NUMBER 13-22-00020-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

 

BRIAN ERIK GUNTER, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 24th District Court

of Jackson County, Texas.

 

OPINION

Before Chief Justice Contreras and Justices Benavides and Longoria

Opinion by Justice Benavides

Appellant Brian Erik Gunter, who was driving while intoxicated and speeding, 

caused an accident that resulted in the death of twelve-year-old LeMarquis Scott Lee. 

Based on this single incident and the fatal injuries suffered by Lee, the trial court convicted 

Gunter of five separate offenses: intoxication manslaughter (Count 1), aggravated assault 
2

with a deadly weapon (Count 2), aggravated assault causing serious bodily injury (Count 

3), recklessly causing serious bodily injury to a child (Count 4), and endangering a child

(Count 6). 1 See TEX. PENAL CODE ANN. §§ 22.02(a)(1), 22.02(a)(2), 22.04(a)(1), 

22.041(c), 49.08.

By a single issue with multiple subparts, Gunter complains that his convictions for 

aggravated assault and endangering a child violated his double-jeopardy protection 

against multiple punishments for the same offense, and therefore, only his convictions for 

intoxication manslaughter and serious bodily injury to a child should remain. According to 

the State, the evidence demonstrates that Lee suffered “numerous serious and fatal 

injuries,” and we should consider these as distinct injuries sufficient to support Gunter’s 

separate convictions. We affirm Gunter’s convictions for intoxication manslaughter, injury 

to a child, and endangering a child, and we vacate his convictions for aggravated assault.

I. BACKGROUND

Gunter waived his right to a jury, and the case was tried to the bench. Although 

causation was hotly contested at trial, for purposes of this appeal, it is undisputed that 

Gunter’s operation of a motor vehicle while intoxicated and in excess of the posted speed 

limit caused the accident that resulted in Lee’s death.2

1 The crimes alleged in Counts 1–4 are second-degree felonies, and endangering a child is a state 

jail felony. See TEX. PENAL CODE ANN. §§ 22.02(b), 22.04(e), 22.041(f), 49.08(b).Gunter was also indicted 

on a charge of criminal negligence causing serious bodily injury to a child, a state jail felony (Count 5). This 

count was abandoned by the State at the close of evidence.

2 Lee was sitting in the rear passenger seat of a vehicle driven by his grandmother. She made an 

unprotected left turn from a two-lane street with a posted speed limit of 50 miles per hour. According to the 

State’s accident reconstruction expert, seconds before the accident, Gunter was traveling in the opposite 

lane of traffic at a speed of over 90 miles per hour. Gunter failed a field sobriety test and refused to submit 

a breath specimen for analysis. A blood sample taken approximately one hour after the accident revealed 

that Gunter’s blood alcohol concentration level was 0.129. The State argued at trial that the accident would 
3

Dr. Lucas Wieck, the medical examiner that conducted Lee’s autopsy, testified that 

Lee died from “blunt force trauma.” Lee was ejected from the vehicle and died before 

paramedics arrived. Dr. Wieck noted that “[t]he effects of the blunt force trauma in this 

case were extensive,” including “traumatic evacuation of both eyes,” “gaping laceration 

of the face,” “skull fractures,” “lacerations of the dura matter,” “traumatic evacuation of the 

brain and pituitary [gland],” “diaphragmatic hernia,” bruised lungs, “laceration of the liver,” 

and “a near transection . . . of the aorta.”3 Dr. Wieck agreed that several of these injuries 

alone were sufficient to cause Lee’s death.

During closing arguments, that State asked the trial court “for a conviction on any 

one of Counts 1 through 4 [and] a conviction on Count 6 as well.” Instead, the trial court 

found Gunter guilty on all five counts. The trial court also found two enhancement 

paragraphs true, which raised the applicable punishment range of Counts 1–4 from 

second-degree felonies to first-degree felonies and Count 6 from a state-jail felony to a 

third-degree felony. See id. §§ 12.42(b), 12.35(c). As to Counts 1–4, the trial court 

assessed Gunter’s punishment at sixty years’ confinement on each count. On Count 6, 

the trial court assessed Gunter’s punishment at ten years’ confinement. The trial court 

ordered all sentences to run concurrently.

Within thirty days of his conviction, Gunter filed a combined motion for new trial, 

challenging the legal sufficiency of the evidence, and motion to vacate, based on multiple 

double jeopardy violations. The motions were overruled by operation of law, and this 

not have occurred if Gunter had not been intoxicated and speeding.

