In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-22-00132-CR

___________________________

On Appeal from Criminal District Court No. 1

Tarrant County, Texas

Trial Court No. 1691858D

Before Kerr, Bassel, and Wallach, JJ.

Memorandum Opinion by Justice Bassel

MATTHEW WOLFE, Appellant

V. 

THE STATE OF TEXAS
2

MEMORANDUM OPINION

I. Introduction

In five points, Appellant Matthew Wolfe challenges his six convictions for 

aggravated kidnapping, burglary, aggravated robbery, two counts of aggravated

assault, and injury to an elderly individual. In his first point, Appellant contends that

he was denied the right to act as his own counsel. We rule against Appellant on this 

point because he failed to timely assert his right to self-representation. In his

remaining four points, Appellant contends that multiple punishments are being 

imposed upon him in violation of the prohibition against double jeopardy. The State 

concedes the merit of three of Appellant’s points, and we agree.1

 For each of those 

points, we will retain the most serious of the convictions for which Appellant received 

multiple punishments in violation of the prohibition against double jeopardy. With 

respect to the remaining point—number four—we disagree that Appellant received 

multiple punishments for the same offense in violation of the prohibition against 

double jeopardy. Accordingly, we vacate three of the trial court’s judgments and 

affirm the remaining three judgments.

1

Because the State’s confession of error is not dispositive, we still look at the

merits. See Saldano v. State, 70 S.W.3d 873, 884 (Tex. Crim. App. 2002).
3

II. Factual and procedural background

The underlying facts of the offenses committed have only a tangential impact 

on the points that Appellant raises. Thus, we detail those facts, which occurred on 

July 7, 2021, only to the extent summarized in Appellant’s brief:

Appellant was staying with a friend at her apartment in Tarrant County. 

Across from her apartment lived the complainant, a 62-year-old man, his 

daughter[,] and his granddaughter. According to the complainant, 

Appellant asked to borrow his car[,] and when he declined, Appellant 

followed him into his apartment and began assaulting him. According to 

Appellant, he saw the complainant leaning over his naked grandchild in a 

concerning way[,] causing Appellant to enter the apartment to protect

the child. Appellant had been the victim of sexual abuse as a child and 

was triggered by the complainant’s behavior with the unclothed child. 

Appellant [dragged] the complainant to his friend’s adjacent 

apartment, shut the door, locked it[,] and continued to assault the 

complainant, kicking him and hitting him with a cooking pot. Appellant 

then took the complainant’s car keys and left the location in his car. 

[Record references omitted.] 

The jury convicted Appellant of the following offenses and assessed the 

following punishments: 

• aggravated kidnapping with a deadly weapon—25 years;

• burglary of a habitation—25 years;

• aggravated robbery with a deadly weapon—25 years;

• aggravated assault with a deadly weapon causing bodily injury—40 years;

• aggravated assault by threat with a deadly weapon—40 years; and
4

• injury to an elderly individual—40 years.

2

The trial court signed judgments reflecting the jury’s verdicts on guilt and 

punishment after sentencing Appellant in accordance with the verdicts. The trial 

court also ordered that Appellant’s sentences would run concurrently. Appellant 

timely filed a notice of appeal and then filed a “Motion for New Trial and Motion in 

Arrest of [Judgment]” that was overruled by operation of law.

III. Analysis

A. We overrule Appellant’s first point because he was not improperly

deprived of the right to self-representation.

In Appellant’s first point, he claims that the trial court “violated Faretta[3] and 

Appellant’s state and federal rights of self-representation.” Appellant made no clear 

and unequivocal request to self-represent until it was too late to invoke that right.

1. We summarize the three chapters that chart the story of 

Appellant’s self-representation claim.

a. The first chapter

The first chapter occurred approximately six weeks before trial at a pretrial 

hearing presided over by a magistrate. The concern expressed by Appellant at the 

pretrial hearing was that his counsel was the son of a Tarrant County District Judge 

2

With respect to punishment, for each count of the charge, the jury found a 

habitual-offender notice to be true. 

3

See Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541 (1975) (requiring

a court to ensure that an accused who wants to manage his or her own defense 

understands the dangers and disadvantages of self-representation).
5

who had accepted a plea bargain from Appellant and had sentenced him to prison 

almost two decades earlier. Appellant expressed the nature of the problem and his 

thoughts on how to solve the problem as follows:

Your Honor, I believe that there may be a conflict of interest due to the 

fact that Mr. Salvant has a relative that sentenced me to prison for 12 

years back [in] 2002 -- 2003. I explained this to my attorney, Mr. 

Salvant. It was brought to my attention, you know, that it was a conflict 

of interest by another attorney that I’ve talked to. And at this point, I’m 

asking for a little time to either hire a new attorney or to essentially maybe have 

another one appointed. [Emphasis added.]

The trial court indicated that it did not see a conflict and told Appellant that he could 

hire a new lawyer if he wanted and that it was late in the process to bring up 

Appellant’s concern. Appellant never asserted a right to self-representation during the 

pretrial hearing. 

b. The second chapter 

The second chapter of the story occurred on the morning before voir dire was

conducted. At the request of his counsel, Appellant testified about his ongoing

concern that a conflict of interest existed between his present counsel and him.

Again, the conflict centered on the fact that his counsel’s father had sentenced him to 

prison. When Appellant reiterated his concern, he made a passing mention of 

representing himself:

I was informed by another lawyer that that definitely is a conflict of 

interest. And upon me getting able to be able to work again and 
6

speaking with you in-person where I actually got down there to the 

office, you[4] agreed with me that it was . . . a conflict.

So essentially that let me put a couple of options to hire an attorney, have 

another one appointed[,] or represent myself. I was told that . . . one 

particular attorney, she had told me that there was no way she could

prepare for trial within the time allotted. And the last time that I . . . 

spoke to you, you said the last time we came to court, which was 

yesterday, is that we were going to get it on record and just try to get it 

figured out, or we could, you know, proceed on. [Emphases added.]

The trial court (now presided over by the court’s elected judge) ruled that there was

no conflict. Appellant’s counsel then sought a continuance, which was denied.

c. The third chapter 

The third chapter occurred during the trial (which was being conducted by a 

visiting judge) after the State had rested. This third chapter began when Appellant’s 

counsel informed the trial court that he could not announce ready to present the 

defense’s case because Appellant had given him a list of seven witnesses whom he

wanted to testify, and Appellant’s counsel sought a continuance to locate and 

subpoena the witnesses. The trial court implicitly overruled the motion for 

continuance but gave Appellant’s counsel ten minutes to talk with Appellant. After a 

discussion, Appellant’s counsel indicated that Appellant wanted to address the court. 

The trial court noted that the proceeding was at “midtrial,” that the State had 

presented all of its evidence and had rested, and that the jury was in the jury room.

4

The “you” throughout this block quote appears to be a reference to

Appellant’s lawyer.
7

Appellant reiterated his complaints about a conflict of interest with his counsel 

and then told the trial court that he was dissatisfied with his lawyer’s performance for 

apparently not cross-examining witnesses as he thought they should be and for not 

calling certain witnesses. Appellant stated that he wanted his present counsel 

removed from the case and a new lawyer appointed or to represent himself. This

produced a discussion with the trial court regarding whether Appellant was equivocal

in the desire to represent himself. As the discussion continued, Appellant then raised 

an additional complaint that his present lawyer’s investigator was Appellant’s former 

parole officer.

After the trial court told Appellant that the case would proceed that day, the 

trial court again asked if Appellant wanted to represent himself, and he said that he 

did. The trial court then began interrogating Appellant on his level of knowledge and 

describing the pitfalls of self-representation. The hearing continued with Appellant’s

stating that he had no choice but to represent himself because of the allegedly subpar

representation that he had received to that point. 

When again confronted with the fact that the trial would proceed and asked

whether he still wished to waive his attorney, Appellant responded tentatively in 

response to when he could proceed:

THE COURT: Okay. Well, ultimately, . . . it’s up to you. You’ve . . .

got to freely and knowingly waive your right to an attorney.

Are you willing to do that?
8

[APPELLANT]: I am.

THE COURT: And would you be doing so understanding that

you’re going to proceed today? Is that what you’re asking the [c]ourt to 

do?

[APPELLANT]: I don’t know if . . . I could proceed today. I 

don’t have the pertinent information in front of me to be able to 

understand if I have enough time to be able to answer that question.

THE COURT: Okay.

[APPELLANT]: I would like, in the very least, to be able to get 

my hands on, you know, the court records, pertinent paperwork that I 

need to . . . adequately represent myself.

THE COURT: Okay. So it sounds like there would be a 

considerable delay involved?

[APPELLANT]: I don’t think that there would be a considerable 

delay. I think that in order to answer that question with honesty and 

respect to you, I would have to . . . see what was in front of me before I 

could answer that question.

