Shelby, John Richard

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. PD-1372-13 & PD-1373-13

JOHN RICHARD SHELBY, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRD COURT OF APPEALS
HAYS COUNTY

A LCALA, J., delivered the opinion for a unanimous Court.

OPINION

Does the Double Jeopardy Clause of the United States Constitution disallow dual

convictions for aggravated assault with a deadly weapon against a public servant and

intoxication assault stemming from the same criminal act? Suggesting that this question

should be answered in the affirmative, John Richard Shelby, appellant, argues that the court

of appeals erred by permitting both convictions under these circumstances. We agree. We

conclude that the Legislature did not intend to authorize separate punishments for the
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offenses of aggravated assault with a deadly weapon against a public servant and intoxication

assault when the convictions for those offenses are based upon the same assaultive conduct

against a single person, and, therefore, we hold that appellant’s dual convictions for both

offenses violate double jeopardy. We reverse the judgment of the court of appeals and vacate

Shelby’s conviction for the less serious offense, intoxication assault.

I. Background

Appellant was driving his truck while carrying two passengers, his then boyfriend

Frank Lopez, and another passenger, Raymundo Hernandez. According to Hernandez, a

fight began inside the vehicle, during which appellant was repeatedly hitting Lopez.

Appellant then caused his truck to collide with a marked police car that was pulled over onto

the side of the road during a routine traffic stop. The collision resulted in serious bodily

injury to two people: Trooper Hoppas, who was seated in the passenger seat of his police car,

and the man he had stopped, who was standing by the side of the road. Trooper Hoppas

suffered several broken bones in his foot and leg, which later required him to undergo knee-

reconstruction surgery. The man Trooper Hoppas had stopped suffered several fractured

vertebrae in his back.

After causing the collision, appellant fled on foot to a nearby parking lot, where he

was later apprehended by police. A subsequent investigation revealed that appellant had a

blood-alcohol concentration of 0.13. The State charged appellant with having committed

five offenses stemming from this incident, and he was convicted of all five offenses in a
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single trial. Only two of those five convictions are pertinent here: (1) his conviction for

aggravated assault with a deadly weapon against Trooper Hoppas, a public servant, a first-

degree felony, for which appellant was sentenced to fourteen years’ imprisonment, and (2)

intoxication assault against Trooper Hoppas, a second-degree felony when committed against

a peace officer, for which appellant was sentenced to five years’ imprisonment. T EX. P ENAL

C ODE §§ 22.02(a), (b)(2)(B), 49.07(a)(1), 49.09(b-1). The trial court ordered the sentences

to run concurrently.

On appeal, the court of appeals affirmed both convictions after rejecting appellant’s

complaint that his double jeopardy rights were violated. The court of appeals held that,

“[b]ecause the two offenses are not the same for the purposes of double jeopardy under either

the Blockburger ‘sameness’ test or an Ervin legislative-intent analysis, we conclude that

[appellant] did not suffer multiple punishments in violation of double jeopardy protections.”

Shelby v. State, No. 03-10-00283-CR, 2013 WL 4822872, at *9 (Tex. App.—Austin Aug.

28, 2013) (mem. op., not designated for publication) (referring to Blockburger v. United

States, 284 U.S. 299, 304 (1932); Ex parte Ervin, 991 S.W.2d 804, 814 (Tex. Crim. App.

1999)). The court of appeals observed that in Ervin, this Court created a non-exclusive list

of factors to determine whether, in the absence of express legislative intent, the Legislature

intended the same conduct to be punished twice under two different statutes. Id. at *5. After

conducting an analysis of those factors, the court of appeals concluded that the two offenses

have different gravamen, and it further observed that the offenses have different punishment
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ranges and are found in separate sections of the Penal Code. Id. at *6-9. Relying on those

factors, it concluded that the Legislature intended to treat aggravated assault with a deadly

weapon against a public servant and intoxication assault as separate offenses for double

jeopardy purposes, and it overruled appellant’s double jeopardy complaint. Id. at *9.