3 Lee’s grandmother walked away from the accident, apparently uninjured.
4

appeal ensued.

II. APPLICABLE LAW & STANDARD OF REVIEW

The Double Jeopardy Clause of the Fifth Amendment to the United States 

Constitution protects defendants from multiple punishments for the same offense. Sledge 

v. State, Nos. PD-0065-22, 066-22, & 067-22, 2023 WL 2395833, at *5 (Tex. Crim App. 

Mar. 8, 2023); see U.S. CONST. amend. V (providing that no person may be “subject for 

the same offence to be twice put in jeopardy of life or limb”). This protection, however, is 

subject to the Legislature’s “power to establish and define crimes.” Shelby v. State, 448 

S.W.3d 431, 435 (Tex. Crim App. 2014) (quoting Garfias v. State, 424 S.W.3d 54, 58 

(Tex. Crim. App. 2014)). In other words, the 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.).

There are two methods for ascertaining legislative intent depending on whether 

the offenses fall under different statutory sections or a single statute. Shelby, 448 S.W.3d 

at 435–36. This case involves both methods. Under the first method, used when the 

offenses fall under different statutory sections, courts examine the “elements” of each 

offense, beginning with the Blockburger test. Id. at 436; see Blockburger v. United States, 

284 U.S. 299, 304 (1932) (“Cumulative punishment may be imposed where separate 

offenses occur in the same transaction, as long as each conviction requires proof of an 

additional element that the other does not.”). “In Texas, we follow the cognate-pleadings 
5

approach to employing the Blockburger test.” Shelby, 448 S.W.3d at 436. Courts examine 

the statutory elements in the abstract and compare the offenses as pleaded to determine 

whether the pleadings have alleged the same necessary facts. Id.

But that is not the end of our inquiry. Id. If the two offenses are not the same under 

the Blockburger test because each offense “requires proof of a fact that the other does 

not,” we then turn to a list of non-exclusive factors to determine the ultimate question—

“whether the Legislature intended to allow the same conduct to be punished under both 

of the statutes in question.” Id. (discussing the factors set forth in Ex parte Ervin, 991 

S.W.2d 804, 814 (Tex. Crim. App. 1999)).

These factors include: whether the offenses are organized in the same chapter of 

the penal code; whether the offenses are phrased in the alternative; whether the offenses 

are named similarly; whether the offenses have common punishment ranges; whether 

the offenses have a common focus; whether the common focus tends to indicate a single 

instance of conduct; 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; and whether there is legislative history 

containing an articulation of an intent to treat the offenses as the same or different for 

double jeopardy purposes. Bigon v. State, 252 S.W.3d 360, 371 (Tex. Crim. App. 2008). 

Of these factors, determining whether the offenses share a common focus or gravamen 

is “regarded as the best indicator of legislative intent.” Shelby, 448 S.W.3d at 436.

Under the second method, used when the defendant is convicted twice under the 

same statute, we employ a “units of prosecution” analysis. Nawaz v. State, 663 S.W.3d 
6

739, 744 (Tex. Crim. App. 2022). This method varies depending on whether the defendant 

was convicted multiple times under the identical statutory subsection, or as in the instant 

case with Counts 2 and 3, the defendant was convicted more than once under different 

subsections of the same penal statute. Id. Under this second type of “units” analysis, 

courts may consider whether each theory of committing the offense “would cause a 

different type of harm to a victim.” Id. at 745 (quoting Haight v. State, 137 S.W.3d 48, 50 

(Tex. Crim. App. 2004)). As with an “elements” analysis, we ultimately look to the focus 

or gravamen of the statute as the best indicator of legislative intent. Id. at *5.

III. ANALYSIS

A. Waiver

As a threshold issue, the State contends that Gunter waived his double-jeopardy 

complaint by failing to object at the time his sentence was imposed. The State 

acknowledges that a double jeopardy claim “may be raised for the first time on appeal 

when (1) the undisputed facts show the double-jeopardy violation is clearly apparent from 

the face of the record, and (2) enforcement of the usual rules of procedural default serves 

no legitimate state interest.” Garfias v. State, 424 S.W.3d 54, 57–58 (Tex. Crim. App. 

2014). Focusing on the second factor, the State argues that, even if undisputed facts 

show that a double jeopardy violation occurred, Gunter might have intentionally withheld 

his objection for strategic reasons. According to the State, “it was at least plausible that 

Gunter did not want to object to the multiple, but cumulative, 60-years sentences, and 

thereby open up the possibility of the trial court reconsidering and assessing the State’s 

requested life sentence on a single count.” But as the State implicitly concedes, its 
7

argument is based purely on speculation. There is nothing in the record that would allow 

us to infer that Gunter consciously waived his double jeopardy complaint to gain some 

advantage.

