In the Court of Criminal 

Appeals of Texas

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No. PD-0408-21

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SYED SARTAJ NAWAZ,

Appellant,

v.

THE STATE OF TEXAS

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On State’s Petition for Discretionary Review

From the Fifth Court of Appeals

Collin County

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YEARY, J., delivered the opinion of the Court, in which KELLER, 

P.J., and RICHARDSON, KEEL, SLAUGHTER, and MCCLURE, JJ., joined. 

HERVEY and NEWELL, JJ., concurred in the result. WALKER, J., 

dissented.

In a single trial, Appellant was convicted of two instances of 
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injury to a child. His convictions were for conduct prohibited under two 

different subsections of Section 22.04(a) of the Texas Penal Code. See

TEX. PENAL CODE § 22.04(a)(1) & (2) (“(a) A person commits an offense if 

he intentionally, knowingly, recklessly, or with criminal negligence . . . 

causes a child . . . (1) serious bodily injury; [or] (2) serious mental 

deficiency, impairment, or injury[.]”).1 Appellant argued on appeal that 

his two convictions constituted the imposition of multiple punishments 

for the “same” offense, in violation of the Double Jeopardy Clause of the 

Fifth Amendment to the United States Constitution.

This Court has previously concluded that, at least for purposes of 

a defendant’s right to a unanimous jury verdict, Sections 22.04(a)(1) and 

22.04(a)(2) constitute discrete offenses. Stuhler v. State, 218 S.W.3d 706, 

719 (Tex. Crim. App. 2007). Nevertheless, the court of appeals in this 

case determined that convicting Appellant for both offenses constituted 

multiple punishments for the “same” offense, in violation of federal 

double-jeopardy protections. Nawaz v. State, No. 05-19-00092-CR, 2021 

1 In its entirety, Section 22.04(a) reads:

(a) A person commits an offense if he intentionally, knowingly, 

recklessly, or with criminal negligence, by act or intentionally, 

knowingly, or recklessly by omission, causes to a child, elderly 

individual, or disabled individual:

(1) serious bodily injury;

(2) serious mental deficiency, impairment, or 

injury; or

(3) bodily injury.

TEX. PENAL CODE § 22.04(a).
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WL 1884551 at *5 (Tex. App.—Dallas May 11, 2021) (mem. op., not 

designated for publication). We granted the State’s petition for 

discretionary review to examine the court of appeals’ conclusion. And we 

now reverse its judgment, in part, and remand the cause for further

proceedings.

I. BACKGROUND

In separate counts, the indictment alleged that, on or about the 

same date, September 19, 2016, Appellant knowingly caused serious 

bodily injury to a child (Count I), and also knowingly caused the same 

child to suffer a serious mental deficiency, impairment, or injury (Count 

II).2 Evidence at trial showed that, on the date alleged, which was more 

than two years prior to the trial, while in Appellant’s exclusive care and 

custody, the child suffered abusive head trauma, caused by a “whip-lash

type [of] mechanism”—such as violently shaking her or slamming her 

into a soft surface of some kind. Id. at *14. The child suffered no 

apparent external injury. But she presented with widely diffuse brain 

bleeding, which caused developmental delays (though it was still too 

early at the time of trial to ascertain the full extent of the mental 

2 Count I of the indictment alleged that on September 19, 2016, 

Appellant “did . . . knowingly cause serious bodily injury [to the complainant], 

a child fourteen (14) years of age or younger,” in a number of different ways, 

including by “shaking” her, or causing her to strike a “couch” or “mattress,” or 

by some other manner unknown to the grand jury. Count II alleged that, on 

that same date, Appellant “did . . . knowingly cause serious mental deficiency, 

impairment, and injury” to the child-complainant in the same ways he was 

alleged in Count I to have caused the serious bodily injury.
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deficiency).3 She also suffered retinal bleeding in both eyes that was so 

extensive as to essentially render her blind. 