II. Double Jeopardy Violated by Dual Convictions
for Aggravated Assault Against a Public Servant and Intoxication Assault

In his sole ground in his petition for discretionary review, appellant asks, “Did the

Court of Appeals misapply the holding in Ex parte Ervin in determining the question of

double jeopardy?” Although we largely agree with the court of appeals’s analysis with

respect to (A) the applicable law for examining whether there has been a multiple-

punishments double jeopardy violation, and (B) its application of the Blockburger test, we

agree with appellant that (C) it misapplied the Ervin factors.

A. Applicable Law for Determining Double Jeopardy Violations

The Fifth Amendment to the United States Constitution’s Double Jeopardy Clause

offers protection against multiple punishments for the same offense. U.S. C ONST. amend. V;

Garfias v. State, 424 S.W.3d 54, 58 (Tex. Crim. App. 2014). A double jeopardy claim based

on multiple punishments arises when the State seeks to punish the same criminal act twice

under two distinct statutes under circumstances in which the Legislature intended the conduct

to be punished only once. Langs v. State, 183 S.W.3d 680, 685 (Tex. Crim. App. 2006).

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

limitations are imposed upon this power by the Double Jeopardy Clause.” Garfias, 424
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S.W.3d at 58. “Thus the true inquiry in a multiple-punishments case is whether the

Legislature intended to authorize the separate punishments.” Id. (citing Ervin, 991 S.W.2d

at 814). We take two different approaches when ascertaining legislative intent: We use an

“elements” analysis that addresses the elements of the offenses in question, or we use an

analysis that identifies the appropriate “unit of prosecution” for the offenses. Id. An

“elements” analysis is appropriate when the offenses in question come from different

statutory sections, whereas a “units” analysis is employed when the offenses are alternative

means of committing the same statutory offense. Id. In this case, appellant complains of

convictions stemming from different statutory sections, so we must use an “elements”

analysis to determine whether a multiple-punishments double jeopardy violation has

occurred. See id.

In an “elements” analysis, when multiple punishments arise out of one trial, the

Blockburger test is the starting point. Id. Under the Blockburger elements test, two offenses

are not the same if each requires proof of a fact that the other does not. Id. In Texas, we

follow the cognate-pleadings approach to employing the Blockburger test. We not only

examine the statutory elements in the abstract but we also compare the offenses as pleaded,

to determine whether the pleadings have alleged the same “facts required.” Bigon v. State,

252 S.W.3d 360, 370 (Tex. Crim. App. 2008) (citing Hall v. State, 225 S.W.3d 524, 534

(Tex. Crim. App. 2007)). But the Blockburger test is a rule of statutory construction, and not

the exclusive test for determining if two offenses are the same. Bigon, 252 S.W.3d at 370.
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The ultimate question is whether the Legislature intended to allow the same conduct to be

punished under both of the statutes in question. Id. at 371.

To facilitate an analysis of whether the Legislature intended to allow the same conduct

to be punished twice under different statutes, we set forth a list of non-exclusive factors in

Ervin designed to assist courts in the absence of clear guidance from the Legislature. Garfias,

424 S.W.3d at 59 (citing Ervin, 991 S.W.2d at 814). Those factors are:

[1] whether offenses are in the same statutory section; [2] whether the offenses
are phrased in the alternative; [3] whether the offenses are named similarly; [4]
whether the offenses have common punishment ranges; [5] whether the
offenses have a common focus; [6] whether the common focus tends to
indicate a single instance of conduct; [7] whether the elements that differ
between the two offenses can be considered the same under an imputed theory
of liability that would result in the offenses being considered the same under
Blockburger; and [8] whether there is legislative history containing an
articulation of an intent to treat the offenses as the same or different for double
jeopardy purposes.

