Affirmed and Opinion filed April 14, 2015.

In The 

Fourteenth Court of Appeals 

NO. 14-13-01102-CR

NO. 14-13-01103-CR

NO. 14-13-01104-CR

LEMARCUS ASHONTAY CHRISTMAS, Appellant 

V.

THE STATE OF TEXAS, Appellee 

On Appeal from the 434th Judicial District Court 

Fort Bend County, Texas 

Trial Court Cause Nos. 12-DCR-059643; 12-DCR-059644; and 

12-DCR-059645A

O P I N I O N

A jury convicted appellant Lemarcus Ashontay Christmas of obstruction or 

retaliation (trial court cause number 12-DCR-059643, appeal number 14-13-

01102-CR); violation of conditions of bond (trial court cause number 12-DCR059644, appeal number 14-13-01103-CR), and tampering with a witness (trial 

court cause number 12-DCR-059645A, appeal number 14-13-01104-CR). In each 
2

case, the trial court sentenced appellant to confinement for 30 years in the 

Institutional Division of the Texas Department of Criminal Justice and ordered the 

sentences to run concurrently. Appellant challenges all of these convictions in this 

appeal. We affirm. 

BACKGROUND

J.G.1 alleged that appellant, her boyfriend, assaulted her with a deadly 

weapon. The police did not apprehend appellant at the time. A few months later, 

officers responded to a call for service at J.G.’s home. J.G. complained of 

harassment. The police located appellant two blocks from J.G.’s house and arrested 

him based on the outstanding warrant for aggravated assault. J.G. posted bond so 

that appellant could be released from jail. 

 Several months after this incident, appellant began communicating with J.G. 

in a threatening manner and she obtained a protective order. Along with the 

original aggravated assault charge, appellant was charged with obstruction or 

retaliation, tampering with a witness, and violating a condition of his bond. The 

jury found appellant not guilty of aggravated assault but found him guilty of the 

remaining charges. 

Appellant raises two issues on appeal. First, he contends the convictions for 

both obstruction or retaliation and tampering with a witness are barred by double 

jeopardy. Second, appellant asserts that his conviction for violation of a bond 

condition is not supported by the evidence. For reasons explained below, we 

overrule both issues. 

 

1

Throughout this opinion we refer to the complainant by her initials.
3

THE EVIDENCE

On September 4, 2011, Officer Christopher Vargas responded to a call at 

J.G.’s home. Vargas knew there was an outstanding warrant for appellant’s arrest 

for aggravated assault. J.G. was alone with her children and fearful. After speaking 

with J.G., Vargas, along with Officers Irving and Louis, checked the backyard. 

Appellant was harassing J.G. by turning off the breaker box and yelling at her. 

While the officers were looking for appellant, J.G. informed them appellant was 

texting her and said that he could see them. The officers began checking different 

vehicles and driveways to determine appellant’s location. Officer Louis located 

appellant approximately two blocks from J.G.’s residence. Vargas testified that 

appellant was trying to walk away from the officers and was not cooperative. 

Vargas testified appellant is about 6’3” or 6’4” and weighs 200 pounds or more. 

Vargas pepper-sprayed appellant and ultimately arrested him. Vargas called 

emergency services to decontaminate appellant from the pepper spray. Appellant 

was taken to the hospital because he complained that he was having trouble 

breathing and said he was high on speed. Appellant’s demeanor was consistent 

with being under the influence and, according to the officer, he was “intoxicated 

with something.” Vargas testified that appellant asked him if they found his gun in 

the backyard. Vargas notified his sergeant and another officer at the location to 

check the backyard for a gun but the officers did not find any gun. 

J.G. testified that on this occasion, appellant called her about “100 times.” 

