Block-burger test in Texas

2016Ervin v. State, 991 S.W.2d 804, 814 (Tex. Crim.App.1999).

2016Ervin v. State, 991 S.W.2d 804, 814 (Tex. Crim.App.1999).

2017“Conversely, if the two offenses have different elements under the Block-burger test, the judicial presumption is that the offenses are different for double-jeopardy purposes and that cumulative punishment may be imposed.” Id.

2017“Conversely, if the two offenses have different elements under the Block-burger test, the judicial presumption is that the offenses are different for double-jeopardy purposes and that cumulative punishment may be imposed.” Id.

1992In Grady v. Corbin, 110 S.Ct. at 2093 , the Court expanded on the Blockburger test, by adding a “same conduct” prong to its double jeopardy analysis: Thus, a subsequent prosecution must do more than merely survive the Block-burger test.

1992In Grady v. Corbin, 110 S.Ct. at 2093 , the Court expanded on the Blockburger test, by adding a “same conduct” prong to its double jeopardy analysis: Thus, a subsequent prosecution must do more than merely survive the Block-burger test.

2002Dixon, 509 U.S. at 696 , 113 S.Ct. at 2856 .

2002Dixon, 509 U.S. at 696 , 113 S.Ct. at 2856 .

1992Justice Brennan, in writing the majority opinion in Grady , wrote that: This Court held [in Illinois v. Vitale, 447 U.S. 410 , 100 S.Ct. 2260 , 65 L.Ed.2d 228 (1980) ] that the second prosecution was not barred under the traditional Block-burger test because each offense “require^] proof of a fact which the other [did] not.” See Blockburger, 284 U.S. [299], at 304, 52 S.Ct. [180], at 182 [ 76 L.Ed. 306 (1932) ].

1992Justice Brennan, in writing the majority opinion in Grady , wrote that: This Court held [in Illinois v. Vitale, 447 U.S. 410 , 100 S.Ct. 2260 , 65 L.Ed.2d 228 (1980) ] that the second prosecution was not barred under the traditional Block-burger test because each offense “require^] proof of a fact which the other [did] not.” See Blockburger, 284 U.S. [299], at 304, 52 S.Ct. [180], at 182 [ 76 L.Ed. 306 (1932) ].

2016“Under the Block-burger test, two offenses are not the same if one requires proof of an element that the other does not.” Bigon, 252 S.W.3d at 370 .

2016“Under the Block-burger test, two offenses are not the same if one requires proof of an element that the other does not.” Bigon, 252 S.W.3d at 370 .

2013See Ex parte Hawkins, 6 S.W.3d 554 , 555 & n. 4 (Tex.Crim.App.1999) (noting that Block-burger test applies only when “ ‘the same act or transaction constitutes a violation of two distinct statutory provisions’ ” (quoting Blockburger, 284 U.S. at 304 , 52 S.Ct. at 180 )).

2004Id. 6 .

2014See Garfias, 424 S.W.3d at 59 .

2014See Garfias, 424 S.W.3d at 59 .

2012See Bigon, 252 S.W.3d at 370 (citing Parrish v. State, 869 S.W.2d 352, 354 (Tex.Crim.App.1994)) (describing Texas’s modified Block-burger test).

2009United States v. Adams, 1 F.3d 1566, 1574 (11th Cir.1993) (post-Dixon analysis); see also United States v. Odutayo, 406 F.3d 386, 392 (5th Cir.2005) ("The application of the Block-burger test does not involve the detailed examination of the case’s factual circumstances; rather, our inquiry focuses on the elements of the statutoiy offense.”); United States v. Lankford, 196 F.3d 563, 577 (5th Cir.1999) ("In applying [the Bloekburger] test, vve examine not the particular circumstances involved in the case before us, but the statutoiy elements”); United States v. Soape, 169 F.3d 257, 265 (5th Cir.