Moreover, the State fails to acknowledge that Gunter filed a timely post-trial motion 

to vacate some of his convictions, raising the same double jeopardy grounds that he now 

presents on appeal. A motion preserves an error for appeal when it is made “at a time 

when the trial court is in a proper position to do something about it.” Resendez v. State, 

306 S.W.3d 308, 313 (Tex. Crim. App. 2009) (quoting Lankston v. State, 827 S.W.2d 907, 

909 (Tex. Crim. App. 1992)). The appropriate remedy for a double jeopardy violation is to 

vacate one of the convictions, and the trial court may do so while it still has plenary power 

to act. See Shelby v. State, 448 S.W.3d 431, 440 (Tex. Crim App. 2014); see also

Carpenter v. State, No. 11-15-00323-CR, 2018 WL 3763773, at *4 (Tex. App.—Eastland 

Aug. 9, 2018, no pet.) (mem. op., not designated for publication) (dismissing appellant’s 

double jeopardy complaint as moot because the trial court had already granted 

appellant’s motion to vacate his conviction on double jeopardy grounds). Thus, rather 

than finding that Gunter waived the error, we conclude that he preserved it for review.

4

See Shelby, 448 S.W.3d at 440; see also Carpenter, 2018 WL 3763773, at *4.

B. One Incident, One Victim, but Two Aggravated Assault Convictions

We begin our analysis with the most straightforward comparison for purposes of 

double jeopardy—Gunter’s dual convictions for aggravated assault; one count based on 

4 Even if Gunter had not filed his motion to vacate, we would conclude that there are double 

jeopardy violations apparent from the face of the record and that enforcing the usual rules of procedural 

default would serve no legitimate interest. See Garfias v. State, 424 S.W.3d 54, 57–58 (Tex. Crim. App. 

2014).
8

causing serious bodily injury, and one count based on causing bodily injury while 

exhibiting a deadly weapon. See TEX. PENAL CODE ANN. § 22.02(a)(1), (2). The Texas 

Court of Criminal Appeals has already concluded that, for purposes of a defendant’s right 

to a unanimous jury verdict, subsections 22.02(a)(1) and (a)(2) are the same offense. 

Landrian v. State, 268 S.W.3d 532, 539 (Tex. Crim. App. 2008). The Court explained that 

§ 22.02(a) is a result-oriented statute, and the gravamen of the statute is “causing bodily 

injury.” Id. at 533. When there is a single incident and a single victim, as is the case here, 

the statute does “not set out separate and distinct offenses” for causing serious bodily 

injury or using a deadly weapon. Id. at 539. “Rather, the aggravating factors or elements 

are simply descriptions of separate means by which a single offense of assault may be 

committed.” Id.

Because the meaning of the statute is the controlling question in each type of 

analysis, courts look to prior precedent on the right to jury unanimity when examining the 

same statute for purposes of double jeopardy. Jones v. State, 323 S.W.3d 885, 889 (Tex. 

Crim. App. 2010); see, e.g., Nawaz, 663 S.W.3d at 746 (examining penal code 

subsections 22.04(a)(1) and (a)(2) and concluding that prior precedent deciding that the 

two subsections were distinct offenses for purposes of jury unanimity also controlled the 

double jeopardy analysis). Accordingly, like Landrian, we conclude that in this context, 

where a single act caused bodily injury to a single victim, subsections 22.02(a)(1) and 

(a)(2) constitute the same offense for purposes of double jeopardy. See 268 S.W.3d at 

533.

Nevertheless, the State argues that because Gunter caused multiple life-
9

threatening injuries to Lee, “there is no reason he should not be liable for having 

committed multiple assaultive offenses.” We note that the State’s position on appeal is 

inconsistent with its position in the trial court, where it asked for a single conviction “on 

any one of Counts 1 through 4.” By asking this Court to now sanction Gunter’s multiple 

convictions for aggravated assault, the State effectively seeks to dramatically expand the 

allowable unit of prosecution for aggravated assault in Texas.

