IN THE

TENTH COURT OF APPEALS

Nos. 10-19-00021-CR &

10-21-00030-CR

PAUL DAVID DOUGHTERY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court No. 2017-1407-C2

MEMORANDUM OPINION

In Trial Court Case Number 2017-1407-C2, appellant, Paul David Doughtery, was 

convicted of one count of aggravated assault (Count 1) and one count of assault family 

violence with a prior conviction (Count 2). The jury assessed punishment at eighteen 

years’ confinement and a $5,000 fine for Count 1 and ten years’ confinement and a $5,000 

fine for Count 2. The sentences were ordered to run concurrently. Two judgments were 

signed, one for each count.
Doughtery v. State Page 2

I. APPELLATE CAUSE NUMBER 10-21-XXXXX-CR

Appellant has filed one notice of appeal challenging his convictions in Trial Court 

Case Number 2017-1407-C2. The appeal therefore bears one cause number—appellate 

cause number 10-19-00021-CR.

Appellant’s court-appointed appellate counsel filed a brief challenging only the 

judgment and sentence for Count 2. Because appellant’s brief did not challenge his 

conviction in Count 1, this Court issued an order requiring counsel to allege error as to 

Count 1 or to file an Anders-type motion to withdraw and supporting brief, as well as a 

motion to sever. In response, appellant has filed a motion to sever his appeal in Count 1 

from his appeal in Count 2 and a motion to dismiss his appeal as to Count 1. Pursuant 

to appellant’s request, we sever appellant’s appeal in Count 1 from his appeal in Count 

2. See TEX. R. APP. P. 43.6. The Clerk shall docket appellant’s appeal in Count 1 as 10-21-

00030-CR, styled Doughtery v. State. 

With respect to appellant’s motion to dismiss filed in appellate cause number 10-

21-00030-CR, we note that the motion to dismiss was signed by both appellant and his 

counsel and indicates an intent to dismiss this appeal. See TEX. R. APP. P. 42.2(a). We 

grant appellant’s motion. Appellant’s appeal in 10-21-00030-CR is dismissed. See id.

II. APPELLATE CAUSE NUMBER 10-19-00021-CR

In one issue in appellate cause number 10-19-00021-CR, appellant argues that his 

conviction in Count 2 for assault family violence with a prior conviction violates the 
Doughtery v. State Page 3

Double Jeopardy Clauses of the United States Constitution and the Texas Constitution. 

We affirm.

A. Background

As mentioned earlier, appellant was charged with one count of aggravated assault 

(Count 1) and one count of assault family violence with a prior conviction (Count 2). 

Specifically, the indictment alleged the following with respect to Count 1:

PAUL DAVID DOUGHTERY . . . on or about the 2nd day of May, 

2017 . . . did then and there intentionally knowingly, and recklessly cause 

bodily injury to [K.K.] . . . by punching her and/or hitting her with a hard 

object and/or slamming her head into the ground and/or hitting her with 

the hard plastic part of a tent, and the Defendant did then and there use or 

exhibit a deadly weapon, to wit: hard plastic part of a tent and/or an 

unknown object and/or his hands and/or the ground, during the 

commission of the assault.

(Emphasis in original). Regarding Count 2, the indictment alleged:

PAUL DAVID DOUGHTERY . . . on or about the 2nd day of May, 2017, 

did then and there intentionally, knowingly, and recklessly cause bodily 

injury to [K.K.], a member of the Defendant’s household or a person with

whom the Defendant has had a dating relationship, as described by Section 

71.005 or 71.0021(b) of the Texas Family Code, by punching her and/or 

hitting her with a hard object and/or slamming her head into the ground, 

and before the commission of the charged offense, the Defendant had 

previously been convicted of an offense under Chapter 22 of the Texas 

Penal Code, against a member of the Defendant’s family or a member of the 

Defendant’s household or a person with whom the Defendant has or has 

had a dating relationship, as described by Section 71.003 or 71.005 or 

71.0021(b) of the Texas Family Code, to wit: on the 2nd day of December 

2016, in the 54th District Court of McLennan County, Texas, in Cause 

Number 2016-334-C2.

(Emphasis in original).
Doughtery v. State Page 4

At trial, the evidence showed that appellant and the complainant, K.K., were in an 

on-again, off-again relationship and lived together in a tent under the North 19th Street 

bridge at the time of the offense. On the night in question, an argument and multiple 

“incidents” ensued after appellant accused K.K. of calling someone to pick her up from 

the bridge residence. The events of that evening were hotly contested at trial with K.K. 

and appellant accusing each other of assault.

However, appellant testified that there were “two different incidents” that 

evening—“the time that she got knocked out and the time that she got cut on her face.” 

Appellant testified that one incident was funny while the other was not. He further noted 

that the entire altercation lasted at least thirty minutes, and he tried to distinguish the 

two incidents by noting that the first incident resulted in K.K. being unintentionally 

injured by her own actions and that the second incident was an accident.