Appellant said that he was going to cut the wires at the house, and she called the 

police. After appellant was arrested, J.G. bonded him out. She testified that the 

papers stated appellant was not to have any contact with her as a condition of the 

bond. J.G. was sure that appellant understood that he was to have no contact with 

her. She testified that she continued to have contact with appellant and signed an 
4

affidavit of non-prosecution regarding the aggravated assault and the incident on 

September 4, 2011. J.G. said she and appellant were not living together but stated 

that they continued to co-parent and talk. 

According to J.G., on January 28, 2012, appellant called her phone “100 

times.” He followed her to a club and said he was going to cut all four of her tires 

and that when she left, he was going to “jump on her.” J.G. had the police in the 

club escort her to her car, and she went home. That night, J.G. was upstairs and 

heard the alarm signal that a door had opened. She looked over the balcony and 

saw that appellant was inside the house. J.G. called 911, and appellant ran out. J.G. 

testified that appellant did not have a key. Appellant continued to call her and 

threaten her. Appellant said when J.G. backed her car out of the garage, he would 

bust her window, and if she came out the door, he was going to stab her. 

Photographs of text messages, many threatening, that appellant sent to J.G. were 

admitted into evidence. J.G. identified the messages as coming from appellant and 

read them aloud: 

“You better talk to God. I already did this. I already did it on my 

heart.” 

“You need to get right with God. I prayed, and I’m ready to go over to 

the next world.” 

“You got to pay for what you did. You always think it’s okay, and 

then you play with me with laws[2

] trying to make everybody feel 

sorry for you. I wouldn’t care if you was dead.”

“It’s probably better that way so you can’t . . . over nobody else. You 

are an evil (pause) you need to ask God to forgive you and get right.” 

“I see the laws sitting down the street right behind that white car.” 

“I’m about to call everybody phone see if they got your burial 

 

2

J.G. testified “laws” referred to the police.
5

money.”3

 “B your better watch I’m right on you’re A.” 

“I guess you don’t see me.” 

“I’m about to go get [John].”4

 “I’m right behind you.” 

“At the day care.” 

“I’m on you now B.”

“I’m on you now. Look behind you B.” 

“You don’t know what I’m riding in, but I got you.”

J.G. testified that appellant also called her at work and told her that their son John 

was choking and that he was taking the boy to the hospital. It was not true. 

Three days later, J.G. sought a protective order. Appellant followed her in a 

car to the courthouse. Appellant continued to call her and when she answered some 

of the calls, he threatened that he was going to do something to her. J.G. testified 

that sometimes she was in fear of him hurting her. J.G. left the courthouse, went to 

the Missouri City Police Department, and spoke to several officers. 

Less than a week later, the police came to J.G.’s house and moved her to a 

safe location. During that time, she received more text messages from appellant: 

 “Nobody ain’t safe.” 

“Look outside I’m standing.” 

“Come meet me.” 

“Ima put the gun up for now.” 

“I put the gun up. Is you going to come now?” 

 

3

J.G. testified appellant “was referring that he was going to do something to me.”

4

In this opinion, we use the pseudonym “John” for J.G.’s and appellant’s son. John was 

at daycare.
6

“Just come. It ain’t far. I’m right around the corner.” 

“Come by yourself.” 

“If the laws come, it’s off.”

J.G. testified that she received a letter from appellant, which she read aloud: 

Shit, but so much has been said or done to where this shit has to 

be cleaned up, and I need your help. I don't know where to start, but it 

has to start somewhere. The way this work is that I have a victim in 

my case; but since it’s you, my case can be dismissed. They are trying 

to get in contact with you.

First of all, they think we fell out because you had changes on 

me and that the reason why -- oh, he’s saying charges. You had 

charges on me, and there’s a reason why so many charges have been 

filed. As far as everything else about phone conversations is nothing 

but a misdemeanor for the threats I made.

All you have to do is say you -- misdemeanor for the threats I 

made. All you have to do is say you not going to testify against me. 

