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.

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.

2015See also Garfias, 424 S.W.3d at 54 . 16 Hunter, 459 U.S. at 366-68 ; Price, 434 S.W.3d at 609-10 . 17 Hunter, 459 U.S. at 367 (discussing Albernaz v. United States, 450 U.S. 333 (1981) and citing American Tobacco Co. v. United States, 328 U.S. 781 (1946)); Gonzales, 304 S.W.3d at 845 . 18 Price, 434 S.W.3d at 609-10 ; Ex parte Ervin, 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.”).

2015See also Garfias, 424 S.W.3d at 54 . 16 Hunter, 459 U.S. at 366-68 ; Price, 434 S.W.3d at 609-10 . 17 Hunter, 459 U.S. at 367 (discussing Albernaz v. United States, 450 U.S. 333 (1981) and citing American Tobacco Co. v. United States, 328 U.S. 781 (1946)); Gonzales, 304 S.W.3d at 845 . 18 Price, 434 S.W.3d at 609-10 ; Ex parte Ervin, 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.”).

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. App. 2008).

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. App. 2008).

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

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”).

2009Under federal double jeopardy principles and the Blockburger test, the fact that appellant paid a traffic ticket for the traffic offense of failing to yield the right of way does not bar his subsequent prosecution for intoxication assault.6 Until 1982, Texas had a unique state-level double jeopardy test called “the carving doctrine,” which held that the State could “carve” but one conviction out of a single criminal “transaction.” 7 That doctrine, similar to the Grady “same conduct” test, proved unsound, States v. Colon-Osorio, 10 F.3d 41, 43 (1st Cir. 1993) (“The Blockburger test focuses on t

2009Under federal double jeopardy principles and the Blockburger test, the fact that appellant paid a traffic ticket for the traffic offense of failing to yield the right of way does not bar his subsequent prosecution for intoxication assault.6 Until 1982, Texas had a unique state-level double jeopardy test called “the carving doctrine,” which held that the State could “carve” but one conviction out of a single criminal “transaction.” 7 That doctrine, similar to the Grady “same conduct” test, proved unsound, States v. Colon-Osorio, 10 F.3d 41, 43 (1st Cir. 1993) (“The Blockburger test focuses on t

2026To answer the question, a reviewing court must conduct an “elements” analysis, beginning with the Blockburger test, under which “two offenses are not the same if ‘each provision requires proof of a fact which the other does not.’” Philmon v. State, 609 S.W.3d 532 , 535 (Tex. Crim. App. 2020) (quoting Bien v. State, 550 S.W.3d 180, 184 (Tex. Crim. App. 2018)); Garfias, 424 S.W.3d at 58 ; see Blockburger v. United States, 284 U.S. 299, 304 (1932).

2026To answer the question, a reviewing court must conduct an “elements” analysis, beginning with the Blockburger test, under which “two offenses are not the same if ‘each provision requires proof of a fact which the other does not.’” Philmon v. State, 609 S.W.3d 532 , 535 (Tex. Crim. App. 2020) (quoting Bien v. State, 550 S.W.3d 180, 184 (Tex. Crim. App. 2018)); Garfias, 424 S.W.3d at 58 ; see Blockburger v. United States, 284 U.S. 299, 304 (1932).

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)).

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 .

1996Parrish v. State, 869 S.W.2d 352, 354 (Tex.Crim.App.1994) (“[t]he essential elements relevant to a jeopardy inquiry are those of the charging instrument, not of the penal statute itself.”) Because the State protections are potentially broader, we will apply the Blockburger test by focusing on the charging instruments.

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. App. 2007) (citations omitted).

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. App. 2007) (citations omitted).

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

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."). .

1995In Grady v. Corbin, 495 U.S. 508 , 110 S.Ct. 2084 , 109 L.Ed.2d 548 (1990), overruled by United States v. Dixon, 509 U.S. -, 113 S.Ct. 2849 , 125 L.Ed.2d 556 (1993), the United States Supreme Court determined that the Blockburger test would not further the *137 policy interests of the double jeopardy doctrine as set forth in Green v. United States, 355 U.S. 184, 187-88 , 78 S.Ct. 221, 223-24 , 2 L.Ed.2d 199 (1957).