B. Discussion

“The Double Jeopardy Clause of the Fifth Amendment . . . protects an accused 

against . . . multiple punishments for the same offense.” Evans v. State, 299 S.W.3d 138, 

140-41 (Tex. Crim. App. 2009). A double-jeopardy claim must generally be raised in the 

trial court to preserve error for appellate review. Gonzalez v. State, 8 S.W.3d 640, 643-46 

(Tex. Crim. App. 2000); Rangel v. State, 179 S.W.3d 64, 70 (Tex. App.—San Antonio 2005, 

pet. ref’d). However, a double-jeopardy claim may be raised for the first time on appeal 

when (1) the undisputed facts show the double-jeopardy claim violation is clearly 
Doughtery v. State Page 5

apparent from the face of the record, and (2) enforcement of the usual rules of procedural 

default serves no legitimate State purpose. See Gonzalez, 8 S.W.3d at 643; see also Rangel, 

179 S.W.3d at 70.

“[W]hen separate theories for an offense are issued to the jury disjunctively, 

a double jeopardy violation is not clearly apparent on the face of the record 

if one of the theories charged would not constitute a double jeopardy 

violation and there is sufficient evidence to support that valid theory. The 

fact that the jury’s verdict could have relied on a theory that would violate 

the Double Jeopardy Clause, is not sufficient to show a constitutional 

violation “clearly apparent on the face of the record.”

Langs v. State, 183 S.W.3d 680, 687 (Tex. Crim. App. 2006) (citing Gonzalez, 8 S.W.3d at 

641-43) (emphasis in original).

“When separate and distinct offenses occur in the same transaction, the protection 

against double jeopardy does not apply.” Urtado v. State, 333 S.W.3d 418, 424 (Tex. 

App.—Austin 2011, pet. ref’d) (citing Spradling v. State, 773 S.W.2d 553, 556 (Tex. Crim. 

App. 1989)). “Thus, if two different attacks occur, even if close in time, a defendant may 

be charged with two separate assaults.” Id. (citing Teeter v. State, No. PD-1169-09, 2010 

Tex. Crim. App. LEXIS 1206, at *24 (Tex. Crim. App. Sept. 22, 2010) (holding that a doublejeopardy violation occurred where charges of assault by threat and attempted capital 

murder were both based on a single act of pointing a gun at the victim); Sanchez v. State, 

269 S.W.3d 169, 171 (Tex. App.—Amarillo 2008, pet. ref’d) (holding that no doublejeopardy violation occurred where the defendant was charged with both assault by 
Doughtery v. State Page 6

causing bodily injury and assault by threat against the same victim because, “[t]hough 

rather close in time, the latter arose after a break from the former.”)). 

Appellant concedes that he did not object in the trial court on double-jeopardy 

grounds. Further, based on the fact that appellant testified that there were two separate 

and distinct “incidents” during the transaction, we cannot say that the Double Jeopardy 

Clause applies. See Spradling, 773 S.W.2d at 556; Urtado, 333 S.W.3d at 424; Sanchez, 269 

S.W.3d at 171. Therefore, we also cannot say that appellant’s double-jeopardy claim is 

apparent from the face of the record; and as such, appellant has not properly preserved 

his double-jeopardy claim.1 See Spradling, 773 S.W.2d at 556; Urtado, 333 S.W.3d at 424; 

Sanchez, 269 S.W.3d at 171. We overrule appellant’s sole issue in appellate cause number 

10-19-00021-CR.

1

In addition, a review of the record reflects that there is legally-sufficient evidence supporting the 

jury’s finding of guilt in Count 1 on a different theory than Count 2 because each count alleged different 

theories of assault, and because there was testimony as to multiple assaults causing those injuries. This 

further supports our conclusion that a double-jeopardy violation is not apparent from the face of the record. 

See Langs v. State, 183 S.W.3d 680, 687 (Tex. Crim. App. 2006); see also Gonzalez, 8 S.W.3d 640, 641-43 (Tex. 

Crim. App. 2000).

Furthermore, appellant does not address the second prong of the Gonzalez analysis—that the usual 

rules of procedural default do not serve a legitimate State purpose. See Gonzalez, 8 S.W.3d at 643; see also

Rangel v. State, 179 S.W.3d 64, 70 (Tex. App.—San Antonio 2005, pet. ref’d).
Doughtery v. State Page 7

III. CONCLUSION

Based on the foregoing, we dismiss appellant’s appeal in appellate cause number 

10-21-00030-CR, and we affirm the trial court’s judgment in appellate cause number 10-

19-00021-CR.

JOHN E. NEILL

Justice

Before Chief Justice Gray,

Justice Neill,

and Senior Justice Scoggins2

Appeal severed and dismissed and appeal affirmed

Opinion delivered and filed February 24, 2021

Do not publish

[CR25]

2 The Honorable Al Scoggins, Senior Justice of the Tenth Court of Appeals, sitting by assignment 

of the Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 74.003, 75.002, 75.003.