Id. The fifth factor described above, which requires a court to examine the “focus” or

“gravamen” of a penal provision, should be regarded as the best indicator of legislative intent

when determining whether a multiple-punishments violation has occurred. Id. And the sixth

factor described above particularly requires a court to consider the allowable unit of

prosecution for the offenses when conducting an “elements” analysis. Id. Though this is a

necessary step in analyzing a multiple-punishments claim dealing with two statutes from the

same statutory section, such a determination can be indicative of legislative intent even in an

“elements” analysis. Id.
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B. The Starting Point: The Blockburger Test

We agree with the court of appeals’s determination that a strict application of the

Blockburger test reveals that each of the two offenses at issue in this appeal, aggravated

assault with a deadly weapon against a public servant and intoxication assault, contains a

distinct element that the other does not. Shelby, 2013 WL 4822872, at *3. As the court of

appeals correctly observed, the offense of aggravated assault with a deadly weapon against

a public servant requires proof that the actor assaulted a person the actor knows is a public

servant while the public servant was lawfully discharging an official duty and that appellant

used a deadly weapon during the commission of the assault.1 Id. (citing T EX. P ENAL C ODE

§ 22.02(a), (b)(2)(B)). In contrast, the offense of intoxication assault requires proof of

intoxication and the operation of a motor vehicle in a public place, but does not require proof

of either knowledge of the officer’s status as a public servant or appellant’s use of a deadly

weapon.2 Id. (citing T EX . P ENAL C ODE § 49.07). We, therefore, agree with the court of

1
Count I of the relevant indictment alleged:

[Appellant] did then and there intentionally, knowingly and recklessly cause bodily
injury to [Trooper] Hoppas by striking a motor vehicle occupied by [Trooper]
Hoppas with a motor vehicle driven by [appellant], and [appellant] did then and there
use a deadly weapon, to-wit: a motor vehicle,
And [appellant] then and there knew that the said [Trooper] Hoppas was a public
servant, to-wit: a peace officer and the said offense was committed while [Trooper]
Hoppas was lawfully discharging an official duty[.]
2
Count II of the same indictment alleged:

[Appellant] did then and there, by accident and mistake, while operating a motor
vehicle in a public place while intoxicated, in that [appellant] did not have the
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appeals that under the Blockburger elements analysis, the two offenses are not the same and

that it is necessary to next examine relevant considerations as set forth in Ervin to determine

whether the Legislature intended to permit multiple punishments under these circumstances.

C. The Ervin Factors

In Ervin, this Court described at least eight relevant factors that are useful for

determining whether the Legislature intended to permit multiple convictions for the same

conduct. Ervin, 991 S.W.2d at 814. We review each factor in turn and we conclude that, on

balance, those factors indicate that the Legislature did not intend to permit multiple

punishments for aggravated assault and intoxication assault when both convictions arise from

the same assault against the same individual.

1. Offenses Are Not in the Same Penal Code Chapter

The offenses of aggravated assault with a deadly weapon against a public servant and

intoxication assault appear in separate sections of the penal code, but this does not

necessarily mean that the Legislature intended the same conduct against the same victim to

be punished under both statutes. See T EX. P ENAL C ODE §§ 22.02(a)(2), (b)(2)(B),

49.07(a)(1). The court of appeals observed that the fact that the Legislature placed

aggravated assault in Chapter 22 and intoxication assault in Chapter 49 suggests that it did

normal use of his mental and physical faculties by reason of the introduction of
alcohol, a controlled substance, a dangerous drug, and a combination of those
substances into his body and by having an alcohol concentration of 0.08 or more, and
by reason of such intoxication, cause serious bodily injury to an individual, namely
[Trooper] Hoppas, by causing the motor vehicle driven by [appellant] to collide with
the motor vehicle occupied by the said [Trooper] Hoppas.
 SHELBY - 9

not intend for these offenses to be treated the same for double jeopardy purposes or to

disallow multiple punishments under these circumstances. Shelby, 2013 WL 4822872, at *5.