It is well-established that “[t]he allowable unit of prosecution for an assaultive 

offense in Texas is each victim.” Shelby, 448 S.W.3d at 439; Garfias, 424 S.W.3d at 60; 

Bigon, 252 S.W.3d at 372. When the Legislature enacted § 22.02(a), it “intended the 

offense of assault to be complete with the injury of a single individual.” Phillips v. State, 

787 S.W.2d 391, 395 (Tex. Crim. App. 1990). Thus, for example, a drunk-driving accident 

that causes serious bodily injury to multiple victims can support separate convictions for 

aggravated assault—one for each victim. Id. at 393–95. But we fail to see how Gunter

could simultaneously complete multiple assaults against a single individual during the 

same criminal transaction. If we followed the State’s argument to its logical conclusion, 

then the evidence supported at least ten separate convictions for aggravated assault—

one count for every injury suffered by Lee.

Moreover, if we applied the State’s theory to every aggravated assault, then a knife 

wielding assailant could be convicted of aggravated assault for each stab wound he 

inflicted on his victim in a single, uninterrupted attack. Such an approach is inconsistent 

with how the State has traditionally prosecuted stabbing cases in Texas. See Tucker v. 

State, 274 S.W.3d 688, 688–89 (Tex. Crim. App. 2008) (affirming single conviction for 
10

aggravated assault with a deadly weapon where “[a]ppellant used a knife or some other 

sharp object to stab and cut the victim numerous times”); Magana v. State, 230 S.W.3d 

411, 414 (Tex. App.—San Antonio 2007, pet. ref’d) (affirming single conviction for 

aggravated assault with a deadly weapon where appellant stabbed victim “with a 

pocketknife four times”); Borrego v. State, 800 S.W.2d 373, 375, 377 (Tex. App.—Corpus 

Christi–Edinburg 1990, pet. ref’d) (affirming single conviction for aggravated assault with 

a deadly weapon where the victim “had stab wounds on her chest and face”).

To be sure, there are other types of assaultive offenses where the Legislature has 

defined separate and discrete injuries, each of which constitutes a separate offense even 

though both occurred during a single course of conduct and involved the same victim. 

See Nawaz, 663 S.W.3d at 746 (affirming dual convictions under penal code subsections

22.04(a)(1) and (a)(2) because appellant’s conduct caused the victim to suffer both 

“serious bodily injury” and a “serious mental deficiency”); cf. Loving v. State, 401 S.W.3d 

642, 649 (Tex. Crim. App. 2013) (affirming dual convictions under penal code subsections

21.11(a)(1) and (a)(2) in part because “indecency with a child by exposure and by contact 

protect children from different potential harms”).

“Aggravated assault, however, does not have a statutorily specified injury.” Ortiz 

v. State, 623 S.W.3d 804, 809 (Tex. Crim. App. 2021) (citing TEX. PENAL CODE ANN.

§ 22.02). Instead, the Texas Court of Criminal Appeals has already determined that 

§ 22.02(a) broadly focuses on “causing bodily injury” and that subsections (a)(1) and 

(a)(2) are merely alternative means of committing the same offense against a single

victim. Landrian, 268 S.W.3d at 533, 539. The State cannot point to a single case 
11

interpreting § 22.02(a) in a contrary manner. Therefore, we decline the State’s invitation 

to expand the allowable unit of prosecution for aggravated assault and hold that Gunter’s 

convictions under subsections 22.02(a)(1) and (a)(2) constituted multiple punishments for 

the same offense.

C. Gunter’s Convictions for Intoxication Manslaughter & Aggravated Assault 

Constituted Multiple Convictions for the Same Offense

Gunter also contends that the Legislature did not intend for a person to be 

convicted of both intoxication manslaughter and aggravated assault for causing fatal 

injuries to the same victim. See TEX. PENAL CODE ANN. §§ 22.02(a)(1), 49.08.

Gunter concedes, and we agree, that each offense “requires proof of a fact that 

the other does not,” and thus, they are not the same under the Blockburger test. See

Shelby, 448 S.W.3d at 436. Looking at the elements of the two statutes in the abstract, 

intoxication manslaughter, a strict liability offense, requires proof that the defendant 

(1) was operating a motor vehicle in a public space, (2) was intoxicated, and (3) by reason 

of that intoxication, caused the death of another by accident or mistake. See TEX. PENAL 

CODE ANN. §§ 49.08, 49.11. By comparison, aggravated assault under § 22.02(a)(1) 

requires proof that the defendant intentionally, knowingly, or recklessly caused serious 

bodily injury to another. See id. §§ 22.01(a)(1), 22.02(a)(1). Thus, having determined that 

the two offenses are not the same under the Blockburger test, we now turn to the Ervin

factors to determine “whether the Legislature intended to allow the same conduct to be 

punished under both of the statutes in question.” Shelby, 448 S.W.3d at 436; see Ex parte 

Ervin, 991 S.W.2d at 814.