The State was unable to establish by what specific act (or acts)

Appellant caused these “whip-lash”-induced injuries. Nonetheless, the 

jury convicted Appellant of both counts. It then assessed his punishment 

at sixteen years’ confinement in the penitentiary for each count, which 

the trial court ruled he should serve consecutively.

On appeal, Appellant contended that convicting him for both 

counts—causing serious bodily injury and causing serious mental 

deficiency, etc.—violated the Double Jeopardy Clause. The court of 

appeals ultimately agreed. It acknowledged our construction of the 

statutory language of Section 22.04(a), for jury-unanimity purposes, in 

Stuhler. Id. at *4. But rather than rely on our construction of the

identical injury-to-a-child provisions in Stuhler, the court of appeals 

instead invoked the double-jeopardy analysis this Court conducted in 

Villanueva v. State, 227 S.W.3d 744 (Tex. Crim. App. 2007). 

In Villanueva, this Court had discussed the potential doublejeopardy implications of a different aspect of Section 22.04(a)—causing 

injury to a child by an act versus causing injury to a child by omission. 

Id. at 748. Nevertheless, relying on Villanueva, the court of appeals in 

this case concluded that Appellant’s double-jeopardy right was violated 

3 Appellant argued on appeal that the evidence was legally insufficient 

to support his conviction under Count II of the indictment, which alleged 

serious mental deficiency, impairment, or injury. However, concluding that 

Appellant’s conviction under Count II violated the Double Jeopardy Clause, 

the court of appeals found it unnecessary to resolve this sufficiency ground. 

Nawaz, 2021 WL 1884551, at *5. In light of our disposition of the doublejeopardy issue, we will remand the case to the court of appeals to address the 

sufficiency issue in the first instance.
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because “the State did not prove two separate and distinct incidents of 

injury.” Nawaz, 2021 WL 1884551, at *4–5. In its petition for 

discretionary review, the State now argues that the court of appeals 

erred to focus on the act or transaction that caused the injuries rather 

than the injuries themselves as the basis for determining whether 

Appellant’s double-jeopardy right was violated.4 Appellant, on the other 

hand, argues that the court of appeals found only a single injury which 

caused both “the hemorrhage in [the victim’s] [r]etina[s] and the holes 

in [her] brain.” Appellant’s Brief at 16.

II. APPLICABLE LAW

We cannot greatly fault the court of appeals for relying on an 

opinion by this court respecting the issue of double jeopardy over a case 

about the right to jury unanimity. Nevertheless, we hold that Stuhler

controls this case. For purposes of explaining why Stuhler, not 

Villanueva, is the controlling precedent, it is useful to begin with an

examination of the text of the Double Jeopardy Clause itself, and a 

summary of the relevant opinions addressing the protection that it 

affords against multiple punishments.

(A). Double Jeopardy: Multiple Punishments

The Double Jeopardy Clause of the Fifth Amendment provides: 

“[N]or shall any person be subject for the same offence to be twice put in 

jeopardy of life or limb[.]” U.S. CONST amend. V. The guarantee against 

4 In its sole ground for review, the State contends: “In concluding that 

Appellant’s convictions for injury to a child causing serious bodily injury and 

injury to a child causing serious mental deficiency, impairment, or injury 

violated double jeopardy, did the court of appeals erroneously focus on the 

transaction rather than the result?”
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double jeopardy affords three basic protections: (1) against prosecution 

a second time for the “same” offense after an acquittal; (2) against 

prosecution a second time for the “same” offense after a conviction; and 

(3) against multiple punishments for the “same” offense. Ramos v. State, 

636 S.W.3d 646, 651 (Tex. Crim. App. 2021). The third protection, 

against multiple punishments, is the double-jeopardy issue in this case. 

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? See Missouri v. Hunter, 459 

U.S. 359, 368 (1983) (“Legislatures, not courts, prescribe the scope of 

punishments.”); Ex parte Benson, 459 S.W.3d 67, 71 & n.8 (Tex. Crim. 

