Aekins
v.
State

Court of Criminal Appeals of Texas.Oct 22, 2014
447 S.W.3d 270 (Tex. Crim. App. 2014)

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NO. PD–1712–13

2014-10-22

Donald Aekins, Appellant v. The State of Texas

Donald Aekins, pro se. Christopher P. Morgan, Austin, for Appellant.



Affirmed.

Keller, P.J., filed concurring opinion in which Price, Keasler, and Hervey, JJ., joined.

Keasler, J., filed concurring opinion in which Keller, P.J., and Hervey, J., joined.


ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTH COURT OF APPEALS TRAVIS COUNTY

Donald Aekins, pro se. Christopher P. Morgan, Austin, for Appellant.
Lisa McMinn, for the State.


OPINION


Cochran, J., delivered the opinion of the Court in which Meyers, Womack, Johnson and Alcala, JJ., joined.


A jury found appellant, Donald Aekins, guilty of three counts of sexual assault. The court of appeals held that his convictions for both contacting and penetrating the adult victim's sexual organ with his mouth violated his right against multiple punishments for the same offense because the contact and penetration were based on the same act. We granted the State Prosecuting Attorney's petition for discretionary review to clarify that (1) when a single exposure or contact offense is “incident to and subsumed by” a penetration offense, the offenses are the “same” for double-jeopardy purposes, and (2) the Texas Legislature has not manifested its intent to allow multiple punishments for those “same” offenses, so (3) multiple convictions for those “same” offenses violate double-jeopardy principles. We conclude that the court of appeals properly vacated the conviction for the “contact” sexual-assault count, and we affirm its judgment.

We granted review of a single ground: “Is the subsumption theory of Patterson v. State still valid in light of this court's more recent double jeopardy and lesser-included offense case law?”


Aekins v. State,
No. 04–13–00064–CR, 2013 WL 5948188, at *3–4 (Tex.App.—San Antonio Nov. 6, 2013) (not designated for publication).


I.

Appellant and his wife, Amanda, first met Jessica Parnell (a pseudonym), at a downtown Austin Salvation Army shelter in October of 2010. Amanda and Jessica became friends at the shelter and helped each other with their children. But Jessica was uncomfortable around appellant because he was flirtatious, he kissed her neck, and he “always had a lot of perverted comments.” Jessica finally told Amanda that if appellant did not stop hitting on her, they could no longer be friends.

The Aekins family later left the Salvation Army shelter and moved into a house, while Jessica and her children moved to another shelter. Jessica started babysitting the Aekins's two children, based on Amanda's promise that appellant would not be there when she came over.

Amanda asked Jessica if she would babysit her children on February 2, 2012, because Amanda had school and appellant would be out job hunting. Jessica agreed, and Amanda picked her up early that morning and brought her back to the Aekins's house.

When Amanda and Jessica arrived, appellant was lying in bed with his infant son. Amanda told Jessica that he was “fixing to get up and get dressed and leave.” Instead, appellant stayed in bed after Amanda left for school. Jessica was with her two children and the Aekins's oldest child in the front room when appellant called her into the bedroom and asked her to bottle-feed the baby.

Jessica propped herself up against the back of the bed to feed the baby, who was lying next to her with his bottle. Appellant got up, closed the door, “pushed stuff in front of it,” and then came back over to Jessica's side of the bed. He climbed on top of her and started to take her pants off. “He was telling me he just wanted to taste me.... I was trying to push him off me, but he just kept telling me to feed the baby and it just scared me, like I really didn't know what to do.” Appellant performed oral sex on Jessica against her will, and he also put his fingers inside her vagina against her will.

A few minutes later, Jessica's daughter knocked on the bedroom door, so Jessica got up, got away, left the house, and went next door to a neighbor's home. She texted Amanda and told her that “she wasn't going to watch the kids anymore because Donald had just sexually assaulted her.” Then she called the police. Appellant, meanwhile, came over to the neighbor's home and yelled, “[A]in't nobody going to believe you anyway.”

Appellant was charged in a three-count indictment:

Count 1: causing the penetration of Jessica Parnell's female sexual organ by the defendant's finger,


Count 2: causing the penetration of Jessica Parnell's female sexual organ by the defendant's mouth and/or tongue, and


Count 3: causing Jessica Parnell's female sexual organ to contact defendant's mouth.
The jury convicted appellant of all three counts-two penetration offenses and one contact offense—and sentenced him to 55 years' imprisonment on each count, to run concurrently.

On appeal, appellant argued that his conviction under Count 3 violated the Double Jeopardy Clause because contacting and penetrating Jessica Parnell's sexual organ with his mouth constituted a single criminal act. The court of appeals agreed. Citing Patterson v. State, and Barnes v. State, the court concluded that appellant's conviction for sexual assault by contact was barred by double-jeopardy principles because it was based on the same act for which he was convicted of sexual assault by penetration. The court of appeals vacated the trial court's judgment for sexual assault under Count 3.

152 S.W.3d 88 (Tex.Crim.App.2004).


Barnes v. State,
165 S.W.3d 75, 88 (Tex.App.—Austin 2005, no pet.) (holding convictions on genital-penetration count and genital-contact count were based on the same act, so conviction on the contact count constituted an unauthorized second conviction for the same offense in violation of the Double Jeopardy Clause).


Aekins,
2013 WL 5948188, at *3–4.


Id.
at *4.


The correctness of the appellate court's holding depends on the validity of what has become known as the Patterson “incident to and subsumed by” doctrine. We reaffirm this doctrine (which, in some jurisdictions is called “the merger doctrine”) and reiterate that it is well grounded in the Fifth Amendment guarantee against double jeopardy.

See Patterson, 152 S.W.3d at 94 (Hervey, J., concurring) (stating that traditional double-jeopardy analysis barred multiple convictions for indecency by exposure and aggravated sexual assault by penetration when the former was committed as part of the same criminal act as the latter).


II.

The Fifth Amendment provides, “No person shall ... be subject for the same offence to be twice put in jeopardy of life or limb[.]” In North Carolina v. Pearce, the Supreme Court stated that the guarantee against double jeopardy consists of three separate constitutional protections: first, it protects against a second prosecution for the same offense after acquittal; second, it protects against a second prosecution for the same offense after conviction; and third, it protects against multiple punishments for the same offense. This case involves a multiple-punishments issue.


Id.
at 717, 89 S.Ct. 2072.


A multiple-punishments double-jeopardy violation may arise either in the context of lesser-included offenses (when the same conduct is punished under both a greater and a lesser-included statutory offense) or when the same criminal act is punished under two distinct statutory provisions, but the legislature intended only one punishment.

Garfias v. State, 424 S.W.3d 54, 58 (Tex.Crim.App.2014).


The first step “in determining the troublesome question of what constitutes the ‘same offense’ ” is to apply the two different Blockburger tests. The second test, “which focuses upon the statutory language creating the criminal offense,” is the better known. Under that second aspect of Blockburger,

41 George E. Dix & John M. Schmolesky, 41 Texas Practice: Criminal Practice and Procedure § 19.8, at 493 (3d ed.2011).


Blockburger v. United States,
284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).


Dix & Schmolesky, supra note 11, at 493.


