Opinion filed December 30, 2021

In The

Eleventh Court of Appeals __________

No. 11-19-00373-CR 

__________

PAUL RAYLYN DWAYNE CARSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 350th District Court

Taylor County, Texas

Trial Court Cause No. 13381-D

M E M O R A N D U M O P I N I O N

The jury convicted Paul Raylyn Dwayne Carson of assault family violence. 

The trial court assessed his punishment at confinement in the Institutional Division 

of the Texas Department of Criminal Justice for a term of ten years. Appellant 

challenges his sentence in three issues. We affirm.
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The State charged Appellant by indictment with the following conduct: 

[Appellant] then and there intentionally, knowingly, and recklessly 

cause[d] bodily injury to [Ysmelda Young], a person with whom the 

said [Appellant] has or has had a dating relationship as described by 

§71.0021, of the Texas Family Code, by intentionally, knowingly and 

recklessly impeding the normal breathing and circulation of the blood 

of the said [Ysmelda Young] by applying pressure to the throat and 

neck of the said [Ysmelda Young].

The indictment referenced “assault family violence” as the offense charged, 

but the indictment did not reference a specific provision of the Texas Penal Code 

that was applicable to the charged offense. The indictment also alleged a prior felony 

conviction for enhancement purposes.

The offense of assault family violence is set out in Section 22.01 of the Texas 

Penal Code. See TEX. PENAL CODE ANN. § 22.01 (West Supp. 2021). At the time 

that Appellant committed the offense, Section 22.01 had two subsections labeled 

“(b-2)” that addressed the applicable punishment for the offense. The “first”

subsection (b-2) provided as follows: 

(b-2) Notwithstanding Subsection (b)(2), an offense under Subsection 

(a)(1) is a felony of the second degree if: 

(1) The offense is committed against a person whose 

relationship to or association with the defendant is 

described by Section 71.0021(b), 71.003, or 71.005, 

Family Code; 

(2) it is shown on the trial of the offense that the defendant 

has been previously convicted of an offense under this 

chapter, Chapter 19, or Section 20.03, 20.04, or 21.11 

against a person whose relationship to or association with 
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the defendant is described by Section 71.0021(b), 71.003, 

or 71.005, Family Code;1 and 

(3) the offense is committed by intentionally, knowingly, 

or recklessly impeding the normal breathing or circulation 

of the blood of the person by applying pressure to the 

person’s throat or neck or by blocking the person’s nose 

or mouth. 

Act of May 4, 2017, 85th Leg., R.S., ch. 34, § 27 (S.B. 1576), 2017 Tex. Gen Laws

72, 81 (codified at PENAL § 22.01(b-2)) (amended 2019) (current version at Penal 

§ 22.01(b-3)).2

 Thus, the indictment in this case tracked the language of the first 

subsection (b-2) as it existed at the time of the offense. 

The “second” subsection (b-2) provided as follows:

(b-2) Notwithstanding Subsection (b)(1), an offense under Subsection 

(a)(1) is a felony of the second degree if the offense is committed 

against a person the actor knows is a peace officer or judge while the 

officer or judge is lawfully discharging an official duty or in retaliation 

or on account of an exercise of official power or performance of an 

official duty as a peace officer or judge.

PENAL § 22.01(b-2). This “second” subsection (b-2) was added by Act of May 23, 

2017, 85th Leg., R.S. ch. 440, § 3 (H.B. 2908), 2017 Tex. Gen Laws 1163–64

(codified at PENAL § 22.01(b-2)) and continues to be designated as subsection (b-2). 

Both provisions became effective in 2017, before Appellant’s arrest in 2018 and 

conviction in 2019. As set out below, Appellant’s three issues on appeal all concern 

the effect of the two subsections that were labeled (b-2). We affirm Appellant’s 

conviction and sentence.

1

Appellant had at least one prior conviction for assault family violence.

2

See Act of May 21, 2019, 86th Leg., R.S., ch. 467, § 21.001(39) (H.B. 4170) (codified at Penal 

§ 22.01(b-3)), which provides: “Subsection (b–2), Section 22.01, Penal Code, as added by Chapter 34 (S.B. 

