Texas Courts of Appeals
Philmon v. State
No. 01-18-00279-CR 6/18/19
Issue:
Are convictions for both aggravated assault with a deadly weapon and assault of a person with whom the defendant had a dating relationship a double-jeopardy violation?
Holding:
No. Multiple punishments for the same conduct under two different statutes are not prohibited by double jeopardy if specifically authorized by the legislature. Here, the charged offenses have different elements (threat of bodily injury with a deadly weapon vs. an actual assault) and are presumed not to be the same offense for double jeopardy purposes. Additionally, the differing punishment ranges, focuses, and elements of the offenses do not indicate the legislature intended to treat the offenses as the same for double-jeopardy purposes. Read opinion.
Concurrence (Goodman, J.):
“The majority holds that the trial court’s imposition of multiple punishments on [the defendant] based on his separate convictions for aggravated assault with a deadly weapon and assault of a person with whom he had a dating relationship does not violate his constitutional guarantee against double jeopardy. While I agree that there is no double-jeopardy violation in this case, I do not think that what is true on this record will necessarily be true of all prosecutions for these two offenses. To the extent that the majority suggests that multiple punishments for both aggravated assault with a deadly weapon and assault of a person with whom the defendant had a dating relationship may never result in a double-jeopardy violation, I disagree.” Read opinion.
Commentary:
Expect the Court of Criminal Appeals to review this decision. Based upon the manner in which these two offenses were pleaded, the offenses appear to be different for double-jeopardy purposes. The first assault was committed by a “threat” with a knife, metal object, or a bag, and the second assault was committed by “causing” bodily injury by impeding the victim’s breathing. As such, the decision could be consistent with Garfias v. State, 424 S.W.3d 54 (Tex. Crim. App. 2014). But the decision also could be inconsistent with Cooper v. State, 430 S.W.3d 426 (Tex. Crim. App. 2014). Prosecutors should be cautious about trying to obtain multiple convictions in situations like these. It is possible that, in a similar fact situation arising out of a single incident, a court could hold that the “threat” would be subsumed by the ultimate “causing” of bodily injury. In that situation, the two offenses would be the same for double-jeopardy purposes. Stay tuned.
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