The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. To decide if conviction on multiple counts stemming from a single criminal act is constitutionally permitted, we compare the elements of the two offenses to determine if each requires proof of an element that the other does not. “If so, the statutory offense is presumably not the same and both offenses generally may be prosecuted.”

Blockburger, 284 U.S. at 304, 52 S.Ct. 180.


Dix & Schmolesky, supra note 11, at 493.


The first, less famous, Blockburger test asks whether each criminal act is a separate and distinct one, separated by time. If the offense is a single continuousact, with a single impulse, in which several different statutory provisions are necessarily violated along that continuum, the offenses merge together. This is variously called “the merger doctrine,” “the single impulse doctrine,” or, here in Texas, “the doctrine of subsumed acts.” If more than one statutory offense is necessarily committed by that single criminal act and impulse, then the offenses merge and the defendant may be punished only once. This “single impulse” aspect of Blockburger is United States Supreme Court law, not some peculiar doctrine thought up by Texas judges. We are not permitted to ignore or denigrate it. As a lower court, we are bound by Supreme Court reasoning on federal constitutional issues. Although one could argue that this aspect of Blockburger is confusing or complicated, other state courts have not found it so. This well-established Supreme Court doctrine is, of course, wholly unrelated to the discredited “carving doctrine” which was properly jettisoned in Ex parte McWilliams.

Blockburger, 284 U.S. at 301–02, 52 S.Ct. 180.


See, e.g.,
People v. Garcia, 296 P.3d 285, 293 (Colo.Ct.App.2012) (“To determine whether a defendant's conduct constituted factually distinct acts, and therefore factually distinct offenses, we examine various factors including whether the acts occurred at different times and were separated by intervening events. Convictions not based on separate offenses merge with one another.”) (citation omitted).


Blockburger,
284 U.S. at 302–03, 52 S.Ct. 180; see Hagood v. United States, 93 A.3d 210, 226 (D.C.2014) (applying the “fresh impulse” or “fork-in-the-road” test and holding that two counts of possession of a firearm during a crime of violence merged when, although burglary and assault were distinct offenses separated by a ten-minute interval, the convictions arose “out of a defendant's uninterrupted possession of a single weapon during a single act of violence.”). Compare Spain v. United States, 665 A.2d 658, 660–61 (D.C.1995) ( applying “fork in the road” test in holding that convictions for taking indecent liberties with a child and assault with intent to commit carnal knowledge convictions did not merge because there were two separate incidents of sexual assault, separated by time; explaining that such greater and lesser offenses “will merge only if they both stem from a single criminal act, or if the lesser is committed in order to effect the greater”), with Watson v. United States, 524 A.2d 736, 742 (D.C.1987) (enticement of a minor merged with sodomy when there was “no evidence of a break in time or any new motive evincing a ‘fresh impulse’ ”). In Watson, the court of appeals addressed a situation similar to the present one:
Sodomy requires proof of penetration, which is not an element of enticing a minor child; enticing requires a specific intent, while sodomy does not. Because sodomy and enticing a minor are not necessarily “continuous” by nature, the offenses do not merge under the first phase of the Blockburger analysis, i.e., there may be instances where a defendant could be convicted of both sodomy and enticing, even when the offenses are part of a single incident. In the instant case, the enticing and the sodomy were congruent in time and place. The asportation of the victim to the bedroom was part of the continuous offense here as there was no evidence of a break in time or any new motive evincing a “fresh impulse” having occurred between appellant's pursuit of his victim and the final act of penetration in the victim's bedroom.
Id.
(citation omitted). Because the enticing offense was incident to, or part and parcel of, the single, ongoing criminal act of sodomy, and the legislature had not evinced any intention to have that one act punished twice, the two offenses merged. Id. at 743.

See Patterson v. State, 152 S.W.3d 88, 92 (Tex.Crim.App.2004) (noting sexual assault statutes encompass “escalation of abuse” and “no matter where in the range the perpetrator stops, the offense is complete at that point”; but nothing in the statutes indicated a legislative intent to permit a “stop action” prosecution in which every motion along the path to penetration may be punished separately; “penile contact with mouth, genitals, or anus in the course of penile penetration will be subsumed”).


See supra
note 18 and infra notes 46–51. Indeed, the bench and bar may find it helpful to refer to some of these out-of-state cases when addressing novel double-jeopardy scenarios, though of course they are not required to do so.


634 S.W.2d 815, 817 (Tex.Crim.App.1980).


The Blockburger facts exemplify the two separate tests. There, a druggist was convicted of three counts of selling morphine improperly to the same buyer. He made one sale on Monday and another sale on Tuesday. The morphine was improperly sold on both days because it was not in its original tax-stamped package, and the morphine sale on Tuesday was also not made pursuant to a written order of the purchaser. The druggist argued that the morphine sales to the same person on two days constituted a single offense and that the Tuesday sale, which violated two separate statutes—improper packaging and without a written order—was just one act; it was one sale and therefore could be punished only once. The druggist wanted his three convictions reduced to one.

Blockburger, 284 U.S. at 301, 52 S.Ct. 180.


Id.
(noting the applicable wording of 26 U.S.C. § 692 that required that all opium and other narcotics be sold only “in the original stamped package or from the original stamped package; and the absence of appropriate tax-paid stamps from any of the aforesaid drugs shall be prima facie evidence of a violation of this section”).


Id.
(noting the applicable wording of 26 U.S.C. § 696 that required that all such drugs be sold only “in pursuance of a written order of the person to whom such article is sold ... on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue.”).


The Supreme Court upheld all three convictions. The first Blockburger test was whether the two separate morphine sales on two separate occasions to the same customer were two offenses or one. The Court stated that the distinction between the two separate sales in this case “and an offense continuous in its character is well settled,” noting that “ ‘when the impulse is single, but one indictment lies, no matter how long the action may continue.’ ” The Court explained, “In the present case, the first transaction, resulting in a sale, had come to an end. The next sale was not the result of the original impulse, but of a fresh one-that is to say, of a new bargain.” This was unlike “continuous crimes,” which are necessarily committed over a period of time and may involve separate acts that are incidental to, or “part and parcel” of, the single completed offense.

The Court noted that “[t]he sales charged in the second and third counts, although made to the same person, were distinct and separate sales made at different times.” Id.


Id.
at 302, 52 S.Ct. 180 (quoting “Wharton's Criminal Law (11th Ed.) § 34”).


Id.
at 303, 52 S.Ct. 180. The Court gave another example of the “fresh impulse” or “separate acts” branch of its double-jeopardy analysis. It discussed a mailbag-destruction case in which the defendant had ripped into six different locked mail pouches being transported in a railway car with the intent to steal from those bags. He was convicted of six different counts, one for each bag, and he complained on appeal that double jeopardy barred conviction for more than one offense because he committed just one crime of ripping open the bags at one time and place. No, said the Supreme Court, “ ‘it was the intention of the lawmakers to protect each and every mail bag from felonious injury’ ” and thus each crime was complete when each mail bag was ripped open. Id. (citing and quoting Ebeling v. Morgan, 237 U.S. 625, 629, 35 S.Ct. 710, 59 L.Ed. 1151 (1915)) (“Although the transaction of cutting the mail bags was in a sense continuous, the complete statutory offense was committed every time a mail bag was cut in the manner described, with the intent charged. The offense as to each separate bag was complete when that bag was cut, irrespective of any attack upon, or mutilation of, any other bag.... The separate counts each charged by its distinctive number the separate bag, and each time one of them was cut there was, as we have said, a separate offense committed against the statute. Congress evidently intended to protect the mail in each sack, and to make an attack thereon in the manner described a distinct and separate offense.”).