The hearing continued with Appellant’s being vague about when he would be 

ready to proceed but being certain that he wanted to represent himself in view of the

representation that he had received. A later exchange went as follows:

THE COURT: I mean, you’ve previously indicated that you really don’t 

feel that you’re prepared to proceed today; is that right?

[APPELLANT]: I don’t know. I don’t have the information in 

front of me to be able to -- to --

THE COURT: Okay.

[APPELLANT]: -- make that decision.

THE COURT: All right.
9

[APPELLANT]: What I do . . . know is that I would rather 

represent myself than have Mr. Salvant as my attorney.

THE COURT: Okay.

After this exchange, the State noted that Appellant’s request was untimely. As 

the colloquy between Appellant and the trial court continued, the trial court expressed 

its concern that the trial would be disrupted by Appellant’s self-representation and 

that the request to do so was a delay tactic. Appellant responded that he was not 

being properly represented, that he intended to cross-examine the witnesses as he 

wished, and that he intended to get a not-guilty verdict. Appellant again reiterated a

desire to pursue his own trial strategy: “It is . . . not my attorney’s strategy, even 

against -- he works for me. If it’s not his strategy, this is my strategy. My strategy is 

to be able to cross-examine these witnesses. If he is in disagreement with that, then 

there’s . . . .”

Ultimately, the trial court denied Appellant’s request for self-representation

because it was equivocal and conditional. 

2. We set forth the standard of review that we apply to 

Appellant’s contention that he was deprived of the right to

self-representation. 

We apply the following standard of review to a point challenging the denial of 

the right to self-representation:

We review the denial of a defendant’s request for self-representation for 

an abuse of discretion. We view the evidence in the light most favorable 

to the trial court’s ruling, and we imply any findings of fact supported by 
10

the record and necessary to affirm the ruling when the trial court did not 

make explicit findings.

Lathem v. State, 514 S.W.3d 796, 802 (Tex. App.—Fort Worth 2017, no pet.)

(footnotes omitted).

So long as there is a valid legal theory to uphold a ruling, we will do so even if

the trial court articulated a different—and arguably wrong—reason for its ruling. 

Specifically,

a trial court’s ruling must generally be upheld if it is correct “on any legal 

theory applicable to the case, even one that was not mentioned by the 

trial court or the appellee.” Spielbauer v. State, 622 S.W.3d 314, 319 (Tex. 

Crim. App. 2021). This principle is known as the “right ruling, wrong 

reason” doctrine. State v. Herndon, 215 S.W.3d 901, 905 n.4 (Tex. Crim. 

App. 2007).

Martell v. State, 663 S.W.3d 667, 672 (Tex. Crim. App. 2022).

3. We set forth the principles that govern a defendant’s right to 

self-representation.

The Court of Criminal Appeals has recently described the foundation of the 

right to self-representation, how the right is invoked, and the processes a trial court

must follow before allowing a defendant to self-represent:

It is well established that every criminal defendant has a constitutional 

right to the assistance of counsel and the constitutional right to selfrepresentation. U.S. Const. amend. VI; Tex. Const. art. I[,] § 10; Faretta, 

422 U.S. at 835, 95 S. Ct. [at 2541]. “The right to self-representation and 

the assistance of counsel are separate rights depicted on the opposite

sides of the same Sixth Amendment coin. To choose one obviously 

means to forego the other.” [United States v.] Purnett, 910 F.2d [51,] 54

[(2d Cir. 1990)]; see Martin v. State, 630 S.W.2d 952, 953 (Tex. Crim. App. 

1982) [(op. on reh’g)]. “While the right to counsel is in force until 

waived, the right of self-representation does not attach until asserted.”
11

Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir. 1982) [(op. on reh’g)]; see

Williams v. State, 252 S.W.3d 353, 356, 358 (Tex. Crim. App. 2008). 

Assertion of the right to self-representation must be clear and 

unequivocal. See Faretta, 422 U.S. at 835, 95 S. Ct. [at 2541]. “When a

criminal defendant chooses to waive his right to counsel and represent 

himself, the waiver should be made ‘knowingly and intelligently,’ and he 

should be warned of the ‘dangers and disadvantages’ accompanying such 

waiver” so that “the record will establish that ‘he knows what he is doing 

and his choice is made with open eyes.” Hatten v. State, 71 S.W.3d 332,

333 (Tex. Crim. App. 2002); Collier v. State, 959 S.W.2d 621, 626 (Tex. 

Crim. App. 1997) (citing Faretta, 422 U.S. at 834–36, 95 S. Ct. [at 2541,

and stating that] decision to waive counsel in favor of self-representation 

is “knowing and intelligent” if “it is made with a full understanding of 

the right to counsel, which is being abandoned, as well as the dangers 

and disadvantages of self-representation”). “‘[C]ourts indulge every 

reasonable presumption against waiver’ of fundamental constitutional 

rights . . . .” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, [1023]

(1938)[, abrogation recognized by Jones v. Hendriz, No. 21-857, 2023 WL 

4110233, at *11 (U.S. June 22, 2023)]. Whether a waiver of counsel was 

effective depends on the totality of the circumstances, which includes

considering “the background, experience, and conduct of the accused.”

Id.[, 58 S. Ct. at 1023.] “An invalid waiver waives nothing.” Williams, 

252 S.W.3d at 358. In such case, the right to counsel remains in effect, 

and a defendant is entitled to counsel. See id. (allowing a defendant to 

represent himself “without a valid waiver of the right to counsel” denies 

that defendant . . . the right to counsel). A complete denial of the 

constitutional right to counsel is a structural defect, and “prejudice is 

presumed because the trial has been rendered inherently unfair and 

unreliable.” Id. at 357.

“The record must reflect that the trial court thoroughly 

admonished the defendant.” Collier, 959 S.W.2d at 626 n.8 ([first] citing 

Faretta, 422 U.S. at 834–36, 95 S. Ct. [at 2541]; [and then citing]

Blankenship v. State, 673 S.W.2d 578, 583 (Tex. Crim. App. 1984)). For 

example, defendants must be aware “that there are technical rules of 

evidence and procedure, and he will not be granted any special 

consideration solely because he asserted his pro se rights.” Johnson v. 

State, 760 S.W.2d 277, 279 (Tex. Crim. App. 1988). But “a trial court 

need follow no ‘formulaic questioning’ or particular ‘script’ to assure 

itself that an accused who has asserted his right to self-representation 

does so with eyes open.” Burgess v. State, 816 S.W.2d 424, 428 (Tex. 
12

Crim. App. 1991). And a defendant need not have the skill and 

experience of a lawyer “to competently and intelligently choose selfrepresentation,” Faretta, 422 U.S. at 835, 95 S. Ct. [at 2541]. The focus is 

on whether the defendant is competent to choose to proceed pro se, not 

whether he is equipped to represent himself at trial. Godinez v. Moran, 

509 U.S. 389, 400–01, 113 S. Ct. 2680, [2687–88] (1993).

Osorio-Lopez v. State, 663 S.W.3d 750, 756–57 (Tex. Crim. App. 2022).

4. To invoke the right to self-representation, a defendant must 

assert the right clearly and unequivocally. 

With respect to the requirement that the assertion of the right to selfrepresentation be clear and unequivocal, opinions from this court cover both ends of 

the spectrum on what constitutes an adequate assertion. We have held that the 

invocation of the right to self-representation does not require “magic words”:

There are no magic words (“no talismanic formula”) that need be recited 

to invoke this right. Whether a defendant states that she wants to act as 

her own lawyer or to be her own legal counsel or she names herself as 

her own legal counsel, as [a]ppellant did in this case, such statements 

clearly and unequivocally apprise the trial court that she wants to 

represent herself at trial.

Lathem, 514 S.W.3d at 809 (footnote omitted). In Lathem, the statement, “I’ll name 

myself as counsel,” was a clear invocation of the right to self-representation. Id. at 

808; see also Cochnauer v. State, No. 02-19-00165-CR, 2021 WL 3931914, at *6–7 (Tex. 

App.—Fort Worth Sept. 2, 2021, no pet.) (mem. op., not designated for publication)

(holding that the right to self-representation was invoked by the statement, “I feel like 

I’m going to have to represent myself”).
13

But on the other side of the spectrum—no matter the lack of a requirement for 

magic words—a defendant must at least make a statement indicating the desire to selfrepresent. We have held that a conditional inquiry—such as, “May I ask, Your 

Honor, if I choose to represent myself how long I would have to prepare a 

defense?”—is not a clear and unequivocal invocation of the right to selfrepresentation. See Pickett v. State, No. 2-08-439-CR, 2009 WL 3246755, at *8 (Tex.

App.—Fort Worth Oct. 8, 2009, no pet.) (mem. op., not designated for publication).

