## 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

Befo re Kerr, Bassel, and Wallach, JJ. M emorandum Opinion by Justice Bassel 

### M ATTHEW 

### W OLFE 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION
I. Introdu ction

I n five points , Appell a nt Ma tthe w Wolfe challenges h is six conviction s for aggravated kidnapping, burglary, aggravated robbery, two counts of aggra vated
assault , and injury t o an eld erly ind ividual. I n his first p oint , Appellant c ontends that he was denied the right t o act as h is o wn c ounse l. W e rule against Appellant on this point because he fai led to timely assert his right to self

- represent ation

. I n his remaining four points , Ap pellant contends tha t multiple punishments are being imposed u pon him in violation of the prohibi tion ag ain st d ouble jeo pardy

. The State concedes the merit of three of Appellant ’ s points , and we agree. 1 For each of thos e points, we will re tain the most s erious of the convic tions for which Appel lant received multiple punishments in violation of the proh ibition against double jeopardy

. W ith
respec t to the r ema ining point

— number four

— we disagree that A ppellant received
mul tiple punishment s for the same offe nse in viola tion of the prohibition against
double jeopardy

. Acco rdingly, we vacate three of the trial court ’ s judgments and

a ffirm the rema ining three judg ments

.

1 Because the State ’s confession of erro r is not dispositive, we still look at the merits. S ee Sal da no v. State , 7 0 S.W .3d 873, 884 (Tex. Crim. App . 20 02).3 II. Factual and proc edural back ground
The underl ying fa cts of the offen se s committed ha v e onl y a tangential impact
on the p oints that Appellant rais es. Th us, we detail those facts , which occurred on Ju ly 7 , 20 21, only to the exten t summ arized in Appellant’s bri ef: Appellant was staying with a friend at her ap artment in Tarrant C ounty

. Acro ss from her apartment lived the complainant, a 62

- year

- ol d m an, his daughter [,] and his granddaughter. According t o the complainant, Appellant asked to borrow his car [,] and when he dec lined , Ap pellant followed him int o 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 pr otect t he child. Appe llant had been the victim of sexual abuse as a child and
wa s t riggered by the complainant’s behavior with the unclothed child. Appellant [dra gged] the complai nant to h is friend’s adjacent
a pa rtm ent, shut the door, locked it [,] an d continue d to assaul t th e complai nan t, kicking him and hitting him wit h a cooking pot. Appellant then took the complainant’s car keys and left the l ocati on i n his car. [Record references omitted.] The jur y convicted Appellant of the follow ing offe ns e s and asse sse d the following punishments :

• aggravated kidnap ping with a deadly weapon

— 25 yea rs ;

• burglary o f a habitation

— 25 years ;

• agg ravated robbe ry with a d eadly weapon

— 25 ye ars ;

• aggravated assault with a deadly weapon causing bodily injury

— 40 y ea rs ;

• aggravat ed assault by threat with a dead ly weapon

— 40 years ; and4 • injury to an elderly individual

— 40 years

. 2
The trial court signed judgments reflecting the jury’s verdicts on guilt and punishment after sentenc ing Appellant in accord ance with the verdicts

. The trial

court also ordered that Appellant’s sentences would run concurre ntly. Appellant timely filed a notice of appea l and then filed a “Motion for New Trial and Motion in
Arrest of [ Judgm e nt ] ” that was overruled by operat ion of law.
II I. A nal ysis
A. W e overrule Appellant’s first point b eca use he w as not improperly deprived of the right t o self

- representation

. In Appellant’s first poi nt , he claims that t h e trial court “ vio la ted Faretta [ 3 ] and Appel lant ’ s s tate and federal right s of s elf

- re pre sen tation

. ” Appellant made n o clear
and un equivocal request to self

- represent unti l it was to o late to invoke that right.
1. We summarize t he t h ree c hapters that chart the s to ry of Appe llant ’ s self

- repres entation claim

.

a . The first chapt er
The first chapter occur red approximately six we eks before trial a t a pretrial hearing presided o ver by a magistrate

. The concern e xpresse d by Ap pellant at the pretrial hearing was th at his counsel was the son of a T arrant C ounty Distr ict J udg e

2 With respect to punishment, for each c o un t of the charge, the j ury foun d a habitual

- offender notice to be true.

3 See Faretta v. California , 422 U.S. 806, 835, 95 S. Ct

. 2525, 2541 (1975) (re q u iring
a court t o ensure that an accus ed w h o wan ts to manage his or her own defense underst and s the dan gers and di sadv antages o f self

- r epresen tation )

.5 who had accepted a p lea barga in f rom Appel lant and h ad sen tence d him to pri son
almost tw o decades earli er
. Appellant expressed the nature of the problem and his thoughts o n h ow to s o lv e the problem as follows :
You r Honor, I believe that there m ay b e a conflict of interest due to the fact that Mr. Salvant has a rel ative that sentenced me to prison for 12 years b ack [in] 2002

-- 20 0 3. I explained this to my attorney, Mr. Salvant. It w as brought to my attention, you know, that it was a conf lict of int e rest by another attorney tha t I ’ ve talked t o . A nd at this point, I ’ m asking for a little ti me to either h ire a n ew atto rney or to essentially maybe have another one appointed

. [ Emphasis ad ded

. ]
The trial co urt indicated tha t it did n ot see a con flic t and told Appellant that he cou ld
hi re a new lawyer if he wante d and that it was late in the p rocess to brin g up Ap pellant ’ s co ncern. Appellant never asserted a right to se lf

- representation during the pretrial hearing

. b. The second chapter
T he second ch apte r of the story occ urred o n the morning before voir dire was
conducte d. A t the request of his cou nsel, Appel lant t estified about his ongoing
concern that a co nf lict of interest existed betw een his present counsel a nd him

. Ag ain, the c on flict cente red o n the fact that h is c ouns el ’ s father ha d sent enced hi m to
p rison

. When Appellant r eiterated h is c o ncern , he ma de a passing mention of representing hims el f :
I was informed by another lawyer that that definitely is a conf lict of i nterest. And u pon me getting able to b e abl e to work again and6 speaking wi th you in

- person where I actually got down th ere to the offi ce, you [ 4 ] agreed with me that it was

. . . a c o nflict. So essentially that let me put a couple of options to hire an attor ney, ha ve a nother one appointed [ , ] or repres ent myself. I was tol d tha t

. . . one particular attorney, she had to ld m e that ther e was no way she could prepare for trial within the time allotted. And the last time that I

. . . spoke to you, you said th e l ast time we came to court, which wa s y esterd ay, is that we were go ing to get it on record and just try to get it figu red out, or we cou ld, you know, proceed on. [ Emphas e s adde d

. ]
The trial court (now presid ed over by the c ourt ’ s elected judg e ) ruled that the re was

no conflict

. Appellant ’ s counsel then sou ght a continuance, which was denied.

c. The third chapter The third chapter oc cur red during the trial (which was being conducted by a visiting judge) after the State had rest ed. Th is third ch apter began when Appellant ’ s

c ounsel informed th e trial court that he could not ann ounce ready to present the
defense ’ s case because Appella nt had given h im a list of s even w itnesses whom he
wanted to testify , and Appellant’s counsel so ugh t a continuanc e to locate and subpoena the wi tnesses

. The trial court implicitly overruled the motion for continuance but gave A ppell ant ’ s counsel ten minute s to talk with Ap pellant. After a
discussion , Appellant ’ s c ounsel indic a ted tha t Appe llant wanted to address the cou rt.
The trial court no ted that the proceeding was at “ mi dtrial , ” that th e State had

prese nt e d all of its evi dence and had rest ed, and that th e jury was i n the jury room.

4 The “ you ” throughout th is block quote appears to be a reference to Appellant ’ s lawyer.7 Appellant reiterated his compl aints about a c onfl ict of interest with his counsel
and then told t he trial court that he w as dissati sfied wit h his law yer’s pe rformance for

a pparently not cross

- exami ning witn esses as he thou gh t they sh ould be a nd for n ot calling cert ain witnesses

. Appel lant stated that he wanted his pre sent counsel
removed from the c ase and a new law yer appoin ted o r to repres ent hims elf. Th is produced a d is cussion with the t rial court regarding whether Appell ant was equivocal
in the desire to represent himself

. A s the discussion continu ed , Appellant then raised

a n additional compla int that his present lawyer’ s investigato r was Appella n t ’ s f or m er parole officer.
After the trial court told Appellant that the c ase would proceed that day , the
trial court again asked if Appellant wanted to repre sent himself , and h e said that he
did. Th e tr ial court then began in te rr o gatin g Ap pellant o n his level of k nowledge and describing the pitfall s of self

- repre sentation

. T h e hearing continued with Appellant ’ s stating that he had no choi ce but to represe nt hims elf because of the allegedly subpar
represent atio n tha t h e had r eceiv ed to that point

. When again confronted with the fact that the trial would procee d and asked
whe t her he still w ished to waive h is atto rney, Appellant re sponded tentatively in
response to when he could proceed :
THE COURT: Ok ay. W el l , ult ima t ely,

. . . it ’ s up to you

. You ’ ve . . . got to freely and knowingly waive your right to an a ttorney. Are yo u willing to do that?8 [APPELLANT] : I am.
THE COURT: And would you be doing so understanding that you ’ re going to proceed to day? Is t h at wh at you ’ re aski ng the [c] ourt to do? [APPELLANT] : I don ’ t know if

. . . I could proceed today. I do n ’ t have the per tinent information in f ront of m e to be able to understand if I have enough time to be able to a nswer that question.
THE COUR T: O k ay. [A PPE LLANT] : I wo uld like, in the ve ry least, to be able to get my hands on, you know, the court recor ds, pertinen t pa perwork that I need to

. . . adequately represent myself.
THE COURT: Okay. So it sounds like there would be a considera ble delay inv olve d? [APPELLANT] : I don ’ t thi nk tha t there would be a considerable delay. I think that in order to answer that q u estion with honesty an d respect to you, I would have to

. . . see what was in front of me before I could answer that ques tion.
The hear ing con tinued with Ap pella nt ’ s b e i n g vague about when he would be ready to proc eed but being certain that he wanted to represent hi mself in view of the representation that he had receiv ed

. A la ter exchange went as follows :
THE C O U RT: I mean , you ’ ve previously indi cated that you really don ’ t feel that you ’ re prepared to proceed today; is th at right ? [APPELLANT] : I don ’ t know. I don ’ t hav e the info rmation in front of me to be able to

-- to

-- THE COURT: Okay. [APPELLANT] :

- - ma ke t ha t de c ision.
THE COURT: Al l right.9 [APPELLAN T] : Wha t I do

. . . know is that I would rather rep resent myself th an have Mr. Salvant as my attorney.
THE COURT: O kay.
After this exchange , the State noted that Appellant ’ s request was u nt imely

. A s
the colloquy betw een Appellant and t he trial court continued, the trial co urt express ed
i t s conce rn that the trial would be disrupted by Appe l lant ’ s se lf

- representation and

t hat the request to do so was a delay tactic

. A ppell an t respo nded that he was not
b eing properly represe nted, that he intended to cros s

- examine t he witness e s a s he

w

i sh ed , and that he intended to g et a not

- guilty verdict. A ppellant again reiterated a
d esi re to pursue h is own trial strategy : “ It i s
. . . n o t my attorney ’ s str ategy, even against

-- he works for me. If i t ’ s not hi s strategy, this is my strat e g y. My strategy is
to be able t o cross

- examine these witnesses. I f he is in disagreement with that , then
there ’ s
. . . . ”
U ltimat e ly , the t rial c ourt denied Ap pe llant ’ s request for self

- representation
bec ause it was equivoc al and cond itional

. 2. We set forth t he s t andard of review that we apply to Appellant ’ s contenti o n that he wa s deprived of the right to self

- rep r esentat ion

. W e appl y t he follow in g sta n dard of review to a point challenging the denial of
the right to self

- repres en t ation : We review the d enial of a defend ant ’ s request for self

- representation for an ab u se of discre t ion. We view the evidence in the l ight mo st favora ble to the trial cou rt ’ s r u ling, and we imply any findings of fact supported b y10 the record and necessar y to affi rm the ruling wh en the trial cour t di d not make explicit findings.
Lathem v. S t ate , 514 S.W .3 d 796, 80 2 (Tex. App.