App. 2015) (citing Hunter for the proposition that, in the multiple 

punishments context, how many punishments the Double Jeopardy 

Clause will permit is a matter for the Legislature).

(B). Different Statutes: Blockburger

When separately enumerated penal statutes are involved, this 

Court has said, “the traditional starting point for determining 

‘sameness’ for multiple-punishment double-jeopardy analysis is the 

Blockburger test.” Ramos, 636 S.W.3d at 651 (citing Blockburger v. 

United States, 284 U.S. 299, 304 (1932)). Implementing its “cognatepleadings approach” to the Blockburger “same-elements” test, this Court 

asks whether each offense, as pled in the charging 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 
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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)).5 In conducting this “same-elements” analysis, the Court looks 

only to “the pleadings and the relevant statutory provisions[,]” not “the 

evidence presented at trial.” Id. at 73.

(C). Same Statute: “Allowable Units of Prosecution”

But when the question is how many times a defendant may be 

punished for violating a single statute, the analysis does not begin with 

Blockburger’s elements approach. Instead, the Court simply conducts an 

“allowable units of prosecution” analysis. See Benson, 459 S.W.3d at 71 

(“When only one statute is at issue, the ‘elements’ analysis is necessarily 

resolved in the defendant’s favor, and only a ‘units’ analysis remains to 

be conducted.”). 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 whether (2) he is being convicted more 

than once (as in the instant case) under different statutory subsections 

of the same penal statute.

(1). Same Statute: Same Subsection

5 Appellant argues that consideration of the Ervin factors establishes 

that the offenses in this case should be regarded as the same for multiplepunishments double-jeopardy purposes. For reasons we will explain in the text 

post, we disagree.
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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. See id. 

at 73 (“This . . . inquiry involves determining such things as whether 

there were two murder victims [or] whether a victim who was assaulted 

on Monday was assaulted again on Tuesday[.]”). Our cases provide ready 

examples of this kind of “units of prosecution” inquiry. 

For instance, in Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex. 

Crim. App. 2006), the Court determined that, because our penal code 

defines burglary as a property offense and not an assaultive-type 

offense, “the allowable unit of prosecution in a burglary is the unlawful 

entry.” Thus, when a defendant breaks into a dwelling and commits a 

discrete felony against each of two of its inhabitants, he has violated the 

burglary statute only once. Id. In contrast, Ex parte Hawkins, 6 S.W.3d 

554, 555 (Tex. Crim. App. 1999), the Court addressed how many times 

a defendant could be punished under the identical provisions of the 

robbery statute when he assaults two people at the same time in order 

to take the property of only one of them. The Court held there that, 

because (unlike burglary) robbery is an assaultive offense under our 

current penal code, the appropriate “unit of prosecution” is the number 

of assault victims, not the number of victims from whom property was 

taken. Id. at 560.
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(2). Same Statute: Different Subsections6

This case, however, involves the second kind of “units of 

prosecution” inquiry mentioned above. In this context, the Court 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?

Examples of “units of prosecution”-analyses of this kind may be 

found in Loving v. State, 401 S.W.3d 642 (Tex. Crim. App. 2013), 

Gonzales v. State, 304 S.W.3d 838 (Tex. Crim. App. 2010), and Haight v. 

State, 137 S.W.3d 48 (Tex. Crim. App. 2004). Each of these cases 

involved a statute prohibiting numerous alternatively described acts, 

any one of which would constitute a commission of the offense. The 

question was: When the defendant’s conduct included more than one of 

these actionable acts, could he be punished for each of them, or only one? 