In Pickett, to illustrate the clarity that the invocation must contain, we cataloged

several cases:

The right of self-representation does not attach “until it has been clearly 

and [unequivocally] asserted.” Williams, 252 S.W.3d at 356 (quoting 

Funderburg v. State, 717 S.W.2d 637, 642 (Tex. Crim. App. 1986)); [Ex 

parte] Winton, 837 S.W.2d [134,] 135 [(Tex. Crim. App. 1992)] (explaining 

that a defendant “should be allowed to so proceed so long as the 

assertion of his right to self-representation is unconditional”); see also

Burton v. Collins, 937 F.2d 131, 134 (5th Cir. [1991]) (holding that an 

assertion of self-representation is not clear and unequivocal when it is 

“an inquiry into alternatives”) . . . ; Barrientes v. State, No. 04-06-00541-

CR, 2007 WL 1888378, at *1 (Tex. App.—San Antonio July 3, 2007, no 

pet.) (mem. op., not designated for publication) (holding that the 

defendant’s asking, “Can I represent myself?” was not a clear and 

unequivocal invocation of his right of self-representation and that

without such an invocation, “the trial court has no duty to make further 

inquiry” to that right). A defendant’s alleged assertion of his right to 

self-representation must be examined in the context of the record. See

DeGroot v. State, 24 S.W.3d 456, 458 (Tex. App.—Corpus Christi[–

Edinburg] 2000, no pet.).

Id. at *7. Other courts have dealt with the same question. See, e.g., Rucker v. State, No. 

03-19-00493-CR, 2021 WL 501113, at *8 (Tex. App.—Austin Feb. 11, 2021, no pet.) 
14

(mem. op., not designated for publication) (holding that statements—that defendant

“would be happy to go pro se” and that he would be “better off being pro se rather 

than being represented by an attorney who is going to subvert [his] access to the 

[c]ourt”—were not invocations of the right to self-representation); Walker v. State, No. 

03-09-00622-CR, 2010 WL 5078229, at *2–3 (Tex. App.—Austin Dec. 8, 2010, no 

pet.) (mem. op., not designated for publication) (holding that a query regarding 

whether defendant could represent himself was not an invocation of the right to selfrepresentation); DeGroot, 24 S.W.3d at 458 (holding that defendant’s statement—that 

“I think I’ll proceed without an attorney”—taken in context was not an invocation of 

the right of self-representation).

Case law is also clear that an expression of dissatisfaction with appointed 

counsel and a request for the appointment of new counsel is not a clear and 

unequivocal assertion of the right to self-representation. See, e.g., Lara v. State, Nos. 

11-18-00286-CR, 11-18-00317-CR, 2020 WL 6373241, at *2 (Tex. App.—Eastland 

Oct. 30, 2020, pet. ref’d) (mem. op., not designated for publication) (holding that duty 

to admonish about the dangers of self-representation was not triggered when 

“[a]ppellant never expressed an interest in representing himself at trial. Instead, 

[a]ppellant informed the trial court that he was displeased with appointed counsel and 

that he wanted to ‘discharge him or fire him’”); Masters v. State, No. 14-11-00263-CR, 

2012 WL 2899765, at *3 (Tex. App.—Houston [14th Dist.] July 17, 2012, no pet.) 

(mem. op., not designated for publication) (“Appellant’s expression of dissatisfaction
15

with trial counsel does not constitute a clear and unequivocal assertion of the right to 

self-representation.”); Denmark v. State, No. 06-02-00222-CR, 2004 WL 314884, at *2

(Tex. App.—Texarkana Feb. 20, 2004, no pet.) (not designated for publication) (“A 

request for a new attorney is not a clear and unequivocal request to represent 

oneself.”).

5. The right of self-representation must be asserted timely; in 

Texas, the assertion must be made before the jury is

impaneled.

Further, the assertion of the right to self-representation must be timely. 

Though Appellant makes an argument challenging the deadline that we conclude

exists, the case law establishes that there is a bright-line boundary of timeliness—the 

request for self-representation must occur before the jury is impaneled.

Although a bit of confusion exists in the Court of Criminal Appeals’ precedent, 

decades ago the First Court of Appeals reconciled the higher court’s holdings to 

conclude that a bright-line deadline exists for asserting the right to self-representation

before the jury is impaneled:

Previously, the Texas Court of Criminal Appeals has held that a request 

for self-representation was timely despite its assertion after the jury was 

impaneled. See Johnson v. State, 676 S.W.2d 416, 419 (Tex. Crim. App.

1984) (finding request timely because no evidence had been presented to 

jury). However, Johnson is in direct conflict with other Texas Court of 

Criminal Appeals[’] cases, a 1984 decision and two more recent 

decisions, addressing the timeliness of a request for self-representation. 

See Winton, 837 S.W.2d at 135 (stating request untimely if made after jury 

is impaneled); Blankenship . . . , 673 S.W.2d [at] 585 . . . (same); McDuff v. 

State, 939 S.W.2d 607, 619 (Tex. Crim. App. 1997) (holding denial of

request for self-representation was not error because right was untimely
16

asserted after jury had been impaneled). The jury is considered

impaneled when its members are selected and sworn. See Hill v. State, 

827 S.W.2d 860, 864 (Tex. Crim. App. 1992).

Leighton v. State, No. 01-02-00378-CR, 2002 WL 31265487, at *2 (Tex. App.—

Houston [1st Dist.] Oct. 10, 2002, pet. ref’d) (not designated for publication). 

Further, the Fifth Circuit viewed the Court of Criminal Appeals’ holding in Johnson—

suggesting that the right to self-representation may be asserted after impaneling the 

jury—as being unsupported by the federal precedent that it cited. Johnson v. Collins, 

No. 93-2311, 1994 WL 121803, at *2 (5th Cir. Mar. 22, 1994) (per curiam).

5

Relying on the holdings from the Court of Criminal Appeals, a number of 

courts of appeals—including our own—have held that a request to self-represent

must be made before the jury is impaneled. See, e.g., Carver v. State, No. 12-22-00164-

CR, 2023 WL 327815, at *4 (Tex. App.—Tyler Jan. 19, 2023, pet. ref’d) (mem. op., 

not designated for publication) (“An accused must assert his right to selfrepresentation in a timely manner, namely, before a jury is impaneled.”); Yadav v. State, 

Nos. 04-19-00483-CR, 04-19-00486-CR, 2020 WL 4606898, at *8 (Tex. App.—San 

Antonio Aug. 12, 2020, pet. ref’d) (mem. op., not designated for publication) (“Here, 

[appellant] first invoked his right of self-representation after both sides had rested, 

long after the jury was impaneled. As a result, his request to represent himself was 

untimely.”); Calderon v. State, No. 10-17-00265-CR, 2019 WL 962310, at *3 (Tex. 

5

Although both cases are styled Johnson, they are unrelated. See 1994 WL 

121803, at *2.
17

App.—Waco Feb. 27, 2019, pet. ref’d) (mem. op., not designated for publication)

(stating that appellant “did not assert his right to self-representation until after the 

State [had] rested its case-in-chief—much later than the impaneling of the jury and, to 

the extent it is relevant, the reading of the indictment and the presentation of the 

State’s evidence” and holding that “we cannot say that [appellant] timely asserted his 

right to self-representation”); Lathem, 514 S.W.3d at 809–10 (“The State ignores wellsettled law that a request for self-representation is timely if brought before the jury is 

impaneled.”); Birdwell v. State, 10 S.W.3d 74, 77 (Tex. App.—Houston [14th Dist.] 

1999, pet. ref’d) (stating that the right to self-representation “must . . . be asserted in a 

timely manner, namely, before the jury is [i]mpaneled”).

No matter how the case law stacks up against his argument, Appellant persists

in arguing that the timeliness requirement is not valid because it was engrafted “via 

dicta” and is contrary to the general principles for the preservation of error. But it is

not our role as an intermediate appellate court to overrule or ignore the precedent of

the Court of Criminal Appeals. Indeed, one of our sister courts declined an invitation

from an appellant to overturn the holdings of the Court of Criminal Appeals that

establish a bright-line deadline for the assertion of the right to self-representation:

[Appellant] invites us to ignore the timeliness requirement because there 

is no solid rationale for the rule[] and because the State cannot 

demonstrate that his self-representation would have interfered with the 

trial process. However, given that we are an intermediate appellate court 

and are bound to follow the precedent of the Court of Criminal Appeals,

we are not inclined to adopt [appellant’s] argument regarding the 

timeliness factor.
18

Calderon, 2019 WL 962310, at *3. We decline Appellant’s similar invitation in this 

appeal.