— Fort Wo rth 2 017, no pet.) ( f

ootnote s o mitted)

. So l ong as there is a valid legal theory to uphold a ru ling , we will do so even i f
the tr ial court a rticu l at ed a differe nt

— and arguably wr o ng

— reason for its ruling. Speci f ically ,

a trial court ’ s ruling must general l y be up held if i t is co rrec t “o n any legal theory applicable to the case, even o ne that was not mentioned by the tri al co urt or the appellee.” Spielb auer v. State , 622 S.W.3d 314, 319 (Tex. Crim. App. 2021). T h is p rinc i ple is known as the “right ru ling, wrong r eason” do ctrine

. S tate v. He rndon , 215 S.W.3d 901, 905 n.4 (Tex. Crim. A pp. 2007).
Martell v. State , 663 S.W.3 d 667, 6 72 (Tex. Crim. App. 2022)

. 3. We set forth t he principles that govern a defendant’s r ight to self

- represent ation

. T he Cou rt of Cr im ina l Appea ls has recently de scri bed t he f oundation of the right to se lf

- represen tat ion , how the right is invo ke d , and the processes a trial co urt

must follow b efore allowing a d ef en dant to self

- represent :
It is well established that every crimina l def e ndant h as a constitut ional right to the a ssis tance of c ounsel and the constitutional ri ght to self

representation. U.S

. C onst . amend. VI; T ex. C ons t . art. I [,] § 10; F aretta , 422 U.S. at 835, 95 S. Ct. [at 2541 ]

. “The r ight to self

- representation and th e assis t ance of counsel are separa te rights depicted o n th e opposite sides of the same Sixth A men dment coin. To choose on e obvio usly means to forego th e other. ” [ United States v. ] Purnett , 910 F.2d [ 51, ] 5 4 [ (2d Cir. 1990 ) ] ; see Martin v. State , 630 S.W.2 d 952 , 9 53 (Tex. Crim. App. 1982) [(op. on reh ’ g )]

. “ While the r ight to coun sel is in force until waived, the r ight of self

- r epresentation does not attach until asserted.”11 B rown v. Wain wright , 665 F .2d 607, 610 (5th Cir. 1982) [(op. on reh ’ g )] ; see Willi a ms v. State , 252 S.W.3d 353, 356, 358 (T e x. Crim. App. 2 008). Asserti on of the rig ht to self

- r epre sentation m ust be clear and

u nequiv ocal. See Faretta , 4 22 U.S. at 835, 95 S. Ct. [at 2541]

. “When a crimina l d e fendant choos es to waive his right to couns e l and represent himself, the waive r shoul d be mad e ‘know ingly and inte lligently,’ and he sh ould be warn ed o f the ‘dang ers and di sadvantages’ a ccompanyin g s uch waiver” so that “the r ecord will establis h that ‘ he k nows what he is doing and his choice is mad e with open e yes.” Hatten v. State , 71 S. W.3d 332, 333 ( Tex. Crim. App . 2002) ; Collier v. St ate , 959 S.W .2d 621, 626 (T ex. Crim. App. 1997) (ci ting Faret ta , 422 U.S. at 834

– 36, 95 S. Ct. [at 2541 , and stating th a t] decision to waiv e co unsel in favo r of se l f

- representation is “knowing and i ntellig ent” if “it is made with a fu ll understanding of the right to counsel, wh ich is being a ba ndoned, as well as the da ngers and disadvanta ges of self

- representation”). “ ‘[C] o urts indulg e every reas onable presum ption a g ainst waiver’ of fundamental const itution al rights .

. . . ” Johnson v . Zer bst , 304 U.S. 458, 464, 58 S. Ct. 1019, [ 1023 ] ( 193 8 ) [, abrogat ion recognized by Jones v. Hendriz , No. 21

- 857, 2023 WL 4110233, at *11 (U .S. J u ne 22, 2023)]

. Whether a waiver of coun sel was effective depends on the totality of th e circums tances, wh ich incl udes considering “the ba ck g round, experience, and conduct o f the acc used.” Id

. [, 58 S. Ct. at 10 23

. ] “An invalid waiver waives nothing .” Williams , 252 S.W.3d at 358. In su ch cas e , the righ t to counsel remains in effect,
an d a defendan t is entitled to counsel. See id

. (a llowi ng a de fendant to
re present himself “without a valid waiv er of the right to counsel” denies that def endant

. . . the right t o counsel). A complet e denial of the constitutio nal right to counsel is a structur al defe ct, and “prejudice is presumed because th e t r ial has been rendered inherently un fair a nd unreliable.” Id

. at 357.
“The record must reflect that t he tria l court thor oughly admonished the d efendan t.” Coll ier , 959 S.W.2d at 626 n. 8 ( [first] citing F

aretta , 42 2 U.S . at 8 34

– 36, 9 5 S. Ct. [at 2541] ; [and then citing] Bla nkensh i p v. State , 673 S

. W.2d 578, 583 (Tex . Crim . App. 1984)). For example, defendants mu st be aware “that there are technical rules of
e vidence and procedure , a nd he will not be granted any special considerat ion sole ly because he asserte d his pro se righ ts.” J ohnson v. State , 7 60 S.W.2d 277, 27 9 (Tex . Crim. App. 1988). But “a t rial court
ne ed follow no ‘formulaic ques t ioning’ or partic ular ‘script’ to assure i t self that an accused who ha s asserted his right to self

- repr esentation does so with eyes open.” Bur g

es

s v. State , 816 S. W.2d 424, 428 ( Tex.12 C rim. App. 1991). And a defen dant need not have the sk ill and experien ce of a lawyer “to c ompe tently and intellige n tly choose self

representati on,” Faretta , 422 U.S. at 8 35, 95 S. Ct. [at 2 541]

. The fo cus is
on wh e ther the d efendan t is compet ent to choose to proceed pro se, not wheth er he is equi pped to repr esent himself at trial. Go dinez v. Moran , 5 09 U .S. 389, 400

– 01, 113 S. Ct. 2680, [ 2687

– 88 ] (1993).
Osorio

- Lopez v

. State , 6 63 S.W.3d 7 50 , 756

– 5 7 (Tex. Cr im. A p p . 2022)

. 4. T o in voke the right t o self

- representation , a def en dant must assert t he right cle arly and unequiv ocally

. W ith respect to the requirement t hat the assertion of the right t o self

representation be cl ear and unequi vocal , opinion s from this c o urt cover both en ds of the spectrum on wh at constitutes an adequate as sertio n
. We ha ve held th at the
invocatio n of th e right to self

- repr esen tatio n does n ot require “ magic words ” : There are no magic words (“no talismanic formula” ) tha t need b e recited to invo ke this r ight

. Whether a defen dant s tates that she wants to act a s her own law y er or to be her own legal c ounsel or she names herself as h er own legal counsel, as [a] ppellant did in this case, such statemen ts clearly and unequivocall y appris e the tri a l court that she wants to represent herse lf at trial.

L

athem , 514 S .W.3d at 80 9 (f ootnote omit ted)

. I n Lath e m , the statement , “ I ’ ll name myself as c ouns e l , ” was a c lear i nvoc ation of the right to self

- represen tation

. Id

. at
808 ; s ee also Coc hnauer v

. State , No. 02

- 19

- 00165

- C R, 202 1 WL 3931914, at * 6

– 7 (Tex. App

. — For t Worth Sept. 2, 20 21, no pet. ) (mem. op., not desig nated for publica tion) ( holding that the right to self

- represen tati on was invoked by the state m ent , “ I feel like

I ’ m going to have to represent myself ” )

.13 But on th e o ther s ide of t he spe ctrum

— n o mat ter th e lack of a requir ement for

m a gic words

— a def endant must at least mak e a statement indicatin g the desi re to self

r epre sent

. W e have held that a c ond itional inquiry

— such as , “ May I ask , Your Honor, if I choose to re present mysel f ho w long I wo ul d hav e to p repare a
defense?”

— is not a c l ear a nd unequivocal in vocation of the right to self

represen tati on
. See Pickett v. State , No. 2

- 0 8

- 43 9

- CR, 2009 WL 3246755, at * 8 (Tex. App.

— Fort Worth O c t. 8, 2 009, no pet

. ) (m em. op. , not designated f or publication)

. I n Pi ckett , t o i llustra te the clar i ty tha t the invoc ation must contain , we cataloged
several case s :
T he r ight of self

- r epresentat ion d oes not attach “u ntil it has be en clearly and [ unequivocally ] asserted.” Williams , 25 2 S.W.3d at 356 ( quoting Fu nderbu rg v. St a t

e , 717 S.W.2d 63 7, 642 (Tex. Crim. App. 198 6)); [ Ex parte ] Winton , 837 S.W.2d [ 134, ] 135 [ (Tex

. Crim. App. 1992) ] (explaining that a de fend ant “ should be allowed to so proce ed so lon g as the assertion of his rig ht to self

- r epres entation is uncond itional”); see also Burton v. Collins , 937 F.2d 131 , 134 (5th Cir. [ 1991 ] ) (holding that an
asser tio n of s elf

- representation is not clear and unequivoca l wh en it is “an inquiry into alternat iv es ”)

. . . ; Barrientes v. St ate , No. 04

- 06

- 005 41

- CR, 2007 WL 1888378, at *1 (Tex. App.

