In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00132-CR
___________________________
MATTHEW WOLFE, Appellant
V.
THE STATE OF TEXAS
On Appeal from Criminal District Court No. 1
Tarrant County, Texas
Trial Court No. 1691858D
Before Kerr, Bassel, and Wallach, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
I. Introduction
In five points, Appellant Matthew Wolfe challenges his six convictions for
aggravated kidnapping, burglary, aggravated robbery, two counts of aggravated
assault, and injury to an elderly individual. In his first point, Appellant contends that
he was denied the right to act as his own counsel. We rule against Appellant on this
point because he failed to timely assert his right to self-representation. In his
remaining four points, Appellant contends that multiple punishments are being
imposed upon him in violation of the prohibition against double jeopardy. The State
concedes the merit of three of Appellant’s points, and we agree. 1 For each of those
points, we will retain the most serious of the convictions for which Appellant received
multiple punishments in violation of the prohibition against double jeopardy. With
respect to the remaining point—number four—we disagree that Appellant received
multiple punishments for the same offense in violation of the prohibition against
double jeopardy. Accordingly, we vacate three of the trial court’s judgments and
affirm the remaining three judgments.
1
Because the State’s confession of error is not dispositive, we still look at the
merits. See Saldano v. State, 70 S.W.3d 873, 884 (Tex. Crim. App. 2002).
2
II. Factual and procedural background
The underlying facts of the offenses committed have only a tangential impact
on the points that Appellant raises. Thus, we detail those facts, which occurred on
July 7, 2021, only to the extent summarized in Appellant’s brief:
Appellant was staying with a friend at her apartment in Tarrant County.
Across from her apartment lived the complainant, a 62-year-old man, his
daughter[,] and his granddaughter. According to the complainant,
Appellant asked to borrow his car[,] and when he declined, Appellant
followed him into his apartment and began assaulting him. According to
Appellant, he saw the complainant leaning over his naked grandchild in a
concerning way[,] causing Appellant to enter the apartment to protect
the child. Appellant had been the victim of sexual abuse as a child and
was triggered by the complainant’s behavior with the unclothed child.
Appellant [dragged] the complainant to his friend’s adjacent
apartment, shut the door, locked it[,] and continued to assault the
complainant, kicking him and hitting him with a cooking pot. Appellant
then took the complainant’s car keys and left the location in his car.
[Record references omitted.]
The jury convicted Appellant of the following offenses and assessed the
following punishments:
• aggravated kidnapping with a deadly weapon—25 years;
• burglary of a habitation—25 years;
• aggravated robbery with a deadly weapon—25 years;
• aggravated assault with a deadly weapon causing bodily injury—40 years;
• aggravated assault by threat with a deadly weapon—40 years; and
3
• injury to an elderly individual—40 years.2
The trial court signed judgments reflecting the jury’s verdicts on guilt and
punishment after sentencing Appellant in accordance with the verdicts. The trial
court also ordered that Appellant’s sentences would run concurrently. Appellant
timely filed a notice of appeal and then filed a “Motion for New Trial and Motion in
Arrest of [Judgment]” that was overruled by operation of law.
III. Analysis
A. We overrule Appellant’s first point because he was not improperly
deprived of the right to self-representation.
In Appellant’s first point, he claims that the trial court “violated Faretta[3] and
Appellant’s state and federal rights of self-representation.” Appellant made no clear
and unequivocal request to self-represent until it was too late to invoke that right.
1. We summarize the three chapters that chart the story of
Appellant’s self-representation claim.
a. The first chapter
The first chapter occurred approximately six weeks before trial at a pretrial
hearing presided over by a magistrate. The concern expressed by Appellant at the
pretrial hearing was that his counsel was the son of a Tarrant County District Judge
2
With respect to punishment, for each count of the charge, the jury found a
habitual-offender notice to be true.
3
See Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541 (1975) (requiring
a court to ensure that an accused who wants to manage his or her own defense
understands the dangers and disadvantages of self-representation).
4
who had accepted a plea bargain from Appellant and had sentenced him to prison
almost two decades earlier. Appellant expressed the nature of the problem and his
thoughts on how to solve the problem as follows:
Your Honor, I believe that there may be a conflict of interest due to the
fact that Mr. Salvant has a relative that sentenced me to prison for 12
years back [in] 2002 -- 2003. I explained this to my attorney, Mr.
Salvant. It was brought to my attention, you know, that it was a conflict
of interest by another attorney that I’ve talked to. And at this point, I’m
asking for a little time to either hire a new attorney or to essentially maybe have
another one appointed. [Emphasis added.]
The trial court indicated that it did not see a conflict and told Appellant that he could
hire a new lawyer if he wanted and that it was late in the process to bring up
Appellant’s concern. Appellant never asserted a right to self-representation during the
pretrial hearing.
b. The second chapter
The second chapter of the story occurred on the morning before voir dire was
conducted. At the request of his counsel, Appellant testified about his ongoing
concern that a conflict of interest existed between his present counsel and him.
Again, the conflict centered on the fact that his counsel’s father had sentenced him to
prison. When Appellant reiterated his concern, he made a passing mention of
representing himself:
I was informed by another lawyer that that definitely is a conflict of
interest. And upon me getting able to be able to work again and
5
speaking with you in-person where I actually got down there to the
office, you[4] agreed with me that it was . . . a conflict.
So essentially that let me put a couple of options to hire an attorney, have
another one appointed[,] or represent myself. I was told that . . . one
particular attorney, she had told me that there was no way she could
prepare for trial within the time allotted. And the last time that I . . .
spoke to you, you said the last time we came to court, which was
yesterday, is that we were going to get it on record and just try to get it
figured out, or we could, you know, proceed on. [Emphases added.]
The trial court (now presided over by the court’s elected judge) ruled that there was
no conflict. Appellant’s counsel then sought a continuance, which was denied.
c. The third chapter
The third chapter occurred during the trial (which was being conducted by a
visiting judge) after the State had rested. This third chapter began when Appellant’s
counsel informed the trial court that he could not announce ready to present the
defense’s case because Appellant had given him a list of seven witnesses whom he
wanted to testify, and Appellant’s counsel sought a continuance to locate and
subpoena the witnesses. The trial court implicitly overruled the motion for
continuance but gave Appellant’s counsel ten minutes to talk with Appellant. After a
discussion, Appellant’s counsel indicated that Appellant wanted to address the court.
The trial court noted that the proceeding was at “midtrial,” that the State had
presented all of its evidence and had rested, and that the jury was in the jury room.
4
The “you” throughout this block quote appears to be a reference to
Appellant’s lawyer.
6
Appellant reiterated his complaints about a conflict of interest with his counsel
and then told the trial court that he was dissatisfied with his lawyer’s performance for
apparently not cross-examining witnesses as he thought they should be and for not
calling certain witnesses. Appellant stated that he wanted his present counsel
removed from the case and a new lawyer appointed or to represent himself. This
produced a discussion with the trial court regarding whether Appellant was equivocal
in the desire to represent himself. As the discussion continued, Appellant then raised
an additional complaint that his present lawyer’s investigator was Appellant’s former
parole officer.
After the trial court told Appellant that the case would proceed that day, the
trial court again asked if Appellant wanted to represent himself, and he said that he
did. The trial court then began interrogating Appellant on his level of knowledge and
describing the pitfalls of self-representation. The hearing continued with Appellant’s
stating that he had no choice but to represent himself because of the allegedly subpar
representation that he had received to that point.
When again confronted with the fact that the trial would proceed and asked
whether he still wished to waive his attorney, Appellant responded tentatively in
response to when he could proceed:
THE COURT: Okay. Well, ultimately, . . . it’s up to you. You’ve . . .
got to freely and knowingly waive your right to an attorney.
Are you willing to do that?
7
[APPELLANT]: I am.
THE COURT: And would you be doing so understanding that
you’re going to proceed today? Is that what you’re asking the [c]ourt to
do?
[APPELLANT]: I don’t know if . . . I could proceed today. I
don’t have the pertinent information in front of me to be able to
understand if I have enough time to be able to answer that question.
THE COURT: Okay.
[APPELLANT]: I would like, in the very least, to be able to get
my hands on, you know, the court records, pertinent paperwork that I
need to . . . adequately represent myself.
THE COURT: Okay. So it sounds like there would be a
considerable delay involved?
[APPELLANT]: I don’t think that there would be a considerable
delay. I think that in order to answer that question with honesty and
respect to you, I would have to . . . see what was in front of me before I
could answer that question.
