Brian Erik Gunter v. the State of Texas ( 2023 )

NUMBER 13-22-00020-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
BRIAN ERIK GUNTER, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court
of Jackson County, Texas.
OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
Opinion by Justice Benavides
Appellant Brian Erik Gunter, who was driving while intoxicated and speeding,
caused an accident that resulted in the death of twelve-year-old LeMarquis Scott Lee.
Based on this single incident and the fatal injuries suffered by Lee, the trial court convicted
Gunter of five separate offenses: intoxication manslaughter (Count 1), aggravated assault
with a deadly weapon (Count 2), aggravated assault causing serious bodily injury (Count
3), recklessly causing serious bodily injury to a child (Count 4), and endangering a child
(Count 6). 1 See TEX. PENAL CODE ANN. §§ 22.02(a)(1), 22.02(a)(2), 22.04(a)(1),
22.041(c), 49.08.
By a single issue with multiple subparts, Gunter complains that his convictions for
aggravated assault and endangering a child violated his double-jeopardy protection
against multiple punishments for the same offense, and therefore, only his convictions for
intoxication manslaughter and serious bodily injury to a child should remain. According to
the State, the evidence demonstrates that Lee suffered “numerous serious and fatal
injuries,” and we should consider these as distinct injuries sufficient to support Gunter’s
separate convictions. We affirm Gunter’s convictions for intoxication manslaughter, injury
to a child, and endangering a child, and we vacate his convictions for aggravated assault.
I. BACKGROUND
Gunter waived his right to a jury, and the case was tried to the bench. Although
causation was hotly contested at trial, for purposes of this appeal, it is undisputed that
Gunter’s operation of a motor vehicle while intoxicated and in excess of the posted speed
limit caused the accident that resulted in Lee’s death.2
1 The crimes alleged in Counts 1–4 are second-degree felonies, and endangering a child is a state
jail felony. See TEX. PENAL CODE ANN. §§ 22.02(b), 22.04(e), 22.041(f), 49.08(b).Gunter was also indicted
on a charge of criminal negligence causing serious bodily injury to a child, a state jail felony (Count 5). This
count was abandoned by the State at the close of evidence.
2 Lee was sitting in the rear passenger seat of a vehicle driven by his grandmother. She made an
unprotected left turn from a two-lane street with a posted speed limit of 50 miles per hour. According to the
State’s accident reconstruction expert, seconds before the accident, Gunter was traveling in the opposite
lane of traffic at a speed of over 90 miles per hour. Gunter failed a field sobriety test and refused to submit
a breath specimen for analysis. A blood sample taken approximately one hour after the accident revealed
that Gunter’s blood alcohol concentration level was 0.129. The State argued at trial that the accident would
2
Dr. Lucas Wieck, the medical examiner that conducted Lee’s autopsy, testified that
Lee died from “blunt force trauma.” Lee was ejected from the vehicle and died before
paramedics arrived. Dr. Wieck noted that “[t]he effects of the blunt force trauma in this
case were extensive,” including “traumatic evacuation of both eyes,” “gaping laceration
of the face,” “skull fractures,” “lacerations of the dura matter,” “traumatic evacuation of the
brain and pituitary [gland],” “diaphragmatic hernia,” bruised lungs, “laceration of the liver,”
and “a near transection . . . of the aorta.”3 Dr. Wieck agreed that several of these injuries
alone were sufficient to cause Lee’s death.
During closing arguments, that State asked the trial court “for a conviction on any
one of Counts 1 through 4 [and] a conviction on Count 6 as well.” Instead, the trial court
found Gunter guilty on all five counts. The trial court also found two enhancement
paragraphs true, which raised the applicable punishment range of Counts 1–4 from
second-degree felonies to first-degree felonies and Count 6 from a state-jail felony to a
third-degree felony. See id. §§ 12.42(b), 12.35(c). As to Counts 1–4, the trial court
assessed Gunter’s punishment at sixty years’ confinement on each count. On Count 6,
the trial court assessed Gunter’s punishment at ten years’ confinement. The trial court
ordered all sentences to run concurrently.
Within thirty days of his conviction, Gunter filed a combined motion for new trial,
challenging the legal sufficiency of the evidence, and motion to vacate, based on multiple
double jeopardy violations. The motions were overruled by operation of law, and this
not have occurred if Gunter had not been intoxicated and speeding.