As to the first factor, intoxication manslaughter and aggravated assault appear in 
12

separate penal code chapters, “but this does not necessarily mean that the Legislature 

intended the same conduct against the same victim to be punished under both statutes.” 

See Shelby, 448 S.W.3d at 437. Because the two statutes appear in separate sections of 

the penal code, they cannot be phrased in the alternative, and consequently, the second 

Ervin factor does not apply. See id. at 438. Even though the names of the two statutes 

share no words, like aggravated assault, manslaughter denotes an elevated level of 

assaultive conduct, so the names of the offenses are somewhat similar under the third 

factor. See id. As to the fourth factor, both statutes are second-degree felonies, which 

weighs in favor of treating the two offenses as the same for double jeopardy purposes.

See TEX. PENAL CODE ANN. §§ 22.02(b), 49.08(b); Shelby, 448 S.W.3d at 438.

Of the Ervin factors, a common focus between the two statutes is the most reliable

indicator of legislative intent and can be outcome determinative. See Shelby, 448 S.W.3d 

at 438; Nawaz, 663 S.W.3d at 748 (collecting cases where the Texas Court of Criminal 

Appeals “found its focus/gravamen analysis to be determinative, notwithstanding 

consideration of the other Ervin factors”). Both offenses here are result oriented. The 

focus of intoxication manslaughter is “the death of an individual,” Bigon, 252 S.W.3d at 

371, not the defendant’s intoxication. Shelby, 448 S.W.3d at 439. As previously 

mentioned, the focus of aggravated assault under § 22.02(a) is “causing bodily injury.” 

Landrian, 268 S.W.3d at 533. Importantly, § 22.02(a)(1) contemplates not only bodily 

injury but also “bodily injury . . . that causes death.” TEX. PENAL CODE ANN. § 1.07(a)(46)

(defining “serious bodily injury”). Therefore, although intoxication manslaughter and 

aggravated assault are not the same offense in all situations, under the circumstances of 
13

this case, both offenses resulted in Lee’s death, and “the sameness of the result is an 

indication that the Legislature did not intend to impose multiple punishments.” Bigon, 252 

S.W.3d at 371.

In considering the common-focus factor, courts may also look to the allowable unit 

of prosecution. Id. This analysis can be instructive even though the two offenses are found 

in different statutory sections, as is the case here. Id. at 372. Again, “[t]he allowable unit 

of prosecution for an assaultive offense in Texas is each victim.” Shelby, 448 S.W.3d at 

439; Garfias, 424 S.W.3d at 60; Bigon, 252 S.W.3d at 372. This is especially true when 

the assaultive conduct results in homicide. Johnson v. State, 364 S.W.3d 292, 296 (Tex. 

Crim. App. 2012) (“With only one victim, there can be only one murder, regardless of how 

that murder is committed.”). Applying that principle to the facts of this case, we observe 

that Gunter was punished twice for the same conduct that caused Lee’s death. See

Nawaz, 663 S.W.3d at 745 (explaining that when conducting a “units of prosecution” 

analysis, courts may consider whether the two offenses protect the victim from the same 

type of harm). Given the shared focus of the two offenses and the allowable unit of 

prosecution for assaultive offenses, we conclude that the Legislature did not intend for 

Gunter to be punished under both statutes for the same conduct. See Shelby, 448 S.W.3d 

at 436.

There are several cases that support our conclusion. In an unpublished opinion, 

we held that “intoxication assault and aggravated assault in a case involving the same 

accident and victim are the same offense for double jeopardy purposes.” Sylva v. State, 

No. 13-01-139-CR, 2004 WL 42370, at *1 (Tex. App.—Corpus Christi–Edinburg Jan. 8, 
14

2004, pet. ref’d) (not designated for publication). The Texas Court of Criminal Appeals 

has similarly held “that the Legislature did not intend to authorize separate punishments 

for the offenses of aggravated assault with a deadly weapon against a public servant and 

intoxication assault when the convictions for those offenses are based upon the same 

assaultive conduct against a single person.” Shelby, 448 S.W.3d at 434. Finally, in finding 

that an appellant’s convictions for felony murder, intoxication manslaughter, and 

manslaughter violated his double-jeopardy rights, the Texas Court of Criminal Appeals

said that “it is hard to fathom that the legislature intended for one drunk-driving accident 

to result in multiple homicide convictions for each victim.” Bigon, 252 S.W.3d at 372. 