The hearing continued with Appellant’s being vague about when he would be
ready to proceed but being certain that he wanted to represent himself in view of the
representation that he had received. A later exchange went as follows:
THE COURT: I mean, you’ve previously indicated that you really don’t
feel that you’re prepared to proceed today; is that right?
[APPELLANT]: I don’t know. I don’t have the information in
front of me to be able to -- to --
THE COURT: Okay.
[APPELLANT]: -- make that decision.
THE COURT: All right.
8
[APPELLANT]: What I do . . . know is that I would rather
represent myself than have Mr. Salvant as my attorney.
THE COURT: Okay.
After this exchange, the State noted that Appellant’s request was untimely. As
the colloquy between Appellant and the trial court continued, the trial court expressed
its concern that the trial would be disrupted by Appellant’s self-representation and
that the request to do so was a delay tactic. Appellant responded that he was not
being properly represented, that he intended to cross-examine the witnesses as he
wished, and that he intended to get a not-guilty verdict. Appellant again reiterated a
desire to pursue his own trial strategy: “It is . . . not my attorney’s strategy, even
against -- he works for me. If it’s not his strategy, this is my strategy. My strategy is
to be able to cross-examine these witnesses. If he is in disagreement with that, then
there’s . . . .”
Ultimately, the trial court denied Appellant’s request for self-representation
because it was equivocal and conditional.
2. We set forth the standard of review that we apply to
Appellant’s contention that he was deprived of the right to
self-representation.
We apply the following standard of review to a point challenging the denial of
the right to self-representation:
We review the denial of a defendant’s request for self-representation for
an abuse of discretion. We view the evidence in the light most favorable
to the trial court’s ruling, and we imply any findings of fact supported by
9
the record and necessary to affirm the ruling when the trial court did not
make explicit findings.
Lathem v. State, 514 S.W.3d 796, 802 (Tex. App.—Fort Worth 2017, no pet.)
(footnotes omitted).
So long as there is a valid legal theory to uphold a ruling, we will do so even if
the trial court articulated a different—and arguably wrong—reason for its ruling.
Specifically,
a trial court’s ruling must generally be upheld if it is correct “on any legal
theory applicable to the case, even one that was not mentioned by the
trial court or the appellee.” Spielbauer v. State, 622 S.W.3d 314, 319 (Tex.
Crim. App. 2021). This principle is known as the “right ruling, wrong
reason” doctrine. State v. Herndon, 215 S.W.3d 901, 905 n.4 (Tex. Crim.
App. 2007).
Martell v. State, 663 S.W.3d 667, 672 (Tex. Crim. App. 2022).
3. We set forth the principles that govern a defendant’s right to
self-representation.
The Court of Criminal Appeals has recently described the foundation of the
right to self-representation, how the right is invoked, and the processes a trial court
must follow before allowing a defendant to self-represent:
It is well established that every criminal defendant has a constitutional
right to the assistance of counsel and the constitutional right to self-
representation. U.S. Const. amend. VI; Tex. Const. art. I[,] § 10; Faretta,
422 U.S. at 835, 95 S. Ct. [at 2541]. “The right to self-representation and
the assistance of counsel are separate rights depicted on the opposite
sides of the same Sixth Amendment coin. To choose one obviously
means to forego the other.” [United States v.] Purnett, 910 F.2d [51,] 54
[(2d Cir. 1990)]; see Martin v. State, 630 S.W.2d 952, 953 (Tex. Crim. App.
1982) [(op. on reh’g)]. “While the right to counsel is in force until
waived, the right of self-representation does not attach until asserted.”
10
Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir. 1982) [(op. on reh’g)]; see
Williams v. State, 252 S.W.3d 353, 356, 358 (Tex. Crim. App. 2008).
Assertion of the right to self-representation must be clear and
unequivocal. See Faretta, 422 U.S. at 835, 95 S. Ct. [at 2541]. “When a
criminal defendant chooses to waive his right to counsel and represent
himself, the waiver should be made ‘knowingly and intelligently,’ and he
should be warned of the ‘dangers and disadvantages’ accompanying such
waiver” so that “the record will establish that ‘he knows what he is doing
and his choice is made with open eyes.” Hatten v. State, 71 S.W.3d 332,
333 (Tex. Crim. App. 2002); Collier v. State, 959 S.W.2d 621, 626 (Tex.
Crim. App. 1997) (citing Faretta, 422 U.S. at 834–36, 95 S. Ct. [at 2541,
and stating that] decision to waive counsel in favor of self-representation
is “knowing and intelligent” if “it is made with a full understanding of
the right to counsel, which is being abandoned, as well as the dangers
and disadvantages of self-representation”). “‘[C]ourts indulge every
reasonable presumption against waiver’ of fundamental constitutional
rights . . . .” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, [1023]
(1938)[, abrogation recognized by Jones v. Hendriz, No. 21-857, 2023 WL
4110233, at *11 (U.S. June 22, 2023)]. Whether a waiver of counsel was
effective depends on the totality of the circumstances, which includes
considering “the background, experience, and conduct of the accused.”
Id.[, 58 S. Ct. at 1023.] “An invalid waiver waives nothing.” Williams,
252 S.W.3d at 358. In such case, the right to counsel remains in effect,
and a defendant is entitled to counsel. See id. (allowing a defendant to
represent himself “without a valid waiver of the right to counsel” denies
that defendant . . . the right to counsel). A complete denial of the
constitutional right to counsel is a structural defect, and “prejudice is
presumed because the trial has been rendered inherently unfair and
unreliable.” Id. at 357.
“The record must reflect that the trial court thoroughly
admonished the defendant.” Collier, 959 S.W.2d at 626 n.8 ([first] citing
Faretta, 422 U.S. at 834–36, 95 S. Ct. [at 2541]; [and then citing]
Blankenship v. State, 673 S.W.2d 578, 583 (Tex. Crim. App. 1984)). For
example, defendants must be aware “that there are technical rules of
evidence and procedure, and he will not be granted any special
consideration solely because he asserted his pro se rights.” Johnson v.
State, 760 S.W.2d 277, 279 (Tex. Crim. App. 1988). But “a trial court
need follow no ‘formulaic questioning’ or particular ‘script’ to assure
itself that an accused who has asserted his right to self-representation
does so with eyes open.” Burgess v. State, 816 S.W.2d 424, 428 (Tex.
11
Crim. App. 1991). And a defendant need not have the skill and
experience of a lawyer “to competently and intelligently choose self-
representation,” Faretta, 422 U.S. at 835, 95 S. Ct. [at 2541]. The focus is
on whether the defendant is competent to choose to proceed pro se, not
whether he is equipped to represent himself at trial. Godinez v. Moran,
509 U.S. 389, 400–01, 113 S. Ct. 2680, [2687–88] (1993).
Osorio-Lopez v. State, 663 S.W.3d 750, 756–57 (Tex. Crim. App. 2022).
4. To invoke the right to self-representation, a defendant must
assert the right clearly and unequivocally.
With respect to the requirement that the assertion of the right to self-
representation be clear and unequivocal, opinions from this court cover both ends of
the spectrum on what constitutes an adequate assertion. We have held that the
invocation of the right to self-representation does not require “magic words”:
There are no magic words (“no talismanic formula”) that need be recited
to invoke this right. Whether a defendant states that she wants to act as
her own lawyer or to be her own legal counsel or she names herself as
her own legal counsel, as [a]ppellant did in this case, such statements
clearly and unequivocally apprise the trial court that she wants to
represent herself at trial.
Lathem, 514 S.W.3d at 809 (footnote omitted). In Lathem, the statement, “I’ll name
myself as counsel,” was a clear invocation of the right to self-representation. Id. at
808; see also Cochnauer v. State, No. 02-19-00165-CR, 2021 WL 3931914, at *6–7 (Tex.
App.—Fort Worth Sept. 2, 2021, no pet.) (mem. op., not designated for publication)
(holding that the right to self-representation was invoked by the statement, “I feel like
I’m going to have to represent myself”).
12
But on the other side of the spectrum—no matter the lack of a requirement for
magic words—a defendant must at least make a statement indicating the desire to self-
represent. We have held that a conditional inquiry—such as, “May I ask, Your
Honor, if I choose to represent myself how long I would have to prepare a
defense?”—is not a clear and unequivocal invocation of the right to self-
representation. See Pickett v. State, No. 2-08-439-CR, 2009 WL 3246755, at *8 (Tex.
App.—Fort Worth Oct. 8, 2009, no pet.) (mem. op., not designated for publication).