3 Lee’s grandmother walked away from the accident, apparently uninjured.
3
appeal ensued.
II. APPLICABLE LAW & STANDARD OF REVIEW
The Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution protects defendants from multiple punishments for the same offense. Sledge
v. State, Nos. PD-0065-22, 066-22, & 067-22, 2023 WL 2395833, at *5 (Tex. Crim App.
Mar. 8, 2023); see U.S. CONST. amend. V (providing that no person may be “subject for
the same offence to be twice put in jeopardy of life or limb”). This protection, however, is
subject to the Legislature’s “power to establish and define crimes.” Shelby v. State, 448
S.W.3d 431, 435 (Tex. Crim App. 2014) (quoting Garfias v. State, 424 S.W.3d 54, 58
(Tex. Crim. App. 2014)). In other words, the Legislature has the authority to allow multiple
punishments for the same conduct under different theories of criminal liability. Id.Accordingly, a double jeopardy analysis is an exercise in statutory construction, a
question of law that we review de novo. See id.; State v. Maldonado, 523 S.W.3d 769,
774 (Tex. App.—Corpus Christi–Edinburg 2017, no pet.).
There are two methods for ascertaining legislative intent depending on whether
the offenses fall under different statutory sections or a single statute. Shelby, 448 S.W.3d
at 435–36. This case involves both methods. Under the first method, used when the
offenses fall under different statutory sections, courts examine the “elements” of each
offense, beginning with the Blockburger test. Id. at 436; see Blockburger v. United States,
284 U.S. 299, 304 (1932) (“Cumulative punishment may be imposed where separate
offenses occur in the same transaction, as long as each conviction requires proof of an
additional element that the other does not.”). “In Texas, we follow the cognate-pleadings
4
approach to employing the Blockburger test.” Shelby, 448 S.W.3d at 436. Courts examine
the statutory elements in the abstract and compare the offenses as pleaded to determine
whether the pleadings have alleged the same necessary facts. Id.But that is not the end of our inquiry. Id. If the two offenses are not the same under
the Blockburger test because each offense “requires proof of a fact that the other does
not,” we then turn to a list of non-exclusive factors to determine the ultimate question—
“whether the Legislature intended to allow the same conduct to be punished under both
of the statutes in question.” Id. (discussing the factors set forth in Ex parte Ervin, 991
S.W.2d 804, 814 (Tex. Crim. App. 1999)).
These factors include: whether the offenses are organized in the same chapter of
the penal code; whether the offenses are phrased in the alternative; whether the offenses
are named similarly; whether the offenses have common punishment ranges; whether
the offenses have a common focus; whether the common focus tends to indicate a single
instance of conduct; 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 whether there is legislative history
containing an articulation of an intent to treat the offenses as the same or different for
double jeopardy purposes. Bigon v. State, 252 S.W.3d 360, 371 (Tex. Crim. App. 2008).
Of these factors, determining whether the offenses share a common focus or gravamen
is “regarded as the best indicator of legislative intent.” Shelby, 448 S.W.3d at 436.
Under the second method, used when the defendant is convicted twice under the
same statute, we employ a “units of prosecution” analysis. Nawaz v. State, 663 S.W.3d
5
739, 744 (Tex. Crim. App. 2022). This method varies depending on whether the defendant
was convicted multiple times under the identical statutory subsection, or as in the instant
case with Counts 2 and 3, the defendant was convicted more than once under different
subsections of the same penal statute. Id. Under this second type of “units” analysis,
courts may consider whether each theory of committing the offense “would cause a
different type of harm to a victim.” Id. at 745 (quoting Haight v. State, 137 S.W.3d 48, 50
(Tex. Crim. App. 2004)). As with an “elements” analysis, we ultimately look to the focus
or gravamen of the statute as the best indicator of legislative intent. Id. at *5.
III. ANALYSIS
A. Waiver
As a threshold issue, the State contends that Gunter waived his double-jeopardy
complaint by failing to object at the time his sentence was imposed. The State
acknowledges that a double jeopardy claim “may be raised for the first time on appeal
when (1) the undisputed facts show the double-jeopardy violation is clearly apparent from
the face of the record, and (2) enforcement of the usual rules of procedural default serves
no legitimate state interest.” Garfias v. State, 424 S.W.3d 54, 57–58 (Tex. Crim. App.