The court of appeals, however, failed to consider that Chapter 49 was created to consolidate

all intoxication-related offenses into a single chapter. See Ervin, 991 S.W.2d at 816. As this

Court explained in Ervin, one plausible explanation for the Legislature’s decision to create

Chapter 49 of the Penal Code, which includes the statutes defining the offenses of

intoxication manslaughter and other intoxication offenses, was as a housekeeping measure

designed to consolidate offenses requiring specific definitions related to intoxication. See

id. Because the Legislature could have placed all intoxication-related offenses into a separate

chapter as a mere matter of housekeeping, the fact that intoxication assault and aggravated

assault appear in different chapters provides minimal guidance as to whether the Legislature

intended to permit convictions for both offenses for a single assault against a single

individual, as in the present case.

2. Offenses Not Phrased in the Alternative

The two statutes cannot be phrased in the alternative because they appear in separate

sections of the penal code. See Bigon, 252 S.W.3d at 371. The second Ervin factor,

therefore, is not applicable. Id. (dismissing the second Ervin factor as inapplicable when the

two statutes in question are in separate statutory sections).

3. Offenses Share Similar Names

Aggravated assault with a deadly weapon against a public servant and intoxication
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assault share the word assault in their names. We have held that even in cases where the

names of two statutes share no words, but still denote similar offenses that differ only in

degree, that this is evidence that the Legislature intended the two offenses to be considered

the “same.” See id. (noting that felony murder and intoxication manslaughter are both

homicide offenses differing only in degree). Because both offenses here have the word

assault in their names, this Ervin factor weighs in favor of treating the offenses as being the

same for double jeopardy purposes.

4. Offenses Do Not Share Similar Punishment Ranges

As the court of appeals observed, the two offenses at issue in this case have different

ranges of punishment. Shelby, 2013 WL 4822872, at *5. Aggravated assault with a deadly

weapon against a public servant is a first-degree felony, and intoxication assault is a second-

degree felony when committed against a peace officer. This factor, therefore, weighs against

treating the two offenses as the same for double jeopardy purposes. But, as noted above, in

Bigon, the fact that two of the offenses in question had different punishment ranges was not

considered dispositive of the issue of double jeopardy. See Bigon, 252 S.W.3d at 371.

5. Both Offenses Share a Similar Focus or Gravamen

Although it properly observed that the primary consideration is the intent of the

Legislature, the court of appeals erred by mistakenly identifying the focus or gravamen of

the two offenses as being distinct and in relying upon that erroneous conclusion as the basis

for its ruling. See Shelby, 2013 WL 4822872, at *6. Of all the factors listed in Ervin, this
 SHELBY - 11

Court has found that the focus, or “gravamen,” of the two offenses is the best indicator of the

Legislature’s intent to treat the offenses as the same or different for double jeopardy

purposes. Garfias, 424 S.W.3d at 59. The gravamen of the offense of aggravated assault is

the specific type of assault defined in Section 22.01 of the Texas Penal Code. Landrian v.

State, 268 S.W.3d 532, 538 (Tex. Crim. App. 2008); T EX. P ENAL C ODE § 22.01 (defining

assault as either intentionally, knowingly or recklessly causing bodily injury, or intentionally

or knowingly threatening another with imminent bodily injury). The gravamen of aggravated

assault, therefore, is either causing bodily injury or threatening imminent bodily injury,

depending on which theory has been pleaded in the charging instrument. The indictment that

charged appellant with aggravated assault with a deadly weapon against a public servant

alleged that appellant caused bodily injury to Trooper Hoppas under Section 22.01(a)(1) of

the Penal Code. See T EX. P ENAL C ODE §§ 22.01(a)(1) (making it an offense to intentionally,

knowingly, or recklessly cause bodily injury to another). Therefore, the gravamen of

aggravated assault with a deadly weapon against a public servant, as charged in the

indictment, was causing bodily injury. See Landrian, 268 S.W.3d at 537.

