Blockburger test in Texas

2026Id. (concluding “that the Legislature did not intend to authorize separate punishments for the[se] offenses . . . when the convictions for those offenses are based upon the same assaultive conduct against a single person”). 14 In Ervin, the Court of Criminal Appeals set out a nonexclusive list of considerations to augment the initial Blockburger test regarding whether the offenses have a common focus (i.e., same gravamen) and “whether that common focus tends to indicate a single instance of conduct.” 991 S.W.2d at 814 (referencing Blockburger v. United States, 284 U.S. 299 , 52 S. Ct. 180 (193

2026Id. (concluding “that the Legislature did not intend to authorize separate punishments for the[se] offenses . . . when the convictions for those offenses are based upon the same assaultive conduct against a single person”). 14 In Ervin, the Court of Criminal Appeals set out a nonexclusive list of considerations to augment the initial Blockburger test regarding whether the offenses have a common focus (i.e., same gravamen) and “whether that common focus tends to indicate a single instance of conduct.” 991 S.W.2d at 814 (referencing Blockburger v. United States, 284 U.S. 299 , 52 S. Ct. 180 (193

2024“When multiple punishments arise out of one trial, the Blockburger test is the starting point in analyzing the two offenses.”12 Bigon v. State, 252 S.W.3d 360, 370 (Tex. 2008).

2024“When multiple punishments arise out of one trial, the Blockburger test is the starting point in analyzing the two offenses.”12 Bigon v. State, 252 S.W.3d 360, 370 (Tex. 2008).

2026Id. (concluding “that the Legislature did not intend to authorize separate punishments for the[se] offenses . . . when the convictions for those offenses are based upon the same assaultive conduct against a single person”). 14 In Ervin, the Court of Criminal Appeals set out a nonexclusive list of considerations to augment the initial Blockburger test regarding whether the offenses have a common focus (i.e., same gravamen) and “whether that common focus tends to indicate a single instance of conduct.” 991 S.W.2d at 814 (referencing Blockburger v. United States, 284 U.S. 299 , 52 S. Ct. 180 (193

2026Id. (concluding “that the Legislature did not intend to authorize separate punishments for the[se] offenses . . . when the convictions for those offenses are based upon the same assaultive conduct against a single person”). 14 In Ervin, the Court of Criminal Appeals set out a nonexclusive list of considerations to augment the initial Blockburger test regarding whether the offenses have a common focus (i.e., same gravamen) and “whether that common focus tends to indicate a single instance of conduct.” 991 S.W.2d at 814 (referencing Blockburger v. United States, 284 U.S. 299 , 52 S. Ct. 180 (193

2004See Whalen, 445 U.S. at 688 -93 and at 711, 100 S.Ct. 1432 (Rehnquist, J., dissenting) (Blockburger test is simply an attempt to determine legislative intent).

2004See Whalen, 445 U.S. at 688 -93 and at 711, 100 S.Ct. 1432 (Rehnquist, J., dissenting) (Blockburger test is simply an attempt to determine legislative intent).

2021“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.” Id.

2021“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.” Id.

2013See Vick, 991 S.W.2d at 830 (holding that, when the Legislature intends to punish separate acts, even ones in close temporal proximity, the Blockburger test does not apply “because the precondition for employing that test (that the two offenses involve the same conduct) is absent”).

2013See Vick, 991 S.W.2d at 830 (holding that, when the Legislature intends to punish separate acts, even ones in close temporal proximity, the Blockburger test does not apply “because the precondition for employing that test (that the two offenses involve the same conduct) is absent”).

2022See Gonzales, 304 S.W.3d at 845 (“An accused may be punished for two offenses even though they would be regarded as the same under a Blockburger analysis if the Legislature has otherwise made manifest its intention that he should be.”); accord Garza, 213 S.W.3d at 351–52.

2022See Gonzales, 304 S.W.3d at 845 (“An accused may be punished for two offenses even though they would be regarded as the same under a Blockburger analysis if the Legislature has otherwise made manifest its intention that he should be.”); accord Garza, 213 S.W.3d at 351–52.

