IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
v.
THE STATE OF TEXAS
FROM THE THIRD COURT OF APPEALS
TRAVIS COUNTY
CONCURRING OPINION
I do not agree with the assertion in the majority opinion that this is not a double jeopardy case. This is a "multiple punishments for the same offense in a single proceeding" double jeopardy case in which the same act or conduct violates separate statutory provisions. See Missouri v. Hunter, 459 U.S. 359, 368-69 (1983); Whalen v. United States, 445 U.S. 684, 688-93 (1980). When the same act or conduct violates separate statutory provisions, the double jeopardy clause does not prohibit a legislature from authorizing multiple punishments in a single proceeding for these separate statutory offenses even when they are the "same" for double jeopardy purposes. (1) The dispositive issue is not whether these separate statutory offenses are the "same" but whether the legislature has authorized multiple punishments for them. See Whalen, 445 U.S. at 688 ("question whether punishments imposed by a court after a defendant's conviction upon criminal charges are unconstitutionally multiple cannot be resolved without determining what punishments the Legislative Branch has authorized"). (2)
Determining whether separate statutory offenses committed by the same act or conduct are the "same" under Blockburger is merely an aid in deciding whether the legislature has authorized multiple punishments for these offenses. See Whalen, 445 U.S. at 688-93 and at 711 (Rehnquist, J., dissenting) (Blockburger test is simply an attempt to determine legislative intent). If these separate statutory offenses are the "same" under Blockburger, then multiple punishments may not be imposed in a single proceeding for these "same" offenses unless the legislature has clearly and specially provided for multiple punishments. See Whalen, 445 U.S. at 692-93. If, however, these separate statutory offenses are not the "same" under Blockburger, then it is generally presumed that the legislature intends to permit multiple punishments for them. See id. ("courts have long adhered to the rule that Congress did intend to permit consecutive sentences . . . when each offense 'requires proof of a fact which the other does not'").
In Hunter, 459 U.S. at 368-69, the Court stated:
Our analysis and reasoning in Whalen and [citation omitted] lead inescapably to the conclusion that simply because two criminal statutes may be construed to proscribe the same conduct under the Blockburger test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes. The rule of statutory construction noted in Whalen is not a constitutional rule requiring courts to negate clearly expressed legislative intent. Thus far, we have utilized that rule only to limit a federal court's power to impose convictions and punishments when the will of Congress is not clear. Here, the Missouri Legislature has made its intent crystal clear. Legislatures, not courts, prescribe the scope of punishments. [Footnote omitted]
Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the "same" conduct under Blockburger, a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.
I would decide that the indecency by exposure offense and the aggravated sexual assault offenses are the "same" under our traditional approach for determining "sameness" for double jeopardy purposes. See Parrish, 869 S.W.2d at 354 (state law describes "includedness in much the same way Blockburger describes sameness"). Under this approach, the Court could decide that these offenses are the "same" because the former was included within the proof necessary to establish the latter. (3) See Broussard v. State, 642 S.W.2d 171, 173 (Tex.Cr.App. 1982) (issue is "whether or not the State, in each case, when presenting its case to prove the offense charged, also includes the lesser included offense").
Concluding that these offenses are the "same" merely begins the analysis. See Whalen, 445 U.S. at 688-93. (4) The issue remains whether the legislature has clearly and specially authorized multiple punishments for these "same" offenses that appellant committed against the eleven-year-old victim. See id.
The opinion of the Court of Appeals did not address § 3.03 (b)(2)(A), Tex.Pen.Code, which provides:
(b) If the accused is found guilty of more than one offense arising out of the same criminal episode,[ (5)] the sentences may run concurrently or consecutively if each sentence is for a conviction of:
(2) an offense:
(A) under Section 21.11, 22.011, 22.021, 25.02, or 43.25[ (6)] committed against a victim younger than 17 years of age at the time of the commission of the offense regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of more than one section . . . .
This statute does not clearly or specially authorize multiple punishments in cases like this. See Whalen, 445 U.S. at 691, 693-94 (deciding that the particular statute in that case did not authorize multiple punishments for two offenses arising out of same criminal transaction). With these comments, I concur only in the Court's judgment.
Hervey, J.
Filed: November 10, 2004
Publish
1. See, e.g., Blockburger v. United States, 284 U.S. 299, 304 (1932) (where same act or transaction violates separate statutory provisions, the test to be applied to determine whether they are the "same" is "whether each provision requires proof of a fact which the other does not"); Parrish v. State, 869 S.W.2d 352, 354 (1994) (state law describes "includedness in much the same way Blockburger describes sameness"); see also Hunter, 459 U.S. at 368-69 (legislatures may authorize multiple punishments in a single proceeding for "same conduct" under Blockburger); Whalen, 445 U.S. at 701 (Rehnquist, J., dissenting) ("Congress could, if it so desired, authorize cumulative punishments for violation of two separate statutes, whether or not those statutes defined 'separate offenses' in some abstract sense").
2. This analysis, of course, would not apply when different acts or conduct violate separate statutory provisions even when these different acts or conduct occur during the same criminal episode or transaction.
3. And, this is what the Court of Appeals essentially decided. See Patterson, 96 S.W.3d at 432-33 (indecency by exposure offense was included within the aggravated sexual assault offenses).
4. The Court of Appeals did not consider the "sameness" question to be dispositive either. See Patterson v. State, 96 S.W.3d 427, 432 (Tex.App.-Austin 2002) (absent clear indication of contrary legislative intent, it is presumed that legislature did not intend to authorize multiple punishments for two offenses that are the same under Blockburger) and at 433 (in absence of a clear indication of legislative intent to inflict multiple punishments, appellant's conviction for indecency with a child by exposure based on the same conduct for which he was convicted of aggravated sexual assault constitutes impermissible multiple punishments for the same offense).
5. Appellant was found guilty of more than one offense (indecency by exposure and aggravated sexual assault) arising out of the same criminal episode even though these offenses might be considered the "same" under Blockburger.
6. See § 21.11(a)(2)(A), Tex.Pen.Code, (indecency with a child); § 22.021(a)(1)(B)(I), Tex.Pen.Code, (aggravated sexual assault).