The court of appeals’s opinion suggests that causing bodily injury, using a deadly

weapon, and injuring a public servant are all gravamen of the offense of aggravated assault

with a deadly weapon against a public servant. Shelby, 2013 WL 4822872, at *6. This is so,

it suggests, because appellant could not have completed the offense as charged without all

three elements being present. Id. In determining the gravamen of this result-oriented offense,
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however, the question is not based on a consideration of most or all of the particular

elements, but instead on the result of appellant’s action, bodily injury. See Landrian, 268

S.W.3d at 537 (“‘The precise act or nature of conduct in this result-oriented offense

[aggravated assault] is inconsequential. What matters is that the conduct (whatever it may

be) is done with the required culpability to effect the result the Legislature has specified.’”)

(quoting Alvarado v. State, 704 S.W.2d 36, 39 (Tex. Crim. App. 1985)).

Like aggravated assault with a deadly weapon against a public servant, intoxication

assault is a result-oriented offense with the gravamen of causing bodily injury. See T EX.

P ENAL C ODE 49.07(a)(1) (“a person commits an offense if the person . . . causes serious

bodily injury to another”). Because the focus is on carrying out the conduct required to effect

the result that the Legislature has specified, the gravamen of intoxication assault is causing

bodily injury. See Landrian, 268 S.W.3d at 537. The court of appeals’s opinion suggests that

intoxication is part of the gravamen of the offense because intoxication is required to

complete the offense of intoxication assault. Shelby, 2013 WL 4822872, at *7. But we have

held that a defendant’s intoxication is not the gravamen of intoxication manslaughter, which

is a similar offense contained in Section 49 of the Penal Code. See, e.g., Bigon, 252 S.W.3d

at 371. (“The focus of [intoxication manslaughter] is . . . the death of an individual.”). We,

therefore, cannot agree that the gravamen of intoxication assault includes the actor’s

intoxication in light of our previous determination that intoxication is not part of the

gravamen of intoxication manslaughter. We conclude that the gravamen of the offenses of
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aggravated assault on a public servant and intoxication assault, both of which are result-

oriented offenses, is causing bodily injury, and that this factor, therefore, weighs heavily in

favor of treating the offenses the same for double jeopardy purposes.

6. Both Offenses Have the Same Allowable Unit of Prosecution

The allowable unit of prosecution for an assaultive offense in Texas is each victim.

Garfias, 424 S.W.3d at 60 (holding the unit of prosecution for aggravated assault to be one

unit per victim). In light of the fact that the offenses of aggravated assault with a deadly

weapon against a public servant and intoxication assault are assaultive offenses, each victim

is the allowable unit of prosecution. This indicates that the Legislature did not intend for one

instance of assaultive conduct against a single person to yield convictions for both aggravated

assault with a deadly weapon against a public official and intoxication assault for injuring

one person.

7. Some of the Elements that Differ Between the Offenses Can Be
Considered the Same Under an Imputed Theory of Liability

Under a strict elements-analysis of the two offenses, aggravated assault with a deadly

weapon against a public servant requires proof of, at a minimum, recklessness as a culpable

mental state, as compared to intoxication assault, which does not require proof of any

culpable mental state. See T EX. P ENAL C ODE §§ 22.01(a)(1) (requiring proof of intentionally,

knowingly or recklessly causing bodily injury), 49.07(a)(1) (requiring only proof of

intoxication). Although intoxication assault does not require proof of a culpable mental state,

this Court has previously indicated that intoxication can be viewed as an imputed form of
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recklessness, making the two offenses here more similar under the liberalized “imputation”

version of the Blockburger test. See Ervin, 991 S.W.2d at 816.

8. Legislative History is Silent Regarding Intent to Treat Offenses Same
or Differently

Here, as the court of appeals’s opinion notes, there is no legislative history with

respect to the Legislature’s intent to treat these offenses the same or differently. This factor,

therefore, is inconsequential in this case.