1576), Acts of the 85th Legislature, Regular Session, 2017, is redesignated as Subsection (b–3), 

Section 22.01, Penal Code.”
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Background Facts

Appellant and Young began a dating relationship around April 2018. Their 

relationship started off well but quickly began to sour. Young stated that Appellant 

“tried to be overbearing, tried to pretty much tell [her] what to do every day, started 

cussing [her], calling [her] names, arguing with [her].” On May 2, 2018, Appellant 

and Young engaged in an argument at Young’s home that escalated to the point 

where Young called the police. When Appellant learned of Young’s first attempt to 

contact the police, he punched past Young’s face, denting her refrigerator in the 

process. Additionally, Appellant took Young’s phone away from her to prevent her 

from completing her 9-1-1 call and pushed her face into the refrigerator. The 9-1-1 

operator called Young’s phone back after the first call disconnected. Appellant did 

not disconnect Young’s phone during the second call. Sometime during Young’s 

second 9-1-1 call, Appellant left the apartment.

The police did not arrest Appellant following the May 2 incident. After the 

May 2 incident, Young and Appellant ceased their dating relationship, but the two 

continued to maintain contact. Young explained that she kept in contact with 

Appellant following the termination of their dating relationship because 

[she] wanted to know where his mentality was. [She] wanted to make 

sure [she] was going to be safe, he wasn’t angry at something [she] had 

done or probably would do. [She] wanted to keep a close eye on him 

for [her] own peace of mind because [she] wanted to make sure [she] 

was safe. [She] wanted to pacify him, keep him calm, tell him whatever 

he wanted to hear to keep him, [she guesses], to stay on his good side. 

Appellant and Young remained in contact between May 2 and May 19.

On May 19, following her shift at work and an early morning meal, Young 

returned to her apartment. As Young walked up to her front door, Appellant attacked 

Young from behind. After Appellant’s attack, Young called 9-1-1. Young suffered 
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injuries to her throat due to Appellant’s attempts to impede her airway. The police 

arrested Appellant the following day.

At the outset of Appellant’s punishment hearing, the parties informed the trial 

court that the legislature had enacted two subsections labeled (b-2). Appellant 

asserted that, since the second (b-2) was enacted after the first (b-2), it superseded 

the first (b-2). The significance of this argument is that if the second subsection (b2) superseded the first subsection (b-2), then Appellant was improperly sentenced 

for a second-degree felony, which, with Appellant’s prior felony conviction, resulted 

in the applicable punishment range being that of a first-degree felony.

Analysis

Appellant challenges his sentence in three issues. In his first issue, Appellant 

asserts that an ex post facto violation occurred when the trial judge sentenced him 

pursuant to the provisions of the first subsection (b-2). In Appellant’s second issue, 

he contends that the trial court’s construction of the two statutes was 

“unforeseeable,” which, in turn, functions like an ex post facto violation, thus 

violating Appellant’s due process rights. In Appellant’s third issue, he contends that 

the trial court erred when it imposed a sentence enhanced to a first-degree felony 

range when the applicable punishment range was that of a second-degree felony.

Lying at the heart of Appellant’s three issues is a question of statutory 

construction. Statutory interpretation is a question of law, which we review de novo. 

Pruett v. State, 510 S.W.3d 925, 927 (Tex. Crim. App. 2017). We interpret a statute 

according to the plain meaning of its language unless the statute is ambiguous or the 

plain meaning leads to absurd results that the legislature could not possibly have 

intended. Id. 

This case presents a particular question of statutory interpretation—

interpreting two amendments enacted at the same session of the legislature. See 
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Young v. State, 14 S.W.3d 748, 752 (Tex. Crim. App. 2000). “If amendments to the 

same statute are enacted at the same session of the legislature, one amendment 

without reference to another, the amendments shall be harmonized, if possible, so 

that effect may be given to each.” Id. (citing TEX. GOV’T CODE ANN. § 311.025(b) 

(West 2013)).

3

 The two amendments at issue in this case, SB 1576 (the first (b-2))

and HB 2908 (the second (b-2)), were both enacted during the same legislative 

session (the 85th Regular Session), and neither amendment referenced the other. 

Thus, we must harmonize the two amendments, if possible, to give effect to each. 

“Only if the two provisions are irreconcilable will the amendment with the later date 

take precedence over the earlier.” Id.; see GOV’T § 311.025(a).

We conclude that the two subsections labeled (b-2) can be harmonized to give 

effect to each. The only overlap between the two subsections is the fact that they 

are labeled with the same subsection number. They address different situations. The 

first subsection (b-2) made it a second-degree felony to commit an assaultive offense 

against a person with whom the accused is in, or has been in, a dating or family 

relationship. See TEX. FAM.CODE ANN. §§ 71.0021(b), 71.003, 71.005 (West 2019). 