— Sa n Antonio J u l y 3, 20 07, no pet.) (mem. op., not designated for pu blic ation) (holding that the defe ndant ’ s asking, “Can I represe nt myse lf?” was not a cle ar and unequi vo ca l invocation of his rig ht of self

- repres ent ation and that without such an invocation, “the trial c o u rt has no duty to make further inquiry” to that rig ht). A def endant ’ s alleged asser tion of his right to self

- repr esentati on must be examine d in the con te xt of the record. See De Groo t v. State , 2 4 S.W .3d 456, 458 ( Tex. App.

— C orpus Christi [

– E dinburg] 200 0 , no pet.).
Id

. at * 7 . Other courts have dealt with the same question

. S ee , e .g. , Rucker v. State , N o . 03

- 19

- 00493

- CR , 2021 W L 501113 , at * 8 (T e x. App.

— Austin Fe b. 1 1, 2021 , no pet.)14 ( mem
. op. , not de signated for publication) ( holding that statement s

— tha t defendant

“ wo uld be happy t o go pro se ” and that he would be “b etter off being pro se rather
than being rep rese nted by an attor ney who is going to subvert [his] acce ss to the [c] ou rt ”

— were not invo cat i o ns of th e right to self

- represent ation ); Walker v. S t ate , N o.
03

- 09

- 00622

- CR, 2010 WL 5078229, at *2

– 3 (Tex. App.

— Aus tin De c. 8, 2010, no pet.) (mem. op ., not designate d fo r publi ca tion) ( ho lding that a query regarding
wh ether defend ant could represent hi mself was not an invocation of the righ t to self

repre sen tation); De Groot , 24 S.W. 3d at 458 ( holding that defendan t’s statement

— that
“I think I ’ ll procee d wit hout a n attorney”

— taken in context was not an invocation of
th e rig ht o f self

- representation ).
Ca se law is also clear t hat an expres sion of diss atisfac t io n with app o inted
counsel and a request for the appointment o f new counsel is not a clear and

une quivocal assertion of the righ t to self

- represe nt ation

. S ee , e .g. , L ara v. State , Nos.
1 1

- 18

- 0028 6

- CR , 11

- 18

- 00317

- CR , 2020 W L 6373241 , a t *2 (Tex. App.

— Eas t land
Oct. 3 0 , 2 0 20, p et. r ef ’ d) (me m. op., not designated fo r publication) ( holding that d uty

to a dmoni sh about the dangers of s elf

- representatio n was not trigge red w hen

“ [a] ppellant never expressed an int eres t i n representing himself a t tr i al. Instead, [ a] ppellant i n fo rmed the trial court th at he was displease d with appointed counsel and
that he want ed to ‘ dischar ge him or fire h im ’ ” ) ; Masters v. State , No. 14

- 1 1

- 0 02 63

- CR, 2012 WL 2899765, at * 3 (Tex. App.

— Hous ton [14th Dist.] July 17, 201 2 , no pet

. ) (mem . op., not d e sig nat ed for publication) ( “ Appellant ’ s expr ession of dissatisfaction15 with trial coun sel does not c o ns titute a clea r and unequivocal assertio n of the ri ght to
self

- representation. ” ); Denma rk v. S tate , N o. 06

- 02

- 00222

- CR, 20 04 W L 31 4884, at * 2 (Tex. App.

— T e xar ka na Feb. 20, 2004, n o pet.) ( not designated for publi cation) ( “ A

requ es t for a new attorney is not a clear and unequivocal re quest to r ep resen t
oneself. ” ).
5. The righ t o f self

- representation must be asser ted tim el y ; in Texa s, th e assertio n mu st be ma de before the jury i s i mpaneled

. Further, t he assertion of the right to se lf

- represent ation must b e tim ely

. Th ough Appellant makes an a rgumen t challenging the deadline tha t we co nclu de exists, the case law establi shes tha t the r e is a bright

- l ine bou ndary of time liness

— the
request fo r self

- representati on m us t occur before the jury is i mpaneled.
A lthough a bit of confus ion exi s ts in the C o ur t of C riminal Appeals ’ precedent , decades ag o t he First Co urt of Appeals rec onciled the hig her court ’ s ho l dings to

con clude that a bright

- li n e de adline exis ts for asserti n g the right to sel f

- representation
before the j ury i s impaneled : Previously , the Tex as Court of Cri minal Appeals has held t hat a request for self

- representat ion was timely desp ite its asser t i on aft er the jury was impanel ed. See Johnson v. State , 676 S.W.2d 416, 419 (Tex. C r im. App. 1984) (finding request timely bec au se no eviden ce had be en presented to jur y). However, Johns on is in d irect conflict with other Tex a s C ourt of Cri minal Appeals [ ’ ] case s, a 1984 decision and two more recent decisions, addressing the timeliness of a request for self

- representation. See Winton , 837 S. W.2d at 13 5 ( st ating request untim ely if made after jury i s im paneled); Blankenship

. . . , 6 73 S.W.2d [at] 585

. . . ( same); McDuff v. Sta te , 939 S.W.2d 607, 619 (Tex. Crim. App. 1997) (holding denial o f request for self

- rep resentatio n was no t err or because right w as untimely16 asserted after jury had bee n impaneled). The jury is cons ide red imp aneled when its m ember s are s elected and s worn. See H ill v. S tate , 827 S.W.2d 860, 864 (Tex. Crim. App. 1992).
L eighton v. State , No. 01

- 0 2

- 00378

- CR , 2002 W L 3 1265487 , at * 2 (T e x . App.

— Housto n [1 st Dist. ] Oct. 10, 2 002, pet. ref ’ d) (not designated fo r pu blica ti on)

. Further, t he F i f th Circuit v i ewed the C ourt of C rim inal Appeals ’ holding in Johnso n

—

su ggest in g tha t t he right to self

- repr esent ation may be asser ted after i mpaneli ng the jury

— a s bei ng unsupported by the fede ral precedent that it c i ted. J ohnso n v
. Coll in s , No. 93

- 2311 , 19 94 WL 121803 , at *2 (5 th Cir. Mar. 22, 1994) (per curiam)

. 5

Re lying on t he holdin g s f rom the Court of Criminal Appeals, a nu m be r of

courts of app ea l s

— inc luding our o wn

—have held that a request to self

- r epresent
must be m ade b efore the jur y is impaneled. S ee , e .g. , C a rver v. State , N o . 12

- 22

- 00164

- CR , 2023 WL 327815 , at * 4 (T ex. App.

— T yl er Jan. 19, 20 23 , pet. re f ’ d) ( mem. op.,

not d e signated for pu bli cation) ( “ An accused must as sert his right to self

representat ion in a t imely manner, name ly, before a ju r y is impane led

. ” ); Yadav v. State , N os. 04

- 19

- 004 83

- CR , 04

- 19

- 00486

- CR , 2020 WL 460 68 98 , at *8 (Tex. App.

— San
Antonio Aug. 12, 202 0 , pet. r ef ’ d

) ( m em. op., not designated for pub lication) ( “ Here, [appellant] first invo ked his r ight of self

- representation a f ter both side s had re sted, long aft er th e ju ry was impaneled. As a result, hi s re qu est to represent himself wa s untimely. ” ); Cal deron v. Stat e , N o. 10

- 17

- 00265

- CR, 2019 WL 9623 10, at *3 (Tex.

5 Alt hough both c ases are styl ed Johnson , they a re unr elat ed. See 1994 WL 121803 , at *2

.17 App.

— Waco Feb. 27, 2019, pet

. r ef ’ d) (mem . op. , not designate d f or publicati on) ( stating that appe llant “ did not ass ert his right to self

- represe nt at ion until after the
State [had] rested its case

- in

- ch ief

— muc h l ater th a n t he impaneling of the ju ry and, to the extent it is relevant, the r eading of the indictme nt and the presentati on of the
State ’ s evid e nce ” and holding that “ w e ca nnot say that [app el lant] timely ass erte d his right to self

- repre sent ation ” ); L ath em , 514 S.W.3d at 8 09

– 10 ( “ The State ign ores well

settled law that a reques t for self

- represe ntation is time l y if brought b efore the jury is impa neled. ” ) ; Birdwell v. State , 10 S.W.3d 74, 77 ( Te x. App.

— Houston [14 th Dist.] 1999, pet. r ef ’ d

) ( statin g that t he right to self

- representation “ m ust

. . . be asserted in a

t imely manner, name ly, before th e jury is [ i ] mp a ne led ” )

. No m at ter how the cas e law st acks up against his argument, Appellant pers is ts in arguing that the timeliness re quiremen t is not valid be caus e it was eng r afted “ via
dicta ” and is cont rar y to t he general principles for th e pre se rvat ion of error. But i t is

not o ur role as a n intermed ia t e appellate court to over rule or i gno re t he precedent of
the Court of Criminal Appeals. I n de ed, one of our sister cou rts declined a n i n vitati on
f

ro m an appellant to overturn t he ho ld ings of the Court of C riminal A pp eals that
estab lish a brigh t

- line dea dl ine for the asser tion of the righ t to self

- representation : [A ppellant] invites us to ignore th e ti m e li ness requirement beca u se ther e is no solid rationale for th e rule [] and bec ause the State cann ot dem onst rate that h is self

- repres e ntat i on would have interfered with the tria l pr ocess. Ho we ver, given that we are an intermedi ate appellate court
an d are bou n d to follow the precede n t of th e Court of Criminal Appeals,
we are not incl ined to adopt [appellant ’ s] a rgument reg arding the t im e liness f a ctor.18 Calderon , 201 9 W L 962 310, at * 3 . W e dec l in e Appellant ’ s similar invitation in th is appeal

. Even if w e we re inclin ed to address Appe l la nt ’ s cha llenge to a deadline set
before the i mpan elment of the jury, we wo uld r eject it. Appellant arg u es that “ [a] n
accused’s constitutional right to self

- r epr e s entation is perpetual [;] it does not disappear after t ria l has begun. It cannot be infri ng e d by time l imitations. An accused has the right p rior to t rial and during tria l. ” [Citat ion s omitted.] T he fede ral courts

an aly zing the rig ht to se lf

- represent ation appe a r to disagree w ith Appellant

. As sta ted by t he Fif th Circuit , the United States Supreme Co u rt has conclud ed
that the rig ht to self

- representa tion can be inf ringed by tim e l imitations

. M oses v
. Davis , 673 F

. App ’ x 364, 3 68

– 69 (5th Cir. 2016 ) (per curiam)

. I n M os es , t he Fifth Circuit explained tha t [t

] h e Supreme Court has made clear

. . . that “the r igh t of self

representation is not absolute,” Indiana v . E dw ards , 554 U.S. 164, 171, 128 S

. Ct. 2379, [ 23 84 ] (20 08), and has n oted with approval that “most
cou rts requ ir e [a defendant to elect self