1995In Grady v. Corbin, 495 U.S. 508 , 110 S.Ct. 2084 , 109 L.Ed.2d 548 (1990), overruled by United States v. Dixon, 509 U.S. -, 113 S.Ct. 2849 , 125 L.Ed.2d 556 (1993), the United States Supreme Court determined that the Blockburger test would not further the *137 policy interests of the double jeopardy doctrine as set forth in Green v. United States, 355 U.S. 184, 187-88 , 78 S.Ct. 221, 223-24 , 2 L.Ed.2d 199 (1957).

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.

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.”).

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 (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 (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 . . . .

2023“Conversely, if the two offenses, as pleaded, have different elements under the Blockburger test, the judicial presumption is that the offenses are different for double-jeopardy purposes and multiple punishments may be imposed.” Id. at 184–85 (citing Ex parte Benson, 459 S.W.3d at 72 ).

2023“Conversely, if the two offenses, as pleaded, have different elements under the Blockburger test, the judicial presumption is that the offenses are different for double-jeopardy purposes and multiple punishments may be imposed.” Id. at 184–85 (citing Ex parte Benson, 459 S.W.3d at 72 ).

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.

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.

2015See also Albernaz, 450 U.S. at 340 (“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.”).

2015See also Garfias, 424 S.W.3d at 54 . 16 Hunter, 459 U.S. at 366-68 ; Price, 434 S.W.3d at 609-10 . 17 Hunter, 459 U.S. at 367 (discussing Albernaz v. United States, 450 U.S. 333 (1981) and citing American Tobacco Co. v. United States, 328 U.S. 781 (1946)); Gonzales, 304 S.W.3d at 845 . 18 Price, 434 S.W.3d at 609-10 ; Ex parte Ervin, 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.”).

2026Indecency by Genital-Touching Because indecency by genital-touching and by breast-touching are codified in the same statutory provision, see Tex. Penal Code § 21.11(c)(1), the Blockburger test does not apply, Loving v. State, 401 S.W.3d 642, 645 (Tex. Crim. App. 2013) (analyzing whether indecency with child by exposure and by contact were same offense).

2026Indecency by Genital-Touching Because indecency by genital-touching and by breast-touching are codified in the same statutory provision, see Tex. Penal Code § 21.11(c)(1), the Blockburger test does not apply, Loving v. State, 401 S.W.3d 642, 645 (Tex. Crim. App. 2013) (analyzing whether indecency with child by exposure and by contact were same offense).

2006See Ex parte Tharp, 912 S.W.2d 887, 889 (Tex.App.-Fort Worth 1995), aff'd, 935 S.W.2d 157 (Tex.Crim.App.1996) (“Because the statutes describe the ‘same offense’ under the Blockburger test, if the driver’s license suspension ... was punishment, then a subsequent prosecution for driving while intoxicated will be barred by double *782 jeopardy.”); see also Langs, 183 S.W.3d at 685 (“This Court adopted the Bloekburger test long ago, and we continue to apply it as the first means of analyzing a multiple-punishment double-jeopardy claim when the legislature’s intent is not clearly expressed.”); John

2006See Ex parte Tharp, 912 S.W.2d 887, 889 (Tex.App.-Fort Worth 1995), aff'd, 935 S.W.2d 157 (Tex.Crim.App.1996) (“Because the statutes describe the ‘same offense’ under the Blockburger test, if the driver’s license suspension ... was punishment, then a subsequent prosecution for driving while intoxicated will be barred by double *782 jeopardy.”); see also Langs, 183 S.W.3d at 685 (“This Court adopted the Bloekburger test long ago, and we continue to apply it as the first means of analyzing a multiple-punishment double-jeopardy claim when the legislature’s intent is not clearly expressed.”); John