2009In his second point, appellant claims that his conviction for resisting arrest was jeopardy barred by the jury’s acquittal of the evading arrest charge, because the acquittal necessarily meant that the jury found that the arrest was without probable cause and therefore unlawful. 2 … Tex. Penal Code Ann. § 38.03 (a) (Vernon 2003). 3 … Id. § 38.03(b). 2 “Fifth Amendment jeopardy questions must be resolved by application of the Blockburger test, which compares elements of offenses—not conduct.” 4 “When the same act or transaction violates two different penal statutes, the two offenses are the sam

2009In his second point, appellant claims that his conviction for resisting arrest was jeopardy barred by the jury’s acquittal of the evading arrest charge, because the acquittal necessarily meant that the jury found that the arrest was without probable cause and therefore unlawful. 2 … Tex. Penal Code Ann. § 38.03 (a) (Vernon 2003). 3 … Id. § 38.03(b). 2 “Fifth Amendment jeopardy questions must be resolved by application of the Blockburger test, which compares elements of offenses—not conduct.” 4 “When the same act or transaction violates two different penal statutes, the two offenses are the sam

2026“An accused may be punished for two offenses that would be regarded as the same under a Blockburger analysis if the Legislature has otherwise made manifest its intention that he should be.” Littrell v. State, 271 S.W.3d 273, 276 (Tex. Crim.

2026“An accused may be punished for two offenses that would be regarded as the same under a Blockburger analysis if the Legislature has otherwise made manifest its intention that he should be.” Littrell v. State, 271 S.W.3d 273, 276 (Tex. Crim.

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 "[t]he Blockburger test focuses on the statutory 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 Blockburger test focuses on statutory 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 "[t]he Blockburger test focuses on the statutory 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 Blockburger test focuses on statutory elements of each offense); United States v. Moore, 43 F.3d 568, 571 (11th Cir.1

2013The Blockburger test does not operate, however, to trump ‘clearly expressed legislative intent.’” Garza v. State, 213 S.W.3d 338, 351-52 (Tex.Crim.App.2007), citing Ex parte Kopecky, 821 S.W.2d 957, 959 (Tex.Crim.App.1992) (quoting Missouri v. Hunter, 459 U.S. 359, 368 , 103 S.Ct. 673 , 74 L.Ed.2d 535 (1983)).

2013The Blockburger test does not operate, however, to trump ‘clearly expressed legislative intent.’” Garza v. State, 213 S.W.3d 338, 351-52 (Tex.Crim.App.2007), citing Ex parte Kopecky, 821 S.W.2d 957, 959 (Tex.Crim.App.1992) (quoting Missouri v. Hunter, 459 U.S. 359, 368 , 103 S.Ct. 673 , 74 L.Ed.2d 535 (1983)).

2014See Missouri v. Hunter, 459 U.S. 359, 368 , 103 S.Ct. 673 , 74 L.Ed.2d 535 (1983) (even when crimes have the same elements under the Blockburger test, there is no double-jeopardy violation when both are tried in one prosecution and the legislature intended for both offenses to be separately punished); Garza v. State, 213 S.W.3d 338, 351-52 (Tex.Crim.App.2007) (quoting Hunter , noting that the Blockburger test does not "trump clearly expressed legislative intent,” and concluding that convictions for both organized criminal activity and the underlying criminal offense do not violate the Double J

2014See Missouri v. Hunter, 459 U.S. 359, 368 , 103 S.Ct. 673 , 74 L.Ed.2d 535 (1983) (even when crimes have the same elements under the Blockburger test, there is no double-jeopardy violation when both are tried in one prosecution and the legislature intended for both offenses to be separately punished); Garza v. State, 213 S.W.3d 338, 351-52 (Tex.Crim.App.2007) (quoting Hunter , noting that the Blockburger test does not "trump clearly expressed legislative intent,” and concluding that convictions for both organized criminal activity and the underlying criminal offense do not violate the Double J

2026Under this approach, also known as the Blockburger test or cognate-pleadings approach, “courts must focus on the elements alleged in the charging instrument—not on the offense as defined in the Penal Code.” Garfias v. State, 424 S.W.3d 54 , 58–59 (Tex. Crim.

2026Under this approach, also known as the Blockburger test or cognate-pleadings approach, “courts must focus on the elements alleged in the charging instrument—not on the offense as defined in the Penal Code.” Garfias v. State, 424 S.W.3d 54 , 58–59 (Tex. Crim.

2026“The Blockburger test does not operate, however, to trump ‘clearly expressed legislative intent.’” Garza v. State, 213 S.W.3d 338 , 351–52 (Tex. Crim.

2026“The Blockburger test does not operate, however, to trump ‘clearly expressed legislative intent.’” Garza v. State, 213 S.W.3d 338 , 351–52 (Tex. Crim.

2007Whalen v. United States, 445 U.S. 684, 691-92 , 100 S.Ct. 1432 , 63 L.Ed.2d 715 (1980); Duvall v. State, 59 S.W.3d 773, 780 (Tex.App.Austin 2001, pet. ref'd).