For example, one rape will frequently involve the defendant's acts of exposing his genitals, then contacting the victim's genitals with his own, then penetrating the victim's genitals with his. It is a “continuing” crime in the sense that the defendant commits several criminal acts on the way to completing the rape, but the lesser acts of exposure and contact merge into the ultimate act of penetration. Patterson, 152 S.W.3d at 92. If, on the other hand, the actor rapes the same woman five times during the course of an evening, he, like the defendant in Ebeling, may be prosecuted for five different aggravated sexual assaults; it is the same crime committed five separate times.


The Supreme Court—applying the second test—then rejected the druggist's argument that the Tuesday sale, which violated two separate statutes, was really one offense. The Court explained that the Narcotics Act was “not aimed at sales of the forbidden drugs qua sales” but at drugs sales in violation of the many regulations governing them, including the tax-stamp regulation and the written-order regulation. Thus, “both sections were violated by the one sale” and the druggist committed two separate offenses at the same instant.

Blockburger, 284 U.S. at 303–04, 52 S.Ct. 180.


In sum, Blockburger addresses two multiple-punishment issues: the “continuous action vs. separate and distinct acts” issue and the “one act violates separate distinct statutes” issue. But the Supreme Court has said that, for purposes of multiple-punishment analysis, the two Blockburger tests are just tools—not the be all, end all, of statutory construction. Sometimes two offenses that are the “same” may both be punished; sometimes two “different” offenses may notboth be punished. It all depends on the legislature's intent.

Gonzales v. State, 304 S.W.3d 838, 845 (Tex.Crim.App.2010) (citing Missouri v. Hunter, 459 U.S. 359, 368, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983) (Double Jeopardy Clause does no more than prevent the sentencing court from proscribing greater punishment that the legislature intended)).


See
Missouri v. Hunter, 459 U.S. 359, 368, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983) (even when crimes have the same elements under the Blockburger test, there is no double-jeopardy violation when both are tried in one prosecution and the legislature intended for both offenses to be separately punished); Garza v. State, 213 S.W.3d 338, 351–52 (Tex.Crim.App.2007) (quoting Hunter, noting that the Blockburger test does not “trump clearly expressed legislative intent,” and concluding that convictions for both organized criminal activity and the underlying criminal offense do not violate the Double Jeopardy Clause).


Bigon v. State,
252 S.W.3d 360, 370 (Tex.Crim.App.2008) (holding convictions for felony murder and intoxication manslaughter based on same incident and victims violated double jeopardy despite differences in the statutory elements because the Legislature did not intend to impose multiple punishments for the same offense).


In Ex parte Ervin, 991 S.W.2d 804 (Tex.Crim.App.1999), we set out a non-exclusive list of considerations to help courts determine legislative intent in this context, but the “focus” or “gravamen” of a penal statute is the single “best” indicator in determining whether the legislature intended to define and punish more than one offense. Gonzales, 304 S.W.3d at 848.


In a line of cases addressing double-jeopardy and jury-unanimity issues in sexual-assault cases, we have concluded that the Texas Legislature's intent is to punish each discrete assault. Separate criminal acts committed during a single sexual encounter may be punished separately, but a criminal act (such as exposure or contact) that is committed as part of a continuing sexual assault that results in one complete, ultimate act of penetration may not be punished along with that complete, ultimate act. Steps along the way to one rape merge into the completed act.

See Patterson v. State, 152 S.W.3d 88, 91–92 (Tex.Crim.App.2004) (“The scheme encompasses escalation of abuse; no matter where in the range the perpetrator stops, the offense is complete at that point.”).


A. Multiple Sexual Acts May Be Punished Separately.

A person who commits more than one sexual act against the same person may be convicted and punished for each separate and discrete act, even if those acts were committed in close temporal proximity. The key is that one act ends before another act begins. The defendant might touch a child's breast; then he touches her genitals. Two separate acts, two separate impulses, two separate crimes.

In a pat-your-head-while-rubbing-your-stomach case, one might touch the victim's breast with one hand while simultaneously touching her sexual organ with the other hand. Those are two separate and distinct sexual assaults even though they occur at the same time.


This is true for acts violating not only different statutes, but different subsections of a single statute, and even different discretely prohibited acts within the same subsections. Indecency with a Child, for instance, criminalizes indecency by exposure in one subsection and indecency by contact in another, but two punishments are possible because they require two distinct acts. Breaking down that statute even further, Indecency with a Child criminalizes three separate contact acts—touching of the (1) anus, (2) breast, or (3) genitals. A person who touches a child's anus, breast, and genitals may be convicted of three offenses. Likewise, Sexual Assault under subsection 22.011(a)(1)(A) criminalizes two separate acts—penetrating by any means (1) the anus, or (2) the sexual organ. Jury unanimity is required for these distinct acts, but it is not required for the different means of committing a single distinct act (e.g., penetrating the anus with the defendant's finger, mouth, or sexual organ). Thus, for example, the State might charge the defendant with a single count of aggravated sexual assault for penetrating a child's sexual organ and allege several different means—penis, finger, mouth, or other object—if there was one sexual assault, but the child is uncertain of what the defendant used to penetrate. What matters is the sexual assault upon the victim, not what the defendant used to commit that discrete assault.

Vick v. State, 991 S.W.2d 830, 832 (Tex.Crim.App.1999) (noting that, when offenses that are separately defined in different statutes, this “is some indication of legislative intent to authorize multiple prosecutions”).


Id.
at 833 (addressing language of Tex. Penal Code § 22.021(a)(1)(B)(i)-(iv) (Aggravated Sexual Assault) prohibiting various penetrations and contacts; holding that the Legislature intended different subsections of the aggravated-sexual-assault statute to constitute separate offenses for purposes of whether an accused may be twice prosecuted or punished for the “same” offense because each subsection “entails different and separate acts to commit the various, prohibited conduct”).


Gonzales v. State,
304 S.W.3d 838, 849 (Tex.Crim.App.2010) (addressing language of Aggravated Sexual Assault, prohibiting causing “the penetration of the anus or sexual organ of a child by any means”; “What is true of the various acts specified in the different subsections of this nature-of-conduct statute is no less true of the various acts specified within separate and disjunctive phrases in the same subsection. Either way, such specificity in a conduct-oriented statute ordinarily reflects a legislative intent that each discretely defined act should constitute a discrete offense. Penetration of the anus constitutes a discrete act from penetration of the sexual organ, even if they occur within a short period of time. That both the anus and sexual organ may be anatomically located in the “genital area” does not render the separate acts of penetration the “same” offense for double-jeopardy purposes.”) (citations omitted) (emphasis in original).


Loving v. State,
401 S.W.3d 642, 646–49 (Tex.Crim.App.2013) (indecency with a child by exposure and contact, though two subsections of a single statute, are separate and discrete offenses; gravamen of the indecency-with-a-child statute is the nature of the prohibited conduct, regardless of whether the accused is charged with contact or exposure; exposure offense was not subsumed by the contact offense on a trial record that indicated that appellant was masturbating (a complete exposure) before he caused the child victim to touch his penis (a complete contact)).