Even if we were inclined to address Appellant’s challenge to a deadline set 

before the impanelment of the jury, we would reject it. Appellant argues that “[a]n 

accused’s constitutional right to self-representation is perpetual[;] it does not

disappear after trial has begun. It cannot be infringed by time limitations. An accused

has the right prior to trial and during trial.” [Citations omitted.] The federal courts 

analyzing the right to self-representation appear to disagree with Appellant.

As stated by the Fifth Circuit, the United States Supreme Court has concluded

that the right to self-representation can be infringed by time limitations. Moses v. 

Davis, 673 F. App’x 364, 368–69 (5th Cir. 2016) (per curiam). In Moses, the Fifth

Circuit explained that

[t]he Supreme Court has made clear . . . that “the right of selfrepresentation is not absolute,” Indiana v. Edwards, 554 U.S. 164, 171, 128 

S. Ct. 2379, [2384] (2008), and has noted with approval that “most

courts require [a defendant to elect self-representation] in a timely 

manner.” Martinez v. Court of Appeal of Cal., Fourth Appellate Dist., 528 

U.S. 152, 162, 120 S. Ct. 684, [691] (2000) (footnote omitted). The 

Court explained, “the government’s interest in ensuring the integrity and 

efficiency of the trial at times outweighs the defendant’s interest in acting 

as his own lawyer.” Id. The Court has not, however, made clear at what 

point a request for self-representation becomes sufficiently untimely that 

a trial judge could deny the request without running afoul of the Sixth 

Amendment. See Miller v. Thaler, 714 F.3d 897, 903 n.5 (5th Cir. 2013).

Id. at 368. Though it did not place its imprimatur on the holding, Moses mentioned

that a prior Fifth Circuit authority had noted that “[i]f there is to be a Rubicon beyond 
19

which the defendant has lost his unqualified right to defend pro se, it makes far better 

sense to locate it at the beginning of defendant’s trial[] when the jury is [i]mpaneled 

and sworn.” Id. at 368 (quoting Chapman v. United States, 553 F.2d 886, 894 (5th Cir. 

1977)).

Moses went on to catalog a Fifth Circuit holding and other circuits’ holdings 

that denied federal habeas relief for self-representation assertions made as jury 

selection was to commence or after a jury was impaneled:

Furthermore, this court has previously held that federal habeas relief was 

not appropriate where a state habeas court had determined a defendant’s 

request to proceed pro se to be untimely because the request had been 

made “only a few hours before jury selection.” Miller, 714 F.3d at 903 n.5 

(emphasis added). Here, [appellant] demanded to present his own 

defense only after the jury had been selected. Miller supports the state 

habeas court’s position that the district court had discretion to deny 

[appellant’s] request to proceed pro se because the request was made 

after the jury had been selected. See id. Other circuits have come to 

similar conclusions. See, e.g., Hill v. Curtin, 792 F.3d 670, 674, 679 (6th 

Cir. 2015) (en banc) (refusing to grant habeas relief on Faretta claim 

because defendant requested self-representation on the first day of trial, 

before jurors had been [i]mpaneled); United States v. Bishop, 291 F.3d 

1100, 1114 (9th Cir. 2002) (“In cases involving jury trials, we have held 

that a request is timely if made before the jury is selected or before the 

jury is [i]mpaneled, unless it is made for the purpose of delay.”); United 

States v. Young, 287 F.3d 1352, 1354–55 (11th Cir. 2002) (holding that 

defendant’s request to proceed pro se was untimely when made after the 

jury was [i]mpaneled but before it was sworn). At the very least, the law 

on this point is not clearly established, and the district court therefore 

erred when it held the state habeas court unreasonably applied clearly 

established federal law.

Id. at 369 (footnote omitted). Thus, Appellant’s premise—that federal law dictates 

Texas courts cannot draw a line that makes the invocation of the right to self-
20

representation untimely—fails. Appellant’s further apparent argument—that no line 

can be drawn at the point when a jury is impaneled—also fails.

6. Why we conclude that the trial court did not abuse its 

discretion by denying Appellant the right to selfrepresentation.

The three chapters that chart Appellant’s claim that he was deprived of the 

right to self-representation play out as follows:

• In the first chapter, Appellant made no assertion of the right to selfrepresentation and did not even mention that course of action. He 

complained about his appointed lawyer and wanted a new lawyer; that is not 

a clear and unequivocal assertion of the right to self-representation. See

Lara, 2020 WL 6373241, at *2; Masters, 2012 WL 2899765, at *3; Denmark, 

2004 WL 314884, at *2.

• In the second chapter, Appellant claimed a conflict of interest based on the

fact that his lawyer’s father was a judge who had previously sentenced 

Appellant and mentioned the following options: “So essentially that let me 

put a couple of options to hire an attorney, have another one appointed[,]

or represent myself.” This is the only reference to self-representation in the

second chapter. It is a mention of the possibility of self-representation,

among other options, and is hardly a clear and unequivocal assertion of the 

right to self-representation. See Pickett, 2009 WL 3246755, at *8. Because 
21

the assertion was not clear and unequivocal, the trial court had no duty to 

admonish further about the right to self-representation.

• There is no doubt that the third chapter contains Appellant’s clear and

unequivocal assertion of the right to self-representation. That assertion 

came during the trial after the State had presented its case and had rested.

We have outlined Texas law that establishes a bright-line deadline for the 

assertion of the right to self-representation—the point at which a jury is impaneled. 

We have addressed Appellant’s contention that the Texas rule is in violation of the 

constitutional right to self-representation. Rather than undermine the Texas rule, 

authority from the Fifth Circuit and other federal circuits shows that courts have the 

power to create a deadline. Even if the federal case law did not support the Texas 

rule, the rule is one established by the Court of Criminal Appeals, and it is not within 

our purview to change it.

Appellant simply asserted his right to self-representation too late. See Carver, 

2023 WL 327815, at *4; Yadav, 2020 WL 4606898, at *8; Calderon, 2019 WL 962310, at 

*3.

6

 Though the trial court did not explicitly rely on the timeliness of Appellant’s

6

Appellant argues that there should be no bright line for the assertion of the 

right to self-representation and that loss of the right should depend on whether the 

assertion disrupts the “system.” In his words, “[t]he Faretta rights should not be held 

to a rigid timeline[] but to a factual determination of whether it would unduly disrupt 

the system or be used to manipulate a delay.” Later in his brief, he argues that there 

would have been no disruption because “[d]uring the trial, [he] repeatedly stated that

he would proceed the same day and that he was not trying to delay the proceedings in

any regard[] but simply wanted to put forward his personal defense.” We have quoted 
22

assertion to deny it, that state of affairs demonstrates a legal reason establishing that

the trial court did not abuse its discretion by denying Appellant’s assertion of the right

to self-representation.

We overrule Appellant’s first point. 

B. We sustain some of Appellant’s double-jeopardy violations.

In the remainder of his appellate points, Appellant asserts that his multiple 

convictions constitute double-jeopardy violations.

1. We set forth Appellant’s multiple convictions and how we

resolve his points claiming that he received multiple

punishments for the same offense.

We quote the State’s outline of the offenses for which Appellant was indicted 

and convicted; each offense relates to the events occurring on July 7, 2021, and each 

was snapshotted in the factual background section of this opinion:

• Count One: Aggravated kidnapping with a deadly weapon by 

intentionally or knowingly abducting [the complainant] by secreting 

or holding him in a place where he was not likely to be found or 

using or threatening to use deadly force, namely a metal object or

pot, and using or exhibiting a deadly weapon (a metal object or pot)

in a manner capable of causing death or serious bodily injury.

• Count Three: Burglary of a habitation by intentionally or knowingly 

entering [the complainant’s] habitation without his effective consent 

and committing or attempting to commit the offense of injury to an 

elderly individual.

the portion of the record in which Appellant was evasive in response to questions

about how long he would need to prepare should he be permitted to represent

himself. Because of the stage of the trial and Appellant’s equivocation, an implied

finding of unreasonable delay is also supported by the record. 
23

• Count Four: Aggravated robbery with a deadly weapon by 

intentionally, knowingly[,] or recklessly, while in the course of 

committing theft of property and with intent to obtain or maintain 

control of said property, caused bodily injury to [the complainant] by 

striking him, using or exhibiting a deadly weapon (a metal object or 

pot) in a manner capable of causing death or serious bodily injury.

• Count Five: Aggravated assault with a deadly weapon by 

intentionally or knowingly causing bodily injury to [the complainant], 

by striking him, and using or exhibiting a deadly weapon (a metal 

object or pot) in a manner capable of causing death or serious bodily 

injury.

• Count Six: Aggravated assault with a deadly weapon by intentionally 

or knowingly threatening imminent bodily injury to [the 

complainant], and using or exhibiting a deadly weapon (a metal object 

or pot) in a manner capable of causing death or serious bodily injury.