In Pickett, to illustrate the clarity that the invocation must contain, we cataloged
several cases:
The right of self-representation does not attach “until it has been clearly
and [unequivocally] asserted.” Williams, 252 S.W.3d at 356 (quoting
Funderburg v. State, 717 S.W.2d 637, 642 (Tex. Crim. App. 1986)); [Ex
parte] Winton, 837 S.W.2d [134,] 135 [(Tex. Crim. App. 1992)] (explaining
that a defendant “should be allowed to so proceed so long as the
assertion of his right to self-representation is unconditional”); see also
Burton v. Collins, 937 F.2d 131, 134 (5th Cir. [1991]) (holding that an
assertion of self-representation is not clear and unequivocal when it is
“an inquiry into alternatives”) . . . ; Barrientes v. State, No. 04-06-00541-
CR, 2007 WL 1888378, at *1 (Tex. App.—San Antonio July 3, 2007, no
pet.) (mem. op., not designated for publication) (holding that the
defendant’s asking, “Can I represent myself?” was not a clear and
unequivocal invocation of his right of self-representation and that
without such an invocation, “the trial court has no duty to make further
inquiry” to that right). A defendant’s alleged assertion of his right to
self-representation must be examined in the context of the record. See
DeGroot v. State, 24 S.W.3d 456, 458 (Tex. App.—Corpus Christi[–
Edinburg] 2000, no pet.).
Id. at *7. Other courts have dealt with the same question. See, e.g., Rucker v. State, No.
03-19-00493-CR, 2021 WL 501113, at *8 (Tex. App.—Austin Feb. 11, 2021, no pet.)
13
(mem. op., not designated for publication) (holding that statements—that defendant
“would be happy to go pro se” and that he would be “better off being pro se rather
than being represented by an attorney who is going to subvert [his] access to the
[c]ourt”—were not invocations of the right to self-representation); Walker v. State, No.
03-09-00622-CR, 2010 WL 5078229, at *2–3 (Tex. App.—Austin Dec. 8, 2010, no
pet.) (mem. op., not designated for publication) (holding that a query regarding
whether defendant could represent himself was not an invocation of the right to self-
representation); DeGroot, 24 S.W.3d at 458 (holding that defendant’s statement—that
“I think I’ll proceed without an attorney”—taken in context was not an invocation of
the right of self-representation).
Case law is also clear that an expression of dissatisfaction with appointed
counsel and a request for the appointment of new counsel is not a clear and
unequivocal assertion of the right to self-representation. See, e.g., Lara v. State, Nos.
11-18-00286-CR, 11-18-00317-CR, 2020 WL 6373241, at *2 (Tex. App.—Eastland
Oct. 30, 2020, pet. ref’d) (mem. op., not designated for publication) (holding that duty
to admonish about the dangers of self-representation was not triggered when
“[a]ppellant never expressed an interest in representing himself at trial. Instead,
[a]ppellant informed the trial court that he was displeased with appointed counsel and
that he wanted to ‘discharge him or fire him’”); Masters v. State, No. 14-11-00263-CR,
2012 WL 2899765, at *3 (Tex. App.—Houston [14th Dist.] July 17, 2012, no pet.)
(mem. op., not designated for publication) (“Appellant’s expression of dissatisfaction
14
with trial counsel does not constitute a clear and unequivocal assertion of the right to
self-representation.”); Denmark v. State, No. 06-02-00222-CR, 2004 WL 314884, at *2
(Tex. App.—Texarkana Feb. 20, 2004, no pet.) (not designated for publication) (“A
request for a new attorney is not a clear and unequivocal request to represent
oneself.”).
5. The right of self-representation must be asserted timely; in
Texas, the assertion must be made before the jury is
impaneled.
Further, the assertion of the right to self-representation must be timely.
Though Appellant makes an argument challenging the deadline that we conclude
exists, the case law establishes that there is a bright-line boundary of timeliness—the
request for self-representation must occur before the jury is impaneled.
Although a bit of confusion exists in the Court of Criminal Appeals’ precedent,
decades ago the First Court of Appeals reconciled the higher court’s holdings to
conclude that a bright-line deadline exists for asserting the right to self-representation
before the jury is impaneled:
Previously, the Texas Court of Criminal Appeals has held that a request
for self-representation was timely despite its assertion after the jury was
impaneled. See Johnson v. State, 676 S.W.2d 416, 419 (Tex. Crim. App.
1984) (finding request timely because no evidence had been presented to
jury). However, Johnson is in direct conflict with other Texas Court of
Criminal Appeals[’] cases, a 1984 decision and two more recent
decisions, addressing the timeliness of a request for self-representation.
See Winton, 837 S.W.2d at 135 (stating request untimely if made after jury
is impaneled); Blankenship . . . , 673 S.W.2d [at] 585 . . . (same); McDuff v.
State, 939 S.W.2d 607, 619 (Tex. Crim. App. 1997) (holding denial of
request for self-representation was not error because right was untimely
15
asserted after jury had been impaneled). The jury is considered
impaneled when its members are selected and sworn. See Hill v. State,
827 S.W.2d 860, 864 (Tex. Crim. App. 1992).
Leighton v. State, No. 01-02-00378-CR, 2002 WL 31265487, at *2 (Tex. App.—
Houston [1st Dist.] Oct. 10, 2002, pet. ref’d) (not designated for publication).
Further, the Fifth Circuit viewed the Court of Criminal Appeals’ holding in Johnson—
suggesting that the right to self-representation may be asserted after impaneling the
jury—as being unsupported by the federal precedent that it cited. Johnson v. Collins,
No. 93-2311, 1994 WL 121803, at *2 (5th Cir. Mar. 22, 1994) (per curiam). 5
Relying on the holdings from the Court of Criminal Appeals, a number of
courts of appeals—including our own—have held that a request to self-represent
must be made before the jury is impaneled. See, e.g., Carver v. State, No. 12-22-00164-
CR, 2023 WL 327815, at *4 (Tex. App.—Tyler Jan. 19, 2023, pet. ref’d) (mem. op.,
not designated for publication) (“An accused must assert his right to self-
representation in a timely manner, namely, before a jury is impaneled.”); Yadav v. State,
Nos. 04-19-00483-CR, 04-19-00486-CR, 2020 WL 4606898, at *8 (Tex. App.—San
Antonio Aug. 12, 2020, pet. ref’d) (mem. op., not designated for publication) (“Here,
[appellant] first invoked his right of self-representation after both sides had rested,
long after the jury was impaneled. As a result, his request to represent himself was
untimely.”); Calderon v. State, No. 10-17-00265-CR, 2019 WL 962310, at *3 (Tex.
Although both cases are styled Johnson, they are unrelated. See 1994 WL
5
121803, at *2.
16
App.—Waco Feb. 27, 2019, pet. ref’d) (mem. op., not designated for publication)
(stating that appellant “did not assert his right to self-representation until after the
State [had] rested its case-in-chief—much later than the impaneling of the jury and, to
the extent it is relevant, the reading of the indictment and the presentation of the
State’s evidence” and holding that “we cannot say that [appellant] timely asserted his
right to self-representation”); Lathem, 514 S.W.3d at 809–10 (“The State ignores well-
settled law that a request for self-representation is timely if brought before the jury is
impaneled.”); Birdwell v. State, 10 S.W.3d 74, 77 (Tex. App.—Houston [14th Dist.]
1999, pet. ref’d) (stating that the right to self-representation “must . . . be asserted in a
timely manner, namely, before the jury is [i]mpaneled”).
No matter how the case law stacks up against his argument, Appellant persists
in arguing that the timeliness requirement is not valid because it was engrafted “via
dicta” and is contrary to the general principles for the preservation of error. But it is
not our role as an intermediate appellate court to overrule or ignore the precedent of
the Court of Criminal Appeals. Indeed, one of our sister courts declined an invitation
from an appellant to overturn the holdings of the Court of Criminal Appeals that
establish a bright-line deadline for the assertion of the right to self-representation:
[Appellant] invites us to ignore the timeliness requirement because there
is no solid rationale for the rule[] and because the State cannot
demonstrate that his self-representation would have interfered with the
trial process. However, given that we are an intermediate appellate court
and are bound to follow the precedent of the Court of Criminal Appeals,
we are not inclined to adopt [appellant’s] argument regarding the
timeliness factor.
17
Calderon, 2019 WL 962310, at *3. We decline Appellant’s similar invitation in this
appeal.
Even if we were inclined to address Appellant’s challenge to a deadline set
before the impanelment of the jury, we would reject it. Appellant argues that “[a]n
accused’s constitutional right to self-representation is perpetual[;] it does not
disappear after trial has begun. It cannot be infringed by time limitations. An accused
has the right prior to trial and during trial.” [Citations omitted.] The federal courts
analyzing the right to self-representation appear to disagree with Appellant.