2009United States v. Adams, 1 F.3d 1566, 1574 (11th Cir.1993) (post-Dixon analysis); see also United States v. Odutayo, 406 F.3d 386, 392 (5th Cir.2005) ("The application of the Block-burger test does not involve the detailed examination of the case’s factual circumstances; rather, our inquiry focuses on the elements of the statutoiy offense.”); United States v. Lankford, 196 F.3d 563, 577 (5th Cir.1999) ("In applying [the Bloekburger] test, vve examine not the particular circumstances involved in the case before us, but the statutoiy elements”); United States v. Soape, 169 F.3d 257, 265 (5th Cir.

2009United States v. Adams, 1 F.3d 1566, 1574 (11th Cir.1993) (post-Dixon analysis); see also United States v. Odutayo, 406 F.3d 386, 392 (5th Cir.2005) ("The application of the Block-burger test does not involve the detailed examination of the case’s factual circumstances; rather, our inquiry focuses on the elements of the statutoiy offense.”); United States v. Lankford, 196 F.3d 563, 577 (5th Cir.1999) ("In applying [the Bloekburger] test, vve examine not the particular circumstances involved in the case before us, but the statutoiy elements”); United States v. Soape, 169 F.3d 257, 265 (5th Cir.

2009United States v. Adams, 1 F.3d 1566, 1574 (11th Cir.1993) (post-Dixon analysis); see also United States v. Odutayo, 406 F.3d 386, 392 (5th Cir.2005) ("The application of the Block-burger test does not involve the detailed examination of the case’s factual circumstances; rather, our inquiry focuses on the elements of the statutoiy offense.”); United States v. Lankford, 196 F.3d 563, 577 (5th Cir.1999) ("In applying [the Bloekburger] test, vve examine not the particular circumstances involved in the case before us, but the statutoiy elements”); United States v. Soape, 169 F.3d 257, 265 (5th Cir.

2009Thus, the question is not whether this violation of § 2119 also constituted a violation of § 924(c), but whether all violations of the former constitute violations of the latter.”) (footnotes omitted); United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir.2005) (noting that "Lt]he Bloekburger test focuses on the statutoiy elements of each offense, not on the actual evidence presented at trial”); United States v. Fornia-Castillo, 408 F.3d 52, 70 (1st Cir.2005) (holding that the Bloekburger test focuses on statutoiy elements of each offense); United States v. Moore, 43 F.3d 568, 571 (11th Cir.1

2009Thus, the question is not whether this violation of § 2119 also constituted a violation of § 924(c), but whether all violations of the former constitute violations of the latter.”) (footnotes omitted); United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir.2005) (noting that "Lt]he Bloekburger test focuses on the statutoiy elements of each offense, not on the actual evidence presented at trial”); United States v. Fornia-Castillo, 408 F.3d 52, 70 (1st Cir.2005) (holding that the Bloekburger test focuses on statutoiy elements of each offense); United States v. Moore, 43 F.3d 568, 571 (11th Cir.1

2009United States v. Adams, 1 F.3d 1566, 1574 (11th Cir.1993) (post-Dixon analysis); see also United States v. Odutayo, 406 F.3d 386, 392 (5th Cir.2005) ("The application of the Block-burger test does not involve the detailed examination of the case’s factual circumstances; rather, our inquiry focuses on the elements of the statutoiy offense.”); United States v. Lankford, 196 F.3d 563, 577 (5th Cir.1999) ("In applying [the Bloekburger] test, vve examine not the particular circumstances involved in the case before us, but the statutoiy elements”); United States v. Soape, 169 F.3d 257, 265 (5th Cir.

2009United States v. Adams, 1 F.3d 1566, 1574 (11th Cir.1993) (post-Dixon analysis); see also United States v. Odutayo, 406 F.3d 386, 392 (5th Cir.2005) ("The application of the Block-burger test does not involve the detailed examination of the case’s factual circumstances; rather, our inquiry focuses on the elements of the statutoiy offense.”); United States v. Lankford, 196 F.3d 563, 577 (5th Cir.1999) ("In applying [the Bloekburger] test, vve examine not the particular circumstances involved in the case before us, but the statutoiy elements”); United States v. Soape, 169 F.3d 257, 265 (5th Cir.