• Count Seven: Injury to an elderly individual by intentionally or 

knowingly causing bodily injury to [the complainant], an elderly 

individual, by striking him with his hand, or by striking him with a 

metal object or pot, or by kicking him with his foot, and using or 

exhibiting a deadly weapon (a metal object or pot) in a manner 

capable of causing death or serious bodily injury.[7]

Appellant contends in his second through fifth points that convictions for the 

listed offenses subject him to multiple punishments for the same offense in several 

regards and that these multiple punishments violate the constitutional prohibition on 

double jeopardy. Specifically, Appellant contends that the following double-jeopardy

violations have occurred:

• His second point argues that there were multiple punishments for the 

convictions for aggravated robbery with a deadly weapon by causing 

7

The State waived Count Two of the indictment that alleged burglary by 

entering with intent to commit injury to the elderly.
24

bodily injury and for aggravated assault with a deadly weapon by causing 

bodily injury referenced in Counts Four and Five.

• His third point argues that there were multiple punishments for the 

convictions for burglary by committing injury to an elderly individual 

and for committing injury to an elderly individual referenced in Counts 

Three and Seven.

• His fourth point argues that there were multiple punishments for the 

convictions for kidnapping by threatening deadly force and aggravated 

assault by threatening deadly force referenced in Counts One and Six.

• His fifth point argues that there were multiple punishments for the 

convictions for aggravated assault with a deadly weapon arising from the 

same assaultive incident referenced in Counts Five and Six.

The State concedes that Appellant’s second, third, and fifth points raise 

meritorious double-jeopardy complaints. We agree. We also agree with the State that 

Appellant has not suffered a double-jeopardy violation for the punishments 

referenced in his fourth point.

2. Appellant has not forfeited his double-jeopardy claims.

Appellant made no objection on double-jeopardy grounds in the trial court. 

Even so, “[an appellant can] raise his unpreserved double-jeopardy claim for the first 

time on appeal . . . if (1) the undisputed facts show a double-jeopardy violation clearly 
25

apparent on the face of the record[] and (2) enforcing the usual procedural-default 

rules serves no legitimate state interests.” Escobedo v. State, No. 02-19-00260-CR, 2020 

WL 6788078, at *2 (Tex. App.—Fort Worth Nov. 19, 2020, pet. ref’d) (mem. op., not 

designated for publication) (first citing Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. 

App. 2000); and then citing Cabral v. State, 170 S.W.3d 761, 764 (Tex. App.—Fort 

Worth 2005, pet. ref’d) (mem. op.)). Both Appellant and the State cite this rule, and

the State concedes that Appellant is entitled to at least part of the relief that he seeks. 

Thus, we conclude that Appellant has not forfeited his double-jeopardy complaints.

3. We set forth the tests that we apply to determine whether

there is a double-jeopardy violation resulting from the 

imposition of multiple punishments for the same offense.

The United States Constitution’s Fifth Amendment’s Double-Jeopardy Clause 

provides that no person shall “be subject for the same offense to be twice put in 

jeopardy of life or limb.” U.S. Const. amend. V. The clause serves three purposes:

The Double[-]Jeopardy Clause of the Fifth Amendment, applicable to 

the states through the Fourteenth Amendment, protects an accused 

against [(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. Brown v. Ohio, 432 U.S. 

161, 165, 97 S. Ct. 2221, [2225] (1977); Ex parte Amador, 326 S.W.3d 202, 

205 (Tex. Crim. App. 2010).

Ex parte Denton, 399 S.W.3d 540, 545 (Tex. Crim. App. 2013).

The overarching concern of the double-jeopardy protection in a multiplepunishment context is to prevent “a court from prescribing greater punishment than 

the legislature intended.” Ex parte Benson, 459 S.W.3d 67, 71 (Tex. Crim. App. 2015).
26

Stated differently, “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?” Nawaz v. 

State, 663 S.W.3d 739, 743 (Tex. Crim. App. 2022). And simply because a jury returns 

multiple verdicts, there is not a double-jeopardy violation; the violation occurs when

multiple punishments are assessed for the same offense:

Clearly, “the State has the right to prosecute and obtain jury verdicts on two 

offenses in a single trial, even if the offenses are the same for double[-]

jeopardy purposes.” [Ex parte] Aubin, 537 S.W.3d [39,] 43 [(Tex. Crim. 

App. 2017)] (emphasis original); see also Evans [v. State,] 299 S.W.3d 

[138,] 141 [(Tex. Crim. App. 2009)] (stating that “the State may seek a 

multiple-count indictment based on violations of different statutes, even 

when such violations are established by a single act[,] but the defendant

may be convicted and sentenced for only one offense”). If actually 

convicted of both offenses, the court should assess the punishment for 

only the more serious offense. Evans, 299 S.W.3d at 141; Bigon v. State, 

252 S.W.3d 360, 372–73 (Tex. Crim. App. 2008).

Perkins v. State, No. 08-19-00068-CR, 2021 WL 754344, at *2 (Tex. App.—El Paso 

Feb. 26, 2021, pet. ref’d) (not designated for publication). 

A double-jeopardy challenge to multiple punishments may occur in two 

circumstances: (1) “multiple offenses in different statutory provisions that are the 

result of a single course of conduct”; or (2) “offenses [that] are alternative means of 

committing the same statutory offense.” Garfias v. State, 424 S.W.3d 54, 58 (Tex. 

Crim. App. 2014); Loving v. State, 401 S.W.3d 642, 645 (Tex. Crim. App. 2013). The

Court of Criminal Appeals has described the two circumstances under which a
27

defendant is suffering multiple punishments for the same offense as a result of 

violating more than one statute:

There are two variations of a multiple-punishments claim: [(1)] where 

there are both a greater[-] and a lesser-included offense and the same 

conduct is punished twice—once for the basic conduct and a second 

time for that conduct plus more; and [(2)] where the same criminal act is

punished under two distinct statutes and the legislature intended the 

conduct to be punished only once[,] such as causing a single death and 

being charged with both intoxication manslaughter and involuntary 

manslaughter.

Denton, 339 S.W.3d at 540. 

Different tests apply to determine if improper multiple punishments have been 

imposed, with the determination of which test applies depending “in part on whether 

the offenses at issue are codified in a single statute or in two distinct statutory 

provisions.” Benson, 459 S.W.3d at 71. These are the “elements” and the “units” tests. 

Garfias, 424 S.W.3d at 58.

Before specifically describing the substance of the tests, it is necessary to 

describe how each applies depending on “whether the offenses at issue are codified in 

a single statute or in two distinct statutory provisions.” Benson, 459 S.W.3d at 71. 

How the tests each apply to distinct situations but may also overlap in their 

application is described as follows:

The codification of offenses in two distinct statutory provisions is, by 

itself, some indication of a legislative intent to impose multiple 

punishments. When two distinct statutory provisions are at issue, the 

offenses must be considered the same under both an “elements” analysis

and a “units” analysis for a double-jeopardy violation to occur. When 

only one statute is at issue, the “elements” analysis is necessarily resolved 
28

in the defendant’s favor, and only a “units” analysis remains to be 

conducted.

Id. (footnotes omitted).

The “elements” test involves a multistep process that is derived from the 

United States Supreme Court opinion in Blockburger v. United States, 284 U.S. 299, 304,

52 S. Ct. 180, 182 (1932):

The elements analysis conducted in the two-statute context begins with 

the Blockburger same-elements test. That test asks “whether each 

provision requires proof of a fact which the other does not.” The 

application of the Blockburger same-elements test in Texas is governed by 

the cognate-pleadings approach, which entails comparing the elements 

of the greater offense as pleaded to the statutory elements of the lesser 

offense. If the two offenses, so compared, have the same elements, then 

“a judicial presumption arises that the offenses are the same for 

purposes of double jeopardy” and that the defendant may not be 

punished for both, but that presumption can be rebutted by a clearly 

expressed legislative intent to impose multiple punishments. Conversely, 

if the two offenses have different elements under the Blockburger test, the

judicial presumption is that the offenses are different for doublejeopardy purposes and that cumulative punishment may be imposed.

This presumption can be rebutted by a showing, through various factors, 

that the legislature “clearly intended only one” punishment.

Benson, 459 S.W.3d at 72–73 (footnotes omitted).

8

8

Nawaz offers a more succinct formulation of the “elements” test that was 

enunciated in Benson:

When separately enumerated penal statutes are involved, this Court has 

said[ that] “the traditional starting point for determining ‘sameness’ for 

multiple-punishment double-jeopardy analysis is the Blockburger test.” 