As stated by the Fifth Circuit, the United States Supreme Court has concluded
that the right to self-representation can be infringed by time limitations. Moses v.
Davis, 673 F. App’x 364, 368–69 (5th Cir. 2016) (per curiam). In Moses, the Fifth
Circuit explained that
[t]he Supreme Court has made clear . . . that “the right of self-
representation is not absolute,” Indiana v. Edwards, 554 U.S. 164, 171, 128
S. Ct. 2379, [2384] (2008), and has noted with approval that “most
courts require [a defendant to elect self-representation] in a timely
manner.” Martinez v. Court of Appeal of Cal., Fourth Appellate Dist., 528
U.S. 152, 162, 120 S. Ct. 684, [691] (2000) (footnote omitted). The
Court explained, “the government’s interest in ensuring the integrity and
efficiency of the trial at times outweighs the defendant’s interest in acting
as his own lawyer.” Id. The Court has not, however, made clear at what
point a request for self-representation becomes sufficiently untimely that
a trial judge could deny the request without running afoul of the Sixth
Amendment. See Miller v. Thaler, 714 F.3d 897, 903 n.5 (5th Cir. 2013).
Id. at 368. Though it did not place its imprimatur on the holding, Moses mentioned
that a prior Fifth Circuit authority had noted that “[i]f there is to be a Rubicon beyond
18
which the defendant has lost his unqualified right to defend pro se, it makes far better
sense to locate it at the beginning of defendant’s trial[] when the jury is [i]mpaneled
and sworn.” Id. at 368 (quoting Chapman v. United States, 553 F.2d 886, 894 (5th Cir.
1977)).
Moses went on to catalog a Fifth Circuit holding and other circuits’ holdings
that denied federal habeas relief for self-representation assertions made as jury
selection was to commence or after a jury was impaneled:
Furthermore, this court has previously held that federal habeas relief was
not appropriate where a state habeas court had determined a defendant’s
request to proceed pro se to be untimely because the request had been
made “only a few hours before jury selection.” Miller, 714 F.3d at 903 n.5
(emphasis added). Here, [appellant] demanded to present his own
defense only after the jury had been selected. Miller supports the state
habeas court’s position that the district court had discretion to deny
[appellant’s] request to proceed pro se because the request was made
after the jury had been selected. See id. Other circuits have come to
similar conclusions. See, e.g., Hill v. Curtin, 792 F.3d 670, 674, 679 (6th
Cir. 2015) (en banc) (refusing to grant habeas relief on Faretta claim
because defendant requested self-representation on the first day of trial,
before jurors had been [i]mpaneled); United States v. Bishop, 291 F.3d
1100, 1114 (9th Cir. 2002) (“In cases involving jury trials, we have held
that a request is timely if made before the jury is selected or before the
jury is [i]mpaneled, unless it is made for the purpose of delay.”); United
States v. Young, 287 F.3d 1352, 1354–55 (11th Cir. 2002) (holding that
defendant’s request to proceed pro se was untimely when made after the
jury was [i]mpaneled but before it was sworn). At the very least, the law
on this point is not clearly established, and the district court therefore
erred when it held the state habeas court unreasonably applied clearly
established federal law.
Id. at 369 (footnote omitted). Thus, Appellant’s premise—that federal law dictates
Texas courts cannot draw a line that makes the invocation of the right to self-
19
representation untimely—fails. Appellant’s further apparent argument—that no line
can be drawn at the point when a jury is impaneled—also fails.
6. Why we conclude that the trial court did not abuse its
discretion by denying Appellant the right to self-
representation.
The three chapters that chart Appellant’s claim that he was deprived of the
right to self-representation play out as follows:
• In the first chapter, Appellant made no assertion of the right to self-
representation and did not even mention that course of action. He
complained about his appointed lawyer and wanted a new lawyer; that is not
a clear and unequivocal assertion of the right to self-representation. See
Lara, 2020 WL 6373241, at *2; Masters, 2012 WL 2899765, at *3; Denmark,
2004 WL 314884, at *2.
• In the second chapter, Appellant claimed a conflict of interest based on the
fact that his lawyer’s father was a judge who had previously sentenced
Appellant and mentioned the following options: “So essentially that let me
put a couple of options to hire an attorney, have another one appointed[,]
or represent myself.” This is the only reference to self-representation in the
second chapter. It is a mention of the possibility of self-representation,
among other options, and is hardly a clear and unequivocal assertion of the
right to self-representation. See Pickett, 2009 WL 3246755, at *8. Because
20
the assertion was not clear and unequivocal, the trial court had no duty to
admonish further about the right to self-representation.
• There is no doubt that the third chapter contains Appellant’s clear and
unequivocal assertion of the right to self-representation. That assertion
came during the trial after the State had presented its case and had rested.
We have outlined Texas law that establishes a bright-line deadline for the
assertion of the right to self-representation—the point at which a jury is impaneled.
We have addressed Appellant’s contention that the Texas rule is in violation of the
constitutional right to self-representation. Rather than undermine the Texas rule,
authority from the Fifth Circuit and other federal circuits shows that courts have the
power to create a deadline. Even if the federal case law did not support the Texas
rule, the rule is one established by the Court of Criminal Appeals, and it is not within
our purview to change it.
Appellant simply asserted his right to self-representation too late. See Carver,
2023 WL 327815, at *4; Yadav, 2020 WL 4606898, at *8; Calderon, 2019 WL 962310, at
*3.6 Though the trial court did not explicitly rely on the timeliness of Appellant’s
6
Appellant argues that there should be no bright line for the assertion of the
right to self-representation and that loss of the right should depend on whether the
assertion disrupts the “system.” In his words, “[t]he Faretta rights should not be held
to a rigid timeline[] but to a factual determination of whether it would unduly disrupt
the system or be used to manipulate a delay.” Later in his brief, he argues that there
would have been no disruption because “[d]uring the trial, [he] repeatedly stated that
he would proceed the same day and that he was not trying to delay the proceedings in
any regard[] but simply wanted to put forward his personal defense.” We have quoted
21
assertion to deny it, that state of affairs demonstrates a legal reason establishing that
the trial court did not abuse its discretion by denying Appellant’s assertion of the right
to self-representation.
We overrule Appellant’s first point.
B. We sustain some of Appellant’s double-jeopardy violations.
In the remainder of his appellate points, Appellant asserts that his multiple
convictions constitute double-jeopardy violations.
1. We set forth Appellant’s multiple convictions and how we
resolve his points claiming that he received multiple
punishments for the same offense.
We quote the State’s outline of the offenses for which Appellant was indicted
and convicted; each offense relates to the events occurring on July 7, 2021, and each
was snapshotted in the factual background section of this opinion:
• Count One: Aggravated kidnapping with a deadly weapon by
intentionally or knowingly abducting [the complainant] by secreting
or holding him in a place where he was not likely to be found or
using or threatening to use deadly force, namely a metal object or
pot, and using or exhibiting a deadly weapon (a metal object or pot)
in a manner capable of causing death or serious bodily injury.
• Count Three: Burglary of a habitation by intentionally or knowingly
entering [the complainant’s] habitation without his effective consent
and committing or attempting to commit the offense of injury to an
elderly individual.
the portion of the record in which Appellant was evasive in response to questions
about how long he would need to prepare should he be permitted to represent
himself. Because of the stage of the trial and Appellant’s equivocation, an implied
finding of unreasonable delay is also supported by the record.
22
• Count Four: Aggravated robbery with a deadly weapon by
intentionally, knowingly[,] or recklessly, while in the course of
committing theft of property and with intent to obtain or maintain
control of said property, caused bodily injury to [the complainant] by
striking him, using or exhibiting a deadly weapon (a metal object or
pot) in a manner capable of causing death or serious bodily injury.
• Count Five: Aggravated assault with a deadly weapon by
intentionally or knowingly causing bodily injury to [the complainant],
by striking him, and using or exhibiting a deadly weapon (a metal
object or pot) in a manner capable of causing death or serious bodily
injury.
• Count Six: Aggravated assault with a deadly weapon by intentionally
or knowingly threatening imminent bodily injury to [the
complainant], and using or exhibiting a deadly weapon (a metal object
or pot) in a manner capable of causing death or serious bodily injury.
• Count Seven: Injury to an elderly individual by intentionally or
knowingly causing bodily injury to [the complainant], an elderly
individual, by striking him with his hand, or by striking him with a
metal object or pot, or by kicking him with his foot, and using or
exhibiting a deadly weapon (a metal object or pot) in a manner
capable of causing death or serious bodily injury.[7]
Appellant contends in his second through fifth points that convictions for the
listed offenses subject him to multiple punishments for the same offense in several
regards and that these multiple punishments violate the constitutional prohibition on
double jeopardy. Specifically, Appellant contends that the following double-jeopardy
violations have occurred:
• His second point argues that there were multiple punishments for the
convictions for aggravated robbery with a deadly weapon by causing
7
The State waived Count Two of the indictment that alleged burglary by
entering with intent to commit injury to the elderly.
