multiple-punishments claim in Texas

2021A multiple-punishments claim can arise when a person is punished for (1) the same primary offense twice, “once for the basic conduct, and a second time for that same conduct plus more,” or (2) the same criminal act twice under two distinct statutes “when the legislature intended the conduct to be punished only once[.]” Langs v. State, 183 S.W.3d 680, 685 (Tex. Crim.

2015Count II of the I indictment alleged that Perry intentionally or knowingly threatened McKinney with imminent 7 A multiple-punishments claim can arise either in "the lesser-included offense context, in which the same conduct is I punished twice; once for the basic conduct, and a second time for that same conduct plus more (for example, attempted assault of Y and assault of Y; assault of X and aggravated assault of X)" or "when the same conduct is punished under two distinct statutes where the Legislature only intended for the conduct to be punished once." Langs, 183 S.W.3d at 685 ; Garjias v. S

2025See Gonzalez v. State, 9 8 S.W.3d 640 , 643 n.9 (Tex. Crim.

2001The court then articulated a revival test explaining when a double jeopardy claim may be raised for the first time on appeal or on collateral attack:“when the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and when enforcement of usual rules of procedural default serves no state interest.” Id. at 643 (emphasis added).8 After finding that the defendant there had forfeited his multiple punishments double jeopardy claim by failing to make a trial objection, the Gonzalez court applied the aforementioned revival test and found that “the face of the

2025“A multiple-punishments violation can arise either in the context of lesser-included offenses, where the same conduct is punished under a greater and a lesser-included offense, and when the same conduct is punished under two distinct statutes where the Legislature only intended for the conduct to be punished once.” Garfias v. State, 424 S.W.3d 54, 58 (Tex. Crim.

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”

2026Bigon v. State, 252 S.W.3d 360, 370 (Tex. Crim.

2026Bigon v. State, 252 S.W.3d 360, 370 (Tex. Crim.

2019Id. (citing Blockburger v. United States, 284 U.S. 299, 304 (1932)).

2017Id. (citing Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932)).

2025One way in which a multiple-punishments claim may arise is “where there Andre Duane Boyd v. The State of Texas Page 7 are both a greater and a lesser-included offense and the same conduct is punished twice— once for the basic conduct and a second time for that conduct plus more[.]” Ex parte Denton, 399 S.W.3d 540, 545 (Tex. Crim.

2015“There are two variations of a multiple-punishments claim: (1) where there are both a greater and a lesser-included offense and the same conduct is punished twice—once for the basic conduct and a second time for that conduct plus more; and (2) where the same criminal act is punished under two distinct statutes and the legislature intended the conduct to be punished only once—such as causing a single death and being charged with both intoxication manslaughter and involuntary manslaughter.” Ex parte Denton, 399 S.W.3d 540, 545 (Tex Crim.

2008Following our decision in Ex parte Ervin , the court held that there was a multiple-punishments violation. 991 S.W.2d 804 (Tex.Crim.App.1999).

2008Following our decision in Ex parte Er vin, the court held that there was a multiple-punishments violation. 991 S.W.2d 804 (Tex.Crim.App.1999).

2024See id.; Ex parte Aubin, 537 S.W.3d at 43 (“It is only upon entry of a judgment for multiple offenses, after sentencing, that a multiple-punishments violation even occurs.”).

2018Moreover, as we noted, “It is only upon entry of a judgment for multiple offenses, after sentencing, that a multiple-punishments violation even occurs.” Ex parte Aubin, 537 S.W.3d 39, 43 (Tex. Crim.

2018However, a claim alleging violation of the constitutional prohibition against multiple punishments for the same offense—as Appellant alleges here—does not include the right to avoid trial because a multiple-punishments claim “can be fully vindicated on appeal following final judgment.” Ex parte Watkins, 73 S.W.3d 264, 273 (Tex. Crim.

2004Ex parte Watkins , 73 S.W.3d 264, 268 (Tex. Crim.

2010See Cervantes, 815 S.W.2d at 572–73; Bracy v. State, No. 05-08-00144-CR, 2009 WL 1364412 , at *2 (Tex. App.—Dallas May 18, 2009, pet. ref‘d) (not designated for publication) (holding that face of record did not demonstrate a multiple-punishments violation in part because appellant began sexually molesting his daughter in 2005, continued to do so for two years, and admitted that he had molested her so many times that he had lost count).

2010See Cervantes , 815 S.W.2d at 572 – 73; Bracy v. State , No. 05-08-00144-CR, 2009 WL 1364412 , at *2 (Tex. App. — Dallas May 18, 2009, pet. ref’d) (not designated for publication) (holding that face of record did not demonstrate a multiple-punishments violation in part because appellant began sexually molesting his daughter in 2005, continued to do so for two years, and admitted that he had molested her so many times that he had lost count).

2024Id. at 43–44. 5 The State asserts it is permitted to “seek a multiple-count indictment based on violations of different statutes, even when such violations are established by a single act,” and even when recognizing that a defendant can ultimately be convicted and sentenced for only one of the offenses.

2011See Langs, 183 S.W.3d at 685 (citing Brown v. Ohio, 432 U.S. 161, 168-69 (1977)) (holding that one of the contexts in which a multiple-punishments claim can arise is "the lesser-included offense context, in which the same conduct is punished twice; once for the basic conduct, and a second time for that same conduct plus more (for example, attempted assault of Y and assault of Y; assault of X and aggravated assault of X)"). 5 In its brief, the State suggests that this Court "dismiss Count One of the indictment" and posits that "[i]n dismissing Count one of the indictment[,] the allegations cont

2025A defendant who prevails on a multiple- punishments claim is not entitled to avoid prosecution; instead, “[t]he remedy for impermissible multiple convictions and punishments is to retain the most serious offense and vacate the other, the more serious offense ordinarily being defined as 10 the offense for which the greatest sentence was assessed.” Littrell, 271 S.W.3d at 279 n.34. “[I]n the multiple punishments context, [a defendant’s double-jeopardy] interest is ‘limited to ensuring that the total punishment did not exceed that authorized by the legislature.’” Jones v. Thomas, 491 U.S. 376, 38

2025See Littrell v. State, 271 S.W.3d 273 , 275–76 (Tex. Crim.