In Loving, the Court concluded that the appellant was properly 

6 We use the word “subsection” somewhat advisedly here, for the sake 

of convenience. It is sometimes the case that the same, identical subsection of 

a penal provision will itself contain more than one distinct theory for how the 

offense may be committed. When we say “different subsection” in this portion 

of our discussion, we should be understood to mean not only a different 

subsection, but also a different theory for committing the offense that is also 

contained within that same subsection. See our discussion of Gonzales v. State, 

304 S.W.3d 838 (Tex. Crim. App. 2010), and Haight v. State, 137 S.3d 48 (Tex. 

Crim. App. 2004), in the text, post. As will be seen, in our discussion of Gonzales

and Haight, the Court treats cases addressing statutes that define different 

theories for committing an offense entirely within the same subsection 

similarly to those cases in which the statutes involved distinctly define 

different theories of commission in different subsections of the same statute. 

This case involves commission of distinct offenses defined in different 

subsections of the same statute. 
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convicted and punished under separate subsections of the indecencywith-a-child statute⸻both for exposure and for contact. 401 S.W.3d at 

649. In Gonzales, the Court sanctioned multiple convictions and 

punishments for the commission of distinct statutorily defined acts of 

aggravated sexual assault of a child—even as defined within the same 

subsection of the statute. See 304 S.W.3d at 849 (defendant convicted of 

both anal and vaginal penetration of a child victim pursuant to TEX.

PENAL CODE § 22.021(a)(1)(B)(i)). Similarly, in Haight, the Court 

permitted multiple convictions and punishments under the same 

subsection of the official misconduct statute for separate statutorily

defined instances of that offense, since the two theories of commission 

were separated by the conjunctive “or,” and each “would cause a 

different type of harm to a victim.” See 137 S.W.3d at 50–51 (defendant 

convicted for subjecting his victim to both arrest and mistreatment, 

which were deemed to be independently unlawful under TEX. PENAL 

CODE § 39.03(a)(1)). 

(D). “Focus” or “Gravamen”

Ultimately, however, regardless of which of these types of 

analysis is the appropriate one in a given case, this Court has said that

“the best indicator” of the allowable unit of prosecution “seems to be the 

focus or ‘gravamen’ of the offense.” Jones v. State, 323 S.W.3d 885, 889 

(Tex. Crim. App. 2010). In the same-statute/different subsections cases 

discussed above (Loving, Gonzales, and Haight), the gravamen of the 

offense was deemed to be the controlling factor. And when examining a 

statute to determine “the focus or gravamen” of the offense for doublejeopardy purposes, the Court will look to see what it has said when 
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construing that statute for other purposes. It does this because 

“[w]hether statutory construction occurs in the double jeopardy context,” 

or in some other context such as jury unanimity, “the issue is the same: 

the meaning of the statute.” Id.

III. ANALYSIS

(A). Section 22.04(a), Subsections (1) and (2): Stuhler

In Stuhler, this Court observed that Section 22.04(a) is a resultof-conduct type of offense. That is to say, it is unconcerned with how the 

offense is committed, and it focuses instead on the various types of harm 

it seeks to avert. See 218 S.W.3d at 718 (noting that prior cases of this 

Court have “regarded the gravamen of the offense of injury to a child to 

be, not the particular conduct that caused the injury, but the resulting 

injury that the conduct caused”). Relying on the so-called “eighth grade 

grammar” rule of thumb for construing the gravamen of penal statutes,

first articulated by Judge Cochran in Jefferson v. State, 189 S.W.3d 305, 

315–16 (Tex. Crim. App. 2006) (Cochran, J., concurring), the Court 

concluded that the proper way to construe Section 22.04(a)—for 

purposes of deciding whether a jury had to be unanimous with respect 

to a verdict under any one subsection—was to hold that each subsection 

constituted a distinct offense. Stuhler, 218 S.W.3d at 718–19.