23
bodily injury and for aggravated assault with a deadly weapon by causing
bodily injury referenced in Counts Four and Five.
• His third point argues that there were multiple punishments for the
convictions for burglary by committing injury to an elderly individual
and for committing injury to an elderly individual referenced in Counts
Three and Seven.
• His fourth point argues that there were multiple punishments for the
convictions for kidnapping by threatening deadly force and aggravated
assault by threatening deadly force referenced in Counts One and Six.
• His fifth point argues that there were multiple punishments for the
convictions for aggravated assault with a deadly weapon arising from the
same assaultive incident referenced in Counts Five and Six.
The State concedes that Appellant’s second, third, and fifth points raise
meritorious double-jeopardy complaints. We agree. We also agree with the State that
Appellant has not suffered a double-jeopardy violation for the punishments
referenced in his fourth point.
2. Appellant has not forfeited his double-jeopardy claims.
Appellant made no objection on double-jeopardy grounds in the trial court.
Even so, “[an appellant can] raise his unpreserved double-jeopardy claim for the first
time on appeal . . . if (1) the undisputed facts show a double-jeopardy violation clearly
24
apparent on the face of the record[] and (2) enforcing the usual procedural-default
rules serves no legitimate state interests.” Escobedo v. State, No. 02-19-00260-CR, 2020
WL 6788078, at *2 (Tex. App.—Fort Worth Nov. 19, 2020, pet. ref’d) (mem. op., not
designated for publication) (first citing Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim.
App. 2000); and then citing Cabral v. State, 170 S.W.3d 761, 764 (Tex. App.—Fort
Worth 2005, pet. ref’d) (mem. op.)). Both Appellant and the State cite this rule, and
the State concedes that Appellant is entitled to at least part of the relief that he seeks.
Thus, we conclude that Appellant has not forfeited his double-jeopardy complaints.
3. We set forth the tests that we apply to determine whether
there is a double-jeopardy violation resulting from the
imposition of multiple punishments for the same offense.
The United States Constitution’s Fifth Amendment’s Double-Jeopardy Clause
provides that no person shall “be subject for the same offense to be twice put in
jeopardy of life or limb.” U.S. Const. amend. V. The clause serves three purposes:
The Double[-]Jeopardy Clause of the Fifth Amendment, applicable to
the states through the Fourteenth Amendment, protects an accused
against [(1)] a second prosecution for the same offense after acquittal,
[(2)] a second prosecution for the same offense after conviction, and
[(3)] multiple punishments for the same offense. Brown v. Ohio, 432 U.S.
161, 165, 97 S. Ct. 2221, [2225] (1977); Ex parte Amador, 326 S.W.3d 202,
205 (Tex. Crim. App. 2010).
Ex parte Denton, 399 S.W.3d 540, 545 (Tex. Crim. App. 2013).
The overarching concern of the double-jeopardy protection in a multiple-
punishment context is to prevent “a court from prescribing greater punishment than
the legislature intended.” Ex parte Benson, 459 S.W.3d 67, 71 (Tex. Crim. App. 2015).
25
Stated differently, “To decide whether the double-jeopardy protection against multiple
punishments for the same offense has been infringed, courts must seek to understand
how many punishments the law actually permits: What has the state legislature
prescribed with respect to how many times an offender may be punished?” Nawaz v.
State, 663 S.W.3d 739, 743 (Tex. Crim. App. 2022). And simply because a jury returns
multiple verdicts, there is not a double-jeopardy violation; the violation occurs when
multiple punishments are assessed for the same offense:
Clearly, “the State has the right to prosecute and obtain jury verdicts on two
offenses in a single trial, even if the offenses are the same for double[-]
jeopardy purposes.” [Ex parte] Aubin, 537 S.W.3d [39,] 43 [(Tex. Crim.
App. 2017)] (emphasis original); see also Evans [v. State,] 299 S.W.3d
[138,] 141 [(Tex. Crim. App. 2009)] (stating that “the State may seek a
multiple-count indictment based on violations of different statutes, even
when such violations are established by a single act[,] but the defendant
may be convicted and sentenced for only one offense”). If actually
convicted of both offenses, the court should assess the punishment for
only the more serious offense. Evans, 299 S.W.3d at 141; Bigon v. State,
252 S.W.3d 360, 372–73 (Tex. Crim. App. 2008).
Perkins v. State, No. 08-19-00068-CR, 2021 WL 754344, at *2 (Tex. App.—El Paso
Feb. 26, 2021, pet. ref’d) (not designated for publication).
A double-jeopardy challenge to multiple punishments may occur in two
circumstances: (1) “multiple offenses in different statutory provisions that are the
result of a single course of conduct”; or (2) “offenses [that] are alternative means of
committing the same statutory offense.” Garfias v. State, 424 S.W.3d 54, 58 (Tex.
Crim. App. 2014); Loving v. State, 401 S.W.3d 642, 645 (Tex. Crim. App. 2013). The
Court of Criminal Appeals has described the two circumstances under which a
26
defendant is suffering multiple punishments for the same offense as a result of
violating more than one statute:
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.
Denton, 339 S.W.3d at 540.
Different tests apply to determine if improper multiple punishments have been
imposed, with the determination of which test applies depending “in part on whether
the offenses at issue are codified in a single statute or in two distinct statutory
provisions.” Benson, 459 S.W.3d at 71. These are the “elements” and the “units” tests.
Garfias, 424 S.W.3d at 58.
Before specifically describing the substance of the tests, it is necessary to
describe how each applies depending on “whether the offenses at issue are codified in
a single statute or in two distinct statutory provisions.” Benson, 459 S.W.3d at 71.
How the tests each apply to distinct situations but may also overlap in their
application is described as follows:
The codification of offenses in two distinct statutory provisions is, by
itself, some indication of a legislative intent to impose multiple
punishments. When two distinct statutory provisions are at issue, the
offenses must be considered the same under both an “elements” analysis
and a “units” analysis for a double-jeopardy violation to occur. When
only one statute is at issue, the “elements” analysis is necessarily resolved
27
in the defendant’s favor, and only a “units” analysis remains to be
conducted.
Id. (footnotes omitted).
The “elements” test involves a multistep process that is derived from the
United States Supreme Court opinion in Blockburger v. United States, 284 U.S. 299, 304,
52 S. Ct. 180, 182 (1932):
The elements analysis conducted in the two-statute context begins with
the Blockburger same-elements test. That test asks “whether each
provision requires proof of a fact which the other does not.” The
application of the Blockburger same-elements test in Texas is governed by
the cognate-pleadings approach, which entails comparing the elements
of the greater offense as pleaded to the statutory elements of the lesser
offense. If the two offenses, so compared, have the same elements, then
“a judicial presumption arises that the offenses are the same for
purposes of double jeopardy” and that the defendant may not be
punished for both, but that presumption can be rebutted by a clearly
expressed legislative intent to impose multiple punishments. Conversely,
if the two offenses have different elements under the Blockburger test, the
judicial presumption is that the offenses are different for double-
jeopardy purposes and that cumulative punishment may be imposed.
This presumption can be rebutted by a showing, through various factors,
that the legislature “clearly intended only one” punishment.
Benson, 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. App. 2021)] (citing
Blockburger . . . , 284 U.S. [at] 304, 52 S. Ct. [at 182]). Implementing its
“cognate-pleadings approach” to the Blockburger “same-elements” test,
this Court asks whether each offense, as ple[aded] in the charging
28
The cognate-pleadings “approach” that governs the “elements” test looks to a
limited scope of material: “[T]he offenses compared in an ‘elements’ analysis are
derived solely from the pleadings and the relevant statutory provisions. In an
‘elements’ analysis, a court may not consider the evidence presented at trial.” Benson,
459 S.W.3d at 73 (footnotes omitted).
But the facts “alleged” still play a critical role in applying the Blockburger same-
elements test. Two offenses are the same when one is “factually subsumed” within
the other, i.e., “[a]n offense may be factually subsumed when there is a single act that
cannot physically occur in the absence of another act.” See Maldonado v. State, 461
S.W.3d 144, 148–49 (Tex. Crim. App. 2015). Even with “offenses that have differing
elements under Blockburger,” a double-jeopardy violation may still exist because
“[u]nder the cognate-pleadings approach adopted by th[e] Court[ of Criminal
Appeals], double-jeopardy challenges should be made even to offenses that have
differing elements under Blockburger, if the same ‘facts required’ are alleged in the
indictment.” Denton, 399 S.W.3d at 546 (quoting Bigon, 252 S.W.3d at 370).
instrument, contains at least one element that the other does not. Benson,
459 S.W.3d at 72. If not, then the Court presumes that the two offenses
are the same for multiple-punishment double-jeopardy purposes. Id.