In weighing the eight Ervin factors to determine legislative intent, we conclude that

the Legislature did not intend to permit dual convictions for aggravated assault against a

public servant and intoxication assault under the circumstances in this case because these

offenses share the same gravamen, share similar names, and have some elements that are the

same under an imputed theory of liability.3 Because the best indication of the Legislature’s

intent in the absence of specific legislative history is the fact that the offenses share the same

gravamen, we are persuaded that a double-jeopardy violation has occurred even though the

offenses do not have the same punishment ranges and are contained in separate sections of

the penal code. We hold that under the facts of this case, the trial court violated appellant’s

rights against double jeopardy by convicting him of both aggravated assault with a deadly

3
We observe that at least one court of appeals has reached the same conclusion with respect
to reckless aggravated assault and intoxication assault. See Burke v. State, 6 S.W.3d 312, 316 (Tex.
App.—Fort Worth 1999), vacated on other grounds, 28 S.W.3d 545 (Tex. Crim. App. 2000) (“[T]he
gravamen of reckless aggravated assault and intoxication assault is serious bodily injury to an
individual. We therefore conclude that reckless aggravated assault causing serious bodily injury and
intoxication assault causing serious bodily injury are the same offense for due process and due course
of law purposes when they involve the same victim.”).
 SHELBY - 15

weapon against a peace officer and intoxication assault.

III. The Appropriate Remedy is to Vacate the Lesser Sentence

When an individual is convicted of two offenses that are the “same” for double

jeopardy purposes, the appropriate remedy is to affirm the conviction for the “most serious”

offense and to vacate the other conviction. Bigon, 252 S.W.3d at 372-73 (citing Ex parte

Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App. 2006); Landers v. State, 957 S.W.2d 558,

559-60 (Tex. Crim. App. 1997)). The “most serious” offense is the offense of conviction for

which the greatest sentence was assessed. Cavazos, 203 S.W.3d at 338 (overruling Landers

to the extent that it held that other factors should be considered when determining the most

serious offense). Though he has advocated that we depart from this approach and vacate the

more serious of the two violative convictions, appellant has failed to provide a rational

argument as to why this Court’s holdings in Landers and Cavazos should be abandoned.

In Landers, this Court highlighted four policy reasons for our judicially made rule to

retain the conviction for the more serious offense. Landers, 957 S.W.2d at 560-61. First,

retaining the more serious offense provides consistency by applying to all cases in which a

double jeopardy violation arises from the prosecution and conviction, in a single criminal

action, of two or more offenses that constitute the same offense. Id. at 560. Second, the rule

eliminates the arbitrariness of relying upon how a statute is structured to determine “greater”

and “lesser” offenses when that structure has no necessary relationship to the seriousness of

the offense. Id. Third, retention of the more serious penalty imposed against a defendant is
 SHELBY - 16

consistent with the assumption that, if the State had been made to pursue only one of the two

offending convictions, it would have chosen the more serious one. Id. Finally, the rule is

most consistent with the objective of the penal code “to insure the public safety through . .

. the deterrent influence of the penalties hereinafter provided.” Id. at 561 (citing T EX. P ENAL

C ODE § 1.02).

Appellant’s conviction for aggravated assault with a deadly weapon against a peace

officer, for which he received a sentence of fourteen years’ imprisonment, is more serious

than his conviction for intoxication assault of Trooper Hoppas, for which he received a

sentence of five years’ imprisonment. We, therefore, retain the aggravated assault conviction

and set aside appellant’s conviction for intoxication assault.

IV. Conclusion

We conclude that aggravated assault with a deadly weapon against a public servant

and intoxication assault are the same offenses for double jeopardy purposes when they

involve the same assault upon a single victim, and that imposing convictions for both

offenses in this situation violates the Double Jeopardy Clause. We reverse the judgment of

the court of appeals and vacate Shelby’s conviction for intoxication assault on Trooper

Hoppas.

Delivered: November 26, 2014

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