In reaching that conclusion in Stuhler, the Court observed:

In Section 22.04(a) of the Penal Code, the main verb 

defining the offense of injury to a child is, of course, 

“causes.” The direct object of that main verb is, variously, 

“serious bodily injury,” “serious mental deficiency, 

impairment, or injury,” or plain “bodily injury.” The 

Legislature has thus defined the offense of injury to a child 

according to the kind and degree of injury that results. As 

the court of appeals noted, these various results are set out 
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in different subsections of the statute, and the degree of the 

offense is determined, at least in part, according to which 

of the results the defendant’s act or omission caused.

Id.; see also Pizzo v. State, 235 S.W.3d 711, 718–19 (Tex. Crim. App. 

2007) (relying on Stuhler’s analysis to support the conclusion that each 

of the types of “sexual contact” defined in the indecency-with-a-child 

statute constituted a distinct offense requiring jury unanimity).

Jury unanimity and double jeopardy, the Court has said, “are 

closely intertwined strands of our jurisprudence” that “address the same 

basic question: In a given situation, do different legal theories of 

criminal liability comprise different offenses, or do they comprise 

alternate methods of committing the same offense?” Huffman v. State, 

267 S.W.3d 902, 905 (Tex. Crim. App. 2008). Having found the various 

“theories of criminal liability” set out in the subsections of Section 

22.04(a) to constitute “different offenses” for jury unanimity purposes in 

Stuhler, we perceive no basis to construe the statute any differently for 

purposes of double jeopardy. 218 S.W.3d at 719; see also Huffman, 267 

S.W.3d at 905 (“In the injury to a child context, whether separate legal 

theories comprise separate offenses depends upon whether the theories 

differ with respect to the result of the defendant’s conduct.”).

(B). Distinguishing Villanueva

The court of appeals was mistaken to draw a different conclusion 

based upon this Court’s later opinion in Villanueva. It is true that, 

unlike Stuhler, Villanueva was a double-jeopardy case, not a case about 

jury unanimity. Even so, in resolving the double-jeopardy issue there, 

the Court followed its conclusion in Jefferson, 189 S.W.3d at 312, 

another case addressing jury unanimity. The question in Jefferson was 
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whether committing injury to a child by act is a different offense than 

committing injury to a child by omission. There, the Court expressly 

held that the “focus” of the injury to a child statute was the result of 

conduct, not whether any of the specified results are caused by act or 

omission. Id. Whether the particular result was caused by act or by 

omission was considered by the Court in Jefferson to be non-elemental—

as merely alternative “means of committing a single criminal offense

and not . . . separate criminal offenses.” Id. at 313. And applying that 

construction to the double-jeopardy question in Villanueva, the Court 

concluded that:

“serious bodily injury committed against the same victim 

at the same time should be considered the same offense for 

purposes of the double-jeopardy prohibition against 

multiple punishments, regardless of whether that injury to 

that victim resulted from the actor’s act, his omission, or 

by a combination of his act and omission.”

227 S.W.3d at 748.

Unlike this case, Villanueva involved only one of the statutorily 

defined results identified in Section 22.04(a)(1), serious bodily injury.

Whether that one injury was caused by act or by omission had no 

bearing on the question of how many “offenses” the appellant could be 

punished for under the Double Jeopardy Clause.7 Only one injury 

7 It is true that in Villanueva the Court discussed, albeit in dicta, a 

hypothetical situation in which a defendant might be punished more than once 

for an act and an omission. The Court hypothesized that if, after causing 

serious bodily injury by act, the defendant failed to seek medical attention, and 

that omission “resulted in a separate and discrete, or at least incrementally 

greater injury” than was caused by the act alone, then the defendant might be 

susceptible to multiple punishments. 227 S.W.3d at 748–49. But this would 
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occurred. Because the “focus” or “gravamen” of injury to a child is the 

result of conduct (the injury), the Court has continued to insist—even 

after Villanueva—that the different statutorily defined results in the 

injury to a child statute constitute separate offenses, at least for jury 

unanimity purposes. See Huffman, 267 S.W.3d at 906 (recognizing that 

jury unanimity is required with respect to the various injury to a child 

results even after Villanueva because the “legal theories of injury to a 

child . . . differed with respect to the type of injury inflicted”). 