Ramos[ v. State], 636 S.W.3d [646,] 651 [(Tex. Crim. App. 2021)] (citing 

Blockburger . . . , 284 U.S. [at] 304, 52 S. Ct. [at 182]). Implementing its 

“cognate-pleadings approach” to the Blockburger “same-elements” test, 

this Court asks whether each offense, as ple[aded] in the charging 
29

The cognate-pleadings “approach” that governs the “elements” test looks to a 

limited scope of material: “[T]he offenses compared in an ‘elements’ analysis are 

derived solely from the pleadings and the relevant statutory provisions. In an 

‘elements’ analysis, a court may not consider the evidence presented at trial.” Benson, 

459 S.W.3d at 73 (footnotes omitted). 

But the facts “alleged” still play a critical role in applying the Blockburger sameelements test. Two offenses are the same when one is “factually subsumed” within 

the other, i.e., “[a]n offense may be factually subsumed when there is a single act that 

cannot physically occur in the absence of another act.” See Maldonado v. State, 461 

S.W.3d 144, 148–49 (Tex. Crim. App. 2015). Even with “offenses that have differing 

elements under Blockburger,” a double-jeopardy violation may still exist because 

“[u]nder the cognate-pleadings approach adopted by th[e] Court[ of Criminal 

Appeals], double-jeopardy challenges should be made even to offenses that have 

differing elements under Blockburger, if the same ‘facts required’ are alleged in the 

indictment.” Denton, 399 S.W.3d at 546 (quoting Bigon, 252 S.W.3d at 370).

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 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)).

663 S.W.3d at 743–44 (footnote omitted).
30

In turn, the following factors are then examined to determine whether the

legislature intended only a single punishment even though the Blockburger test 

produced the conclusion that the statutes have different elements and presumptively

permit multiple punishments, i.e., the Ervin factors: 

In . . . Ervin, we set forth a non-exclusive list of factors to consider in 

determining whether the legislature intended only one punishment for 

offenses that contain different elements under Blockburger: (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 double-jeopardy purposes. In some later cases we 

have given more weight to the fifth and sixth factors, which, in 

combination, require that we examine the focus or gravamen of each

offense and compare the resulting allowable units of prosecution.

Although determining the allowable unit of prosecution is part of a 

separate “units” analysis (conducted when only a single statute is 

involved or after offenses proscribed by two statutes are deemed the 

same under an “elements” analysis), consideration of the unit of 

prosecution can play a role even in an “elements” analysis by helping to 

ascertain the legislative intent.

Benson, 459 S.W.3d at 72–73 (footnotes omitted) (citing Ervin, 991 S.W.2d at 814).

Next, with respect to the species of a double-jeopardy claim based on the 

assertion that a defendant is being punished twice for a greater- and a lesser-included

offense, the following test applies:
31

A multiple-punishments double-jeopardy violation occurs if both a 

greater[-] and a lesser-included offense are alleged and the same conduct 

is punished once for the greater offense and a second time for lesser. 

Langs v. State, 183 S.W.3d [680,] 685[ (Tex. Crim. App. 2006)]. A lesserincluded offense is one that “is established by proof of the same or less 

than all the facts required to establish the commission of the offense 

charged[.]” Tex. Code Crim. Proc. [Ann.] art. 37.09(1).

Denton, 399 S.W.3d at 546. 

The “units” test is used to augment the “elements” test when “two distinct 

statutory provisions are at issue” and is used as the exclusive test “[w]hen only one 

statute is at issue”:

Even when the offenses in question are proscribed by a single statute or

are otherwise the same under an “elements” analysis, the protection 

against double jeopardy is not violated if the offenses constitute separate 

allowable units of prosecution. This latter inquiry involves determining 

such things as whether there were two murder victims, whether a victim 

who was assaulted on Monday was assaulted again on Tuesday, or 

whether multiple kinds of sex acts were committed against a victim. A 

“units” analysis consists of two parts: (1) what the allowable unit of 

prosecution is, and (2) how many units have been shown. The first part

of the analysis is purely a question of statutory construction and 

generally requires ascertaining the focus or gravamen of the offense.

The second part requires an examination of the trial record, which can 

include the evidence presented at trial.

Benson, 459 S.W.3d at 73–74 (footnotes omitted).9

9

As stated in Nawaz,

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 . . . (2) he is being convicted more than once . . . 

under different statutory subsections of the same penal statute.

. . . .
32

It is purely a matter of statutory construction to ascertain the allowable unit of 

prosecution for an offense. Benson, 459 S.W.3d at 73–74. As stated in a recent 

opinion from the Corpus Christi–Edinburg Court of Appeals,

[Double-jeopardy] protection, however, is subject to the [Texas]

Legislature’s “power to establish and define crimes.” Shelby v. State, 448 

S.W.3d 431, 435 (Tex. Crim App. 2014) (quoting Garfias . . . , 424 S.W.3d

[at] 58 . . .). In other words, the [Texas] Legislature has the authority to 

allow multiple punishments for the same conduct under different 

theories of criminal liability. Id. Accordingly, a double[-]jeopardy 

analysis is an exercise in statutory construction, a question of law that we 

review de novo. See id.; State v. Maldonado, 523 S.W.3d 769, 774 (Tex. 

App.—Corpus Christi–Edinburg 2017, no pet.).

Gunter v. State, No. 13-22-00020-CR, 2023 WL 3872674, at *2 (Tex. App.—Corpus 

Christi–Edinburg June 8, 2023, no pet. h.).

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.

663 S.W.3d at 744. For the second kind of units-of-prosecution inquiry, “the [c]ourt 

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?” Id. at 745.
33

4. We sustain Appellant’s second point contending that he 

received multiple punishments for the same offense as a

result of his convictions for aggravated robbery based on 

causing bodily injury and aggravated assault as alleged in 

Counts Four and Five. 

In essence, Counts Four and Five of the indictment charged Appellant with the 

same conduct, which is that he “cause[d] bodily injury to [the complainant] by striking 

him[] and [that] the defendant . . . use[d] or exhibit[ed] a deadly weapon during the 

commission of the assault, namely, a metal object or pot, that in the manner of its use 

or intended use was capable of causing death or serious bodily injury.” Count Four 

adds the elements “while in the course of committing theft of property and with 

intent to obtain or maintain control of [certain] property.”10

The gravamen of aggravated robbery and aggravated assault is assaultive

conduct toward a victim. Denton, 399 S.W.3d at 546. In Denton, the Court of Criminal 

Appeals concluded that an aggravated-assault count was a lesser-included offense of

an aggravated-robbery count in circumstances similar to that which we confront:

As plead[ed] in the indictments, the counts for both aggravated robbery 

and aggravated assault assert that applicant intentionally or knowingly 

threatened another person with imminent bodily injury and used or 

exhibited a deadly weapon during the commission of that offense. The

counts for aggravated robbery further allege that applicant committed 

theft. Thus, as plead[ed], aggravated assault is a lesser-included offense 

of aggravated robbery because “it is established by proof of the same or 

less than all the facts required to establish the commission of the offense 

charged[.]” Tex. Code Crim. Proc. [Ann.] art. 37.09(1).

10The offenses alleged are found in Texas Penal Code Sections 22.01(a)(1)–(2),

29.02(a)(1)–(2), and 29.03(a)(1)–(2). Tex. Penal Code Ann. §§ 22.01(a)(1)–(2), 

29.02(a)(1)–(2), 29.03(a)(1)–(2).
34

Id. at 547. The aggravated assault count was a lesser-included offense of aggravated

robbery, and Denton also concluded that there was no legislative intent to punish the 

offenses separately. Id. The logic of Denton applies to establish that, in violation of 

his right against double jeopardy, Appellant has received multiple punishments for the 

same offense by being punished for both aggravated robbery and aggravated assault as

alleged in Counts Four and Five. The State agrees that the assessment of multiple

punishments for those offenses is error. 

We sustain Appellant’s second point. 

5. We sustain Appellant’s third point contending that he 

received multiple punishments for the same offense as a 

result of his convictions for burglary by committing injury to 

an elderly individual and for committing injury to an elderly

individual as alleged in Counts Three and Seven.

Count Seven of the indictment alleges how Appellant caused bodily injury to 

the complainant as an elderly person. Count Three—a burglary charge—adds that 

Appellant “intentionally or knowingly enter[ed] a habitation, without the effective 

consent of [the complainant], the owner thereof, and attempted to commit or did 

commit the felony offense of injury to an elderly individual.”11

The State cites us to Torres v. State, which concludes that injury to an elderly

person is a lesser-included offense of burglary and that to punish a defendant for both

11These counts allege offenses under Penal Code Sections 22.04(a)(3) and 

30.02(a)(3). See Tex. Penal Code Ann. §§ 22.04(a)(3), 30.02(a)(3).
35

offenses assesses multiple punishments in violation of the prohibition against double

jeopardy:

Here, the State alleged in paragraph one of Count IV that [a]ppellant 

“intentionally or knowingly enter[ed] a habitation, without the consent 

of [the victim], the owner thereof, and attempted to commit or 

committed the felony offense of Injury to an Elderly or Disabled 

Individual.” The State further alleged in Count V that [a]ppellant 

“intentionally, knowingly[,] and recklessly cause[d] bodily injury to [the 

victim], an individual who was then and there 65 years of age or older.” 