2014). Focusing on the second factor, the State argues that, even if undisputed facts
show that a double jeopardy violation occurred, Gunter might have intentionally withheld
his objection for strategic reasons. According to the State, “it was at least plausible that
Gunter did not want to object to the multiple, but cumulative, 60-years sentences, and
thereby open up the possibility of the trial court reconsidering and assessing the State’s
requested life sentence on a single count.” But as the State implicitly concedes, its
6
argument is based purely on speculation. There is nothing in the record that would allow
us to infer that Gunter consciously waived his double jeopardy complaint to gain some
advantage.
Moreover, the State fails to acknowledge that Gunter filed a timely post-trial motion
to vacate some of his convictions, raising the same double jeopardy grounds that he now
presents on appeal. A motion preserves an error for appeal when it is made “at a time
when the trial court is in a proper position to do something about it.” Resendez v. State,
306 S.W.3d 308, 313 (Tex. Crim. App. 2009) (quoting Lankston v. State, 827 S.W.2d 907,
909 (Tex. Crim. App. 1992)). The appropriate remedy for a double jeopardy violation is to
vacate one of the convictions, and the trial court may do so while it still has plenary power
to act. See Shelby v. State, 448 S.W.3d 431, 440 (Tex. Crim App. 2014); see also
Carpenter v. State, No. 11-15-00323-CR, 2018 WL 3763773, at *4 (Tex. App.—Eastland
Aug. 9, 2018, no pet.) (mem. op., not designated for publication) (dismissing appellant’s
double jeopardy complaint as moot because the trial court had already granted
appellant’s motion to vacate his conviction on double jeopardy grounds). Thus, rather
than finding that Gunter waived the error, we conclude that he preserved it for review.4
See Shelby, 448 S.W.3d at 440; see also Carpenter, 2018 WL 3763773, at *4.
B. One Incident, One Victim, but Two Aggravated Assault Convictions
We begin our analysis with the most straightforward comparison for purposes of
double jeopardy—Gunter’s dual convictions for aggravated assault; one count based on
4 Even if Gunter had not filed his motion to vacate, we would conclude that there are double
jeopardy violations apparent from the face of the record and that enforcing the usual rules of procedural
default would serve no legitimate interest. See Garfias v. State, 424 S.W.3d 54, 57–58 (Tex. Crim. App.
2014).
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causing serious bodily injury, and one count based on causing bodily injury while
exhibiting a deadly weapon. See TEX. PENAL CODE ANN. § 22.02(a)(1), (2). The Texas
Court of Criminal Appeals has already concluded that, for purposes of a defendant’s right
to a unanimous jury verdict, subsections 22.02(a)(1) and (a)(2) are the same offense.
Landrian v. State, 268 S.W.3d 532, 539 (Tex. Crim. App. 2008). The Court explained that
§ 22.02(a) is a result-oriented statute, and the gravamen of the statute is “causing bodily
injury.” Id. at 533. When there is a single incident and a single victim, as is the case here,
the statute does “not set out separate and distinct offenses” for causing serious bodily
injury or using a deadly weapon. Id. at 539. “Rather, the aggravating factors or elements
are simply descriptions of separate means by which a single offense of assault may be
committed.” Id.
Because the meaning of the statute is the controlling question in each type of
analysis, courts look to prior precedent on the right to jury unanimity when examining the
same statute for purposes of double jeopardy. Jones v. State, 323 S.W.3d 885, 889 (Tex.
Crim. App. 2010); see, e.g., Nawaz, 663 S.W.3d at 746 (examining penal code
subsections 22.04(a)(1) and (a)(2) and concluding that prior precedent deciding that the
two subsections were distinct offenses for purposes of jury unanimity also controlled the
double jeopardy analysis). Accordingly, like Landrian, we conclude that in this context,
where a single act caused bodily injury to a single victim, subsections 22.02(a)(1) and
(a)(2) constitute the same offense for purposes of double jeopardy. See 268 S.W.3d at
533.
Nevertheless, the State argues that because Gunter caused multiple life-
8
threatening injuries to Lee, “there is no reason he should not be liable for having
committed multiple assaultive offenses.” We note that the State’s position on appeal is
inconsistent with its position in the trial court, where it asked for a single conviction “on
any one of Counts 1 through 4.” By asking this Court to now sanction Gunter’s multiple
convictions for aggravated assault, the State effectively seeks to dramatically expand the
allowable unit of prosecution for aggravated assault in Texas.