We can perceive no plausible justification for altering our settled 

construction of the statute for purposes of the double-jeopardy inquiry.

See Jones, 323 S.W.3d at 889 (statutory construction does not vary 

depending on the legal issue involved). The allowable units of 

prosecution in this case are determined by how many separate and 

discrete statutorily defined types of injurious results Appellant’s act or 

conduct caused. It does not matter how many acts or incidents of abuse 

it may have taken him to inflict those distinct statutorily defined 

injuries.

(C). Ervin does not control

Appellant argues that consideration of the non-exclusive Ervin

constitute an application of the “same statute: same-subsection” version of the 

units of prosecution analysis discussed above. That is to say, it would involve 

the question of how many times the defendant could be punished under the 

same statutory subsection, namely, Section 22.04(a)(1) (“serious bodily 

injury”). The present case involves application of the second type of units of 

prosecution analysis: “same statute: different subsection.” We resolve the 

double jeopardy question in this context simply by asking whether the 

differently specified statutory results constitute separate offenses. And in 

Stuhler, the Court authoritatively construed Subsections (1) and (2) of Section 

21.04(a) to identify discrete offenses. 218 S.W.3d at 719.
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factors militates in favor of the conclusion that Section 22.04(a)(1) and 

Section 22.04(a)(2) should be regarded as two ways of committing a 

single offense for double jeopardy purposes.8 But in all of the samestatute/different subsection cases discussed above (Loving, Gonzales, 

and Haight), this Court has found its focus/gravamen analysis to be 

determinative, notwithstanding consideration of the other Ervin factors. 

Loving, particularly, explicitly acknowledged the appellant’s argument

in that case was predicated on Ervin. Loving, 401 S.W.3d at 645. But it

nevertheless based its conclusion that the subsections of the statute at 

issue there constituted different offenses primarily on its

focus/gravamen analysis. Id. at 649. In Stuhler, this Court has already 

concluded that the focus/gravamen of Section 22.04 resides in the 

separate results proscribed in the individual subsections therein, and it 

has therefore concluded that they identify different offenses. Stuhler, 

8 The Ervin factors are:

(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 doublejeopardy purposes.

Benson, 459 S.W.3d at 72 (summarizing the factors set out in Ervin, 991

S.W.2d at 814).
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201 S.W.3d at 718–19. And what is true of the statute for jury unanimity 

purposes, we conclude today, is equally true for multiple-punishment 

double-jeopardy purposes as well.

IV. CONCLUSION

We conclude that punishing Appellant in the same trial for 

causing serious bodily injury, under Section 22.04(a)(1), and also for 

causing serious mental deficiency, impairment, or injury, under Section 

22.04(a)(2), did not violate the Double Jeopardy Clause. There was some 

evidence that, by whatever act or acts Appellant inflicted the “whiplash-type” injuries to the victim, those injuries included both “serious 

bodily injury” in the form of retinal bleeding that caused her blindness,9

and “serious mental deficiency” in the form of diffuse brain bleeding that 

has caused her developmental delays.10 The judgment of the court of 

appeals is therefore reversed insofar as it vacated Appellant’s conviction 

and punishment under Count II of the indictment, and the cause is 

remanded to that court for further proceedings consistent with this 

opinion.

DELIVERED: June 22, 2022

PUBLISH

9 See TEX. PENAL CODE § 1.07(a)(46) (“’Serious bodily injury’ means 

bodily injury that causes . . . protracted loss or impairment of the function of 

any bodily member or organ.”); id. § 1.07(a)(8) (“’Bodily injury’ means . . . any 

impairment of physical condition.”).

10 We express no opinion, of course, with respect to the legal sufficiency 

of the evidence to establish Appellant’s conviction under Count II of the 

indictment, leaving that determination to the court of appeals in the first 

instance on remand. See note 3, ante.