As such, Count IV of the indictment alleges burglary of a habitation with 

the actual or attempted commission of a felony (injury to an elderly 

person), a charge that falls under [S]ection 30.02(a)(3). See Tex. Penal 

Code Ann. § 30.02(a)(3). Under Langs and Blockburger, the injury[-]to[-]

an[-]elderly[-]person offense serves as a lesser-included offense to 

burglary of a habitation because although the latter offense requires 

proof of a fact that the injury[-]to[-]an[-]elderly[-]person charge does not 

(i.e., entry without consent), the State must prove all the elements of the 

injury[-]to[-]an[-]elderly[-]person charge in order to prove the burglary 

offense, and thus the injury[-]to[-]an[-]elderly[-]person charge would not

require proof of an additional element that the burglary offense does not 

also require. See Langs, 183 S.W.3d at 686; Matter of T.D.N., 620 S.W.3d 

433, 441 (Tex. App.—El Paso 2020, no pet.) (recognizing double 

jeopardy’s prohibition of convictions for both burglary of a habitation 

and the underlying felony).

No. 08-22-00004-CR, 2022 WL 2965977, at *6 (Tex. App.—July 27, 2022, no pet.)

(not designated for publication). We agree with the El Paso Court of Appeals’

analysis. We conclude that Appellant has received multiple punishments for the same 

offense because he was punished for burglary by committing injury to an elderly

individual and for the lesser-included offense of committing injury to an elderly 

individual as alleged in Counts Three and Seven.

We sustain Appellant’s third point.
36

6. We overrule Appellant’s fourth point contending that he 

received multiple punishments for the same offense as a 

result of his convictions for kidnapping and aggravated 

assault based on the threat of the use of deadly force as 

alleged in Counts One and Six.

Count One of the indictment alleges that Appellant committed aggravated 

kidnapping with a deadly weapon when he

intentionally or knowingly abduct[ed] [the complainant] by restricting the 

movements of [the complainant] without his consent so as to interfere 

substantially with his liberty, by moving [the complainant] from one 

place to another or confining [the complainant] with the intent to 

prevent the liberation of [the complainant] by secreting or holding [the 

complainant] in a place [the complainant] was not likely to be found or 

using or threatening to use deadly force, namely a metal object or pot, and 

the defendant did use or exhibit a deadly weapon, namely, a metal object 

or pot, that in the manner of its use or intended use was capable of

causing death or serious bodily injury, during the commission of the 

offense. [Emphasis added.]

Count Six alleges that Appellant committed aggravated assault when he

intentionally or knowingly threaten[ed] imminent bodily injury to [the 

complainant], and the defendant . . . use[d] or exhibit[ed] a deadly 

weapon during the commission of the assault, namely, a metal object or 

pot, that in the manner of its use or intended use was capable of causing 

death or serious bodily injury.

[12]

Appellant contends that he has received multiple punishments for Counts One 

and Six because “both a greater[-] and a lesser-included offense were alleged and

[because] the same conduct was punished once for the greater offense and a second 

12The count for aggravated kidnapping charges an offense under Penal Code 

Section 20.04(b). See Tex. Penal Code Ann. § 20.04(b). The aggravated-assault count 

charges an offense under Penal Code Sections 22.01(a)(1)–(2) and 22.02(a)(2). See id.

§§ 22.01(a)(1)–(2), 22.02(a)(2).
37

time for lesser.” The State counters that there is no multiple-punishments violation 

because Appellant has not received a punishment under both counts for a single act. 

We agree that there is no double-jeopardy multiple-punishments violation resulting

from Appellant’s convictions for aggravated kidnapping and aggravated assault but do 

so for a different reason than argued by the State.

As shown by the arguments outlined, the parties focus on whether as alleged 

the aggravated-assault-by-threat count is a lesser-included offense to the count of 

aggravated kidnapping. The aggravated-kidnapping count also includes the allegation 

of threat. If left purely to the question of whether the aggravated-assault charge was a 

lesser-included offense of the aggravated-kidnapping charge, it would be a close 

question. We quote one of the opinions cited by the State to show how a count of

aggravated assault may or may not be a lesser-included offense of aggravated 

kidnapping depending on how the offenses are alleged:

Relying on Girdy v. State, 213 S.W.3d 315 (Tex. Crim. App. 2006), 

[appellant] contends [that] aggravated assault by threat is a lesserincluded offense of aggravated kidnapping because the same facts were 

required to establish both offenses. Girdy, however, is distinguishable 

because of how the State charged the offenses. In Girdy, the indictment 

alleged [that] the defendant committed aggravated kidnapping when he 

abducted the victim “by using and threatening to use deadly force on the 

said [victim], and with intent to inflict bodily injury on her[.]” Id. at 316. 

The indictment further alleged [that] the defendant committed 

aggravated assault by “threaten[ing] [the victim] with imminent bodily 

injury and did then and there use a deadly weapon . . . .” Id. The court 

held aggravated assault was a lesser-included offense of aggravated 

kidnapping because as charged, aggravated assault was “established by 

proof of the same or less than all the facts required to establish the 

commission of” aggravated kidnapping. Id. at 319 (emphasis added). 
38

Here, however, aggravated kidnapping was based on the allegation that 

[appellant had] abducted [the victim] by restricting his movements, [by] 

moving him from one place to another, and by secreting or holding

him—not by threat of imminent bodily injury, conduct required to prove 

aggravated assault by threat. Accordingly, Girdy does not compel us to 

find a double[-]jeopardy violation under Blockburger in this case.

Verastegui v. State, No. 04-18-00401-CR, 2019 WL 3307856, at *5 (Tex. App.—San 

Antonio July 24, 2019, no pet.) (mem. op., not designated for publication). Here the 

allegation of the two counts appears to come closer to the situation faced in Girdy and 

thus closer to an allegation that made the aggravated-assault charge a lesser-included 

offense of the aggravated-kidnapping charge.

But we do not need to examine the multiple-punishments question strictly 

under a Blockburger analysis. Verastegui also presented a detailed analysis under the 

Ervin factors that demonstrated that the Texas Legislature intended to allow separate

punishments for aggravated kidnapping and assault by threat.

13 Id. We quote the 

analysis in full:

13Verastegui’s focus on the gravamen of the offense is appropriate no matter the

results of an elements analysis. The Court of Criminal Appeals has noted that even if 

a Blockburger analysis results in a conclusion that the offenses are the same, a court 

should still examine legislative intent because

the Blockburger test is a rule of statutory construction[] and not the 

exclusive test for determining if two offenses are the same. Bigon, 252 

S.W.3d at 370. The ultimate question is whether the [Texas] Legislature 

intended to allow the same conduct to be punished under both of the 

statutes in question. Id. at 371.
39

Turning to the Ervin factors, we must also determine whether the 

offenses at issue share a common focus or gravamen. See Garfias, 424 

S.W.3d at 59. The gravamen of kidnapping is the act of abduction. 

Schweinle v. State, 915 S.W.2d 17, 19 n.2 (Tex. Crim. App. 1996).

Kidnapping is a result-oriented offense because the ultimate focus is the 

abduction of the victim, not how the defendant restrains or interferes 

with the victim’s liberty. Gonzales[ v. State], 270 S.W.3d [282,] 288 [(Tex. 

App.—Amarillo 2008, pet. ref’d) (op. on reh’g)]. The offense is legally 

completed when at any time during the restraint, the defendant forms 

the intent to prevent the victim’s liberation by secreting or holding the 

victim in a place he is unlikely to be found. Laster[ v. State], 275 S.W.3d 

[512,] 521 [(Tex. Crim. App. 2009)]. On the other hand, the gravamen 

of aggravated assault by threat is the conduct itself, not the result, and 

therefore it is a nature-of-conduct crime as opposed to a result-oriented 

crime. Garfias, 424 S.W.3d at 60. There is an obvious distinction 

between the gravamen of each offense—the aggravated[-]kidnapping 

charge and conviction focused on the abduction, i.e., the actual harm 

inflicted, while the aggravated[-]assault[-]by[-]threat charge and 

conviction focused on [appellant’s] threatening conduct. Cf. [id.] 