2007Whalen v. United States, 445 U.S. 684, 691-92 , 100 S.Ct. 1432 , 63 L.Ed.2d 715 (1980); Duvall v. State, 59 S.W.3d 773, 780 (Tex.App.Austin 2001, pet. ref'd).

2015See also Brown v. Ohio, 432 U.S. 161, 164-69 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977) (elements analysis); id. at 169-70 & n.8, 97 S.Ct. 2221 (units analysis); Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932) (formulating the same-elements test); id. at 303 , 52 S.Ct. 180 (Second drug sale was a separate offense because it "was not the result of the original impulse, but of a fresh one.''); Ex parte Hawkins, 6 S.W.3d 554 , 555-56 & n.6, 557 n.8 (Tex.Crim.App. 1999) (discussing Brown and Sanabria v. United States, 437 U.S. 54 , 98 S.Ct. 2170 , 57 L.Ed.2d 43 (1

2015See also Brown v. Ohio, 432 U.S. 161, 164-69 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977) (elements analysis); id. at 169-70 & n.8, 97 S.Ct. 2221 (units analysis); Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932) (formulating the same-elements test); id. at 303 , 52 S.Ct. 180 (Second drug sale was a separate offense because it "was not the result of the original impulse, but of a fresh one.''); Ex parte Hawkins, 6 S.W.3d 554 , 555-56 & n.6, 557 n.8 (Tex.Crim.App. 1999) (discussing Brown and Sanabria v. United States, 437 U.S. 54 , 98 S.Ct. 2170 , 57 L.Ed.2d 43 (1

1996Under the “same elements” test often referred to as the “Blockburger test,” two statutes define different offenses provided “each provision requires proof of an additional fact which the other does not.” Blockburger, 284 U.S. at 304 , 52 S.Ct. at 182 , Parrish, supra, at 353 .

1996Under the "same elements" test often referred to as the "Blockburger test," two statutes define different offenses provided "each provision requires proof of an additional fact which the other does not." Blockburger, 284 U.S. at 304 , 52 S.Ct. at 182 , Parrish, supra, at 353 .

2010Id. at 36 ; see also Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex.Crim.App.2006) (For assaultive offenses, each complainant represented one allowable unit of prosecution.). 4 The result is the same under both the Blockburger analysis or the analysis for lesser included offenses because each offense has an element the other does not, that is, who it was that was killed by Appellant’s actions.

2010Id. at 36 ; see also Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex.Crim.App.2006) (For assaultive offenses, each complainant represented one allowable unit of prosecution.). 4 The result is the same under both the Blockburger analysis or the analysis for lesser included offenses because each offense has an element the other does not, that is, who it was that was killed by Appellant’s actions.

2020App. 2018); Blockburger v. United States, 284 U.S. 299 (1932). 3 Bien, 550 S.W.3d at 184 (quoting Blockburger, 284 U.S. at 304 ). 4 he is not precluded from conviction and punishment for more than one offense.4 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.5 That presumption, however, can be rebutted if it can be shown that the Legislature clearly intended only one punishment for both offenses

2020App. 2018); Blockburger v. United States, 284 U.S. 299 (1932). 3 Bien, 550 S.W.3d at 184 (quoting Blockburger, 284 U.S. at 304 ). 4 he is not precluded from conviction and punishment for more than one offense.4 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.5 That presumption, however, can be rebutted if it can be shown that the Legislature clearly intended only one punishment for both offenses

2015See also Brown v. Ohio, 432 U.S. 161, 164-69 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977) (elements analysis); id. at 169-70 & n.8, 97 S.Ct. 2221 (units analysis); Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932) (formulating the same-elements test); id. at 303 , 52 S.Ct. 180 (Second drug sale was a separate offense because it "was not the result of the original impulse, but of a fresh one.''); Ex parte Hawkins, 6 S.W.3d 554 , 555-56 & n.6, 557 n.8 (Tex.Crim.App. 1999) (discussing Brown and Sanabria v. United States, 437 U.S. 54 , 98 S.Ct. 2170 , 57 L.Ed.2d 43 (1

2015See also Brown, 432 U.S. at 164-69 , 97 S.Ct. 2221 (elements analysis), 169-70 & n.8 (units analysis); Ex parte Hawkins, 6 S.W.3d 554 , 555-56 & n.6, 557 n.8 (Tex.Crim.App. 1999) (discussing Brown and Sanabria v. United States, 437 U.S. 54 , 98 S.Ct. 2170 , 57 L.Ed.2d 43 (1978)); Denton, 399 S.W.3d at 548-50 (Keller, P.J., concurring) (“[T]he Blockburger test sets up a presumption in a multiple-statute elements inquiry....