- repr esen ta tion ] in a timely manner.” Martinez v. Court of Ap pe al of Cal., Fou rth Appellate D ist. , 528 U.S. 1 52, 16 2, 120 S. Ct. 684, [ 691 ] (2 000) ( footnote omitt e d). The Cou rt explained, “the government’s int erest in ensuri ng the integrity and efficiency of the tr ial at times outweighs the defe ndant’s intere st in acting
as his own lawyer.” Id

. The Court has n ot, howev er, made clear at what p oint a request for se lf

- representat io n becomes sufficiently untime ly t hat a trial j ud ge could deny the request without run n i ng afoul of the Sixth Amendment. See Miller v. Tha ler , 714 F.3 d 897, 903 n.5 (5th Cir. 2013).
Id. at 36 8. T h ough it did not place its i mp rima tur on the holdin g, Moses menti oned
that a prior Fifth Circuit authority h ad no te d that “ [i] f there is to be a R ubicon beyond19 w hich the defend ant has lost h is unq ualifi ed right to defend pro se, it makes far better

sense to locate it a t t he beginnin g o f defendant’s trial [] when the jury is [i] mp anel ed
and sworn. ” Id

. at 368 ( quoting Ch ap man v. Uni ted States , 553 F .2d 886 , 894 (5th Cir. 1977) )

. M oses went o n t o catalog a F ifth Cir cuit hol ding and other c irc ui ts ’ holding s
that den ied fed eral habeas rel ief for self

- representa ti on assertions made as jury
sele ctio n was to commence o r a fter a jury was i mpane led:
Furth er more , this court has p reviously held that fed eral h a beas rel ief was not appropriat e where a sta te habeas court had determined a defen dant’s requ est to proceed pro se to be untimely because t he req uest had been made “only a few ho urs before jury selection .” Mi ller , 714 F.3d at 9 03 n.5 (emphasis added)

. Here , [appe llant] demanded to present h is own defense only af ter t he j ury ha d been selected

. M iller sup ports the st ate habeas court’s position that t he dis tric t court had discre ti on to deny [appellant ’ s] re que s t to proceed pro se because the r equest was made after t he jur y had been selected. See id

. Ot her circuit s hav e come to sim ilar conclus ions

. See, e.g. , Hill v. Curtin , 792 F.3d 670 , 674, 679 (6th Cir. 2 015) ( en b anc) (ref us ing to grant habeas relie f on F ar etta claim because defendant reque sted self

- representa tio n on t h e first day of trial, bef ore j urors had been [i] mpanele d); Un ited Stat es v. Bishop , 291 F.3d 1 100 , 1114 (9th Cir. 2002) (“In cases involving jury tria ls, we ha ve held that a request is t imely if made before the jury is selected or before the jury i s [i] mpanel e d, unless it is made for the p urpose of delay .”); U nited St ates v. Young , 287 F.3 d 1352, 135 4

– 5 5 (11th Cir. 2002) (holding that defendant’ s requ est to procee d pro se was untimely whe n made a ft er the jury was [i] mpaneled but befo re it was sworn). A t th e very least, the law on this p oint i s n ot clearly esta blished, an d th e district court t herefore
er re d when it held the state habeas court unreas onably app lied cle ar ly established federa l la w. Id

. a t 369 ( f ootnote omitted). Thus, Ap pellant ’ s prem ise

— that federa l law dictates
T e xas cou r ts can no t draw a li ne t hat makes th e i nvocation of the right to self

-20 rep rese ntation untimely

— fails

. Appellant’s further appa rent ar gu ment

— that no line

can be drawn a t t he point when a jury is i mpaneled

— also fail s
. 6

. Why we co nclude that the trial co ur t did not ab u se its dis cret ion by denyi n g Appella nt the right t o sel f

representation

. The three c ha pters that chart Appell ant’ s c la i m that he was deprived o f t he rig ht t o self

- representation play o ut as foll ows:

• In t he first ch ap ter , Appellant made no a ssertion of t he right t o s el f

represen t atio n and did n ot ev en mention tha t course of action. He complained about his appointed la wy er and wanted a new lawyer ; th at is not

a clea r and unequivocal assertion of the right to self

- represent ation

. S ee
Lara , 2020 WL 637324 1 , at *2 ; M ast er

s , 2012 WL 2899 765, a t * 3 ; Denmark , 2004 W L 31 4884 , at * 2

.

• I n the second chapter, Appellant c laimed a co nf li ct o f inte rest based on the
fa ct that his lawyer ’ s f ather was a judge who had previ ously sentenced Appellant an d menti oned the follow ing option s : “ So ess e ntially that l et me
put a co uple of options t o hi re an atto rney, have another one appointed [,]

or r epresent mys elf. ” This i s the o nly ref erence to self

- representation in the
second ch apter

. It is a m ention of the poss i bility of self

- represent at ion , among other o ptions , and is hardl y a clear a n d unequivoc al assertion of t he right to self

- representati on
. See Pickett , 2009 W L 3 2 46755, at *8

. B ecause21 the assertion was not clear and unequivocal, the trial court had no duty to
admonish f urther abo ut th e right to self

- repre sent ation

.

• There is no d oubt that the third c hapte r cont ains Appel lant ’ s clear a n d

uneq uivocal assertion of th e r ight t o self

- representation

. That assertion

came during the trial af ter the State had presented its cas e a nd had rested.
We hav e out line d Tex as law that establish es a bright

- line de adl ine for the
assertion of t he right t o self

- represen ta tion

— th e point at whic h a jury is i mpaneled

. We have addressed Appe llant ’ s co ntention that the Texas rul e is in violatio n of t he

co nstituti onal r ig ht to s elf

- repres entation

. Rather than undermine t he T e xas rule, authority from th e Fifth Circ uit and othe r federa l circui ts s how s that c ourts have the
power to create a deadline . Eve n if the federal case l aw did not support th e T e xas rule, t he r ule is on e esta b lish ed b y the Court of Criminal Appeals , and it is not with in

our purv iew t o cha ng e it

. A ppellant simply as serted h is right to self

- representation too late. See Carver , 2023 WL 327815, at *4 ; Yadav , 20 20 WL 4606898 , at *8 ; C alderon , 2 019 W L 96 2310, at
*3

. 6 Thou gh the trial court did not explic itly rely o n the timeliness of Ap pellant ’ s

6 Appellan t ar gue s t h at there sh oul d be no bright line f or the a sser t ion of the right to se lf

- represent ation and that loss of the right should d epend on wh ether the assertion di s rupt s the “sy ste m. ” I n his w ords, “ [t] he Fare tta rights should not be held to a rigid t imel ine [] b ut t o a f ac tua l de termination of w h ether it wo uld u n duly disrupt the syst em or be used to manipulate a delay. ” Later in hi s brief, he argues t ha t th ere woul d hav e been no di srupti on bec ause “ [d] uring the trial, [he] repeatedly stat ed t hat he w ou l d pro ce ed t he same d ay and that he was not t ryin g to delay the proceedings in any regard [] but si mply wanted to put forward his pe r sonal defense. ” We ha ve quot ed22 a sser tion to de ny it , that state of aff airs demonstrates a legal rea son establishing that
the t rial court di d not abuse its discretio n b y deny ing Ap pella nt ’ s ass erti on o f t he right
to self

- representation

. W e overrule Appellant ’ s first point

. B

. We sustain some of Appe llant’s d oub le

- je opardy violations

. In the remainder of his appellate points, A ppella n t asserts that his multiple
convic tions c onst itute doubl e

- j eopardy viol ations.
1. We set forth Appellan t’s multiple convictions and how we r es olve his points c laimi ng that h e rece ive d mul tiple p unishments for the sam e of fense

. W e quot e the State ’ s outline of the of fenses for which Appel lant was indicted
and co nvicted ; each o ffense relat e s to the events occurring on July 7 , 2021 , a nd each

was s nap shotted in the factual backgr ound section o f t his opin i on :

• Count One: Ag gra vated kidnapping with a deadly weapon by intentionall y or knowing ly abduct ing [the co mpla inant] by secre ting or holding him in a p lace where he was not likely to be found o r usin g or threate ning to u se dead ly force, name ly a metal objec t or pot, and usi ng or exh ibiting a deadly weapon (a metal object or pot) in a manner capable of causing de at h or serious bo dily injury.

• Count Thr ee: Burglary of a habitation by in tention al ly or knowingly
en tering [the co mplainant ’ s ] h abitation without his effective c onsent an d committing or attem pting to commit the offens e of injury to an eld erly individu al

.

the porti on of the re cord in wh i ch Appellant was evasive in respons e to qu est i ons about how l o ng h e w ould n eed to prepare should he be p e rmitte d to r epresent himself

. Because of th e stage of the trial and Appellant ’ s equivocatio n , an impli ed findi ng o f un reasonab l e dela y is a lso supported by the record.23 • Count Fou r: A ggravated robber y wit h a deadly weapon by intentionally, knowin gl y [,] or recklessly, whi le in the course of
com mitting theft of proper ty a nd with i ntent to ob ta in or maintain cont rol of said property, ca used bodily injury to [the compla ina nt] by strik ing him, using or exhibiting a dead ly weapon (a metal object or pot) in a manner capable of c au sing de ath or serious bodily injury.

• Coun t Fi ve: Agg ravated assault with a d eadly weapon by inten tionally or knowingly c ausing bodily injury to [t he complai nant] , by striking him, and u sing or exh ibiting a deadly weapon (a meta l object or pot) in a ma nner ca pable of causi ng death or serious bodil y in jury.

• Count Six: Ag gravated as sault with a deadly w eapon b y intentiona lly
or knowingly thre ate ning imminen t bodily injury to [the compl ainant] , and usi ng or exhibiting a deadly we apon (a metal object
o r pot) in a manner ca pable of causing death or s erio us bo dily injury.

• C ount Seven: I njury to an elderly i ndi vidual by in tentio nally or knowin gly causi ng bod ily injury to [the complainan t] , an elderly indivi dual, by strik ing him w ith his hand, or by st riki ng him with a met al object or pot, or by kicki ng h im with his foot, and using or exhibi ting a deadly weapon ( a metal obje ct or pot) in a manne r c apable of ca using death or serious bodily injury. [ 7 ] App ellant contends in his second through fifth points t h at convic tion s fo r the
list ed offe nses sub ject him to mu ltiple punishmen ts for the same offense in s everal regards and that thes e multipl e puni shments vi olate the constitut ional p ro hibition on
double jeo pa rdy

. Specifically , Appellant contends that th e fo llowing double

- jeop ardy
violations have o ccurred :

• His second p oint argues that there were m ultipl e punishments for t he
conviction s for agg ravate d robbery with a deadly weap o n by ca us ing

7 Th e State waive d Co unt Tw o of the i ndic t ment t h a t alleged bur glary by enterin g with i ntent to commit injury to the elderly.24 bodily injury and for agg ravated assault with a deadly weapon by causing
bod ily injury re feren ced in C ount s F our and F ive.