2009Thus, the question is not whether this violation of § 2119 also constituted a violation of § 924(c), but whether all violations of the former constitute violations of the latter.”) (footnotes omitted); United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir.2005) (noting that "Lt]he Bloekburger test focuses on the statutoiy elements of each offense, not on the actual evidence presented at trial”); United States v. Fornia-Castillo, 408 F.3d 52, 70 (1st Cir.2005) (holding that the Bloekburger test focuses on statutoiy elements of each offense); United States v. Moore, 43 F.3d 568, 571 (11th Cir.1

2009Thus, the question is not whether this violation of § 2119 also constituted a violation of § 924(c), but whether all violations of the former constitute violations of the latter.”) (footnotes omitted); United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir.2005) (noting that "Lt]he Bloekburger test focuses on the statutoiy elements of each offense, not on the actual evidence presented at trial”); United States v. Fornia-Castillo, 408 F.3d 52, 70 (1st Cir.2005) (holding that the Bloekburger test focuses on statutoiy elements of each offense); United States v. Moore, 43 F.3d 568, 571 (11th Cir.1

2009Thus, the question is not whether this violation of § 2119 also constituted a violation of § 924(c), but whether all violations of the former constitute violations of the latter.”) (footnotes omitted); United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir.2005) (noting that "Lt]he Bloekburger test focuses on the statutoiy elements of each offense, not on the actual evidence presented at trial”); United States v. Fornia-Castillo, 408 F.3d 52, 70 (1st Cir.2005) (holding that the Bloekburger test focuses on statutoiy elements of each offense); United States v. Moore, 43 F.3d 568, 571 (11th Cir.1

2009Thus, the question is not whether this violation of § 2119 also constituted a violation of § 924(c), but whether all violations of the former constitute violations of the latter.”) (footnotes omitted); United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir.2005) (noting that "Lt]he Bloekburger test focuses on the statutoiy elements of each offense, not on the actual evidence presented at trial”); United States v. Fornia-Castillo, 408 F.3d 52, 70 (1st Cir.2005) (holding that the Bloekburger test focuses on statutoiy elements of each offense); United States v. Moore, 43 F.3d 568, 571 (11th Cir.1

2009See, e.g., Ephraim v. State, 237 S.W.3d 438, 441 (Tex.App.-Texarkana 2007, pet. ref’d) (defendant's conviction for driving at an unsafe speed did not bar, on double jeopardy grounds, successive prosecution for intoxication assault); State v. Guzman, 182 S.W.3d 389, 391-93 (Tex.App.-Austin 2005, no pet.) (prosecution for child endangerment based on indictment allegation that defendant drove while intoxicated with child under age 15 as a passenger was not barred by double jeopardy after defendant pleaded guilty to driving while intoxicated (DWI); under Bloekburger test, allegation of "driving wh

2009See, e.g., Ephraim v. State, 237 S.W.3d 438, 441 (Tex.App.-Texarkana 2007, pet. ref’d) (defendant's conviction for driving at an unsafe speed did not bar, on double jeopardy grounds, successive prosecution for intoxication assault); State v. Guzman, 182 S.W.3d 389, 391-93 (Tex.App.-Austin 2005, no pet.) (prosecution for child endangerment based on indictment allegation that defendant drove while intoxicated with child under age 15 as a passenger was not barred by double jeopardy after defendant pleaded guilty to driving while intoxicated (DWI); under Bloekburger test, allegation of "driving wh

2009United States v. Adams, 1 F.3d 1566, 1574 (11th Cir.1993) (post-Dixon analysis); see also United States v. Odutayo, 406 F.3d 386, 392 (5th Cir.2005) ("The application of the Block-burger test does not involve the detailed examination of the case’s factual circumstances; rather, our inquiry focuses on the elements of the statutoiy offense.”); United States v. Lankford, 196 F.3d 563, 577 (5th Cir.1999) ("In applying [the Bloekburger] test, vve examine not the particular circumstances involved in the case before us, but the statutoiy elements”); United States v. Soape, 169 F.3d 257, 265 (5th Cir.

