Alan Charles Brown v. the State of Texas ( 2021 )

IN THE
TENTH COURT OF APPEALS
No. 10-19-00254-CR
ALAN CHARLES BROWN,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 77th District Court
Limestone County, Texas
Trial Court No. 14499-A
OPINION
Appellant Alan Charles Brown was charged in a two-count indictment with
felony assault of a family/household member by occlusion and aggravated assault
causing bodily injury with a deadly weapon. Brown was found guilty by a jury of the
occlusion assault charge and of the lesser-included offense of assault causing bodily
injury. The jury found that Brown used a deadly weapon during the commission of the
occlusion assault charge. Brown entered pleas of true to enhancement allegations
regarding two prior felony convictions. The trial court imposed a sentence of thirty-five
years’ confinement in the Texas Department of Criminal Justice—Correctional
Institutions Division on the occlusion assault conviction and a sentence of twelve
months confinement in the Limestone County Jail on the lesser-included bodily-injury
assault charge, with both sentences to run concurrently. In one issue, Brown asserts
that his convictions on both charges violate his right to be free from double jeopardy.
We will affirm.
Background
The facts as relevant to this appeal reflect that Brown physically attacked his
girlfriend while they were staying at a hotel in Mexia, Texas. The girlfriend testified
that Brown punched her in the face, strangled her, threw her into a nightstand, kicked
her in the stomach, pulled her hair, slammed her to the floor, burned her purposely
with a cigarette, and caused her head to contact an elevator wall. The girlfriend
testified that Brown choked her three separate times. The attacks were not continuous
but stopped and started multiple times over the course of several hours.
Discussion
A. Procedural Default. Brown did not raise the issue of double jeopardy at trial.
Because of the fundamental nature of the double jeopardy protections, a double
jeopardy claim may be raised for the first time on appeal if two conditions are met: (1)
the undisputed facts show that the double jeopardy violation is clearly apparent on the
face of the record; and (2) enforcement of the usual rules of procedural default serves no
legitimate state interest. See Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000).
A claim is apparent on the face of the record if its resolution does not require additional
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proceedings for the purpose of introducing more evidence in support of it. Ex parte
Denton, 399 S.W.3d 540, 544 (Tex. Crim. App. 2013). We will assume without deciding
that resolution of Brown’s double jeopardy claim does not require additional
proceedings, and enforcement of the usual rules of procedural default serves no
legitimate state interest.
B. Double Jeopardy. The Double Jeopardy Clause of the 5th Amendment
incorporates three protections: (1) protection against a second prosecution for the same
offense following an acquittal; (2) protection against a second prosecution for the same
offense following a conviction; and (3) protection against multiple punishments for the
same offense. U.S. Const. Amend. V; Kuykendall v. State, 611 S.W.3d 625, 627 (Tex. Crim.
App. 2020). Brown argues that the third protection is applicable to his convictions.
The protection against double jeopardy is inapplicable where separate and
distinct offenses occur during the same transaction. Steels v. State, 170 S.W.3d 765, 769
(Tex. App.—Waco 2005, no pet.). Two offenses may be the same if one offense stands in
relation to the other as a lesser-included offense, or if the legislature has made it clear
that only one punishment is intended. Littrell v. State, 271 S.W.3d 273, 275–76 (Tex.
Crim. App. 2008); Bigon v. State, 252 S.W.3d 360, 370 (Tex. Crim. App. 2008). The Court
of Criminal Appeals has recently held, in a case involving the propriety of a lesser-
included offense instruction, that bodily-injury assault is not a lesser-included offense
of occlusion assault when the disputed element is the injury. See Ortiz v. State, 623
S.W.3d 804, 805 (Tex. Crim. App. 2021).
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As the Ortiz Court did not analyze the offenses in a double-jeopardy context, we
will address whether the separate punishments Brown received for bodily-injury
assault and occlusion assault are barred by double jeopardy. There is no dispute that
bodily-injury assault and occlusion assault have different elements and that these
elements were proven by the State at Brown’s trial. See Bigon, 252 S.W.3d at 370;
Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932).
Occlusion assault requires that the State prove that a defendant impede the normal
breathing or blood circulation of the complainant and that the defendant and
complainant are or have been involved in a dating relationship, while these elements
are not required for prosecution of bodily-injury assault. The issue, therefore, is
whether under a “unit analysis,” bodily-injury assault and occlusion assault are the
same for double jeopardy purposes.
The Legislature defines whether offenses are the same “by prescribing the
‘allowable unit of prosecution,’ which is a distinguishable discrete act that is a separate
violation of the statute.” See Ex parte Hawkins, 6 S.W.3d 554, 556 (Tex. Crim. App. 1999);
Figueredo v. State, 572 S.W.3d 738, 742 (Tex. App.—Amarillo 2019, no pet.).