But if each offense does contain an element that the other does not, then
the presumption is that the offenses are different, and the Court goes on
to inquire whether other considerations may operate to defeat that
presumption. Id. at 72–73 (citing Ervin v. State, 991 S.W.2d 804, 814
(Tex. Crim. App. 1999)).
663 S.W.3d at 743–44 (footnote omitted).
29
In turn, the following factors are then examined to determine whether the
legislature intended only a single punishment even though the Blockburger test
produced the conclusion that the statutes have different elements and presumptively
permit multiple punishments, i.e., the Ervin factors:
In . . . Ervin, we set forth a non-exclusive list of factors to consider in
determining whether the legislature intended only one punishment for
offenses that contain different elements under Blockburger: (1) whether
offenses are in the same statutory section or chapter; (2) whether the
offenses are phrased in the alternative; (3) whether the offenses are
named similarly; (4) whether the offenses have common punishment
ranges; (5) whether the offenses have a common focus or gravamen;
(6) whether the common focus tends to indicate a single instance of
conduct; (7) whether the elements that differ between the two offenses
can be considered the same under an imputed theory of liability that
would result in the offenses being considered the same under Blockburger
(a liberalized Blockburger standard); and (8) whether there is legislative
history containing an articulation of an intent to treat the offenses as the
same or different for double-jeopardy purposes. In some later cases we
have given more weight to the fifth and sixth factors, which, in
combination, require that we examine the focus or gravamen of each
offense and compare the resulting allowable units of prosecution.
Although determining the allowable unit of prosecution is part of a
separate “units” analysis (conducted when only a single statute is
involved or after offenses proscribed by two statutes are deemed the
same under an “elements” analysis), consideration of the unit of
prosecution can play a role even in an “elements” analysis by helping to
ascertain the legislative intent.
Benson, 459 S.W.3d at 72–73 (footnotes omitted) (citing Ervin, 991 S.W.2d at 814).
Next, with respect to the species of a double-jeopardy claim based on the
assertion that a defendant is being punished twice for a greater- and a lesser-included
offense, the following test applies:
30
A multiple-punishments double-jeopardy violation occurs if both a
greater[-] and a lesser-included offense are alleged and the same conduct
is punished once for the greater offense and a second time for lesser.
Langs v. State, 183 S.W.3d [680,] 685[ (Tex. Crim. App. 2006)]. A lesser-
included offense is one that “is established by proof of the same or less
than all the facts required to establish the commission of the offense
charged[.]” Tex. Code Crim. Proc. [Ann.] art. 37.09(1).
Denton, 399 S.W.3d at 546.
The “units” test is used to augment the “elements” test when “two distinct
statutory provisions are at issue” and is used as the exclusive test “[w]hen only one
statute is at issue”:
Even when the offenses in question are proscribed by a single statute or
are otherwise the same under an “elements” analysis, the protection
against double jeopardy is not violated if the offenses constitute separate
allowable units of prosecution. This latter inquiry involves determining
such things as whether there were two murder victims, whether a victim
who was assaulted on Monday was assaulted again on Tuesday, or
whether multiple kinds of sex acts were committed against a victim. A
“units” analysis consists of two parts: (1) what the allowable unit of
prosecution is, and (2) how many units have been shown. The first part
of the analysis is purely a question of statutory construction and
generally requires ascertaining the focus or gravamen of the offense.
The second part requires an examination of the trial record, which can
include the evidence presented at trial.
Benson, 459 S.W.3d at 73–74 (footnotes omitted). 9
9
As stated in Nawaz,
A “units of prosecution” analysis, in turn, may involve one of at least
two questions, depending on whether (1) the defendant is being
convicted more than once for an offense defined under the identical
statutory subsection, or . . . (2) he is being convicted more than once . . .
under different statutory subsections of the same penal statute.
....
31
It is purely a matter of statutory construction to ascertain the allowable unit of
prosecution for an offense. Benson, 459 S.W.3d at 73–74. As stated in a recent
opinion from the Corpus Christi–Edinburg Court of Appeals,
[Double-jeopardy] protection, however, is subject to the [Texas]
Legislature’s “power to establish and define crimes.” Shelby v. State, 448
S.W.3d 431, 435 (Tex. Crim App. 2014) (quoting Garfias . . . , 424 S.W.3d
[at] 58 . . .). In other words, the [Texas] Legislature has the authority to
allow multiple punishments for the same conduct under different
theories of criminal liability. Id. Accordingly, a double[-]jeopardy
analysis is an exercise in statutory construction, a question of law that we
review de novo. See id.; State v. Maldonado, 523 S.W.3d 769, 774 (Tex.
App.—Corpus Christi–Edinburg 2017, no pet.).
Gunter v. State, No. 13-22-00020-CR, 2023 WL 3872674, at *2 (Tex. App.—Corpus
Christi–Edinburg June 8, 2023, no pet. h.).
Under the first of these two “units of prosecution” analyses, the
question will often devolve into a determination of when one violation
of the statutory offense has come to an end and another identically
defined violation of the same statutory offense has begun[,] or it may
depend on how many victims of the identically defined offense there
were.
663 S.W.3d at 744. For the second kind of units-of-prosecution inquiry, “the [c]ourt
must ask a different question: whether, when a single act or course of conduct by a
defendant violates more than one subsection of the same penal statute, the defendant
may be punished separately for violating each discrete subsection, or may he be
punished only once?” Id. at 745.
32
4. We sustain Appellant’s second point contending that he
received multiple punishments for the same offense as a
result of his convictions for aggravated robbery based on
causing bodily injury and aggravated assault as alleged in
Counts Four and Five.
In essence, Counts Four and Five of the indictment charged Appellant with the
same conduct, which is that he “cause[d] bodily injury to [the complainant] by striking
him[] and [that] the defendant . . . use[d] or exhibit[ed] a deadly weapon during the
commission of the assault, namely, a metal object or pot, that in the manner of its use
or intended use was capable of causing death or serious bodily injury.” Count Four
adds the elements “while in the course of committing theft of property and with
intent to obtain or maintain control of [certain] property.” 10
The gravamen of aggravated robbery and aggravated assault is assaultive
conduct toward a victim. Denton, 399 S.W.3d at 546. In Denton, the Court of Criminal
Appeals concluded that an aggravated-assault count was a lesser-included offense of
an aggravated-robbery count in circumstances similar to that which we confront:
As plead[ed] in the indictments, the counts for both aggravated robbery
and aggravated assault assert that applicant intentionally or knowingly
threatened another person with imminent bodily injury and used or
exhibited a deadly weapon during the commission of that offense. The
counts for aggravated robbery further allege that applicant committed
theft. Thus, as plead[ed], aggravated assault is a lesser-included offense
of aggravated robbery because “it is established by proof of the same or
less than all the facts required to establish the commission of the offense
charged[.]” Tex. Code Crim. Proc. [Ann.] art. 37.09(1).
The offenses alleged are found in Texas Penal Code Sections 22.01(a)(1)–(2),
10
29.02(a)(1)–(2), and 29.03(a)(1)–(2). Tex. Penal Code Ann. §§ 22.01(a)(1)–(2),
29.02(a)(1)–(2), 29.03(a)(1)–(2).
33
Id. at 547. The aggravated assault count was a lesser-included offense of aggravated
robbery, and Denton also concluded that there was no legislative intent to punish the
offenses separately. Id. The logic of Denton applies to establish that, in violation of
his right against double jeopardy, Appellant has received multiple punishments for the
same offense by being punished for both aggravated robbery and aggravated assault as
alleged in Counts Four and Five. The State agrees that the assessment of multiple
punishments for those offenses is error.
We sustain Appellant’s second point.
5. We sustain Appellant’s third point contending that he
received multiple punishments for the same offense as a
result of his convictions for burglary by committing injury to
an elderly individual and for committing injury to an elderly
individual as alleged in Counts Three and Seven.