I’ll explain to your dad, but he probably know what to say. The DA 

going to ask you about if you okay with the time that he offering me 

and once you hear, all you have to say is –

DOUBLE-JEOPARDY CLAIM

 In his first issue, appellant claims his convictions for obstruction or 

retaliation5

 and tampering with a witness6 are barred by the prohibition against 

double jeopardy because these two offenses arose out of the same conduct and the 

complaining witness in each case is the same person. Appellant did not assert his 

double-jeopardy claim in the trial court and the State argues that appellant has 

failed to preserve the complaint for appellate review. A double-jeopardy violation 

may be raised for the first time on appeal when the undisputed facts show that the 

 

5

Tex. Pen. Code Ann. § 36.06(a) (West 2011).

6

Tex. Pen. Code Ann. § 36.05(a)(1) (West Supp. 2014).
7

violation is clearly apparent from the face of the record and when enforcement of 

the usual rules of procedural default serves no legitimate state interest. Gonzalez v. 

State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000). See also Bigon v. State, 252 

S.W.3d 360, 369 (Tex. Crim. App. 2008). We first determine whether the 

undisputed facts show that the violation is clearly apparent from the face of the 

record. See Garfias v. State, 424 S.W.3d 54, 58 (Tex. Crim. App. 2014). 

There are three types of double-jeopardy claims: (1) a second prosecution 

for the same offense after acquittal; (2) a second prosecution for the same offense 

after conviction; and (3) multiple punishments for the same offense. See id. When, 

as in this case, a defendant is convicted of two or more crimes in a single trial, only 

the third type of double-jeopardy violation may occur. See Ex Parte Herron, 790 

S.W.2d 623, 624 (Tex. Crim. App. 1990). “A multiple-punishments doublejeopardy violation may arise either in the context of lesser-included offenses (when 

the same conduct is punished under both a greater and a lesser-included statutory 

offense) or when the same criminal act is punished under two distinct statutory 

provisions, but the legislature intended only one punishment.” Aekins v. State, 447 

S.W.3d 270, 274 (Tex. Crim. App. 2014); Garfias, 424 S.W.3d at 58. 

The Legislature has the power to establish and define crimes and few, if any, 

limitations are imposed upon this power by the Double Jeopardy Clause. Garfias, 

424 S.W.3d at 58. Thus the true inquiry in a multiple-punishments case is whether 

the Legislature intended to authorize the separate punishments. See id. There are 

two ways in which legislative intent can be ascertained: by analyzing the elements 

of the offenses in question, or by identifying the appropriate “unit of prosecution” 

for the offenses. See id. The Court of Criminal Appeals has held that an “elements” 

analysis is appropriate when the offenses in question come from different statutory 

sections, while a “units” analysis is employed when the offenses are alternative 
8

means of committing the same statutory offense. See id. In this case, appellant 

complains of convictions stemming from different statutory sections, so we must 

embark on an “elements” analysis to determine whether multiple-punishments 

principles have been violated. See id. 

The starting point of an “elements” analysis in the multiple-punishments 

context is the Blockburger test, used to determine whether each of the offenses 

requires proof of an element that the other does not. See id. In making this 

determination, courts must focus on the elements alleged in the charging 

instrument—not on the offense as defined in the Penal Code. See id. Under this socalled cognate-pleadings approach, double-jeopardy challenges can be made even 

against offenses that have different statutory elements if the same facts required to 

convict are alleged in the indictment. See id. at 58–59. 

 But, the Blockburger test is only a starting point—it is a rule of statutory 

construction, not the exclusive indicator of a double-jeopardy violation. See id. at 

59. The Blockburger test cannot allow two punishments for a single course of 

conduct when the Legislature intended to authorize only one. See id. To facilitate 

this analysis, in Ervin v. State, 991 S.W.2d 804 (Tex. (Tex. Crim. App. App. 