2025Another context for a multiple-punishments violation of double jeopardy is when a person is “convicted or punished for two offenses that are the same both in law and in fact.” Aekins v. State, 447 S.W.3d 270, 279 (Tex. Crim.

2023App. 2022). 11 For purposes of the multiple-punishments analysis, Blockburger is just a tool, “not the be all, end all, of statutory construction.” Aekins, 447 S.W.3d at 277 .

2024A multiple-punishments violation can arise either in the context of lesser-included offenses, where the same conduct is punished under a greater and a lesser-included offense, and when the same conduct is punished under two distinct statutes where the Legislature only intended for the conduct to be punished once.” Id. 5 Accord, Cano v. State, Nos. 07-17-00337-CR, through 07-17-00346-CR, 2018 Tex. App. LEXIS 5846 , at *9 (Tex. App.—Amarillo July 30, 2018, pet. ref’d) (mem. op., not designated for publication). 5 proceedings, including the jury charge conference and in his post-conviction motion

2020App. 2015)). 8 As for indecency with a child, “the Legislature intended that a defendant should be susceptible to punishment for each act of [contact or exposure].” Id. at 722–23 (quoting Loving v. State, 401 S.W.3d 642, 644, 649 (Tex. Crim.

2020“In a multiple punishments analysis such as this one, ‘the protection against double jeopardy is not violated if the [the Legislature intended that the] offenses constitute separate allowable units of prosecution.’” Id. (quoting Ex parte Benson, 459 S.W.3d 67, 73 (Tex. Crim.

2015In a multiple punishments analysis such as this one, “the protection against double jeopardy is not violated if the [the Legislature intended that the] offenses constitute separate allowable units of prosecution.” Ex parte Benson, 459 S.W.3d at 73 .

2025A defendant who prevails on a multiple- punishments claim is not entitled to avoid prosecution; instead, “[t]he remedy for impermissible multiple convictions and punishments is to retain the most serious offense and vacate the other, the more serious offense ordinarily being defined as 10 the offense for which the greatest sentence was assessed.” Littrell, 271 S.W.3d at 279 n.34. “[I]n the multiple punishments context, [a defendant’s double-jeopardy] interest is ‘limited to ensuring that the total punishment did not exceed that authorized by the legislature.’” Jones v. Thomas, 491 U.S. 376, 38

2025A defendant who prevails on a multiple- punishments claim is not entitled to avoid prosecution; instead, “[t]he remedy for impermissible multiple convictions and punishments is to retain the most serious offense and vacate the other, the more serious offense ordinarily being defined as 10 the offense for which the greatest sentence was assessed.” Littrell, 271 S.W.3d at 279 n.34. “[I]n the multiple punishments context, [a defendant’s double-jeopardy] interest is ‘limited to ensuring that the total punishment did not exceed that authorized by the legislature.’” Jones v. Thomas, 491 U.S. 376, 38

2024See Ex parte Hawkins, 6 S.W.3d 554, 558 (Tex. Crim.

2023Denton, 339 S.W.3d at 540.

2022App. 2006) (explaining that a multiple-punishments claim arises in two contexts: (1) when the same conduct is punished twice, once for the basic conduct and a second time for the same conduct plus more and (2) the same criminal act is punished twice under two distinct statutes when the Legislature intended the conduct to be punished only once). 3 1984)); 4 see Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex. 2005) (citing Cummins and explaining that when a motion for new trial is granted, “the court essentially wipes the slate clean and starts over”);5 In re E.H., No. 02-19-000

2022App. 2006) (explaining that a multiple-punishments claim arises in two contexts: (1) when the same conduct is punished twice, once for the basic conduct and a second time for the same conduct plus more and (2) the same criminal act is punished twice under two distinct statutes when the Legislature intended the conduct to be punished only once). 3 1984)); 4 see Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex. 2005) (citing Cummins and explaining that when a motion for new trial is granted, “the court essentially wipes the slate clean and starts over”);5 In re E.H., No. 02-19-000

2018See Perry, 483 S.W.3d at 895 (concluding that nature of constitutional right at issue entitled appellant to raise claims by pretrial habeas corpus).

2018App. 2002) (“To be sure, the Double Jeopardy Clause protects against being twice convicted for the same crime, and that aspect of the right can be fully vindicated on appeal following final judgment[.]”); Gonzalez, 8 S.W.3d at 643 n.9; Ex parte Robinson, 641 S.W.2d at 554 ; accord Abney v. United States, 431 U.S. 651,660 (1977).

2015See also, Maldonado v. State, 461 S.W.3d 144, 151 (Tex.Crim.App.2015) (Keller, P.J., concurring).

2011And for the reasons discussed infra, we conclude that dismissing count one is not, in fact, the correct disposition in this case. 6 In Ex parte Cavazos, the defendant was sentenced to twenty-five years' incarceration for both burglary offenses; the court determined that the conviction that included $122.00 in restitution was the most serious offense and retained that conviction. 203 S.W.3d 333, 338-39 (Tex. Crim.

2008App. 2007) (citing Ex parte Kopecky, 821 S.W.2d 957, 958 (Tex. Crim.