• His third point arg ues that there were mult iple punishments for the
convicti o ns for burglar y by committin g injury to an elderl y indi vidual
and for com mitting inj ury to an elderly individual referenc ed in C ounts
T h ree and S even.

• His fourth point argues that there were multipl e punishments for t he

co nvictions for kidnapping by threa ten ing deadly f orce and aggrav ated

as s ault by t hreatening deadly force ref erenced in C ounts O ne and S ix.

• His fifth p oint argues that there were mu ltiple punishme nts for the

con vi ctions for aggravated assaul t wi th a dea dly w eapon arising fr om the

same assau lti ve incident referenced in C ounts F i ve and S i x . The S tate concedes that Appella nt ’ s second, third, and fifth p oints raise
meritorious double

- jeo pardy com plaints

. W e agr ee . We also agree with the S t ate that Appellan t has not s u ffered a double

- jeopardy v iol ation for th e punishments

r efe re nce d in hi s fourth point

. 2. Appe l l an t has not forfeited his double

- jeopardy cl a i ms. Appellant made no objectio n on dou bl e

- jeopardy g rounds in the trial court.
Eve n s o, “ [ an appel lant can] raise his unpreser ved double

- je opardy claim fo r t he first
tim e on appeal

. . . i f (1) the undisputed f acts sh ow a double

- jeopardy violati on clearl y25 apparent on the face of the r ecord [] a nd (2) enforcing the usual procedural

- default

r ule s serves no l egiti mate state inte rests. ” Escobedo v. State , No. 0 2

- 19

- 002 60

- CR , 2020
WL 6788078 , a t * 2 (Tex. App.

— Fort Wo rth Nov . 1 9 , 2020, pet

. ref ’ d

) (mem . op., no t designated for publication) ( fi rst citing Gon zalez v. State , 8 S.W.3d 640, 643 (Tex. Crim. App. 2000) ; and the n citing Cabr al v. State , 170 S.W. 3d 761, 76 4 (Tex. Ap p.

— Fo rt Worth 2005, pet. r ef ’ d) (m e m . op. ) )

. Bot h Appellant a nd the S tate cite th is rule , and
the State concedes that Ap pellant is entitle d to at least pa r t of the reli ef that he seeks. Thus, we con clude t h at Appellant has not fo rfeited his dou ble

- jeopard y co mplaints

. 3. We set forth t he t est s t h at we apply t o dete rmine wh e ther there is a double

- jeo pardy violation resultin g from the i mposi tion of multip le punishments for the same offense.
The Un ite d States Constit ution ’ s Fifth Am endment ’ s D oubl e

- Jeopar dy Clau se provides that no person s hall “be su bject for the same offen s e to be twice put in j eopardy of l ife or limb.” U.S . Const. amend. V. The clause serves three purposes:
The Double [

- ] Jeopardy Cl a use of th e Fift h Ame ndment, app licable to the sta tes t hrough the Fourteenth Amend ment, pr otects an a ccused against [( 1 ) ] a sec ond prosecution for the sam e offense af ter acquitta l, [( 2) ] a second prosecution for the same offense after conviction, and [( 3) ] multi p le punishmen ts for the sa me offense. Br own v. Oh io , 43 2 U.S. 161, 165, 97 S. Ct . 2221 , [ 222 5 ] (1977) ; Ex parte Amador , 326 S.W.3d 202, 205 (Tex. Cr im. App. 2010)

. Ex par te Denton , 3 9 9 S.W.3d 540, 545 (Te x . Crim . App. 2013 ).
The overarching concern o f the double

- je opardy prot ec tion in a multi ple

p unis hment c onte xt is to prevent “ a c ourt from prescribi ng greater punishm ent than the legislature intende d. ” Ex part e Benson , 459 S.W.3d 67, 71 (Tex. Crim. App. 2015)

.26 Stated differently, “ T o decide whether th e double

- jeo pardy prot ec tion against mu ltiple

pun ishme nt s for the same offense has been inf ringed, c ou rts must seek to understand how many punishments the law actually pe rmits: What has the state legislature

pre scribed with respect to ho w many times an off e nder may b e pun ished ? ” Nawaz v.
Stat e , 663 S .W.3 d 7 39 , 743 (Tex. Crim. App. 2022)

. An d s impl y be ca use a ju ry retur ns multiple verdicts, there is not a double

- jeopardy violation ; the violation o ccurs when

m u ltiple punishments ar e assessed for the same off ense:
C learly, “the St ate has the rig ht to pro secute and obtain jury verdicts on two off ens es in a single tr ial, eve n if the offenses are the same for double [

- ] jeopard y purposes .” [ Ex parte ] Aubin , 537 S.W.3d [ 39 , ] 43 [ (Tex. Crim. App. 2017) ] ( emphasis origi nal); see also Ev ans [ v. State , ] 299 S.W.3d [ 13 8 , ] 1 41 [ (Tex. Crim. App. 2009) ] (st ating tha t “the St ate may seek a multiple

- count indictment based on vio lations o f differ ent statutes, even when such viol a tions are established by a single act [,] but t he defendan t m ay be co nvicted and sen tenced for only one off ense”). If actually convict ed of bot h offense s, the c ourt sh ould assess the punishment for only the m ore se rious offen se. Evans , 299 S.W.3d at 141 ; Bigo n v. State , 252 S.W.3d 360, 372

– 73 (Tex. C rim. App. 200 8 ).
Pe rk ins v. State , N o. 08

- 19

- 00068

- CR , 20 2 1 W L 7543 44 , at * 2 (Tex. App.

— El Paso
Fe b. 26, 20 21 , pe t. ref ’ d

) ( not designated for publicati on)

. A double

- jeopardy challenge to multiple pun ishments may occur in t wo
circumstances : ( 1) “ multiple o ffense s in differe nt statutory pr ovision s tha t a r e the result of a single c ourse of c onduct ” ; or (2) “ off enses [that] are alternative means of
committ ing the same s tat utory offense. ” Garfias v. S tate , 424 S.W.3d 54, 58 (Tex. Crim. App . 2014 ) ; Loving v. State , 401 S.W.3d 64 2, 645 (Tex. Cr im. App. 2013 )

. Th e
Court of Criminal App eals has d escri bed the t wo circumstances under which a27 defendant is suffering multiple pu nishments for the same offen se as a result of
violatin g more than one sta tu te :
There are t w o v ari ations of a multiple

- punish ments c laim: [ ( 1) ] whe re there are both a gr ea ter [

- ] an d a lesser

- incl ude d offe nse and t he same conduct is punished twice

— once for the basic conduct and a second time for that con duct plus mo re; and [( 2) ] where the sa me criminal a c t is p uni shed under two distinct statut e s and the leg islature intended the
co nduc t to be p unished onl y once [,] such as causing a single death and being cha rg ed with both intoxication manslaughter and in voluntar y manslaught er.
Denton , 339 S.W .3d at 540

. D if fere nt tests apply to determine if im p rop er m ultiple punishments have bee n impo se d , with the determinatio n of which test applies depending “in par t on wh ether
the offenses at issue are codified in a s ingle s tatute or in two distinct statuto ry provisions. ” Ben son , 459 S.W.3d at 71. These are the “ e le m e nts ” and the “ units ” test s.
Ga rf ia s , 42 4 S.W.3d at 58

. B efore specifically describing the substance of the tests, it is necessary to
describe how each applies depending on “ whether the offen ses at issue a re cod ifi ed in a single statute or in t w o dist inct statutory provisions. ” Be nson , 45 9 S.W .3d at 7 1.
How the tests each apply to distinct situations but m ay also overlap in their application is describ ed as follows : The codificati on of offen ses in two dis ti nct sta tutory provisio ns is, by itsel f , some indi cation of a leg islative intent t o impos e multiple punishments. When two distinct statutory provisions a re at issue, the offenses must be considered th e same under both an “elemen ts” analysis
a nd a “units” a naly sis for a double

- j eopardy violati o n to occ ur. When
o nly o ne statute is at is s u e, th e “elements” analysis is necessarily resolved28 in the defendant ’ s favor, and only a “units” analysis remains to b e conducted.
I

d

. (footnotes omitted).
T he “ e le ment s ” test in volves a multistep pro c e ss that i s de rived from the
United States S up r eme Court opini on in Blockburger v. Un ited States , 284 U.S. 299, 304,
52 S. Ct. 180 , 182 (1932) :
The element s analysis conduct ed in the two

- statute context begins with th e Bloc kburge r sa me

- eleme nts test. That test as ks “ whethe r each pr ovision require s pr oof o f a fact which the othe r does not.” The application of the Blo ck burger same

- elements test in Texas is governed b y the cog nate

- pleadings approach, which entails compa ring t he ele ment s of the greater offens e as plea de d to the statutor y elements of th e lesse r offense. If the tw o offenses, so comp ared, have the same elem e nts, then “a judicial presumption ar ises that t he offense s are the same for purposes of double jeopar dy” an d that the defenda nt may not be p unished fo r bo th, bu t that pr esumption can b e rebut ted by a clearly expr essed legislat ive i ntent to impose multiple punishments. Conversely, if the tw o offenses have differ ent elements under the Blockbu rger test, the judic ial pr esum ption is that the offen ses are dif fere nt for double

j eopardy purp os es and that cumulative puni shment may be impos ed. This presumption can b e rebutted by a showing, through various fac tors, that t he legislature “clearly intend ed only one” p unishm ent.
Bens on , 459 S.W.3d at 72

– 7 3 ( f o otno tes om itted)

. 8

8 Na waz offers a more succinct formulat ion of the “ elements ” te st th at w as enunciated in B en son : W hen separately enumerated penal statutes are in vol v ed, this Court has said [ that ] “the tradition al starting point for d e termi nin g ‘ sameness’ for multiple

- punishment double

- jeopardy analysis is the Blockburge r test.” Ramos [ v. State ] , 636 S.W.3 d [ 64 6, ] 6 51 [ (T ex. Crim. App. 2021) ] ( citing Block bu rg er . . . , 284 U .S. [at] 304, 52 S

. Ct. [at 182 ] ). Im plementing its “cognate

- plead ing s a pproach” to the Blockburger “same

- elements” test, this Court asks whether ea ch off ense , as ple [ ad ed ] in the char ging29 The cognate

- pleadi ng s “ appr oach ” that governs the “ elements ” test looks to a
limited scope o f mate rial : “ [T] he offenses compared in an ‘ elements ’ a nalysis are derived solely from the pleadings and t he rel evan t statut ory provisions. In a n

‘ e l eme nt s ’ analysis, a court may n ot c onsid er the evidence presented at trial. ” Benson , 459 S. W.3d at 73 (f ootnotes omitted). But the facts “alleged” still play a critical role in applyin g the Blockburger sa me

ele ments test

. Two o ffenses are the same when one is “factually subsumed” wit hi n
the o ther, 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 M aldona do v. State , 4 61
S.W .3d 14 4, 1 48