1999), the Court of Criminal Appeals set forth a list of non-exclusive factors 

designed to help courts in the absence of clear guidance from the Legislature: 

whether offenses are in the same statutory section; 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. 
9

Garfias, 424 S.W.3d at 59 (quoting Bigon v. State, 252 S.W.3d 360, 370 (Tex. 

Crim. App. 2008)). The Court of Criminal Appeals has indicated that the “focus” 

or “gravamen” of a penal provision should be regarded as the best indicator of 

legislative intent when determining whether a multiple-punishments violation has 

occurred. Id.

One other factor reviewing courts should consider when making an 

“elements” analysis is the determination of the allowable unit of prosecution for 

the offenses in question. Id. Although such a determination is a necessary step 

when a multiple-punishments claim deals with two offenses from the same 

statutory section, even in an “elements” analysis, such a determination can be 

indicative of legislative intent. Id.

We start with the Blockburger test. See id. at 58. As charged in this case, the 

offense of obstruction or retaliation required proof that appellant intentionally or 

knowingly threatened to harm the complainant by an unlawful act, assault or 

murder, in retaliation for or on account of her status as a witness or a prospective 

witness. The offense of tampering with a witness required proof that appellant, 

with intent to coerce the complainant, a witness or prospective witness in an 

aggravated assault case, coerced or induced the complainant to abstain from, 

discontinue or delay appellant’s prosecution or testify falsely. The offense of 

obstruction required proof that appellant threatened the complainant with assault or 

murder. The offense of tampering with a witness did not require such proof. The 

Blockburger test reveals that each offense, as charged in the respective indictment, 

contains an element that the other does not. See id. at 58–60. 

But as this does not end the analysis of whether the Legislature intended for 

appellant’s conduct to be punished multiply, we now consider that question 
10

through the lens of the Ervin factors outlined above. See id. at 60; Villanueva v. 

State, 227 S.W.3d 744, 747 (Tex. Crim. App. 2007).

These two offenses are in different statutory sections and bear different 

names, but have common punishment ranges. Obstruction or retaliation is a resultoriented offense. See Herrera v. State, 915 S.W.2d 94, 98 (Tex. App.—San 

Antonio 1996, no pet.). The gravamen of the offense is the intent to harm and 

prevent or delay another as a public servant. Id. The nature of the actor’s conduct is 

inconsequential to the commission of the crime. See Cook v. State, 884 S.W.2d 

485, 489 (Tex. Crim. App. 1994). 

The offense of tampering with a witness is a conduct-oriented offense. A 

person commits the offense if he engages in specified conduct with intent to 

influence the witness. “When a specific act is criminalized because of its very 

nature, a culpable mental state applies to committing the act itself and, thus the 

offense is nature or conduct oriented.” Gonzales v. State, 270 S.W.3d 282, 288 

(Tex. App.—Amarillo 2008, pet. ref’d). The gravamen of the offense is the 

conduct of influencing or coercing a witness. Thus, the two offenses do not have a 

common focus that tends to indicate a single instance of conduct. 

A determination of the allowable unit of prosecution for the two offenses, 

which, as noted above, can be indicative of legislative intent in an “elements” 

analysis, also indicates that the Legislature intended to allow multiple punishments 

in this case. See Garfias, 424 S.W.3d at 61; Bigon, 252 S.W.3d at 371. No express 

statement defining the allowable unit of prosecution is provided by the Legislature;

thus the gravamen of the offenses best describes the allowable unit of prosecution. 

Garfias, 424 S.W.3d at 61. As indicated above, the focus of the two offenses 

differs and therefore the allowable units of prosecution for the two offenses are not 

the same. See id. 
11

The Blockburger test, the Ervin factors, and a determination of the allowable 

unit of prosecution indicate that the Legislature intended to allow multiple 

punishments. As a result, a double-jeopardy violation is not clearly apparent from 

the face of this record. See Garfias, 424 S.W.3d at 58–64; Gonzalez, 8 S.W.3d at 

643. Appellant has not sustained his burden of presenting a record showing on its 

face a multiple punishments violation. See Garfias, 424 S.W.3d at 58–64; 

Gonzalez, 8 S.W.3d at 643. Accordingly, we overrule appellant’s first issue. 