2013See Vineyard v. State, 958 S.W.2d 834 , 836 n. 5 (Tex.Crim.App.1998) ("We also note this Court has stated the Blockburger test is not 'precisely applicable' to cases like this where a defendant’s conduct violates one statutory provision more than once."). .

2013See Vineyard v. State, 958 S.W.2d 834 , 836 n. 5 (Tex.Crim.App.1998) ("We also note this Court has stated the Blockburger test is not 'precisely applicable' to cases like this where a defendant’s conduct violates one statutory provision more than once."). .

2010See Patterson v. State, 152 S.W.3d 88, 92 (Tex.Crim.App.2004). *317 The court of criminal appeals has held that the Blockburger test is not appropriate when two violations of the same statute are being compared.

2010See Patterson v. State, 152 S.W.3d 88, 92 (Tex.Crim.App.2004). *317 The court of criminal appeals has held that the Blockburger test is not appropriate when two violations of the same statute are being compared.

2026“Using the cognate-pleadings approach, we also look to the pleadings to flesh out the Blockburger test.” Id. (citing Bien, 550 S.W.3d at 184 ); see Lang, 664 S.W.3d at 164 (“To determine whether a lesser-included offense exists under [A]rticle 37.09(1), the Court uses the cognate-pleadings approach.”).

2026“Using the cognate-pleadings approach, we also look to the pleadings to flesh out the Blockburger test.” Id. (citing Bien, 550 S.W.3d at 184 ); see Lang, 664 S.W.3d at 164 (“To determine whether a lesser-included offense exists under [A]rticle 37.09(1), the Court uses the cognate-pleadings approach.”).

2023Benson, 459 S.W.3d at 72–73 (footnotes omitted). 8 Nawaz offers a more succinct formulation of the “elements” test that was 8 enunciated in Benson: When separately enumerated penal statutes are involved, this Court has said[ that] “the traditional starting point for determining ‘sameness’ for multiple-punishment double-jeopardy analysis is the Blockburger test.” Ramos[ v. State], 636 S.W.3d [646,] 651 [(Tex. Crim.

2023Benson, 459 S.W.3d at 72–73 (footnotes omitted). 8 Nawaz offers a more succinct formulation of the “elements” test that was 8 enunciated in Benson: When separately enumerated penal statutes are involved, this Court has said[ that] “the traditional starting point for determining ‘sameness’ for multiple-punishment double-jeopardy analysis is the Blockburger test.” Ramos[ v. State], 636 S.W.3d [646,] 651 [(Tex. Crim.

2023See Garrett v. United States, 471 U.S. 773, 779 , 105 S. Ct. 2407, 2412 (1985) (“We have recently indicated that the Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislative history.”). 6 amend.

2023See Garrett v. United States, 471 U.S. 773, 779 , 105 S. Ct. 2407, 2412 (1985) (“We have recently indicated that the Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislative history.”). 6 amend.

2015Double-jeopardy challenges should be made even to offenses that have differing elements under the Blockburger test "if the same 'facts required' are alleged in the indictment." Id. (citing Hall v. State, 225 S.W.3d 524 (Tex. Crim.

2015Double-jeopardy challenges should be made even to offenses that have differing elements under the Blockburger test "if the same 'facts required' are alleged in the indictment." Id. (citing Hall v. State, 225 S.W.3d 524 (Tex. Crim.

2015Price, 434 S.W.3d at 609-10 ; Ex parte Er-vin, 991 S.W.2d 804, 807 (Tex.Crim.App. 1999) ("[T]he Blockburger test cannot authorize two punishments where the legislature clearly intended only one.’b- See also Alber-naz, 450 U.S. at 340 , 101 S.Ct. 1137 ("The Blockburger test is a ‘rule of statutory construction,' and because it serves as a means of discerning congressional purpose the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent.”). .

2015Price, 434 S.W.3d at 609-10 ; Ex parte Er-vin, 991 S.W.2d 804, 807 (Tex.Crim.App. 1999) ("[T]he Blockburger test cannot authorize two punishments where the legislature clearly intended only one.’b- See also Alber-naz, 450 U.S. at 340 , 101 S.Ct. 1137 ("The Blockburger test is a ‘rule of statutory construction,' and because it serves as a means of discerning congressional purpose the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent.”). .