– 49 (T ex. Crim. App. 2015). Ev e n with “offenses that have diff er in g
ele ments under Blockburger ,” a double

- jeopardy violation may still e xist because “[u]nder the cognate

- pleadings approach adopted by th [e] Court [ of Crimina l Appeals ] , do ubl e

- j eopardy ch allenges should be made even to offenses that have
diffe r ing elem en ts unde r Blockburger , if the same ‘facts required’ are alleged in the
in dictment.” Denton , 399 S.W.3d at 546 (quoting Bigon , 252 S.W.3d at 370).

in str ument, contains at least one element that the othe r d oes not

. Benson , 459 S.W.3d at 72. If not, t hen the Court presumes t hat the tw o offe nses are the same for multiple

- punishment double

- jeopardy purposes. Id

. But if each offe nse does contain an el em ent that the other does not, th en the presum ptio n is th a t the of fen ses are di fferent , and the Court go es on to inquire whethe r other c on sidera tions may operate to defeat that presumption. Id

. at 72

– 73 (citing Erv in v. State , 9 91 S. W .2d 804, 814 (Te x. Cr im . A pp. 1999)).
663 S .W.3d at 743

– 4 4 ( f ootn ote omi tt ed )

.30 I n turn, t he followi ng fac tors a re then ex amined t o determin e w he ther the legis la ture intende d only a singl e pu ni shm ent even though th e Blockbu rger test produced the conclusion th at the statu t e s have different elements a nd presumptively permit mult iple punishments , i. e ., the Ervin factor s :
In

. . . Ervi n , we set for th a non

- exclusive list of factor s to cons id er in d etermin ing whether the legisl atu re intended only one punishment f or offenses that contain differ ent elements under Blockburg er

: (1) whether offenses ar e in the same statut ory section o r chapt e r; (2 ) wheth e r the offenses are phrased in th e alterna t i ve ; (3) whether the offen se s ar e nam e d similarly; (4) whether the offens es have common punishment
ra nges; (5) whether the offenses h ave a common focus or grava men; (6) wheth er the common focus tends t o indicat e a single instance of conduct; (7) w hether t h e e lemen ts t hat differ bet we en t he tw o offenses can be considered the sam e under an imputed theory of liability that would result in the offenses being consider ed the same un der Bl ockburger (a liberal i z ed Block bur ger standard); and (8) whether th e re is le g i sl ative his tory containin g an a rticu l ation of an intent to treat the off enses as the same or differe nt for double

- jeopardy purposes. In some later cases we ha ve given more weight to the fifth and si x th facto rs, which, in combination, require th a t we exa mi ne the foc us or gravamen of each of fen se and compare the resulting allow able units of prosecution. Although determining the allowable unit of prosecution is p art of a separ ate “u nits” analysi s (cond u cted wh en on ly a single statute is involved o r after o ff e n ses p ro scribed by two s tatu tes a re de emed the same under an “elements” analysis), consideration of the unit of prosecution can play a role even in an “elemen ts” analysis b y help ing to ascert ain the legisla tive intent.
Benson , 459 S.W.3d at 7 2

– 7 3 (foot no te s omi tted) (cit ing Ervi n , 991 S.W. 2d at 8 14 )

. Next, w ith respect to th e species of a double

- jeopardy claim based on the

as sertion that a defendant is b e in g punished t wic e for a greater

- an d a lesser

- inc l uded
of fense , the following te st ap pli e s :31 A mul ti pl e

- pun is hmen ts dou ble

- jeo p ar dy violation occurs if both a greater [

- ] and a lesser

- included offense are alleged and t he same conduct is punished o nce for the g reater offe nse and a s econd time fo r lesser

. Langs v. State , 183 S.W.3d [6 80,] 685 [ ( T ex . Crim

. Ap p. 20 06)]

. A less er

incl uded offense is one that “ is esta bli shed by pro of of the same or less than all the facts required to establish the comm is sion of the offense charg ed[.]” Tex. Code Cri m. Proc

. [Ann.] art. 37.09( 1).
Dent on , 399 S

. W.3d a t 546.
T he “ units ” test is used to augment t he “ ele men ts ” test wh en “ two distinct statutory provisions are at issue ” and is used as the exclusive test “ [ w

] hen o nly one

statut e is a t issue ” :
Even when t h e offenses in question are proscribed by a s i ng le s tatu te or are otherwise t he sam e under an “elem ents ” anal ysis, the p rotectio n against double jeopardy is not violated if the offenses constitute separat e allowable units of pros ecutio n. This latter inqui r y involves determining such things as whethe r t here wer e two murder victims, wheth er a victim who w as a ssault ed on Mon day was a ssaulted again on Tuesday, or whether multiple kinds of sex acts were commit t ed against a victim. A “units ” analys i s consists o f two parts: (1) what the allowable unit of p ro secu tion i s, and (2) how many un its have been shown. T he f irst p art of the anal ysis is purely a question of statutory construction and generally requires as cer taining the focus or gravam en of the off ense. T h e second pa rt requires an examination of the tr ial reco rd , w hich can include the e vidence presented at tria l

. Benson , 459 S.W. 3d at 73

– 7 4 ( f ootnotes omitted). 9

9 A s stated in Nawaz , A “ units of prosecution ” analysis , in turn, ma y involve one of a t least two que stions, de pending on whether (1) the defendant is bein g convicted mo re th an once for an of fense d efi ned under the identical statutory subsect ion, or
. . . (2) he i s being convicted more than once

. . . under different statu t ory subs ections o f the same pe nal statut e.

. . . .32 It is purely a matter of statutory const ruction to a scertain the a llowab le unit of prosecution for an offe nse
. Benson , 459 S.W.3d at 73

– 74

. A s stated in a recent opinion fr om the Corpus Christi

– E dinburg Court of Appeals, [Double

- jeopardy] protection, however, is subject to the [Texas ] Legislature ’ s “power to establish and define crimes.” Shel by v
. State , 44 8 S.W.3d 431, 435 (Tex. Crim App. 201 4) (quoti ng Garfias

. . . , 424 S .W.3d [at] 58

. . . ). In other words, the [Te xas] Legislature has the authority to allow multiple punishments for the same conduct under different theories of criminal li abi l it y. Id

. Accordingly, a double [

- ] jeopardy
ana lysis is an exercise in statutory co nstruction, 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.).
G unter v. State , No. 13

- 22

- 0 0020

- CR, 2023 WL 3872674, at *2 (Tex . App.

— Co rpus
Christi

– Edinburg Ju ne 8 , 2023, no pet. h.)

.

U nder the first of these two “units of pr osecution” ana lyses , the qu estion wil l ofte n devolve into a determin atio n of when o ne v iola tion of the statutory offense has come to an e nd and another identica l ly defin ed v iolation of th e same statutory offense has begun [,] or it may depend on how man y vi ct ims of the i denti cally de fined offe nse th ere were. 6 63 S.W.3d at 744. For the seco nd k in d of un i ts

- of

- prosecution in quiry, “ the [c] our t must ask a different q uestion: whether, whe n a single act or course of conduct by a defendant violates more than one su bsection of the same pen al sta tute , the defendant may be punished separately for vio l ati n g ea ch discrete subsection, or may he be puni shed only once? ” Id

. a t 745.33 4. We sustain Appellan t’s second point contending that he
rec ei ved mul tiple punishments for the same offense as a result of his convict io ns f or aggr av a ted robbery ba se d on caus in g bo dily injury an d aggrava ted assault as a lleged in C o u nts F our and F ive.
In essence , C ounts F our and F iv e of the indictment charge d Appellant wit h the
same conduct , which is that he “ c ause [d] bodily injury to [t he c omplain an t ] b y striki ng
him [] and [ that] the defe ndant

. . . use [d] or exh ibit [ed] a deadl y weapon during the commission of the assault, namely, a metal object or pot, that in the manner of its use
or i ntended use was capable of causing death or seri ou s bo dily in ju r y . ” Count Four
adds the element s “ while in t he cou rse of committing theft of pr op ert y and with
intent to obtain or main tain co ntrol of [ certain ] pr operty

. ” 10
T he gravamen of aggravat e d robbery and agg rav ated assault is assaultiv e

co nduct t owa rd a v ictim. D en ton , 399 S .W.3 d at 5 46. I n Den ton , the Court of Criminal Appeals co ncluded that an aggravated

- assault count was a lesser

- in cluded offense of

a n aggravated

- robbery cou nt i n c ircumstance s similar t o th a t which we confront:
As p lea d [e d ] i n t h e in d ictment s , the count s for both aggravated r obbery
an d aggravate d as sault asser t that applicant intentionally or know ingly threatened ano ther person with imminent bodily injur y and use d or exhibited a de adly weapon during the commission o f th at offe nse
. The counts for aggrava ted robbery further all ege that applicant co mmit ted th eft. Thus, as plead [ed] , aggravated assault is a lesser

- inclu ded offense of aggravated robbery beca use “i t i s est ablished by proof of the same or less than all th e fa cts req uir ed to e stab li s h the commi ssion of the offense ch arged[.]” T ex . C ode Crim. Proc. [A nn .] art. 37.09(1).