Count Seven of the indictment alleges how Appellant caused bodily injury to
the complainant as an elderly person. Count Three—a burglary charge—adds that
Appellant “intentionally or knowingly enter[ed] a habitation, without the effective
consent of [the complainant], the owner thereof, and attempted to commit or did
commit the felony offense of injury to an elderly individual.”11
The State cites us to Torres v. State, which concludes that injury to an elderly
person is a lesser-included offense of burglary and that to punish a defendant for both
11
These counts allege offenses under Penal Code Sections 22.04(a)(3) and
30.02(a)(3). See Tex. Penal Code Ann. §§ 22.04(a)(3), 30.02(a)(3).
34
offenses assesses multiple punishments in violation of the prohibition against double
jeopardy:
Here, the State alleged in paragraph one of Count IV that [a]ppellant
“intentionally or knowingly enter[ed] a habitation, without the consent
of [the victim], the owner thereof, and attempted to commit or
committed the felony offense of Injury to an Elderly or Disabled
Individual.” The State further alleged in Count V that [a]ppellant
“intentionally, knowingly[,] and recklessly cause[d] bodily injury to [the
victim], an individual who was then and there 65 years of age or older.”
As such, Count IV of the indictment alleges burglary of a habitation with
the actual or attempted commission of a felony (injury to an elderly
person), a charge that falls under [S]ection 30.02(a)(3). See Tex. Penal
Code Ann. § 30.02(a)(3). Under Langs and Blockburger, the injury[-]to[-]
an[-]elderly[-]person offense serves as a lesser-included offense to
burglary of a habitation because although the latter offense requires
proof of a fact that the injury[-]to[-]an[-]elderly[-]person charge does not
(i.e., entry without consent), the State must prove all the elements of the
injury[-]to[-]an[-]elderly[-]person charge in order to prove the burglary
offense, and thus the injury[-]to[-]an[-]elderly[-]person charge would not
require proof of an additional element that the burglary offense does not
also require. See Langs, 183 S.W.3d at 686; Matter of T.D.N., 620 S.W.3d
433, 441 (Tex. App.—El Paso 2020, no pet.) (recognizing double
jeopardy’s prohibition of convictions for both burglary of a habitation
and the underlying felony).
No. 08-22-00004-CR, 2022 WL 2965977, at *6 (Tex. App.—July 27, 2022, no pet.)
(not designated for publication). We agree with the El Paso Court of Appeals’
analysis. We conclude that Appellant has received multiple punishments for the same
offense because he was punished for burglary by committing injury to an elderly
individual and for the lesser-included offense of committing injury to an elderly
individual as alleged in Counts Three and Seven.
We sustain Appellant’s third point.
35
6. We overrule Appellant’s fourth point contending that he
received multiple punishments for the same offense as a
result of his convictions for kidnapping and aggravated
assault based on the threat of the use of deadly force as
alleged in Counts One and Six.
Count One of the indictment alleges that Appellant committed aggravated
kidnapping with a deadly weapon when he
intentionally or knowingly abduct[ed] [the complainant] by restricting the
movements of [the complainant] without his consent so as to interfere
substantially with his liberty, by moving [the complainant] from one
place to another or confining [the complainant] with the intent to
prevent the liberation of [the complainant] by secreting or holding [the
complainant] in a place [the complainant] was not likely to be found or
using or threatening to use deadly force, namely a metal object or pot, and
the defendant did use or exhibit a deadly weapon, namely, a metal object
or pot, that in the manner of its use or intended use was capable of
causing death or serious bodily injury, during the commission of the
offense. [Emphasis added.]
Count Six alleges that Appellant committed aggravated assault when he
intentionally or knowingly threaten[ed] imminent bodily injury to [the
complainant], and the defendant . . . use[d] or exhibit[ed] a deadly
weapon during the commission of the assault, namely, a metal object or
pot, that in the manner of its use or intended use was capable of causing
death or serious bodily injury.[12]
Appellant contends that he has received multiple punishments for Counts One
and Six because “both a greater[-] and a lesser-included offense were alleged and
[because] the same conduct was punished once for the greater offense and a second
12
The count for aggravated kidnapping charges an offense under Penal Code
Section 20.04(b). See Tex. Penal Code Ann. § 20.04(b). The aggravated-assault count
charges an offense under Penal Code Sections 22.01(a)(1)–(2) and 22.02(a)(2). See id.
§§ 22.01(a)(1)–(2), 22.02(a)(2).
36
time for lesser.” The State counters that there is no multiple-punishments violation
because Appellant has not received a punishment under both counts for a single act.
We agree that there is no double-jeopardy multiple-punishments violation resulting
from Appellant’s convictions for aggravated kidnapping and aggravated assault but do
so for a different reason than argued by the State.
As shown by the arguments outlined, the parties focus on whether as alleged
the aggravated-assault-by-threat count is a lesser-included offense to the count of
aggravated kidnapping. The aggravated-kidnapping count also includes the allegation
of threat. If left purely to the question of whether the aggravated-assault charge was a
lesser-included offense of the aggravated-kidnapping charge, it would be a close
question. We quote one of the opinions cited by the State to show how a count of
aggravated assault may or may not be a lesser-included offense of aggravated
kidnapping depending on how the offenses are alleged:
Relying on Girdy v. State, 213 S.W.3d 315 (Tex. Crim. App. 2006),
[appellant] contends [that] aggravated assault by threat is a lesser-
included offense of aggravated kidnapping because the same facts were
required to establish both offenses. Girdy, however, is distinguishable
because of how the State charged the offenses. In Girdy, the indictment
alleged [that] the defendant committed aggravated kidnapping when he
abducted the victim “by using and threatening to use deadly force on the
said [victim], and with intent to inflict bodily injury on her[.]” Id. at 316.
The indictment further alleged [that] the defendant committed
aggravated assault by “threaten[ing] [the victim] with imminent bodily
injury and did then and there use a deadly weapon . . . .” Id. The court
held aggravated assault was a lesser-included offense of aggravated
kidnapping because as charged, aggravated assault was “established by
proof of the same or less than all the facts required to establish the
commission of” aggravated kidnapping. Id. at 319 (emphasis added).
37
Here, however, aggravated kidnapping was based on the allegation that
[appellant had] abducted [the victim] by restricting his movements, [by]
moving him from one place to another, and by secreting or holding
him—not by threat of imminent bodily injury, conduct required to prove
aggravated assault by threat. Accordingly, Girdy does not compel us to
find a double[-]jeopardy violation under Blockburger in this case.
Verastegui v. State, No. 04-18-00401-CR, 2019 WL 3307856, at *5 (Tex. App.—San
Antonio July 24, 2019, no pet.) (mem. op., not designated for publication). Here the
allegation of the two counts appears to come closer to the situation faced in Girdy and
thus closer to an allegation that made the aggravated-assault charge a lesser-included
offense of the aggravated-kidnapping charge.
But we do not need to examine the multiple-punishments question strictly
under a Blockburger analysis. Verastegui also presented a detailed analysis under the
Ervin factors that demonstrated that the Texas Legislature intended to allow separate
punishments for aggravated kidnapping and assault by threat.13 Id. We quote the
analysis in full:
13
Verastegui’s focus on the gravamen of the offense is appropriate no matter the
results of an elements analysis. The Court of Criminal Appeals has noted that even if
a Blockburger analysis results in a conclusion that the offenses are the same, a court
should still examine legislative intent because
the Blockburger test is a rule of statutory construction[] and not the
exclusive test for determining if two offenses are the same. Bigon, 252
S.W.3d at 370. The ultimate question is whether the [Texas] Legislature
intended to allow the same conduct to be punished under both of the
statutes in question. Id. at 371.
38
Turning to the Ervin factors, we must also determine whether the
offenses at issue share a common focus or gravamen. See Garfias, 424
S.W.3d at 59. The gravamen of kidnapping is the act of abduction.
Schweinle v. State, 915 S.W.2d 17, 19 n.2 (Tex. Crim. App. 1996).
Kidnapping is a result-oriented offense because the ultimate focus is the
abduction of the victim, not how the defendant restrains or interferes
with the victim’s liberty. Gonzales[ v. State], 270 S.W.3d [282,] 288 [(Tex.
App.—Amarillo 2008, pet. ref’d) (op. on reh’g)]. The offense is legally
completed when at any time during the restraint, the defendant forms
the intent to prevent the victim’s liberation by secreting or holding the
victim in a place he is unlikely to be found. Laster[ v. State], 275 S.W.3d
[512,] 521 [(Tex. Crim. App. 2009)]. On the other hand, the gravamen
of aggravated assault by threat is the conduct itself, not the result, and
therefore it is a nature-of-conduct crime as opposed to a result-oriented
crime. Garfias, 424 S.W.3d at 60. There is an obvious distinction
between the gravamen of each offense—the aggravated[-]kidnapping
charge and conviction focused on the abduction, i.e., the actual harm
inflicted, while the aggravated[-]assault[-]by[-]threat charge and
conviction focused on [appellant’s] threatening conduct. Cf. [id.]
