be punished under both of the statutes in question.” Shelby, 448 S.W.3d at 436 ; see Ex parte Ervin, 991 S.W.2d at 814 .

2014The court of appeals freely acknowledged that the Ervin factors weighed against its decision, but chose to ignore them and reach the opposite result.67 In doing so, it departed from long- standing double-jeopardy jurisprudence, which requires courts to analyze double-jeopardy 65 Parrish, 869 S.W.2d at 354 ; see also Patterson, 152 S.W.3d at 94 (Hervey, J., concurring). 66 Patterson, 152 S.W.3d at 92 . 67 Garfias II, 381 S.W.3d at 635 (“We recognize that some of the [Ervin factors] weigh in favor of a conclusion that the legislature intended multiple punishments . . . .”).

2014The court of appeals freely acknowledged that the Ervin factors weighed against its decision, but chose to ignore them and reach the opposite result.67 In doing so, it departed from long- standing double-jeopardy jurisprudence, which requires courts to analyze double-jeopardy 65 Parrish, 869 S.W.2d at 354 ; see also Patterson, 152 S.W.3d at 94 (Hervey, J., concurring). 66 Patterson, 152 S.W.3d at 92 . 67 Garfias II, 381 S.W.3d at 635 (“We recognize that some of the [Ervin factors] weigh in favor of a conclusion that the legislature intended multiple punishments . . . .”).

2010App. 2008); Hunter, 459 U.S. at 366 (“With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater AMADOR DISSENT — 3 different elements under Blockburger, the offenses are presumed to be different, but that presumption can be rebutted if other factors reveal that the Legislature nevertheless intended the offenses to be treated as the same.6 The Ervin analysis is part of the “elements” aspect of Double Jeopardy law.7 The allowable unit of prosecution prescribed for the offenses in question is

2010App. 2008); Hunter, 459 U.S. at 366 (“With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater AMADOR DISSENT — 3 different elements under Blockburger, the offenses are presumed to be different, but that presumption can be rebutted if other factors reveal that the Legislature nevertheless intended the offenses to be treated as the same.6 The Ervin analysis is part of the “elements” aspect of Double Jeopardy law.7 The allowable unit of prosecution prescribed for the offenses in question is

2025Patterson v. State, 606 S.W.3d 3 , 38–39 (Tex. App.—Corpus Christi–Edinburg 2020, pet. ref’d) (first citing Tex. Penal Code Ann. §§ 31.03 (a), 32.45; and then citing Talamantez, 790 S.W.2d at 37 (“Any person may commit theft,” but “[o]nly one in a position of trust may commit misapplication of fiduciary property”)); see Rubio v. State, No. 08-18-00006-CR, 2020 WL 3481566 , at *5 (Tex. App.—El Paso June 26, 2020, pet. ref’d) (not designated for publication) (“Appellant has failed to show that the legislature intended that these two offenses[—theft and misapplication of fiduciary 8 property—]are

2025Patterson v. State, 606 S.W.3d 3 , 38–39 (Tex. App.—Corpus Christi–Edinburg 2020, pet. ref’d) (first citing Tex. Penal Code Ann. §§ 31.03 (a), 32.45; and then citing Talamantez, 790 S.W.2d at 37 (“Any person may commit theft,” but “[o]nly one in a position of trust may commit misapplication of fiduciary property”)); see Rubio v. State, No. 08-18-00006-CR, 2020 WL 3481566 , at *5 (Tex. App.—El Paso June 26, 2020, pet. ref’d) (not designated for publication) (“Appellant has failed to show that the legislature intended that these two offenses[—theft and misapplication of fiduciary 8 property—]are

2021Benson, 459 S.W.3d at 72 ; Stanley v. State, 470 S.W.3d 664, 668 (Tex. App.—Dallas 2015, no pet.). 2.

2021Benson, 459 S.W.3d at 72 ; Stanley v. State, 470 S.W.3d 664, 668 (Tex. App.—Dallas 2015, no pet.). 2.

2015Even if an analysis of the Ervin factors were inconclusive, applicant’s double-jeopardy claim would fail, because the presumption established by the offenses having different elements under the Blockburger analysis would remain unrebutted.136 When the Blockburger same-elements test indicates that the offenses are different, the evidence that the legislature intended only one punishment must be clear in order to rebut that presumption.137 Whatever else one might say, one cannot say that the legislature clearly intended only one punishment for the offenses of felony DWI and intoxication assault.

2015Even if an analysis of the Ervin factors were inconclusive, applicant’s double-jeopardy claim would fail, because the presumption established by the offenses having different elements under the Blockburger analysis would remain unrebutted.136 When the Blockburger same-elements test indicates that the offenses are different, the evidence that the legislature intended only one punishment must be clear in order to rebut that presumption.137 Whatever else one might say, one cannot say that the legislature clearly intended only one punishment for the offenses of felony DWI and intoxication assault.

2013See Hall, 225 S.W.3d at 526 , 533- 35. 32 See Clinton v. State, 354 S.W.3d 795, 802-03 (Tex. Crim.

2013See Hall, 225 S.W.3d at 526 , 533- 35. 32 See Clinton v. State, 354 S.W.3d 795, 802-03 (Tex. Crim.

2012Compare Weinn v. State, 326 S.W.3d 189, 192-94 (Tex.Crim.App.2010) (applying Ervin factors where offenses have different elements under Blockburger); Gonzales, 304 S.W.3d at 846-47 ; Bigon v. State, 252 S.W.3d 360, 370 (Tex.Crim.App.2008), with Littrell v. State, 271 S.W.3d 273, 278 (Tex.Crim.App.2008) (applying “clear-expression” standard where offenses have same elements under Blockburger); Garza, 213 S.W.3d at 351-52 ; Patterson, 152 S.W.3d at 91-92 .

2012These so-called “Ervin factors” include: (1) whether the offenses are in the same statutory section; (2) whether the offenses are phrased in the alternative; (3) whether the offenses are named similarly; 5 See also Garza v. State, 213 S.W.3d 338 , 251–52 (Tex. Crim.