10 T he offens e s a lle g ed are found in Texas P enal Code S ec tion s 22.0 1(a) (1 )

– ( 2) , 29.02 (a ) (1 )

– ( 2) , and 29. 03 (a ) (1)

– (2)

. Tex. Pen al Cod e Ann

. § § 22.01(a) (1)

– (2) , 29.02 (a) (1)

– (2), 29.0 3 (a) ( 1)

– (2).34 Id

. at 547. The aggravated assault c ount was a lesser

- incl uded offense of aggravated robbery , and Dento n also concluded that th ere was no leg islativ e i nte nt to puni s h the
offen se s separately

. Id

. T he logic of Denton applies to estab li sh that , i n vio lation of
his right again st do uble jeopar dy , Appellant ha s receiv ed multiple punishments fo r the
same offense by being punished for b oth aggra v ate d robbe ry and ag gravate d assault as alleged in C ou nts F o ur and F ive

. T he State agrees that t he assessment of multiple punishments for those offens es i s erro r
. W e s ustain Appe llant’s second point

. 5. We sustain Appellant’s third point co n ten ding th at he
rec eive d m u ltiple puni s h ments for t he same of fense as a result of his convicti on s for burglar y by committing inj ury to an elderly individual and for co mmitt ing injury to an elderly individual as alleged in C ounts T hree and S even.
Count S e v en of the ind ictmen t a l lege s how Appell a nt caused b odily inju ry to
the complainant as an elderly p erson. Cou nt T hre e

— a burglar y charge

— adds that Appellant “ intentiona ll y or knowingly enter [ed] a habitation, without the effective
consent of [the complaina n t ] , the ow ner ther e of, and att empt ed to commit or d id
commit the felon y offense of injury to an el derly indiv idual .” 11
The Sta te cite s us to Torre s v. State , which co n c lud es that injury to a n elderly

person i s a lesser

- in cluded offense of burglar y an d that t o punish a def endant f or both

11 T he se counts a llege offense s unde r Penal Code S ections 2 2 .0 4(a)(3 ) and 30.02 (a)(3)

. See Tex. Penal Code Ann

. § § 22.04(a)(3) , 30.02(a)(3)

.35 offenses assesses mu ltiple pu nis hments in violation of t h e prohibition against double jeopardy : Here, the St ate alle ged in parag raph one of Count IV that [a] ppellant “intentionally or knowin gly enter[ed] a habitati o n, without th e cons ent of [ the victim ], the owner thereof, an d attempt ed to commi t or committed th e f elony offense of Injury to an E lderly or Disabled Indi vidual.” The S tate fu rther alleged in Count V that [a] ppellant “intentionally, kno wingly [ ,] and reckle s sly cause[ d] bodily injury to [ the victim ], an individual who was t hen and there 65 year s of age o r older.” As such, Count IV of the indict ment alleges burglary o f a habi tat io n wit h the actual or attempted commission of a felony (injury to an elderly per s on) , a cha rge that falls under [S ] ect ion 30.02 ( a)(3). See Tex. Pen al Code Ann. § 30.02(a)(3)

. Un der Langs and Bl ockburger , the injury [

- ] to [

- ]
an [

- ] el derly [

- ] person offense se rves as a less er

- included offense to burglary of a habitation because although t h e latter off ense r equires proof of a fact tha t the injury [

- ] to [

- ] a n [

- ] elderly [

- ] person c harge d oe s not (i.e., entry without consen t), the State must prove all t he elements o f the inju ry [

- ] to [

- ] an [

- ] elder ly [

- ] person charge in order to prove the burglary
o f fen se, and th us t he injury [

- ] to [

- ] an [

- ] elderly [

- ] person ch arge woul d not req uire proof of an add it ional e lement that the burgla ry offense does not also require. See Langs , 1 83 S .W.3d at 686; Matter of T.D.N. , 620 S.W.3d 433, 441 (Tex. App.

— El Paso 2020, n o p et.) (r eco gnizin g doub le jeopardy ’ s prohibi t ion of conv ictions f or bo th b urglary of a habitat io n and th e underlying felony).
No. 08

- 22

- 00004

- CR , 2022 WL 2965977 , at * 6 (T ex. App.

— July 27, 2022, no pet.) (n ot de signated for publication)

. We a gree with the E l Pas o C ourt o f Appeals’ analysis . W e co n clude that A ppellant has receiv ed multiple punis hme nts for the same
offense because he was punished for burglary by committing injury to a n elderly
individual and f or th e lesser

- included offe nse of committin g in jury to an elder l y individual as alleged in C o unts T hree and S eve n.
We sust ain Appellant ’ s thi rd point

.36 6. We overrule Appellant’s fourth po int contending that he received multiple punishmen ts for t he same offense as a result of his convictions for k id napping and aggr a vated
ass ault based on the thre a t of th e use of deadly force as alleged in C ou n ts O n e an d S i x . Co unt One of the indictment a lleges that Appellant committed a g gravated kidnapping wit h a de adly weapon w hen h e intentionally or knowingly a bd uct [ed] [th e com p lainant] by restricting the
mov e ments o f [the co mplainant] without his conse nt so as t o interfere substantially with his liberty, by moving [the complainant] f rom one place to anoth er or confining [the comp lainant] with the intent to p re ve nt the libe ratio n of [the complainant] by secret i ng or h olding [t he complainant] in a place [ the com plai nant] was n ot likely to be found or using or threatening to use deadly f orce, namely a metal obj ect or pot, and the defen dant did use or exhibit a d ea dl y weapo n, n amely , a metal object or pot, that in the man ner of it s use or intended use was ca pab le of
cau sing death or serious bodily injury, during the commission of the offen se
. [ E m phasis added .]
C ount Six alleges that Appellant committe d aggravate d as sault w hen he
in t entionally or knowingly threate n [ed] im minent bo dily injury to [the complain ant ] , and the defendant

. . . u se [d] or exhibit [ed] a deadly weapon during t he comm ission of the assault, namely, a metal object or p ot, th at in the manne r of it s use or inte nded u se was capable of causing death or seri ous bodil y injury

. [ 12 ] Appel lan t contends that he has received multiple punishments for Count s One
and Six because “ bot h a greater [

- ] and a lesser

- inclu ded offense were allege d and [ because ] th e sa me cond uct wa s p unished onc e for t he greater offen s e and a second

12 The count f or ag gravated kidna p ping ch arges a n o ffense under Penal Code S e ction 20

. 04(b)

. See Tex . Pe nal C od e Ann. § 20.04(b). T he a g gravated

- assau lt count charges an off e ns e unde r Penal Code S ec t ions 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 t hat there is no multipl e

- punishments violation
because Appella nt has not receiv ed a punishment unde r both counts for a s ingle ac t.
We a gree t ha t there is no double

- jeo pardy multi ple

- punis hments violat i on resu lting
f

ro m A ppellant ’ s c onvictions fo r ag gravated kidnapping and aggravated assault but do
so for a different reason tha n argued b y the St ate. As shown by the argume nts o utl ined , t h e par t ie s fo cus on w hether as alleged
the a ggravated

- assaul t

- by

- thr e at coun t is a les ser

- included offense to the cou nt of aggravated kidnapping. The aggravated

- kidnapping count also includes the allegation
of threat. If left p ur ely to the qu e stio n o f wh e ther t he aggravated

- assaul t charge was a
le sser

- incl uded offense of the agg ravated

- ki dnapping charge, it would be a close question

. W e quote on e of the opin ion s cited b y the State to show how a count of aggravated assault m a y or may not be a l esse r

- in clu d ed off en se of aggravated kidnappi ng de pendi ng on how the offense s a r e alleg ed :
Rel yin g on Girdy v. State , 2 13 S.W.3d 315 (Tex. Crim. App. 2006), [appellant] conte nds [that] aggravated assault by thr eat is a lesser

included offense of aggravate d kid napping becaus e the same f acts were requi red t o est ablish bo th offenses. G i rdy , ho wever, is distinguishable because of how the State charged the offenses. In Girdy , the indictme nt
a lleged [that] the de fendant comm itted aggravated kidnapping when he
a bduc ted the victim “ by using and threat ening to use dea dl y force on the said [v i ctim], and wit h i ntent to inflict bodily injury on her[

. ]” Id

. at 316. The indictment further alleged [that] the defe ndan t co mmitted aggravated as sault by “threaten[ing] [th e vic tim] wi t h immi ne nt bodily injury and d id the n and t here use a deadly weapon

. . . . ” Id

. Th e court held aggravated assault was a lesser

- include d offense of aggravated kidnapping because as charged , agg r avated assault was “estab lished by proof of the same or les s than al l the facts required to est ablish t he
c ommis sion of” aggrav a ted kid napping

. Id

. at 319 (emphasis added).38 Here, however, aggravate d kidnapping was based on the allegation that [appellant had ] ab ducted [the victim] by restricti ng his m o veme nts, [b y ] movi ng him from one place to another, and by secre ti ng or h olding him

— not by thr eat of imminent bodily injury, conduct required to prove aggravated assaul t by threat. Accordingly, Girdy does n ot compel us to f ind a double [

- ] jeopardy violati o n un der Blo c kburge r in this case. Verastegui v. State , No. 04

- 1 8

- 0 04 01

- C R , 201 9 WL 330 7856 , a t * 5 (T e x. App.

— San
Antoni o July 24, 2019, no pet

. ) (mem. op. , not designated f o r publication)

. Her e the allegat ion of the two coun ts a ppear s to come closer to the situa ti o n face d in Girdy and
th us closer to a n alle gation th at mad e the ag gr a vated

- a ssault ch arge a lesser

- included
offense of the aggravated

- kidnapping charge

. But we do not need to examine t he m u ltiple

- punishments question strictly
under a Bloc kbur g

er a nalysis

. V e ra st egui also pres ented a detailed anal ysis unde r the
E r vin fact o rs that dem o n st r ated that the Texas Legis lature intended to allow separate punishments for aggrav a ted kidna p ping and assault by threat

. 13 Id. We quote the analysis in f ull:

13 V erast egui ’s f ocus on th e grav amen of the off ense is appropriate no m atter the
resu lt s of an elements analysis. T he Court of Criminal Appeal s has no t e d that even if
a B lockb urger analysis results in a conclusion th at th e offenses are the same , a c ourt s hou ld st ill exam ine legi sl ative intent because

t he Bloc kburger test is a rul e of stat ut o ry construction [] and not the exclusive test for determinin g if two o ffe nses are the sam e. Bigon , 252 S.W.3d at 370. The ultimate question is whether the [ Texas] Legis la ture intended to allo w the sa me conduct to be punished unde r bo th of the stat utes in question. Id

. at 371.39 Turni n g t o th e Er vin fac to rs, we must also determine whether the offen ses at issu e share a common fo cus or grav a me n. See Garfias , 424 S.W.3d at 59. The gravamen of kidnapping is the act of abduct i on. Schwei nle v. State , 915 S.W.2d 17, 19 n.2 (Tex. Crim. App. 1996 ). Kid n apping i s a result

- oriented offense becaus e the ulti mate focus i s the
a bduction of th e v ictim, no t h ow the defendant restrains or interferes with the victim ’ s liberty. Gonzales [ v. S tate ] , 2 70 S.W. 3 d [ 282 , ] 288 [ (Tex. App.