Likewise, we find it highly improbable that the Legislature intended for a person to be 

convicted of both intoxication manslaughter and aggravated assault for causing fatal 

injuries to the same victim.

D. Remedy for Double Jeopardy Violations on Counts 1–3

As previously mentioned, when a multiple punishment violation occurs, “the 

remedy is to affirm the conviction for the most serious offense and vacate the other 

convictions.” Bigon, 252 S.W.3d at 372. Generally, the most serious offense is “the 

offense in which the greatest sentence was assessed.” Id. at 373. Here, the punishments 

imposed for Counts 1–3 are identical: for each offense, Gunter was sentenced to sixty 

years’ incarceration, no fine was assessed, and no restitution was ordered. Thus, we 

cannot determine the most serious offense by the general rule. In such instances, we may 

look to other distinguishing factors, such as the degree of each offense or an affirmative 

deadly weapon finding. Id. (degree of felony); Villanueva v. State, 227 S.W.3d 744, 749 
15

(Tex. Crim. App. 2007) (affirmative deadly weapon finding). These factors also prove 

fruitless because Counts 1–3 are all second-degree felonies enhanced to the punishment 

range of a first-degree felony, and each count included an affirmative deadly weapon 

finding.

The Texas Court of Criminal Appeals has suggested that, with all other factors 

being equal, the most serious offense “is the offense named in the first verdict form,” and 

generally “this will be the offense described in Count I of the indictment.” Ex parte 

Cavazos, 203 S.W.3d 333, 339 n.8 (Tex. Crim. App. 2006); see also Ruth v. State, No. 

13-10-00250-CR, 2011 WL 3840503, at *8–9 (Tex. App.—Corpus Christi–Edinburg Aug. 

29, 2011, no pet.) (mem. op., not designated for publication) (using the “first-indicted 

offense” to break the tie when all else was equal). In this case, because the case was 

tried to the bench, there was no jury verdict form; however, Count 1 of the indictment was 

for intoxication manslaughter. Under these circumstances, we determine that intoxication 

manslaughter was the most serious offense. See id. Accordingly, we affirm the conviction 

for intoxication manslaughter and vacate the convictions for aggravated assault. See id.

E. Injury to a Child and Endangering a Child

By his last sub-issue, Gunter contends that his convictions on Counts 4 and 6 

violate double jeopardy because endangering a child is a lesser included offense of injury 

to a child. However, “[a] person who is subject to prosecution under both [§ 22.04, defining

injury to a child,] and another section of [the penal] code may be prosecuted under either 

or both sections.” TEX. PENAL CODE ANN. § 22.04(h). Thus, the Legislature has expressed 

a clear intent to allow multiple punishments for the same conduct when a person commits 
16

injury to a child and a violation of any other penal code section, including endangering a 

child. Mayhew v. State, 271 S.W.3d 294, 300–01(Tex. App.—Beaumont 2008, no pet.) 

(“Since the section of the Penal Code that proscribes endangering a child is found within 

another section of the Texas Penal Code, and the Legislature expressly authorized 

multiple punishments, the multiple concurrent sentences imposed in this case are not 

constitutionally prohibited.”); see Jimenez v. State, 240 S.W.3d 384, 417–18 (Tex. App.—

Austin 2007, pet. ref’d) (affirming multiple punishments for injury to a child and murder); 

see also Herrera v. State, No. 13-11-00036-CR, 2011 WL 5005581, at *10 (Tex. App.—

Corpus Christi–Edinburg Oct. 20, 2011, pet. ref’d) (mem. op., not designated for 

publication) (affirming multiple punishments for injury to a child and capital murder).

Gunter’s third sub-issue is overruled.5

V. CONCLUSION

We vacate Gunter’s convictions under Count 2 and Count 3 for aggravated assault

and affirm the remainder of his convictions. 

GINA M. BENAVIDES

Justice

Publish.

TEX. R. APP. P. 47.2(b). 

Delivered and filed on the

8th day of June, 2023.

5 Gunter has not asked us to examine whether his convictions for intoxication manslaughter and 

endangering a child violate double jeopardy, and we decline to address this unassigned error. See Bigon 

v. State, 252 S.W.3d 360, 369 (Tex. Crim. App. 2008) (“In the case of a double-jeopardy violation, the issue 

may be addressed as an unassigned error when the violation is apparent from the face of the record.” (citing 

Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000))).