# In the Court of Criminal Appeals of Texas

══════════ No. PD

- 0408

- 21

══════════

SYED S ARTAJ NAWAZ , Appellant ,

v.
THE STATE OF TEXAS

═══════════════════════════════════════ On State’s Petition for Discretionary Review From the Fifth Court of Appeals Collin County

═══════════════════════════════════════

Y EARY , J., delivered the opinion of the Court , in which K ELLER , P.J., and R ICHARDSON , K EEL , S LAUGHTER , and M C C LURE , JJ., joined. H ERVEY and N EWELL , JJ., concurred in the result. W ALKER , J., dissented.
In a single trial, Appellant was convicted of two instances ofNAWAZ

– 2

2 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
T EX

. P ENAL C ODE § 22.04(a)(1) & (2) (“(a) A perso n 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 argue d 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 co nvicting 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.

T EX

. P ENAL C ODE § 22.04(a).NAWAZ

– 3

3 WL 1884551 at *5 (Tex. App.

— Dallas May 11, 2021) (mem. op., not desi gnated 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, impairmen t, 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 . B ut she presented with widely diffuse brain bleeding , which caused developmental delays (though it was st ill 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, Appell a nt “did . . . knowingly c ause 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 Cou n t I to have caused the serious bodily injury.NAWAZ

– 4

4 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, t he jury convicted Appellant of both counts

. It then assessed his punishment at sixteen years’ confinement in the penitentiar y 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 D ouble J eopardy 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 r ather than rely on our construction of the identical injury

- to

- a
- child provision s 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 double

jeopardy 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, c oncluding 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 double

jeopardy issue, we will remand the case to the court of appeals to address the sufficiency issue in the first instance.NAWAZ

– 5

5 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, th e 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 othe r 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.” App ellant’s Br ief 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 wh y Stuhler , not Villanueva , is the controlling precedent, it is useful to begin with a n 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 punishmen ts. ( 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. C ONST 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 a nd 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?”NAWAZ

– 6

6 double jeopardy affords three basic protections: (1) against prosecution a second time for the “same” offen se 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 m ultiple 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 “cognate

pleadings approach” to the Blockburger “same

- elements” test, th is Court
ask s 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 presume s that the two offenses are the same forNAWAZ

– 7

7 multiple

- punishment double

- jeopardy purposes. Id

. But i f 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, 8 14 (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, th e Court simply conduct s a n

“ allowable units of prosecution” analys is. 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 esta blishes that the offenses in this case should be regarded as the same for multiple

punishments double

- jeopardy purposes. For reasons we will explain in the text post , we disagree.NAWAZ

– 8

8 Under the first of these two “units of prosecution” analys e s , the question w ill 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 beg u n; or it may depend on how many victims of the identically defined offe nse 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 kin d of “unit s o f prosecution” inquiry. For instance, i n 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 assault s 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” i s the number of assault victims, not the number of victims from whom property was
taken. Id . at 560.NAWAZ

– 9

9 ( 2 ). Same Statute: Different Subsections 6
Th is 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 “unit s 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 whi ch would constitute a commission of the offense. T he question was : W hen 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 prop erly

6 W e 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 Ha ight 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 t reat s cases addressing statutes that defin e 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.NAWAZ – 10

10 convicted and punished under separate subsections of the indecency

with -a- child statute

⸻ both for exposure and for contact. 401 S.W.3d at
649. I n 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 T EX

. P ENAL C ODE § 22.021(a)(1)(B)(i)) . Similarly, in Haight , the Court permitted multiple convictions and punishments under the same subsection of the official miscondu ct 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 fo r subjecting his victim to both arrest and mistreatment , which were deemed to be independently unlawful under T EX

. P ENAL C ODE § 39.03(a)(1))

. (D ). “Focus” or “Gravamen” Ultimately, however, r egardless of which of these type s of analys i s 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/differ ent subsections cases discussed above ( Loving , Gonzale s , 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 double

jeopardy purposes, the Court will look to see what it has said whenNAWAZ

– 11

11 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 result

of

- conduct type of offense . That is to say, it is unconcerned with how the offense is committed , and it focuses instead on the various type s of harm it seeks to avert. See 21 8 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 “ei ghth 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 c onstru e 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 , 2 18 S.W.3d at 718

– 19.
In reaching th at 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 outNAWAZ

– 12

12 in different subsections of the statute, and the d egree 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 conclu sion 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 jurisp rudence” 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, 90 5 (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; s ee 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 res pect 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 wa s 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 wasNAWAZ

– 13

13 whether c ommitting 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 Co urt in Jefferson to be non

- elemental

—

as merely alternative “means of committing a single criminal offense and not . . . separate criminal offenses.” Id . at 313. A nd a pplying that construction to the double

- jeopardy question in Villanueva , the Court conclud ed 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 resulte d 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 Villanue va 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 med ical 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 wouldNAWAZ

– 14

14 occurred. B ecause 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 inju ry 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 allo wable 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 infli ct those distinct statutorily defined injuries. (C)

. Ervin does not control Appellant argues that consideration of the non
- exclusive Ervin

consti tute 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, na mely, 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 th is context simply by asking whether the differently specified statutory results constitute separat e offenses. And i n Stuhler , the Court authoritatively construed Subsections (1) and (2) of Section 21.04(a) to identify discrete offenses. 218 S.W.3d at 719.NAWAZ – 15

15 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 same

statute/different subsection cases discussed above ( Loving , Gonzales , and Haight ), th is 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. I n Stuhler , th is 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); a nd (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.

Benson , 459 S.W.3d at 72 (summarizing the factors set out in Ervin , 991 S.W.2d at 814).NAWAZ

– 16

16 201 S.W.3d at 718

– 19. And w hat is true of the statute for jury unanimity

purposes , we conclude today, is equally true for multiple

- punishment double

- jeopar d y 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 Claus e. There was some evidence that, by whatever act or acts Appellant inflicted the “whip

lash

- type” injuries to the victim , th ose 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 T EX

. P ENAL C ODE § 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) (“’ B odily 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 , a nte

.