Pizzo v. State,
235 S.W.3d 711, 719 (Tex.Crim.App.2007) ( “the offense of indecency with a child by contact in Section 21.11(a)(1) is a conduct-oriented offense. ‘Sexual contact,’ as defined in [now 21.11(c)(1) & (2) ], criminalizes three separate types of conduct—touching the anus, touching the breast, and touching the genitals with the requisite mental state. Therefore, each act constitutes a different criminal offense and juror unanimity is required as to the commission of any one of these acts.”).


Cf.
Jourdan v. State, 428 S.W.3d 86, 96 (Tex.Crim.App.2014) (gravamen of Tex. Penal Code § 22.021(a)(1)(A)(i) (Aggravated Sexual Assault) is penetration; jury was not required to reach unanimity with respect to the means of penetration alleged-penis or his finger-during that transaction); Ngo v. State, 175 S.W.3d 738, 746 & n. 27 (Tex.Crim.App.2005) (unanimity means every juror agrees that the defendant committed the same, single, specific criminal act; jurors are not required to agree upon a single means of commission; “the State could charge Prince Yussupov with the murder of Rasputin, alleging five different manners and means—by poisoning, garroting, shooting, stabbing, or drowning Rasputin. The jury could return a general verdict if it found that Prince Yussupov intentionally caused the death of Rasputin by any of those means; the unanimity requirement goes to the act of ‘causing the death of Rasputin,’ while the jury need not be unanimous on the preliminary fact issues—whether it was by poisoning, garroting, etc.”).


B. Acts That Are Subsumed or Merged into the Ultimate Act May Not Be Punished Separately.

A double-jeopardy violation occurs if one is convicted or punished for two offenses that are the same both in law and in fact. Penetration without exposure is next to impossible. Penetration without contact is impossible. A single sexual act of penile penetration almost always consists of exposing the penis en route to contacting the vagina (or anus or mouth) with the penis, en route to penetration of the same with the penis. That one continuing act, the result of a single impulse, may violate three separate Penal Code provisions, but in Patterson, we held that the Legislature intended only one conviction for that one completed sexual assault. This means that multiple convictions for one complete, ultimate sexual assault violate the Double Jeopardy Clause. Patterson was not decided on double-jeopardy grounds, but in Garfias v. State, we concluded that the result in Patterson would be the same under a constitutional analysis, stating

Patterson, 152 S.W.3d at 91–92.


See
id. at 92–94 (Hervey, J., concurring) (double jeopardy barred multiple convictions for penile exposure as incident to penile penetration for one completed aggravated sexual assault).


424 S.W.3d 54 (Tex.Crim.App.2014).


even if we had decided the constitutional issue, it is clear that the elements of the offenses as charged against the defendant were the same under the Blockburger test. Under the cognate-pleadings approach, when the facts necessary to prove one offense are included within the proof necessary to establish another, the offenses are considered the “same” for double-jeopardy purposes, and multiple punishments are barred unless the Legislature has clearly and specifically authorized them. In Patterson, the defendant's exposure—proof necessary for the indecency conviction—was included within the proof necessary to establish the aggravated sexual assault by penetration. The Pattersonrule is akin to “the merger rule” in other jurisdictions. Some jurisdictions require merger by statute and provide broader protection than the Double Jeopardy Clause. Whatever the source or scope of the rule, it has one root purpose: to prevent Double Jeopardy Clause violations. The merger rule prevents “cumulative punishment of a defendant for the same criminal act where his conduct can be construed to constitute two statutory offenses, when, in substance and effect, only one offense has been committed.”

Id. at 63 (citations omitted).


State v. Chesnokov,
175 Wash.App. 345, 305 P.3d 1103, 1108 (2013) (merger doctrine's purpose is to correct violations of the prohibition of double jeopardy); Commonwealth v. Weatherill, 24 A.3d 435, 437 n. 1 (Pa.Super.Ct.2011) (“A merger question implicates double jeopardy and relates to the legality of a sentence.”); State v. Ross, 174 P.3d 628, 635 (Utah 2007) (“Although merger is codified in statute, it has a constitutional pedigree as it provides a means to prevent violations of constitutional double jeopardy protection.”); State v. Diaz, 144 N.J. 628, 677 A.2d 1120, 1124 (1996) (“The purpose of merger is to avoid double punishment for a single wrongdoing.”); People v. Henderson, 810 P.2d 1058, 1060 (Colo.1991) (analysis of whether convictions should be merged must be based on double-jeopardy principles).


See
State v. Roberts, 62 Ohio St.2d 170, 405 N.E.2d 247, 250 (1980) (discussing statute codifying judicial doctrine of merger).


The merger rule can be stated another way: Where two crimes are such that the one cannot be committed without necessarily committing the other, then they stand in the relationship of greater and lesser offenses, and the defendant cannot be convicted or punished for both. For example, in Georgia, a child molestation based on touching the child's vagina with a hand merged into aggravated sexual battery based on penetrating her vagina with a finger. And in Alaska, second-degree sexual contact that is merely preparatory to, or coincident with, penetration merges with the first degree penetration offense. Conversely, in Massachusetts, an indecent contact that was “separate from and not incidental to the act of penetration did not merge with the crime of rape to constitute but a single offense [.]”

Ex parte Pruitt, 233 S.W.3d 338, 348 (Tex.Crim.App.2007) ( “acts of genital-to-genital contact, which were incidental or ‘subsumed’ within the alleged incidents of penetration for which appellant was acquitted in the prior trial, are lesser-included offenses of these incidents of penetration” and “will be jeopardy barred.”); see also State v. Ross, 174 P.3d 628, 641 (Utah 2007) (an underlying felony that constitutes the aggravating circumstance merges with the conviction for aggravated murder; “To allow the attempted murder charge to be used as the sole means of aggravation and as its own separate offense permits double counting of the offense in violation of double jeopardy and the merger doctrine.”).


Castaneda v. State,
315 Ga.App. 723, 727 S.E.2d 543, 544–45 (2012).


Johnson v. State,
762 P.2d 493, 495 (Alaska Ct.App.1988).


Commonwealth v. Fitzpatrick,
14 Mass.App.Ct. 1001, 441 N.E.2d 559, 561 (1982); see also Faulkner v. State, 109 So.3d 142, 147–48 (Miss.Ct.App.2013) (convictions for fondling and sexual battery concerned separate events such that offenses did not merge under double-jeopardy principles; noting, on the one hand, that when penetration is achieved by touching, then fondling or molestation is a lesser-included offense of sexual battery, but if evidence supports separate and distinct acts of fondling and sexual battery, separate charges do not implicate double jeopardy, even when the criminal acts are closely connected or based on a common nucleus of fact).


In short, in Texas, as in many other jurisdictions, a defendant may not be convicted for a completed sexual assault by penetration and also for conduct (such as exposure or contact) that is demonstrably and inextricably part of that single sexual assault. With these guiding principles in mind, we turn to the double-jeopardy issue in this case.

III.