It is well-established that “[t]he allowable unit of prosecution for an assaultive
offense in Texas is each victim.” Shelby, 448 S.W.3d at 439; Garfias, 424 S.W.3d at 60;
Bigon, 252 S.W.3d at 372. When the Legislature enacted § 22.02(a), it “intended the
offense of assault to be complete with the injury of a single individual.” Phillips v. State,
787 S.W.2d 391, 395 (Tex. Crim. App. 1990). Thus, for example, a drunk-driving accident
that causes serious bodily injury to multiple victims can support separate convictions for
aggravated assault—one for each victim. Id. at 393–95. But we fail to see how Gunter
could simultaneously complete multiple assaults against a single individual during the
same criminal transaction. If we followed the State’s argument to its logical conclusion,
then the evidence supported at least ten separate convictions for aggravated assault—
one count for every injury suffered by Lee.
Moreover, if we applied the State’s theory to every aggravated assault, then a knife
wielding assailant could be convicted of aggravated assault for each stab wound he
inflicted on his victim in a single, uninterrupted attack. Such an approach is inconsistent
with how the State has traditionally prosecuted stabbing cases in Texas. See Tucker v.
State, 274 S.W.3d 688, 688–89 (Tex. Crim. App. 2008) (affirming single conviction for
9
aggravated assault with a deadly weapon where “[a]ppellant used a knife or some other
sharp object to stab and cut the victim numerous times”); Magana v. State, 230 S.W.3d
411, 414 (Tex. App.—San Antonio 2007, pet. ref’d) (affirming single conviction for
aggravated assault with a deadly weapon where appellant stabbed victim “with a
pocketknife four times”); Borrego v. State, 800 S.W.2d 373, 375, 377 (Tex. App.—Corpus
Christi–Edinburg 1990, pet. ref’d) (affirming single conviction for aggravated assault with
a deadly weapon where the victim “had stab wounds on her chest and face”).
To be sure, there are other types of assaultive offenses where the Legislature has
defined separate and discrete injuries, each of which constitutes a separate offense even
though both occurred during a single course of conduct and involved the same victim.
See Nawaz, 663 S.W.3d at 746 (affirming dual convictions under penal code subsections
22.04(a)(1) and (a)(2) because appellant’s conduct caused the victim to suffer both
“serious bodily injury” and a “serious mental deficiency”); cf. Loving v. State, 401 S.W.3d
642, 649 (Tex. Crim. App. 2013) (affirming dual convictions under penal code subsections
21.11(a)(1) and (a)(2) in part because “indecency with a child by exposure and by contact
protect children from different potential harms”).
“Aggravated assault, however, does not have a statutorily specified injury.” Ortiz
v. State, 623 S.W.3d 804, 809 (Tex. Crim. App. 2021) (citing TEX. PENAL CODE ANN.
§ 22.02). Instead, the Texas Court of Criminal Appeals has already determined that
§ 22.02(a) broadly focuses on “causing bodily injury” and that subsections (a)(1) and
(a)(2) are merely alternative means of committing the same offense against a single
victim. Landrian, 268 S.W.3d at 533, 539. The State cannot point to a single case
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interpreting § 22.02(a) in a contrary manner. Therefore, we decline the State’s invitation
to expand the allowable unit of prosecution for aggravated assault and hold that Gunter’s
convictions under subsections 22.02(a)(1) and (a)(2) constituted multiple punishments for
the same offense.
C. Gunter’s Convictions for Intoxication Manslaughter & Aggravated Assault
Constituted Multiple Convictions for the Same Offense
Gunter also contends that the Legislature did not intend for a person to be
convicted of both intoxication manslaughter and aggravated assault for causing fatal
injuries to the same victim. See TEX. PENAL CODE ANN. §§ 22.02(a)(1), 49.08.
