June 21, 2019

Texas Courts of Appeals

Philmon v. State

No. 01-18-00279-CR        6/18/19


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?


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.


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.


Blood Collection Tube Recall

BD has issued a recall for gray top Vacutainer® Fluoride Tubes for Blood Alcohol Determination (catalog number 367001, lot number 8187663). Per the recall, a small portion of lot 8187663 contains no additive (potassium oxalate and sodium fluoride) within the tube. Samples placed in tubes without the additive may clot. These tubes are used nationwide for the collection of blood alcohol determinations and are widely used in forensic testing for DWI cases. Law enforcement agencies should be notified to stop using tubes from this lot.

Prosecutor Trial Skills Course July 2019

Registration is open for our Prosecutor Trial Skills Course this July in Austin. It’s a full week of intensive training that prepares newly hired prosecutors for their work both in the courtroom and out. Seasoned faculty advisors are assigned to small groups of attendees to answer questions and direct discussions at each table, and two aspects of trial—jury selection and opening statement—are demonstrated by veteran prosecutors. Other elements of trial are covered, from opening statements to closing arguments, as are DWI and domestic violence prosecution (two of the most common offenses new prosecutors handle), plea bargains, probation revocation hearings, and motions to suppress. There’s even an optional forum on Class C misdemeanors for those prosecutors who practice in JP or municipal courts. New prosecutors won’t want to miss this intensive, high-quality training customized especially for them! 

Reminder:  TDCAA dues-paying members get a $50 discount on TDCAA Legislative Updates!  

One of the benefits of being a dues-paying member at TDCAA is a steep discount on the TDCAA Legislative Updates. If you are a dues-paying member and register in advance online, you will receive a $50 discount off the $150 non-member registration fee. If you want to become a member before you register for an update, just go to www.tdcaa.com/membership. Unsure if you are a member? Contact Kaylene at [email protected].    

Legislative Update Seminars

We have opened online registrations for our Legislative Update tour this summer! We’ll visit more than 20 locations throughout Texas in July and August to teach you, your staff, and your local court and law enforcement communities about all the new laws that will impact your work. If you haven’t already received your brochure listing all the locations and details, a PDF version is available online here. Find a date and location convenient for you and your staff and join us for the big show!

TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to [email protected]