INSUFFICIENT-EVIDENCE CLAIM

In his second issue appellant contends the evidence is insufficient to support 

his conviction under section 25.07 of the Texas Penal Code for violation of a bond 

condition because the bond condition failed to meet the statutory requirements of 

article 17.292 of the Texas Code of Criminal Procedure. See Tex. Penal Code Ann. 

§ 25.07 (West, Westlaw through 2013 3d C.S.), and Tex. Crim. Proc. Code Ann. 

art. 17.292 (West, Westlaw through 2013 3d C.S.). Appellant argues there was no 

valid order and, alternatively, he did not receive a copy of the order in accordance 

with article 17.292.7

Appellant was charged with and convicted of violating the conditions of 

bond set in trial court cause number 11-DCR-057993 — aggravated assault with a 

deadly weapon.8 Section 25.07(a) provides, in pertinent part: 

(a) A person commits an offense if, in violation of a condition of bond 

set in a family violence, sexual assault or abuse, or stalking case and 

related to the safety of a victim or the safety of the community, an 

 

7

 Appellant does not contend that he did not violate the bond condition that he have no 

contact with the complainant or that the evidence was insufficient to establish the violation.

8

The charge to the jury provided appellant “stands charged by indictment with the 

offense of violation of a bond condition. . .” and the guilty verdict states, “We, the jury, find the 

defendant Lamarcus Ashontay Christmas GUILTY of Violation of a Bond Condition, as charged 

in the indictment.
12

order issued under Article 17.292, Code of Criminal Procedure, an 

order issued under Section 6.504, Family Code, Chapter 83, Family 

Code, if the temporary ex parte order has been served on the person, 

or Chapter 85, Family Code, or an order issued by another jurisdiction 

as provided by Chapter 88, Family Code, . . .

Tex. Penal Code Ann. § 25.07(a). 

Appellant cites no authority that supports his contention that a conviction for 

this offense must be based on the violation of an order issued under article 17.292. 

Under the unambiguous language of Penal Code section 25.07(a), a conviction 

may be based on a violation of a condition of bond that does not satisfy the 

requirements of article 17.292. See § 25.07(a). Appellant’s reliance upon Harvey v. 

State, 78 S.W.3d 368 (Tex. Crim. App. 2002), is misplaced as that case concerned 

the offense of violation of a protective order, not a bond condition. The version of 

section 25.07 in effect when Harvey was decided did not include violation of a 

condition of bond as an offense. Id. at 368 n. 1. Accordingly, we reject appellant’s 

argument that the evidence is insufficient to support his conviction on the grounds 

the bond condition failed to meet the statutory requirements of article 17.292. 

Appellant also contends that the evidence did not establish beyond a 

reasonable doubt that he knew of the bond condition. The record reflects appellant 

signed the bail order containing the following language “* Bond condition – no 

contact with [J.G.].” Judge Sears testified the bond condition was in his 

handwriting and that in each case the defendant receives a copy of the bond. Judge 

Sears stated he “would tell him, A [sic] condition of your bond is that you shall 

have no contact with [J.G.] in this case.” Further, J.G. testified that she was sure 

appellant understood that he was not to have any contact with her as a condition of 

his bond. We conclude that a rational juror could have found beyond a reasonable 

doubt that appellant knew a condition of his bond was to have no contact with the 

complainant. For these reasons, we overrule appellant’s second issue. 
13

The judgment of the trial court is affirmed. 

 

 /s/ Kem Thompson Frost 

 Chief Justice 

Panel consists of Chief Justice Frost and Justices Boyce and McCally. 

Publish — Tex. R. App. P. 47.2(b).