Gunter concedes, and we agree, that each offense “requires proof of a fact that
the other does not,” and thus, they are not the same under the Blockburger test. See
Shelby, 448 S.W.3d at 436. Looking at the elements of the two statutes in the abstract,
intoxication manslaughter, a strict liability offense, requires proof that the defendant
(1) was operating a motor vehicle in a public space, (2) was intoxicated, and (3) by reason
of that intoxication, caused the death of another by accident or mistake. See TEX. PENAL
CODE ANN. §§ 49.08, 49.11. By comparison, aggravated assault under § 22.02(a)(1)
requires proof that the defendant intentionally, knowingly, or recklessly caused serious
bodily injury to another. See id. §§ 22.01(a)(1), 22.02(a)(1). Thus, having determined that
the two offenses are not the same under the Blockburger test, we now turn to the Ervin
factors to determine “whether the Legislature intended to allow the same conduct to be
punished under both of the statutes in question.” Shelby, 448 S.W.3d at 436; see Ex parte
Ervin, 991 S.W.2d at 814.
As to the first factor, intoxication manslaughter and aggravated assault appear in
11
separate penal code chapters, “but this does not necessarily mean that the Legislature
intended the same conduct against the same victim to be punished under both statutes.”
See Shelby, 448 S.W.3d at 437. Because the two statutes appear in separate sections of
the penal code, they cannot be phrased in the alternative, and consequently, the second
Ervin factor does not apply. See id. at 438. Even though the names of the two statutes
share no words, like aggravated assault, manslaughter denotes an elevated level of
assaultive conduct, so the names of the offenses are somewhat similar under the third
factor. See id. As to the fourth factor, both statutes are second-degree felonies, which
weighs in favor of treating the two offenses as the same for double jeopardy purposes.
See TEX. PENAL CODE ANN. §§ 22.02(b), 49.08(b); Shelby, 448 S.W.3d at 438.
Of the Ervin factors, a common focus between the two statutes is the most reliable
indicator of legislative intent and can be outcome determinative. See Shelby, 448 S.W.3d
at 438; Nawaz, 663 S.W.3d at 748 (collecting cases where the Texas Court of Criminal
Appeals “found its focus/gravamen analysis to be determinative, notwithstanding
consideration of the other Ervin factors”). Both offenses here are result oriented. The
focus of intoxication manslaughter is “the death of an individual,” Bigon, 252 S.W.3d at
371, not the defendant’s intoxication. Shelby, 448 S.W.3d at 439. As previously
mentioned, the focus of aggravated assault under § 22.02(a) is “causing bodily injury.”
Landrian, 268 S.W.3d at 533. Importantly, § 22.02(a)(1) contemplates not only bodily
injury but also “bodily injury . . . that causes death.” TEX. PENAL CODE ANN. § 1.07(a)(46)
(defining “serious bodily injury”). Therefore, although intoxication manslaughter and
aggravated assault are not the same offense in all situations, under the circumstances of
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this case, both offenses resulted in Lee’s death, and “the sameness of the result is an
indication that the Legislature did not intend to impose multiple punishments.” Bigon, 252
S.W.3d at 371.
In considering the common-focus factor, courts may also look to the allowable unit
of prosecution. Id. This analysis can be instructive even though the two offenses are found
in different statutory sections, as is the case here. Id. at 372. Again, “[t]he allowable unit
of prosecution for an assaultive offense in Texas is each victim.” Shelby, 448 S.W.3d at
439; Garfias, 424 S.W.3d at 60; Bigon, 252 S.W.3d at 372. This is especially true when
the assaultive conduct results in homicide. Johnson v. State, 364 S.W.3d 292, 296 (Tex.
Crim. App. 2012) (“With only one victim, there can be only one murder, regardless of how
that murder is committed.”). Applying that principle to the facts of this case, we observe
that Gunter was punished twice for the same conduct that caused Lee’s death. See
Nawaz, 663 S.W.3d at 745 (explaining that when conducting a “units of prosecution”
analysis, courts may consider whether the two offenses protect the victim from the same
type of harm). Given the shared focus of the two offenses and the allowable unit of
prosecution for assaultive offenses, we conclude that the Legislature did not intend for
Gunter to be punished under both statutes for the same conduct. See Shelby, 448 S.W.3d
at 436.