This “unit analysis” is employed whenever the offenses in question are
alternative means of committing the same statutory offense. Accordingly,
an allowable unit of prosecution is an offense defined by a distinguishable
discrete act that is a separate violation of the penal statute in question.
Even when the offenses in question are defined by the same penal section,
the protection against double jeopardy is not violated if the offenses are
distinguished from one another by discrete acts constituting separate
violations, i.e., if the offenses constitute separate units of prosecution.
Brown v. State Page 4
Figueredo, 572 S.W.3d at 742; see also Shelby v. State, 448 S.W.3d 431, 435–36 (Tex. Crim.
App. 2014) (“[A] ‘units’ analysis is employed when the offenses are alternative means of
committing the same statutory offense.”). “A units analysis considers what the
allowable unit of prosecution is, based on the statute’s construction and ascertaining the
gravamen of the offense, and how many units have been shown by examining the
evidence presented at trial.” Stevenson v. State, 499 S.W.3d 842, 850 (Tex. Crim. App.
2016).
Absent explicit legislative direction, the best indicator of legislative intent
regarding the unit of prosecution is the gravamen, or focus, of the offense. Harris v.
State, 359 S.W.3d 625, 630 (Tex. Crim. App. 2011). “The gravamen of the offense can be
the result of conduct, the nature of conduct, or the circumstances surrounding the
conduct.” Stevenson, 499 S.W.3d 850.
If the offense is a result-of-conduct crime, the focus is on the result, not the
different types of conduct, and the result is the basis for prosecution. A
nature-of-conduct crime’s focus is the conduct and the different types of
conduct are considered separate offenses. In a circumstances-
surrounding-the-conduct crime, different types of conduct may establish
alternate methods of proving a single crime, as opposed to separate
crimes, as long as the circumstances surrounding that conduct are the
same. In these types of cases, the focus is on the “particular circumstances
that exist rather than the discrete, and perhaps different, acts that the
defendant might commit under those circumstances.”
Id., at 850-51 (citations omitted). “An offense may have more than one focus, and if so,
one may predominate or both may be equally important.” Ortiz, 623 S.W.3d at 806.
Both occlusion assault and bodily-injury assault are result-oriented offenses. See
Ortiz, 623 S.W.3d at 808 (“[I]mpeding is the result specified by the statute”); Garfias v.
Brown v. State Page 5
State, 424 S.W.3d 54, 60 (Tex. Crim. App. 2014) (“[A]n assaultive offense causing bodily
injury is a result-oriented offense.”). “If the focus of the offense is the result—that is, the
offense is a ‘result-of-conduct’ crime—then different types of results are considered to
be separate offenses. . . .” Gonzales v. State, 304 S.W.3d 838, 848 (Tex. Crim. App. 2010)
(quoting Huffman v. State, 267 S.W.3d 902, 907 (Tex. Crim. App. 2008)). Thus, a
defendant may be held criminally responsible for two or more result-of-conduct
offenses, even if they occur during the same transaction, so long as each offense causes
a different type of result. See Villanueva v. State, 227 S.W.3d 744, 749 (Tex. Crim. App.
2007) (explaining that a defendant could be held criminally responsible, without
violating double jeopardy, for “a separate and discrete, or at least incrementally greater,
injury” resulting from a separate or additional act beyond the initial act).
“[I]mpeding is the focus of occlusion assault and defines its allowable unit of
prosecution” and “excludes other injuries.” Ortiz, 623 S.W.3d at 808, 807. Bodily-injury
assault, however, does not have a statutorily specified injury—any injury inflicted can
satisfy the statute as long as it results in “physical pain, illness, or any impairment of
physical condition.” TEX. PENAL CODE ANN. §§ 1.07; 22.02(a)(1). Accordingly, the
Double Jeopardy clause is not implicated because Brown was convicted of two separate
and distinct offenses even if Brown’s physical attack of the complainant is construed as
a continuous course of conduct. See Ex parte Milner, 394 S.W.3d 502, 506 (Tex. Crim.
App. 2013) (“The protection against double jeopardy does not apply to separate and
distinct offenses that occur during the same transaction.”).
Brown v. State Page 6
The indictment and the evidence at trial established that Brown’s actions in
occluding the complainant’s breathing or blood circulation were separate from other
assaultive acts he committed against her, including punching her in the face, slamming
her to the ground and into a nightstand, burning her with a cigarette, and shoving her
head into an elevator wall. Though the offenses may have occurred during the same
criminal episode, we hold that they are not the same offense for purposes of the Double
Jeopardy clause.
We overrule Brown’s single issue and affirm the judgments of the trial court.
MATT JOHNSON
Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed
Opinion delivered and filed November 10, 2021
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