2009United States v. Adams, 1 F.3d 1566, 1574 (11th Cir.1993) (post-Dixon analysis); see also United States v. Odutayo, 406 F.3d 386, 392 (5th Cir.2005) ("The application of the Block-burger test does not involve the detailed examination of the case’s factual circumstances; rather, our inquiry focuses on the elements of the statutoiy offense.”); United States v. Lankford, 196 F.3d 563, 577 (5th Cir.1999) ("In applying [the Bloekburger] test, vve examine not the particular circumstances involved in the case before us, but the statutoiy elements”); United States v. Soape, 169 F.3d 257, 265 (5th Cir.

2009United States v. Adams, 1 F.3d 1566, 1574 (11th Cir.1993) (post-Dixon analysis); see also United States v. Odutayo, 406 F.3d 386, 392 (5th Cir.2005) ("The application of the Block-burger test does not involve the detailed examination of the case’s factual circumstances; rather, our inquiry focuses on the elements of the statutoiy offense.”); United States v. Lankford, 196 F.3d 563, 577 (5th Cir.1999) ("In applying [the Bloekburger] test, vve examine not the particular circumstances involved in the case before us, but the statutoiy elements”); United States v. Soape, 169 F.3d 257, 265 (5th Cir.

2009United States v. Adams, 1 F.3d 1566, 1574 (11th Cir.1993) (post-Dixon analysis); see also United States v. Odutayo, 406 F.3d 386, 392 (5th Cir.2005) ("The application of the Block-burger test does not involve the detailed examination of the case’s factual circumstances; rather, our inquiry focuses on the elements of the statutoiy offense.”); United States v. Lankford, 196 F.3d 563, 577 (5th Cir.1999) ("In applying [the Bloekburger] test, vve examine not the particular circumstances involved in the case before us, but the statutoiy elements”); United States v. Soape, 169 F.3d 257, 265 (5th Cir.

2009Thus, the question is not whether this violation of § 2119 also constituted a violation of § 924(c), but whether all violations of the former constitute violations of the latter.”) (footnotes omitted); United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir.2005) (noting that "Lt]he Bloekburger test focuses on the statutoiy elements of each offense, not on the actual evidence presented at trial”); United States v. Fornia-Castillo, 408 F.3d 52, 70 (1st Cir.2005) (holding that the Bloekburger test focuses on statutoiy elements of each offense); United States v. Moore, 43 F.3d 568, 571 (11th Cir.1

2009Thus, the question is not whether this violation of § 2119 also constituted a violation of § 924(c), but whether all violations of the former constitute violations of the latter.”) (footnotes omitted); United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir.2005) (noting that "Lt]he Bloekburger test focuses on the statutoiy elements of each offense, not on the actual evidence presented at trial”); United States v. Fornia-Castillo, 408 F.3d 52, 70 (1st Cir.2005) (holding that the Bloekburger test focuses on statutoiy elements of each offense); United States v. Moore, 43 F.3d 568, 571 (11th Cir.1

2009See, e.g., Ephraim v. State, 237 S.W.3d 438, 441 (Tex.App.-Texarkana 2007, pet. ref’d) (defendant's conviction for driving at an unsafe speed did not bar, on double jeopardy grounds, successive prosecution for intoxication assault); State v. Guzman, 182 S.W.3d 389, 391-93 (Tex.App.-Austin 2005, no pet.) (prosecution for child endangerment based on indictment allegation that defendant drove while intoxicated with child under age 15 as a passenger was not barred by double jeopardy after defendant pleaded guilty to driving while intoxicated (DWI); under Bloekburger test, allegation of "driving wh

2009See, e.g., Ephraim v. State, 237 S.W.3d 438, 441 (Tex.App.-Texarkana 2007, pet. ref’d) (defendant's conviction for driving at an unsafe speed did not bar, on double jeopardy grounds, successive prosecution for intoxication assault); State v. Guzman, 182 S.W.3d 389, 391-93 (Tex.App.-Austin 2005, no pet.) (prosecution for child endangerment based on indictment allegation that defendant drove while intoxicated with child under age 15 as a passenger was not barred by double jeopardy after defendant pleaded guilty to driving while intoxicated (DWI); under Bloekburger test, allegation of "driving wh

1999Circuit concluded that “the addition of a more searching examination of legislative intent [than the Block-burger test] in the case of District defendants would only heighten the degree of ... disparate treatment.” Sumler, 136 F.3d at 191 (bracketed material and ellipsis inserted). 9 Finally, as discussed above, in cases concerning variations of murder, courts in Connecticut, Maryland, and South Dakota have broadly articulated a “one death, one homicide” rule that would appear to extend to any multiple homicide prosecution based upon a single death.