The offenses in Counts 2 and 3 are the “same” under the law. Applying our cognate-pleadings version of the second Blockburger test, the facts necessary to prove the indicted Section 22.011(a)(1)(C) offense (contact of Jessica Parnell's sexual organ by defendant's mouth) are included within the proof necessary to establish the indicted Section 22.011(a)(1)(A) offense (penetration of Jessica Parnell's sexual organ by defendant's mouth). Since the offenses are considered the “same” for double-jeopardy purposes, multiple punishments are barred unless the Legislature has clearly and specifically authorized them. As discussed above, this Court has already determined—by looking at the Ervin factors across a multitude of cases—that the Legislature has not manifested an intent to authorize “stop-action” prosecutions (and therefore multiple punishments) for a single complete act of sexual assault.

Of course, Count One set out a distinct and different act of sexual assault-penetration of Jessica's female sexual organ with the defendant's finger. Suppose that the State had also alleged contact of Jessica's sexual organ with the defendant's finger. Two convictions for first contacting on the way to penetrating her sexual organ with his finger as part of a single sexual assault would merge and be double-jeopardy barred. See Patterson, 152 S.W.3d at 92 (exposure and contact “subsumed” by penetration; multiple convictions not permitted). It is all one continuous act with a single criminal impulse. But penetrating with his finger may be a separate criminal act (and separate sexual assault) from penetrating with his mouth or penis or some other object.


The offenses are also the “same” under the first Blockburger test. As the court of appeals stated, “The State presented no evidence the contact and penetration of appellant's tongue constituted separate and distinct acts. Rather, Parnell's testimony supports appellant's contention the sexual assault consisted of a single incident that occurred within the span of minutes.”

Aekins, 2013 WL 5948188, at *4.


The SPA asks how to determine whether an instance of conduct is a single act or multiple acts. This is an issue other courts have grappled with. In Nevada, the court asks, has there been “a hypertechnical division of what was essentially a single act”? The District of Columbia Court of Appeals has stated,

Townsend v. State, 103 Nev. 113, 734 P.2d 705, 710 (1987) ( “[T]wo sexual assaults did not occur. Townsend simply began lubricating the victim's vaginal area, took his hand away, put more lubricating substance on his finger and then penetrated the child's vagina. Such a hypertechnical division of what was essentially a single act is not sustainable.”). See also State v. Diaz, 144 N.J. 628, 677 A.2d 1120, 1124 (1996) (analyzing the evidence in terms of (1) time and place of each purported offense; (2) whether the proof as to one count would be a necessary ingredient to prove another count; (3) whether one act was an integral part of a larger scheme or episode; (4) the intent of the accused; (5) and the punishment for the offenses).


As with other Fifth Amendment double jeopardy claims, to determine whether the defendant's conduct was a single act or distinct acts we employ the “fresh impulse” or “fork-in-the-road” test. If at the scene of the crime the defendant can be said to have realized that he has come to a fork in the road, and nevertheless decides to invade a different interest, then his successive intentions make him subject to cumulative punishment[.]

Hagood v. United States, 93 A.3d 210, 226 (D.C.2014) (some internal quotation marks and citations omitted). This test is rooted in Blockburger itself . See Blockburger v. United States, 284 U.S. 299, 301, 303, 52 S.Ct. 180, 76 L.Ed. 306 (1932) (setting out the “fresh impulse” test); Ebeling v. Morgan, 237 U.S. 625, 35 S.Ct. 710, 59 L.Ed. 1151 (1915).


We have used the “fresh impulse” test in the context of drug offenses. In Lopez v. State, we held that an offer to sell drugs and the possession of the drugs to complete that specific sale is one single offense because the steps in this single drug transaction were all “the result of the original impulse,” and therefore each step was not a “new bargain.”

108 S.W.3d 293 (Tex.Crim.App.2003).


Id.
at 300–01.


These tests are simply common-sense propositions that reject “a sterile literalism which loses sight of the [constitutional] forest for the [statutory] trees.” A complete, ultimate sexual assault is one act, though it may involve other discrete lesser acts (none is a new “fork in the road” or a “fresh impulse”) along the way towards its completion. A rape is one act from beginning to end; an incident of oral sex is one act from beginning to end.

See Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 572 (Tex.2014) (Willett, J., concurring) ( “Judges must navigate a narrow course ‘between a sterile literalism which loses sight of the forest for the trees, and a proper scruple against imputing meanings for which the words give no warrant.’ For that reason, ‘[l]anguage cannot be interpreted apart from context.’ Meaning is bound to and bound by context.”) (citations omitted).


If the victim says Dangerous Dan raped her, then forced oral sex, then raped her again, then forced oral sex again—there are four criminal convictions possible. All four of those complete, ultimate acts may have also contained lesser discrete criminal acts along the way toward completion (multiple contacts and multiple discrete acts of penetration per rape), but those merge with the completed, ultimate sexual assault. On the other hand, an act of masturbation is an exposure complete in itself and a “fresh impulse” from an exposure incident to a contact or penetration. An indecent contact that is not simply preparatory to an act of penetration is itself a complete, ultimate act-the result of a fresh impulse. Likewise, separate acts of penetration with different instruments (say, with a sex toy and with a penis ) constitute two distinct ultimate acts. This is why appellant may be punished for the two penetration counts in this case (penetration by finger and penetration by mouth), even though they are proscribed by the same subsection of sexual assault— Texas Penal Code § 22.011(a)(1)(A)—without offending the Double Jeopardy Clause.

See Patterson, 152 S.W.3d at 92 (two distinct, completed incidents of penile penetration separated by a bathroom break gave rise to two separate punishments).


Loving v. State,
401 S.W.3d 642, 646–49 (Tex.Crim.App.2013) (masturbation exposure was separate act and separate offense from exposure by having child touch defendant's penis; dual convictions did not violate Double Jeopardy Clause).


But if there were only one distinct act of sexual assault by penetration, the jury need not be unanimous on whether that act was committed with a sex toy or a penis. Jourdan v. State, 428 S.W.3d 86, 96 (Tex.Crim.App.2014) (noting that “the gravamen of the [Penal Code] subsection is penetration, not the various unspecified ‘means' by which that penetration may be perpetrated”).


We agree with the court of appeals that the jury in this case could not have found two separate acts of the defendant's mouth contacting and penetrating Jessica's sexual organ. Two convictions, based on a hypertechnical division of what was essentially a single continuous act, are barred under the Double Jeopardy Clause. We affirm the judgment of the court of appeals. Keller, P.J., filed a concurring opinion in which Price, Keasler and Hervey, JJ., joined.
Keasler, J., filed a concurring opinion in which Keller, P.J., and Hervey, J., joined.

CONCURRING OPINION

Keller, P.J., filed a concurring opinion in which Price, Keasler and Hervey, JJ., joined.


We need not and should not create a new “merger” doctrine to dispose of the double-jeopardy question before us; rather, the question can be answered through a traditional multiple-punishments double-jeopardy analysis. Moreover, the Court's opinion appears to rely on concepts from Grady v. Corbin that have since been disavowed by the Supreme Court.

A. Double–Jeopardy Principles

For offenses to be the “same” for double-jeopardy purposes, they must be the same both in “law” and in “fact.” These two aspects in which offenses can be the same has resulted in two different double-jeopardy analyses—one revolving around the elements of the respective offenses and the other inquiring into the allowable unit of prosecution. Both analyses derive in part from Blockburger v. United States, though the case is more commonly associated with its “elements” discussion. To prevail on a double-jeopardy claim, a defendant must prevail under both analyses; that is, the offenses must be considered the “same” under both the elements inquiry and the units inquiry.