The second subsection (b-2) made it a second degree-felony to commit an assault 

against a peace officer or judge. The legislature clearly intended to protect two 

different classes of victims with the two amendments. See Hines v. State, 515 

S.W.2d 670, 675 (Tex. Crim. App. 1974) (two statutes that applied under different 

factual scenarios could be harmonized).

The holding in Dodd v. State is instructive. 650 S.W.2d 129, 130 (Tex. 

App.—Houston [14th Dist.] 1983, no writ). There, the only overlap or conflict 

between the statutes under review was the numbering system used in each. Id. The 

3

Section 311.025 is applicable to the construction of the provision of the Texas Penal Code. See

PENAL § 1.05(b) (West 2021). 
7

court determined that the texts of the statutes were not conflicting because the 

statutes dealt with “completely different subject matters.” Id. Such is the case here. 

The words of the two subsections deal with different matters and the texts do not 

conflict. In this regard, the text of a statute is the primary focus of our analysis. See 

Watkins v. State, 619 S.W.3d 265, 271–72 (Tex. Crim. App. 2021).

Appellant is essentially asserting that the second subjection (b-2) repealed the 

first subsection (b-2) by implication. Repeal by implication is not favored under 

Texas law. Hines, 515 S.W.2d at 675; Standard v. Sadler, 383 S.W.2d 391, 395 

(Tex. 1964); Dodd, 650 S.W.2d at 130. If the statutes in question can be harmonized, 

then there will be no repeal by implication. Dodd, 650 S.W.2d at 130; see State v. 

Hannis, No. 11-98-00268-CV, 1999 WL 33748061, at *5 (Tex. App.—Eastland 

1999, no pet.) (not designated for publication). Because the text of the two 

subsections can be harmonized, the second subsection (b-2) did not repeal the first 

subsection (b-2) by implication.

Moreover, the only overlap between the two subsections is that they bear the 

same subsection number. This was a numbering error that the legislature corrected 

in the 86th legislative session. In correcting this issue, the legislature simply 

renumbered the first subsection (b-2) to subsection (b-3). This action indicates that 

the legislature had no intent to repeal either version of subsection (b-2) in the 85th 

legislative session, but rather, the legislature merely committed a numbering error. 

Appellant’s three issues on appeal are all contingent on his statutory 

contention that we have rejected. For example, he asserts that an ex post facto 

violation occurred because he was punished under a statute, the first subsection (b2), that he contends no longer existed because of the subsequent adoption of the 
8

second subsection (b-2).4 Relying on his statutory construction, he asserts in his 

second issue that he had no notice of the punishment assessed against him. He 

asserts in his third issue that he was incorrectly sentenced, once again, based on his 

interpretation of the statute. Having determined that the statutory provision under 

which Appellant was sentenced remained in effect, we overrule his three issues on 

appeal.

This Court’s Ruling

We affirm the judgment of the trial court. 

JOHN M. BAILEY

CHIEF JUSTICE

December 30, 2021

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Bailey, C.J., 

Trotter, J., and Williams, J. 

4

Both the United States and the Texas Constitutions prohibit the application of any ex post facto 

law, and the same standard is applied under both provisions. U.S. CONST. art. I, § 10, cl. 1; TEX. CONST. 

art. I, § 16; Grimes v. State, 807 S.W.2d 582, 586 (Tex. Crim. App. 1991). The ex post facto clauses found 

in both constitutions prohibit four types of laws. They prohibit (1) laws that make an action done before 

the passing of the law, and which was innocent when done, criminal and punishable; (2) every law that 

aggravates a crime or makes it a greater crime than it was when committed; (3) every law that changes the 

punishment and inflicts a greater punishment than the law annexed to that crime when it was committed; 

and (4) every law that alters the legal rules of evidence and requires less, or different, testimony than the 

law required to convict the offender at the time of the commission of the offense. Carmell v. Texas, 529 

U.S. 513, 521 (2000) (citing Calder v. Bull, 3 U.S. 386, 390 (1798)). An ex post facto analysis focuses on 

whether the statute assigns more severe criminal or penal consequences to an act than did the law in place 

when the act occurred; it is irrelevant whether the statutory change touches any vested rights. Grimes, 807 

S.W.2d at 587 (citing Weaver v. Graham, 450 U.S. 24, 29 n.13 (1981)).