1999Circuit concluded that “the addition of a more searching examination of legislative intent [than the Block-burger test] in the case of District defendants would only heighten the degree of ... disparate treatment.” Sumler, 136 F.3d at 191 (bracketed material and ellipsis inserted). 9 Finally, as discussed above, in cases concerning variations of murder, courts in Connecticut, Maryland, and South Dakota have broadly articulated a “one death, one homicide” rule that would appear to extend to any multiple homicide prosecution based upon a single death.

1998See Rathmell, 717 S.W.2d at 35 (the Blockburger rationale applies to situations in which the criminal conduct violates two separate distinct statutory provisions); iglehart, 837 S.W.2d at 130 (Clinton, J., dissenting) (the Blockburger test determines when jeopardy will and will not permit multiple prosecutions where two distinct statutes are violated by the same conduct); see also Watson, 900 S.W.2d at 64 (Clinton, J., concurring) (concluding that Blockburger was the appropriate test in that case because “simultaneous possession of cocaine and heroin amounts to violation of more than one statu

1998See Rathmell, 717 S.W.2d at 35 (the Blockburger rationale applies to situations in which the criminal conduct violates two separate distinct statutory provisions); iglehart, 837 S.W.2d at 130 (Clinton, J., dissenting) (the Blockburger test determines when jeopardy will and will not permit multiple prosecutions where two distinct statutes are violated by the same conduct); see also Watson, 900 S.W.2d at 64 (Clinton, J., concurring) (concluding that Blockburger was the appropriate test in that case because “simultaneous possession of cocaine and heroin amounts to violation of more than one statu

1998See Rathmell, 717 S.W.2d at 35 (the Blockburger rationale applies to situations in which the criminal conduct violates two separate distinct statutory provisions); iglehart, 837 S.W.2d at 130 (Clinton, J., dissenting) (the Blockburger test determines when jeopardy will and will not permit multiple prosecutions where two distinct statutes are violated by the same conduct); see also Watson, 900 S.W.2d at 64 (Clinton, J., concurring) (concluding that Blockburger was the appropriate test in that case because “simultaneous possession of cocaine and heroin amounts to violation of more than one statu

1998See Rathmell, 717 S.W.2d at 35 (the Blockburger rationale applies to situations in which the criminal conduct violates two separate distinct statutory provisions); iglehart, 837 S.W.2d at 130 (Clinton, J., dissenting) (the Blockburger test determines when jeopardy will and will not permit multiple prosecutions where two distinct statutes are violated by the same conduct); see also Watson, 900 S.W.2d at 64 (Clinton, J., concurring) (concluding that Blockburger was the appropriate test in that case because “simultaneous possession of cocaine and heroin amounts to violation of more than one statu

1998See Rathmell, 717 S.W.2d at 35 (the Blockburger rationale applies to situations in which the criminal conduct violates two separate distinct statutory provisions); iglehart, 837 S.W.2d at 130 (Clinton, J., dissenting) (the Blockburger test determines when jeopardy will and will not permit multiple prosecutions where two distinct statutes are violated by the same conduct); see also Watson, 900 S.W.2d at 64 (Clinton, J., concurring) (concluding that Blockburger was the appropriate test in that case because “simultaneous possession of cocaine and heroin amounts to violation of more than one statu

1998See Rathmell, 717 S.W.2d at 35 (the Blockburger rationale applies to situations in which the criminal conduct violates two separate distinct statutory provisions); iglehart, 837 S.W.2d at 130 (Clinton, J., dissenting) (the Blockburger test determines when jeopardy will and will not permit multiple prosecutions where two distinct statutes are violated by the same conduct); see also Watson, 900 S.W.2d at 64 (Clinton, J., concurring) (concluding that Blockburger was the appropriate test in that case because “simultaneous possession of cocaine and heroin amounts to violation of more than one statu