— Amarillo 2008, pet. ref ’ d) (op. on reh ’ g) ]

. T h e off e ns e is legally compl eted when at any time d uring t he restraint, the defendan t f orm s the intent to pr event 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 [ 5 1 2, ] 521 [ (T e x. Cri m. A pp. 2009) ]

. On the other hand, the gr a vamen o f aggravated assault by th rea t i s the conduct itself , n ot the result, and therefore it is a nature

- of

- conduct crime as o pposed to a resu l t

- oriented crime. Garfias , 424 S.W.3d at 60. The r e is an obv i ous di st inct ion bet ween th e gravamen of each off e nse

— the aggravated [

- ] kidnapping
c har ge an d conv iction focused on the abduction, i.e., the actual harm inflicted, while the aggr avated [

- ] assault [

- ] by [

- ] t hreat charge and conviction focused on [ap p ella nt ’ s] t h reaten in g condu ct. Cf. [ i d. ] Accor dingly, the g ravamin a of the two offens es ind i cat es [that] the

S helby , 448 S.W.3 d at 43 6

. She lby went o n to not e th at certain element s of the Ervin t est that focus on the grava men of the off ense a re the truest indic ation o f legis la t ive in t ent : The fift h facto r [of the Ervin test] , which req uir es a court to examine the “focu s” or “gr avamen” of a p enal prov i sion, sh ould be regarded as the best indicator of l egisla tive intent when determining whether a multiple

pu nishm ents v i ola ti on h a s occur red. [ G arfias , 424 S.W. 3 d at 59.] And the si xth factor described above parti cul arly requires a court t o consider the a llowable unit o f prosecutio n for the offenses when conducting an “elements” analys is. Id

. Though this is a necess ary step i n a naly zing a multiple

- pun is hments c laim deali ng w ith two statutes from the same statutor y s ection, such a determinat ion can be in d icative of legi slative intent even in an “elements” analysis. Id

. I

d

. ; see also Nawaz , 6 63 S.W.3d at 745

– 4 6 ( “ Ultimately , ho wever , regardless of which of these typ es o f analy s i s is the appropriate one in a giv en case, this [c] ourt has sai d that

‘ th e best i ndicato r ’ of the allowable unit of prosecution ‘ seems to be the focus o r

“ gra vamen ” o f the offe nse. ’ ” (quoting Jon es v. State , 3 23 S. W.3d 885, 889 (Tex. Crim

. App. 2 010) ) ).40 [Te xas] Legisl atu re intended to allow separate punishments for aggravated kid napping and aggravate d assault by threat. See id.
The other Ervin fact ors als o suppo rt thi s co nclusion

. First, ag gravated kid n apping and aggravated assault by thr eat are not contained in the s ame statutory section. Compare Tex. Penal Co de [Ann.] § 20.0 4(b) (Chapter 20, Penal Code, K i dnapping, Unlawful Restraint, and S m uggl ing of P ersons ), with id. §§ 22.0 1 (a)(2), 22 .02(a)(2) (C h apter 2 2, Penal Code, Assaultive Off ens es). Second, the offenses are neith er phrased in the alternative nor similarly named. Compare Tex. Penal Code [Ann.] § 20.04(b ) , with id. §§ 22.01(a)(2), 22.0 2(a)(2)

. And th ird, although the trial cou r t sente nced [ appella nt ] to forty

- five years ’ c onf i nement for each offense, the offenses do not hav e i dentical punishment ranges

— aggravated k idnapping in this case is a first [

- ] degree felony, which carries
a p unis hment r a nge of c onfinement “for li fe or for any term of n ot more than 99 years or less t ha n f i ve years” and a fine not to exceed $10,000.00, b ut aggravated assault by threat is a secon d [

- ] degree felony, which carries a punishmen t range of confinement “ for any ter m of no t more than 20 years or less t ha n 2 year s” and a f ine not to exceed $10,00 0. 00. Compare Tex. Penal Code Ann. § 12.32, with id. § 1 2.3 3. Finally, when as here, the [Texa s] Legislature has not provided an express statement d e fining the
a l lowa ble uni t of pr os ecution, the grava men of the offense bes t descri bes the allowable unit o f pro s ecution. See Garfias , 424 S.W.3d at 61. As discussed above, the gravamina of [appellant ’ s] convictions for aggravated kidnapping and aggravated a s sault di f fer. There f ore, t he allowable units o f prosecut ion are not t h e s ame. See id

. Id

. (footnot e omi t ted) ; Mickens v. State , No. 06

- 19

- 00199

- CR , 2020 WL 5985 200 , at * 4 (Tex. App.

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

p ublicat ion) ( ap ply ing E r vin factor s to con clude that a ggravated kidna ppin g an d

aggrav ated assault m ay be punis hed separately )

. We agree that applying the Ervin fac tors and focusi ng on the gravam i n a of th e
offenses “ indicates [that] the [Texas ] Legislature intend ed t o a llow separate punis hments for aggravate d kidn a ppi ng and aggrav a ted ass a ult by threat. ” See41 Vera st e gui , 2019 WL 3307856, at *5

. T hus, t he prohibition against double je opar dy
does not prohib it s e p a rate punishments for Appe llant ’ s conviction s for agg rava ted
kid napping a n d agg ravated assault by t hreat

. We o v errule App e lla nt ’ s fo u rth point

. 7. We su sta i n Appe llant’s fifth point conten ding that he recei ved multiple punishments for the same offe nse a s a result of his convictions for two counts of aggr a va t ed assa ult
as al l eged in C ounts F iv e and S ix.
Cou n t F ive of the in d ictment alleges a gg ravate d ass aul t with a deadly weapon
when Appel lant
intenti ona lly or knowingly cause [ d ] bodily injury to [th e c omplainant] by striking him, and the defendant

. . . use [ d] or e xhibit [ed ] a de adly weapon during t he commiss ion o f th e assau l t, name ly, a metal object or p o t, that in the manner of its use or intended use was capabl e o f causing death or serious bodily injury

. [E m pha sis added

. ]
Count Six alleg es that Appel lant th reat ened the s ame a ct. 14 Appl y

in g t he “ u nits ” tes t fo r determin i n g w heth er multiple pu nis hme nts have
occurred when “ the offen ses in question are proscr ibe d by a single statute , ” the State ’ s br ief makes the following concession:
The gravamen o f ag gra vate d assault is ei ther causing bodil y in jury o r threate ning immin ent b o dily in jury, dependin g o n w hich theory has been pleaded in t he charging instrument. Sh elb y . . . , 448 S.W.3d at 438. The all owable unit of prosecution for assaultiv e offenses in a s ingl e instanc e

14 T hese counts allege offenses under Pen al Code S ection 22

. 02 (a)(2) , which p rovide s that “ [a ] person commits an offense if the person commits assault as de fined in § 22. 01 and the person [] (1) cause s seri ous b od ily i njury to anot her, includ ing the pers on ’ s sp ouse [,] or (2) uses or exhibits a dea dly weapon during t he comm ission o f the a s s a ult. ” T ex . Pe n a l Code Ann

. § 22.02(a)

.42 is o ne prosecution per vic tim. [ Id. ] at 439. There is n o indic ation that the [T exa s] Legislature intended a single assaultive ins tan ce against a single person to yield two separate a ggravated assault conviction s. [ Id. ] at 439

– 40. Thus , t he a ppell ant’ s puni shmen ts f or two ag g

r avated
a ssaults against the same victim violates his p rot ect ion against double jeopardy

. We agree with the State ’ s analysis

. We conclude that Appellant receiv ed multiple
pun ishments for the same o ffe n se in v iolati on of his r ight against double je opard y
when h e was punished for both agg r avated a s sa ult by striking the complai nan t a nd using or exhibiting a deadly weapon and aggravated assault by threatening that

c onduct. S ee Gunter , 2023 WL 3872674, at *4 (“[W]here a s ing le act caused bodi ly injury to a single victim, [S]ubsections 22.02( a )(1) an d (a )(2) [of the Penal Code] constitute the same offense for purposes of double jeopardy.”)

. We sustain Appellant’s fift h point

. 8. The reme d ies th at we uti l i z e to a ddres s t he do uble

- jeopardy
v i ol ations tha t we con clud ed have occurred.
W e s tructur e the re m e dy to a ddress a multiple

- punishment double

- jeopardy
violation as follows : When a defendant has been pros ecute d and con victed in a sin gle crimina l action o f tw o or more of fense s that constitu t e the same o ffense, in violation of double jeopa rdy, th e reme dy i s t o apply “the most serious offense” test and retain the conviction for the “most serious” offense. Den ton , 399 S.W. 3d at 547. The “mo st seri ous” offe nse is the offens e for which the greate s t sentence was assessed. Ex parte Cavaz os , 20 3 S.W.3 d 333, 3 3 8 (T ex. Crim. App. 2006); see also Evans

. . . , 299 S.W.3d [at] 141

. . . ; Bigon , 252 S.W.3d a t 372

– 73. But when the punishment for
eac h convi ct ion is i de ntical, we can not l ook to o nly the se ntences im posed to det ermine the most serious offense

. See B i gon , 252 S.W.3d at 373. Instead, we have to look to other criteria, including the degree of43 felony for each offense, t o determine whi ch o ffense is t he m o st serious. Id

. ; Whit e v. State , 395 S. W.3d 828, 832 (Tex. Ap p.

— For t Worth 2013, no pet.). J

ones v. State , Nos. 02

- 14

- 00068

- CR, 02

- 14

- 00069

- CR, 02

- 14

- 00070

- CR , 2014 WL
6496965 , at * 3 (Tex

. App.

— Fort Wo r th Nov. 20 , 2014, p et. dis m ’ d ) ( mem. op., n ot
de sign ate d for publicat ion)

. W e remed y the do uble

- jeopa rdy claims t hat we have sustained as follow s :

• Sec on d point Appel lant received improper multiple punishments for hi s conviction s in
C ounts Four and Five for a ggravated r obb er y and a ggrav at ed a ssaul t

. He rec eive d a sentence o f twe nty

- five years for the a ggra vated

- r obb ery

co nviction a n d fort y y ears f o r th e ag g ravated

- assault conviction

. W e
vacate the conviction and sentence in Count Four for a ggravated robbery and retain the convi cti on in Co un t Five fo r a g gra vated a ssa ult

.

• Third point Appellant received improper multiple punis hments for his co nvi ctio n s in
C ou nts Three and Seven for burglary and injury to an elderly individual

. He received a sentence of twenty

- five years for t he burgla ry c onvi cti on

a nd forty years for the injury

- to

- a n

- e lderly

- ind ividual conviction

. W e

vacate the c o nv i ction and senten c e in Cou nt Three for burglary and
retain the conviction in Count Seven for injury to an elderly person

.44 • Fifth point Appellant re ce ived impr op er m ultiple punis hme nts for his con victions i n
C ounts Five and Six for two coun ts of a ggrav ate d a ss ault. For each count, h e received a sentence of fo rty years. I n re sol v

i ng Appellant ’ s
second point , we ret ain ed the aggravated

- ass ault con vi ct ion in Coun t
Five

. Th us , w e vacate the dupli cate conviction in Count Six. Cf. Jones , 2014 WL 64 96965 , at * 3

. IV. Con clusion
H aving ov erruled Appellant’s first and fourth points, we affirm those judgments that survive our double

- jeopardy analysis

— Count O ne for aggr a vated kidnapping , Count Five for aggravated assault, and Cou nt Seven for injury to an elderly person . Having susta i ned Appe llant’s second, third, and fifth points, we vacate and dismiss Appellant’s convictions in Count Three for burgl ary, in C ount Four fo r
agg ravated robbery, a nd in Coun t Six for aggravated assault. /s/ Dabney Bassel Dabney Bassel J u sti ce
Do No t Publish T ex. R. App. P . 47. 2( b )
Deliver ed : July 6, 2023