Accordingly, the gravamina of the two offenses indicates [that] the 

Shelby, 448 S.W.3d at 436. Shelby went on to note that certain elements of the Ervin

test that focus on the gravamen of the offense are the truest indication of legislative 

intent: 

The fifth factor [of the Ervin test], which requires a court to examine the 

“focus” or “gravamen” of a penal provision, should be regarded as the 

best indicator of legislative intent when determining whether a multiplepunishments violation has occurred. [Garfias, 424 S.W.3d at 59.] And

the sixth factor described above particularly requires a court to consider

the allowable unit of prosecution for the offenses when conducting an 

“elements” analysis. Id. Though this is a necessary step in analyzing a 

multiple-punishments claim dealing with two statutes from the same 

statutory section, such a determination can be indicative of legislative 

intent even in an “elements” analysis. Id.

Id.; see also Nawaz, 663 S.W.3d at 745–46 (“Ultimately, however, regardless of which of

these types of analysis is the appropriate one in a given case, this [c]ourt has said that 

‘the best indicator’ of the allowable unit of prosecution ‘seems to be the focus or 

“gravamen” of the offense.’” (quoting Jones v. State, 323 S.W.3d 885, 889 (Tex. Crim. 

App. 2010))).
40

[Texas] Legislature intended to allow separate punishments for 

aggravated kidnapping and aggravated assault by threat. See id.

The other Ervin factors also support this conclusion. First, 

aggravated kidnapping and aggravated assault by threat are not contained 

in the same statutory section. Compare Tex. Penal Code [Ann.] § 20.04(b) 

(Chapter 20, Penal Code, Kidnapping, Unlawful Restraint, and 

Smuggling of Persons), with id. §§ 22.01(a)(2), 22.02(a)(2) (Chapter 22, 

Penal Code, Assaultive Offenses). Second, the offenses are neither 

phrased in the alternative nor similarly named. Compare Tex. Penal Code

[Ann.] § 20.04(b), with id. §§ 22.01(a)(2), 22.02(a)(2). And third, although 

the trial court sentenced [appellant] to forty-five years’ confinement for 

each offense, the offenses do not have identical punishment ranges—

aggravated kidnapping in this case is a first[-]degree felony, which carries 

a punishment range of confinement “for life or for any term of not more

than 99 years or less than five years” and a fine not to exceed $10,000.00, 

but aggravated assault by threat is a second[-]degree felony, which carries 

a punishment range of confinement “for any term of not more than 20 

years or less than 2 years” and a fine not to exceed $10,000.00. Compare

Tex. Penal Code Ann. § 12.32, with id. § 12.33. Finally, when as here, the 

[Texas] Legislature has not provided an express statement defining the 

allowable unit of prosecution, the gravamen of the offense best

describes the allowable unit of prosecution. See Garfias, 424 S.W.3d at 

61. As discussed above, the gravamina of [appellant’s] convictions for 

aggravated kidnapping and aggravated assault differ. Therefore, the

allowable units of prosecution are not the same. See id.

Id. (footnote omitted); Mickens v. State, No. 06-19-00199-CR, 2020 WL 5985200, at *4 

(Tex. App.—Texarkana Oct. 9, 2020, no pet.) (mem. op., not designated for 

publication) (applying Ervin factors to conclude that aggravated kidnapping and

aggravated assault may be punished separately).

We agree that applying the Ervin factors and focusing on the gravamina of the 

offenses “indicates [that] the [Texas] Legislature intended to allow separate

punishments for aggravated kidnapping and aggravated assault by threat.” See 
41

Verastegui, 2019 WL 3307856, at *5. Thus, the prohibition against double jeopardy

does not prohibit separate punishments for Appellant’s convictions for aggravated

kidnapping and aggravated assault by threat.

We overrule Appellant’s fourth point. 

7. We sustain Appellant’s fifth point contending that he 

received multiple punishments for the same offense as a 

result of his convictions for two counts of aggravated assault

as alleged in Counts Five and Six.

Count Five of the indictment alleges aggravated assault with a deadly weapon 

when Appellant

intentionally or knowingly cause[d] bodily injury to [the complainant] by 

striking him, and the defendant . . . use[d] or exhibit[ed] a deadly weapon 

during the commission of the assault, namely, a metal object or pot, that 

in the manner of its use or intended use was capable of causing death or 

serious bodily injury. [Emphasis added.]

Count Six alleges that Appellant threatened the same act.14

Applying the “units” test for determining whether multiple punishments have 

occurred when “the offenses in question are proscribed by a single statute,” the State’s 

brief makes the following concession:

The gravamen of aggravated assault is either causing bodily injury or 

threatening imminent bodily injury, depending on which theory has been 

pleaded in the charging instrument. Shelby . . . , 448 S.W.3d at 438. The 

allowable unit of prosecution for assaultive offenses in a single instance

14These counts allege offenses under Penal Code Section 22.02(a)(2), which

provides that “[a] person commits an offense if the person commits assault as defined 

in § 22.01 and the person[] (1) causes serious bodily injury to another, including the 

person’s spouse[,] or (2) uses or exhibits a deadly weapon during the commission of 

the assault.” Tex. Penal Code Ann. § 22.02(a).
42

is one prosecution per victim. [Id.] at 439. There is no indication that 

the [Texas] Legislature intended a single assaultive instance against a 

single person to yield two separate aggravated assault convictions. [Id.]

at 439–40. Thus, the appellant’s punishments for two aggravated 

assaults against the same victim violates his protection against double 

jeopardy.

We agree with the State’s analysis. We conclude that Appellant received multiple 

punishments for the same offense in violation of his right against double jeopardy 

when he was punished for both aggravated assault by striking the complainant and 

using or exhibiting a deadly weapon and aggravated assault by threatening that 

conduct. See Gunter, 2023 WL 3872674, at *4 (“[W]here a single act caused bodily 

injury to a single victim, [S]ubsections 22.02(a)(1) and (a)(2) [of the Penal Code] 

constitute the same offense for purposes of double jeopardy.”).

We sustain Appellant’s fifth point.

8. The remedies that we utilize to address the double-jeopardy

violations that we concluded have occurred.

We structure the remedy to address a multiple-punishment double-jeopardy

violation as follows:

When a defendant has been prosecuted and convicted in a single 

criminal action of two or more offenses that constitute the same offense, 

in violation of double jeopardy, the remedy is to apply “the most serious 

offense” test and retain the conviction for the “most serious” offense. 

Denton, 399 S.W.3d at 547. The “most serious” offense is the offense for

which the greatest sentence was assessed. Ex parte Cavazos, 203 S.W.3d

333, 338 (Tex. Crim. App. 2006); see also Evans . . . , 299 S.W.3d [at]

141 . . . ; Bigon, 252 S.W.3d at 372–73. But when the punishment for

each conviction is identical, we cannot look to only the sentences 

imposed to determine the most serious offense. See Bigon, 252 S.W.3d at 

373. Instead, we have to look to other criteria, including the degree of 
43

felony for each offense, to determine which offense is the most serious. 

Id.; White v. State, 395 S.W.3d 828, 832 (Tex. App.—Fort Worth 2013, no 

pet.).

Jones v. State, Nos. 02-14-00068-CR, 02-14-00069-CR, 02-14-00070-CR, 2014 WL 

6496965, at *3 (Tex. App.—Fort Worth Nov. 20, 2014, pet. dism’d) (mem. op., not 

designated for publication).

We remedy the double-jeopardy claims that we have sustained as follows:

• Second point

Appellant received improper multiple punishments for his convictions in

Counts Four and Five for aggravated robbery and aggravated assault.

He received a sentence of twenty-five years for the aggravated-robbery 

conviction and forty years for the aggravated-assault conviction. We

vacate the conviction and sentence in Count Four for aggravated 

robbery and retain the conviction in Count Five for aggravated assault.

• Third point

Appellant received improper multiple punishments for his convictions in 

Counts Three and Seven for burglary and injury to an elderly individual. 

He received a sentence of twenty-five years for the burglary conviction 

and forty years for the injury-to-an-elderly-individual conviction. We

vacate the conviction and sentence in Count Three for burglary and 

retain the conviction in Count Seven for injury to an elderly person.
44

• Fifth point

Appellant received improper multiple punishments for his convictions in 

Counts Five and Six for two counts of aggravated assault. For each

count, he received a sentence of forty years. In resolving Appellant’s 

second point, we retained the aggravated-assault conviction in Count

Five. Thus, we vacate the duplicate conviction in Count Six. Cf. Jones, 

2014 WL 6496965, at *3.

IV. Conclusion

Having overruled Appellant’s first and fourth points, we affirm those 

judgments that survive our double-jeopardy analysis—Count One for aggravated

kidnapping, Count Five for aggravated assault, and Count Seven for injury to an

elderly person. Having sustained Appellant’s second, third, and fifth points, we vacate 

and dismiss Appellant’s convictions in Count Three for burglary, in Count Four for 

aggravated robbery, and in Count Six for aggravated assault.

/s/ Dabney Bassel

Dabney Bassel

Justice

Do Not Publish

Tex. R. App. P. 47.2(b)

Delivered: July 6, 2023