Ex parte Hawkins, 6 S.W.3d 554, 557 n.8 (Tex.Crim.App.1999) (quoting Akhil Reed Amar, Double Jeopardy Law Made Simple, Yale L.J. 1807, 1817–18 (1997) (“[A]n offense must not only be the same in law—it must also be the same in fact.”)).

Garfias v. State, 424 S.W.3d 54, 58 (Tex.Crim.App.2014).

Compare Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) (“where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not”) with id. at 301–02, 52 S.Ct. 180 (finding no double-jeopardy violation from two narcotics sales that “although made to the same person, were distinct and separate sales made at different times”).

Hawkins, 6 S.W.3d 554, 557 n. 8. See also Ex parte Denton, 399 S.W.3d 540, 548 (Tex.Crim.App.2013) (Keller, P.J., concurring).

A threshold question for conducting an elements analysis is whether more than one statutory provision is at issue. If only a single statutory provision is at issue, then the elements analysis ends in the defendant's favor, and we move on to a units analysis. With respect to Penal Code offenses, a section is generally considered to be a single statutory provision for this purpose.

Blockburger, 284 U.S. at 304, 52 S.Ct. 180 (predicating the same-elements test on the existence “of two distinct statutory provisions”); Garfias, 424 S.W.3d at 58 (“an ‘elements' analysis is appropriate when the offenses in question come from different statutory sections”).

See Garfias, 424 S.W.3d at 58 (“a ‘units' analysis is employed when the offenses are alternative means of committing the same offense”); Loving v. State, 401 S.W.3d 642, 645–46 (Tex.Crim.App.2013) (“Both parties' arguments are predicated on the assumption that the proper analysis includes the application of the Blockburger test and the cognate-pleadings approach. However, we employ that analysis only when the charged conduct involves multiple offenses in different statutory provisions that are the result of a single course of conduct.... In this case, the proper analysis is to determine whether the Legislature intended for the separate statutory subsections in a single statute to constitute distinct offenses. In other words, we must determine the allowable unit of prosecution”); Vick v. State, 991 S.W.2d 830, 832 (Tex.Crim.App.1999) (“Whether appellee may be subjected to multiple prosecutions under Texas Penal Code § 22.021 requires a statutory analysis to determine whether the Legislature intended multiple prosecutions. This is unlike a situation involving different statutes, which, by itself, is some indication of legislative intent to authorize multiple prosecutions simply because the offenses are separately defined in different statutes.”). See also Cooper v. State, 430 S.W.3d 426, 428 (Tex.Crim.App.2014) (Keller, P.J., concurring).

Loving, 401 S.W.3d at 646–47 (conducting a “units” inquiry where “two subsections of a single statute are at issue”). See also Garfias, 424 S.W.3d at 58 (conducting an “elements” analysis because the offenses at issue were proscribed by “different statutory sections”); Davis v. State, 313 S.W.3d 317, 342 (Tex.Crim.App.2010) (explaining that “the Blockburger ‘same elements' test is not the sole test to be used” in the jury-unanimity or double-jeopardy contexts” and observing that different legal theories of capital murder that involve the same victim “are simply alternate methods of committing the same offense”); Cooper, 430 S.W.3d at 428 (Keller, P.J., concurring) (unit of prosecution inquiry applied at the outset because only one statutory section (codifying robbery) was at issue, though different subsections were involved).

If we determine that more than one statutory provision is at issue, then the elements inquiry requires that we compare the elements of the offenses under the Blockburger same-elements test, using the cognate pleadings approach. Under the same-elements test, we ask whether each offense “requires proof of a fact which the other does not.” The outcome of the same-elements test creates a presumption with respect to the legislature's intent to impose multiple punishments, but that presumption may be rebutted by other factors.

Garfias, 424 S.W.3d at 58–59.

Blockburger, 284 U.S. at 304, 52 S.Ct. 180; Ex parte Amador, 326 S.W.3d 202, 206 n. 5 (Tex.Crim.App.2010) (“we compare the statutory elements of the greater offense, as they have been alleged in the charging instrument of that offense, with only the statutory elements of the lesser-included offense”).

Missouri v. Hunter, 459 U.S. 359, 366–67, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983) (where offenses are the same under the Blockburger same-elements test, Court infers that multiple punishments were not intended unless there is a “clear indication of contrary legislative intent”); Garfias, 424 S.W.3d at 59, citing Ex parte Ervin, 991 S.W.2d 804, 807 (Tex.Crim.App.1999) (“The Blockburger test cannot allow two punishments for a single course of conduct when the Legislature intended to authorize only one.”); Littrell v. State, 271 S.W.3d 273, 276 (Tex.Crim.App.2008) (“[I]t should be presumed that the Legislature did not regard two statutorily defined offenses to be the same if ‘each provision requires proof of a fact which the other does not.’ However, for purposes of multiple-punishments analysis, the Blockburger test is only a tool of statutory construction-and not even an exclusive one. An accused may be punished for two offenses that would be regarded as the same under a Blockburger analysis if the Legislature has otherwise made manifest its intention that he should be.”).

If a single statutory provision is at issue, or if two offenses proscribed by separate statutory provisions are deemed to be the same under the “elements” analysis, then we must conduct a units analysis to determine whether the offenses at issue involve the same allowable unit of prosecution. A units analysis has two parts: (1) what the allowable unit of prosecution is, and (2) how many units have been shown. The first inquiry is purely a matter of statutory construction and generally requires ascertaining the focus or gravamen of the offense. The second inquiry requires that we look at the trial record, which can include the evidence introduced at trial.

Sanabria v. United States, 437 U.S. 54, 69–70 & n.24, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978); Loving, 401 S.W.3d at 645–46. See also Cooper, 430 S.W.3d at 428 (Keller, P.J., concurring); Denton, 399 S.W.3d at 550 (Keller, P.J., concurring) (“A units inquiry might more commonly arise when a single statute is involved and a court is trying to discern how to divide conduct (e.g., a sexual assault with multiple manners and means) into units.... Nevertheless, if offenses under different statutes are the ‘same’ elementally, then a units analysis could be appropriate if, for example, the pleadings or the evidence indicates that there are different victims.”).

See e.g. Vick, 991 S.W.2d at 832–34 (penetration of anus and sexual organ are different units in aggravated sexual assault); Hawkins, 6 S.W.3d at 556 (different victims are different units in a robbery); Ex parte Cavazos, 203 S.W.3d 333, 335–37 (Tex.Crim.App.2006)(entry is the unit in a burglary).

See authorities cited in previous footnote. See also Blockburger, 284 U.S. at 303, 52 S.Ct. 180 (Second drug sale was a separate offense because it “was not the result of the original impulse, but of a fresh one.”); Ex parte Goodbread, 967 S.W.2d 859, 860–61 (Tex.Crim.App.1998) (can have multiple prosecutions for different incidents of the same type of sexual assault).

Jones v. State, 323 S.W.3d 885, 888 (Tex.Crim.App.2010).

See Hawkins, 6 S.W.3d at 557 n. 8.