Accordingly, the gravamina of the two offenses indicates [that] the
Shelby, 448 S.W.3d at 436. Shelby 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” analysis. Id. Though this is a necessary step in analyzing a
multiple-punishments claim dealing with two statutes from the same
statutory section, such a determination can be indicative of legislative
intent even in an “elements” analysis. Id.
Id.; see also Nawaz, 663 S.W.3d at 745–46 (“Ultimately, however, regardless of which of
these types of analysis is the appropriate one in a given case, this [c]ourt has said that
‘the best indicator’ of the allowable unit of prosecution ‘seems to be the focus or
“gravamen” of the offense.’” (quoting Jones v. State, 323 S.W.3d 885, 889 (Tex. Crim.
App. 2010))).
39
[Texas] Legislature intended to allow separate punishments for
aggravated kidnapping and aggravated assault by threat. See id.
The other Ervin factors also support this conclusion. First,
aggravated kidnapping and aggravated assault by threat are not contained
in the same statutory section. Compare Tex. Penal Code [Ann.] § 20.04(b)
(Chapter 20, Penal Code, Kidnapping, Unlawful Restraint, and
Smuggling of Persons), with id. §§ 22.01(a)(2), 22.02(a)(2) (Chapter 22,
Penal Code, Assaultive Offenses). Second, the offenses are neither
phrased in the alternative nor similarly named. Compare Tex. Penal Code
[Ann.] § 20.04(b), with id. §§ 22.01(a)(2), 22.02(a)(2). And third, although
the trial court sentenced [appellant] to forty-five years’ confinement for
each offense, the offenses do not have identical punishment ranges—
aggravated kidnapping in this case is a first[-]degree felony, which carries
a punishment range of confinement “for life or for any term of not more
than 99 years or less than five years” and a fine not to exceed $10,000.00,
but aggravated assault by threat is a second[-]degree felony, which carries
a punishment range of confinement “for any term of not more than 20
years or less than 2 years” and a fine not to exceed $10,000.00. Compare
Tex. Penal Code Ann. § 12.32, with id. § 12.33. Finally, when as here, the
[Texas] Legislature has not provided an express statement defining the
allowable unit of prosecution, the gravamen of the offense best
describes the allowable unit of prosecution. See Garfias, 424 S.W.3d at
61. As discussed above, the gravamina of [appellant’s] convictions for
aggravated kidnapping and aggravated assault differ. Therefore, the
allowable units of prosecution are not the same. See id.
Id. (footnote omitted); Mickens v. State, No. 06-19-00199-CR, 2020 WL 5985200, at *4
(Tex. App.—Texarkana Oct. 9, 2020, no pet.) (mem. op., not designated for
publication) (applying Ervin factors to conclude that aggravated kidnapping and
aggravated assault may be punished separately).
We agree that applying the Ervin factors and focusing on the gravamina of the
offenses “indicates [that] the [Texas] Legislature intended to allow separate
punishments for aggravated kidnapping and aggravated assault by threat.” See
40
Verastegui, 2019 WL 3307856, at *5. Thus, the prohibition against double jeopardy
does not prohibit separate punishments for Appellant’s convictions for aggravated
kidnapping and aggravated assault by threat.
We overrule Appellant’s fourth point.
7. We sustain Appellant’s fifth point contending that he
received multiple punishments for the same offense as a
result of his convictions for two counts of aggravated assault
as alleged in Counts Five and Six.
Count Five of the indictment alleges aggravated assault with a deadly weapon
when Appellant
intentionally or knowingly cause[d] bodily injury to [the complainant] by
striking him, and the defendant . . . use[d] or exhibit[ed] a deadly weapon
during the commission of the assault, namely, a metal object or pot, that
in the manner of its use or intended use was capable of causing death or
serious bodily injury. [Emphasis added.]
Count Six alleges that Appellant threatened the same act.14
Applying the “units” test for determining whether multiple punishments have
occurred when “the offenses in question are proscribed by a single statute,” the State’s
brief makes the following concession:
The gravamen of aggravated assault is either causing bodily injury or
threatening imminent bodily injury, depending on which theory has been
pleaded in the charging instrument. Shelby . . . , 448 S.W.3d at 438. The
allowable unit of prosecution for assaultive offenses in a single instance
14
These counts allege offenses under Penal Code Section 22.02(a)(2), which
provides that “[a] person commits an offense if the person commits assault as defined
in § 22.01 and the person[] (1) causes serious bodily injury to another, including the
person’s spouse[,] or (2) uses or exhibits a deadly weapon during the commission of
the assault.” Tex. Penal Code Ann. § 22.02(a).
41
is one prosecution per victim. [Id.] at 439. There is no indication that
the [Texas] Legislature intended a single assaultive instance against a
single person to yield two separate aggravated assault convictions. [Id.]
at 439–40. Thus, the appellant’s punishments for two aggravated
assaults against the same victim violates his protection against double
jeopardy.
We agree with the State’s analysis. We conclude that Appellant received multiple
punishments for the same offense in violation of his right against double jeopardy
when he was punished for both aggravated assault by striking the complainant and
using or exhibiting a deadly weapon and aggravated assault by threatening that
conduct. See Gunter, 2023 WL 3872674, at *4 (“[W]here a single act caused bodily
injury to a single victim, [S]ubsections 22.02(a)(1) and (a)(2) [of the Penal Code]
constitute the same offense for purposes of double jeopardy.”).
We sustain Appellant’s fifth point.
8. The remedies that we utilize to address the double-jeopardy
violations that we concluded have occurred.
We structure the remedy to address a multiple-punishment double-jeopardy
violation as follows:
When a defendant has been prosecuted and convicted in a single
criminal action of two or more offenses that constitute the same offense,
in violation of double jeopardy, the remedy is to apply “the most serious
offense” test and retain the conviction for the “most serious” offense.
Denton, 399 S.W.3d at 547. The “most serious” offense is the offense for
which the greatest sentence was assessed. Ex parte Cavazos, 203 S.W.3d
333, 338 (Tex. Crim. App. 2006); see also Evans . . . , 299 S.W.3d [at]
141 . . . ; Bigon, 252 S.W.3d at 372–73. But when the punishment for
each conviction is identical, we cannot look to only the sentences
imposed to determine the most serious offense. See Bigon, 252 S.W.3d at
373. Instead, we have to look to other criteria, including the degree of
42
felony for each offense, to determine which offense is the most serious.
Id.; White v. State, 395 S.W.3d 828, 832 (Tex. App.—Fort Worth 2013, no
pet.).
Jones v. State, Nos. 02-14-00068-CR, 02-14-00069-CR, 02-14-00070-CR, 2014 WL
6496965, at *3 (Tex. App.—Fort Worth Nov. 20, 2014, pet. dism’d) (mem. op., not
designated for publication).
We remedy the double-jeopardy claims that we have sustained as follows:
• Second point
Appellant received improper multiple punishments for his convictions in
Counts Four and Five for aggravated robbery and aggravated assault.
He received a sentence of twenty-five years for the aggravated-robbery
conviction and forty years for the aggravated-assault conviction. We
vacate the conviction and sentence in Count Four for aggravated
robbery and retain the conviction in Count Five for aggravated assault.
• Third point
Appellant received improper multiple punishments for his convictions in
Counts Three and Seven for burglary and injury to an elderly individual.
He received a sentence of twenty-five years for the burglary conviction
and forty years for the injury-to-an-elderly-individual conviction. We
vacate the conviction and sentence in Count Three for burglary and
retain the conviction in Count Seven for injury to an elderly person.
43
• Fifth point
Appellant received improper multiple punishments for his convictions in
Counts Five and Six for two counts of aggravated assault. For each
count, he received a sentence of forty years. In resolving Appellant’s
second point, we retained the aggravated-assault conviction in Count
Five. Thus, we vacate the duplicate conviction in Count Six. Cf. Jones,
2014 WL 6496965, at *3.
IV. Conclusion
Having overruled Appellant’s first and fourth points, we affirm those
judgments that survive our double-jeopardy analysis—Count One for aggravated
kidnapping, Count Five for aggravated assault, and Count Seven for injury to an
elderly person. Having sustained Appellant’s second, third, and fifth points, we vacate
and dismiss Appellant’s convictions in Count Three for burglary, in Count Four for
aggravated robbery, and in Count Six for aggravated assault.
/s/ Dabney Bassel
Dabney Bassel
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: July 6, 2023
44
Matthew Wolfe v. the State of Texas
Combined Opinion