Today, the Court's opinion appears to blur the distinction between an elements inquiry and a units inquiry by relying upon a non-constitutional merger doctrine that is sometimes employed as a matter of state law in some other jurisdictions. The Court seems to suggest that, when two offenses proscribe conduct that necessarily involves the same act, then the offenses are the same, regardless of other factors. This analysis is dangerously close to the “same-conduct” analysis in Grady v. Corbin that the Supreme Court rejected in United States v. Dixon. It ignores one of the main rationales for conducting an elements inquiry—that different statutes may be directed at different evils even if the same conduct is often involved. But even under a units inquiry (for offenses that are proscribed under the same statute or that are otherwise the same under an elements inquiry), whether the same conduct is necessarily involved is a consideration but is by no means determinative. A comprehensive analysis of relevant factors relating to the particular statute or statutes at issue is needed before one can conclude that a defendant has in fact engaged in only a single instance of conduct and that this single instance of conduct may be punished only once.

See United States v. Woodward, 469 U.S. 105, 108–09, 105 S.Ct. 611, 83 L.Ed.2d 518 (1985).

B. Application

Counts two and three of the indictment alleged that appellant sexually assaulted the victim in the following ways:

Count 2: causing the penetration of the victim's female sexual organ by appellant's mouth and/or tongue, and


Count 3: causing the victim's female sexual organ to contact appellant's mouth.
These counts both alleged violations of Texas Penal Code § 22.011, though they alleged violations of different subsections, as follows:

A person commits an offense if the person ... intentionally or knowingly:

(A) causes the penetration of the ... sexual organ of another person by any means, without that person's consent, ...


(C) causes the sexual organ of another person, without that person's consent to contact ... the mouth ... of another person, including the actor.

The initial question is whether the two counts violate one statutory provision or two. Because the counts both allege violations of a single Penal Code section— § 22.011 (the sexual assault statute)—they violate only one statutory provision for double-jeopardy purposes. Because the two counts violate only one statutory provision, the elements analysis ends.

Turning to a “units” analysis, we must first determine the allowable unit of prosecution that the legislature intended. In the present case, a statutory construction inquiry need not be conducted from scratch because there is a significant amount of caselaw regarding the unit of prosecution for the very similar aggravated-sexual-assault statute and for statutes involving other sexual offenses. Addressing the aggravated-sexual-assault statute in Vick, this Court concluded that “the Legislature intended that each separately described conduct constitutes a separate statutory offense.” We have later cited Vick and other sex-offense cases as formulating a general rule, with respect to sexual offenses, “that different types of conduct specified in the various statutes be treated as separate offenses.” And in Gonzales v. State, we concluded that different types of conduct proscribed within the same subsection were different offenses.

Huffman v. State, 267 S.W.3d 902, 906 & n. 20 (Tex.Crim.App.2008)

304 S.W.3d 838, 847–48 (Tex.Crim.App.2010) (“[W]e may appropriately infer that the Legislature intended to create separate offenses for double-jeopardy purposes by virtue of the fact that it chose to proscribe separate acts in separate phrases, even within the same subsection, so long as those phrases are disjunctive and embrace discretely prohibited acts.”).

Here, we have the inverse of what happened in Gonzales: conduct that is not distinct being proscribed by different subsections. Although the subsections at issue will not always proscribe the same conduct, they will sometimes do so because the act of “penetration” necessarily includes the act of “contact.” In Jourdan v. State, we addressed the jury-unanimity consequences of separately alleging counts involving penile contact and penile penetration that were based on different subsections of the aggravated-sexual-assault statute. Although we recognized that an argument could be made that the contact and penetration offenses were separate due to the separate descriptions of the prohibited conduct in separate subsections of the statute, we concluded that no jury-unanimity violation had occurred because the jury must at least have been unanimous in finding penile contact.

428 S.W.3d 86 at 96–97 (Tex.Crim.App.2014).

Id.

Id. at 97.

Although Jourdan did not explicitly decide that the “contact” and “penetration” provisions of the statute involve the same unit of prosecution when the same conduct is involved, its holding that there was no jury-unanimity violation lends significant support for that proposition. Jourdan 's holding does not simply mean that there was no jury-unanimity violation on the peculiar facts of the case; rather, the holding necessarily means that alleging contact and penetration with regard to the same conduct will never produce a jury-unanimity violation because the jurors will always at least be unanimous as to contact. Because the double-jeopardy and jury-unanimity issues in play in Jourdan constitute closely intertwined strands of our jurisprudence, one would expect the jury-unanimity and double-jeopardy outcomes to be aligned. If the offenses in question could be submitted to the jury in the alternative without violating the right to jury unanimity then it would seem very likely that those offenses would also be the same for double-jeopardy purposes.

Johnson v. State, 364 S.W.3d 292, 296–97 (Tex.Crim.App.2012); Gonzales, 304 S.W.3d at 848; Gamboa v. State, 296 S.W.3d 574, 583–84 (Tex.Crim.App.2009); Huffman, 267 S.W.3d at 905.

See authorities in the immediately preceding footnote.

Moreover, Gonzales and other cases teach that it is the differing nature of the conduct proscribed, rather than the distribution of the prohibitions in different subsections, that is controlling in the sexual-assault context. Sexual assault is a nature-of-conduct offense. The sexual assault statute defines the prohibited conduct in ways that usually require different acts to commit, but when two subsections of the statute do not in fact proscribe different acts in a particular case, then they should be read as proscribing only a single offense.

See footnote 23 and accompanying text.

One obvious explanation for the fact that different provisions of the sexual-assault statute will occasionally proscribe the same conduct is that the statute was worded expansively to ensure comprehensive coverage of prohibited sexual conduct. By including various methods of committing sexual assault and defining these methods expansively, the statute guards against the possibility that blameworthy conduct will elude the reach of the statute's provisions. But at the same time, the expansive nature of the various statutory methods of commission means that in some cases, they will overlap.

In light of the above discussion, I would hold that contact and penetration that involves the same conduct is the same unit of prosecution in a sexual-assault case. And because the evidence shows only one instance of oral sex in this case, the contact and penetration counts involve the same conduct, and therefore, proscribe the same unit of prosecution.

Although the State frames the issue as involving whether Patterson v. State, 152 S.W.3d 88 (Tex.Crim.App.2004), remains valid law, we need not resolve that question as a general matter. We need only hold that contact and penetration, which are statutorily specified manners of committing sexual assault, involve the same unit of prosecution when the same conduct is involved. As far as the record shows, the same conduct was involved in this case. And by same conduct, I do not mean same transaction. It is entirely possible for an offender to engage in more than one act of prohibited conduct at the same time.

With these comments, I concur in the Court's judgment.

CONCURRING OPINION

Keasler, J., filed a concurring opinion, in which Keller, P.J., and Hervey, J., joined.


The Court's opinion is not without intuitive appeal—penetration is impossible without contact, and therefore they are the same act. And if the opinion were to end there, I would be inclined to join it. But the same intuitive appeal can be found in Presiding Judge Keller's concurring opinion that reaches the same conclusion by applying familiar jurisprudence without the “same, single impulse” abstraction. As described in the Court's opinion, it is just that, an abstract concept. The “impulse” concept of double jeopardy rolls in like thick fog, and courts and practitioners are sure to lose their way.

The Court claims that the impulse theory is United States Supreme Court law that we are not free to ignore or denigrate. We should also not misconstrue it. Blockburger v. United States does not support the Court's application of its impulse theory here. Blockburger 's mention of a defendant's impulse merely helped define whether an offense, not an act, was continuous in nature or consisted of separate offenses. The Court's opinion includes a single line of Blockburger 's quotation from Wharton's Criminal Law treatise in support of its position: “when the impulse is single, but one indictment lies, no matter how long the action may continue.” However, this line is followed by several others that undermine the Court's conclusion of this single sentence's meaning. Blockburger continued,

Ante, op. at 287.

Ante, op. at 287–88.

‘If successive impulses are separately given, even though all unite in swelling a common stream of action, separate indictments lie.’ Wharton's Criminal Law (11th Ed.) § 34. Or, as stated in note 3 to that section, ‘The test is whether the individual acts are prohibited, or the course of action which they constitute. If the former, then each act is punishable separately. * * * If the latter, there can be but one penalty.’ Therefore, even the first part of Blockburger—the “first test” as the Court refers to it—is inevitably a question of legislative intent. Blockburger did not address whether individual actions are considered “part and parcel” of a single completed offense without examining the statute prohibiting the conduct. The Court ascribes special meaning to the term “impulse” beyond the Blockburger Court's intent when it delivered its opinion in 1932. And it surely does not reflect the Supreme Court's current view after its rejection of the “same conduct” approach.

Blockburger, 284 U.S. at 302, 52 S.Ct. 180.

United States v. Dixon, 509 U.S. 688, 704, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (overruling the same-conduct test in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990)).

Although our current double-jeopardy law can be exceedingly complex at times, our recent decisions have clarified the subtle distinction between “elements” and “units” analyses. But the Court's opinion seems to disregard these distinctions entirely. The Court's opinion provides no guidance on how the impulse theory will work. It does not even provide a rudimentary foundation. It is silent on a basic definition of a single impulse or how it is discovered. The larger issue of how the Court's impulse approach should be applied poses even greater uncertainty.

The recklessness of this theory is that it is seemingly boundless in its application. Without elaboration, it would institute a rule governing multiple-punishment cases when the offenses occur as a result of a single impulse. But is this rule to take the place of a units analysis? Or does it spread to all double-jeopardy contexts where previous analyses once controlled? Have the standards of statutory construction been replaced entirely by a court's consideration of a defendant's single impulse?

Interestingly enough, the Court's approach contains many of the unsavory characteristics of the “carving doctrine” that this Court abandoned over thirty years ago. In Ex parte McWilliams, we addressed the carving doctrine, which precluded prosecutors from charging a defendant with multiple offenses arising from the same criminal act or transaction. The carving doctrine, under its “continuous assaultive transaction” test, barred multiple convictions stemming from an unbroken “chain of antecedent violence perpetrated upon the complaining witness” when the events were closely related in proximity of time and place. Despite this Court's adherence to the carving doctrine for over a century, we held that it was unsound because its application had been erratic and “constitutions and statutes make no provision for such a doctrine.”

Ex parte McWilliams, 634 S.W.2d 815, 817 (Tex.Crim.App.1980); see also 41 Dix and Schmolesky, Texas Practice: Criminal Practice and Procedure § 19:9 at 494–96 (3rd ed.2011).

Rubino v. Lynaugh, 770 S.W.2d 802, 804 (Tex.Crim.App.1989) (citing Hawkins v. State, 535 S.W.2d 359, 362 (Tex.Crim.App.1976)); Ex parte Evans, 530 S.W.2d 589, 592 (Tex.Crim.App.1975)); Cf. Herera v. State, 35 Tex.Crim. 607, 34 S.W. 943, 943–44 (1896) (discussing “same evidence” test, an alternative carving-doctrine theory, which was similar to today's Blockburger cognate-pleadings “elements” approach).

41 Dix and Schmolesky, § 19:9 at 494.

McWilliams, 634 S.W.2d at 824 (op. on reh'g).

In McWilliams, the defendant was convicted of aggravated robbery, aggravated rape, and aggravated kidnapping, and complained that these multiple convictions violated the carving doctrine. In our original opinion, this Court held that these convictions arose from the same “continuous assaultive transaction” and vacated two of the three convictions. But then, on motion for rehearing, we decided to abandon the doctrine. We initially noted that the carving doctrine was not mandated by the Double Jeopardy Clauses of either the United States or Texas Constitutions. Essentially, we found it to be based upon notions of “fairness,” in that a prosecutor should only be allowed to take his “best shot” and obtain one conviction per assaultive criminal transaction.

Id. at 817.

Id. at 818.

Id. at 822.

Id. at 822–23.

But notions of “fairness” alone were not enough to overcome the inherent unworkability of the rule. First, what exactly constitutes a “transaction” of conduct? We reviewed cases applying the carving doctrine and found them to be in conflict. Sometimes courts would define a “transaction” in one way, sometimes another, and they appeared to vacillate depending on the facts of the case in question. And second, we found the carving doctrine unnecessary because the Supreme Court had already provided simpler, more workable tests to determine whether double-jeopardy principles had been violated. These tests did not require judges to analyze the facts of the case to come to an arbitrary decision, but instead looked to legislative intent:

Id. at 824 (comparing Lee v. State, 505 S.W.2d 816 (Tex.Crim.App.1974), Ex parte Calderon, 508 S.W.2d 360 (Tex.Crim.App.1974), Orosco v. State, 590 S.W.2d 121 (Tex.Crim.App.1979), and Ex parte Joseph, 558 S.W.2d 891 (Tex.Crim.App.1977)).

McWilliams, 634 S.W.2d at 824 (op. on reh'g).

This deference which the Supreme Court has shown to the United States Congress should also be shown by this Court to the Texas Legislature. Not only has the legislature clearly defined and separated criminal offenses; it has also made known, directly and indirectly, its intent insofar as multiple prosecutions are concerned.

Id. at 823.

The same problems that rendered the carving doctrine unworkable inhere in the Court's incorporation of a “same impulse” rule. First, “impulse”—like “transaction”—remains undefined. What exactly constitutes a single impulse? What kind of proximity in time and space must the offenses have in order to be considered part of the same single impulse? Does this test encompass assaultive offenses only, or will it be expanded to cover other crimes? Second, deciding double-jeopardy issues on whether a defendant committed multiple offenses under a single impulse is likely to produce disparate conclusions in factually similar cases. Lastly, it drives the crux of a double-jeopardy analysis away from legislative intent and towards judicial interpretation of the facts of the case—a result the United States Supreme Court overruled in United States v. Dixon.

Dixon, 509 U.S. at 704, 113 S.Ct. 2849 (overruling the same-conduct test in Grady, 495 U.S. at 508, 110 S.Ct. 2084).

The Court today injects more complication into an area of criminal law already burdened by complexity. The Court introduces its “same impulse” concept into double jeopardy law without one word on how it is supposed to work. Whether a defendant operates with a singular impulse is left to the trial courts and the parties to figure out. This Court should endeavor to make the journey through double-jeopardy jurisprudence more navigable, not less. The uncertainty that the Court's opinion provides and the havoc it will wreak prevent me from joining the Court's opinion.