There are several cases that support our conclusion. In an unpublished opinion,
we held that “intoxication assault and aggravated assault in a case involving the same
accident and victim are the same offense for double jeopardy purposes.” Sylva v. State,
No. 13-01-139-CR, 2004 WL 42370, at *1 (Tex. App.—Corpus Christi–Edinburg Jan. 8,
13
2004, pet. ref’d) (not designated for publication). The Texas Court of Criminal Appeals
has similarly held “that the Legislature did not intend to authorize separate punishments
for the 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.” Shelby, 448 S.W.3d at 434. Finally, in finding
that an appellant’s convictions for felony murder, intoxication manslaughter, and
manslaughter violated his double-jeopardy rights, the Texas Court of Criminal Appeals
said that “it is hard to fathom that the legislature intended for one drunk-driving accident
to result in multiple homicide convictions for each victim.” Bigon, 252 S.W.3d at 372.
Likewise, we find it highly improbable that the Legislature intended for a person to be
convicted of both intoxication manslaughter and aggravated assault for causing fatal
injuries to the same victim.
D. Remedy for Double Jeopardy Violations on Counts 1–3
As previously mentioned, when a multiple punishment violation occurs, “the
remedy is to affirm the conviction for the most serious offense and vacate the other
convictions.” Bigon, 252 S.W.3d at 372. Generally, the most serious offense is “the
offense in which the greatest sentence was assessed.” Id. at 373. Here, the punishments
imposed for Counts 1–3 are identical: for each offense, Gunter was sentenced to sixty
years’ incarceration, no fine was assessed, and no restitution was ordered. Thus, we
cannot determine the most serious offense by the general rule. In such instances, we may
look to other distinguishing factors, such as the degree of each offense or an affirmative
deadly weapon finding. Id. (degree of felony); Villanueva v. State, 227 S.W.3d 744, 749
14
(Tex. Crim. App. 2007) (affirmative deadly weapon finding). These factors also prove
fruitless because Counts 1–3 are all second-degree felonies enhanced to the punishment
range of a first-degree felony, and each count included an affirmative deadly weapon
finding.
The Texas Court of Criminal Appeals has suggested that, with all other factors
being equal, the most serious offense “is the offense named in the first verdict form,” and
generally “this will be the offense described in Count I of the indictment.” Ex parte
Cavazos, 203 S.W.3d 333, 339 n.8 (Tex. Crim. App. 2006); see also Ruth v. State, No.
13-10-00250-CR, 2011 WL 3840503, at *8–9 (Tex. App.—Corpus Christi–Edinburg Aug.
29, 2011, no pet.) (mem. op., not designated for publication) (using the “first-indicted
offense” to break the tie when all else was equal). In this case, because the case was
tried to the bench, there was no jury verdict form; however, Count 1 of the indictment was
for intoxication manslaughter. Under these circumstances, we determine that intoxication
manslaughter was the most serious offense. See id. Accordingly, we affirm the conviction
for intoxication manslaughter and vacate the convictions for aggravated assault. See id.E. Injury to a Child and Endangering a Child
By his last sub-issue, Gunter contends that his convictions on Counts 4 and 6
violate double jeopardy because endangering a child is a lesser included offense of injury
to a child. However, “[a] person who is subject to prosecution under both [§ 22.04, defining
injury to a child,] and another section of [the penal] code may be prosecuted under either
or both sections.” TEX. PENAL CODE ANN. § 22.04(h). Thus, the Legislature has expressed
a clear intent to allow multiple punishments for the same conduct when a person commits
15
injury to a child and a violation of any other penal code section, including endangering a
child. Mayhew v. State, 271 S.W.3d 294, 300–01(Tex. App.—Beaumont 2008, no pet.)
(“Since the section of the Penal Code that proscribes endangering a child is found within
another section of the Texas Penal Code, and the Legislature expressly authorized
multiple punishments, the multiple concurrent sentences imposed in this case are not
constitutionally prohibited.”); see Jimenez v. State, 240 S.W.3d 384, 417–18 (Tex. App.—
Austin 2007, pet. ref’d) (affirming multiple punishments for injury to a child and murder);
see also Herrera v. State, No. 13-11-00036-CR, 2011 WL 5005581, at *10 (Tex. App.—
Corpus Christi–Edinburg Oct. 20, 2011, pet. ref’d) (mem. op., not designated for
publication) (affirming multiple punishments for injury to a child and capital murder).
Gunter’s third sub-issue is overruled.5
V. CONCLUSION
We vacate Gunter’s convictions under Count 2 and Count 3 for aggravated assault
and affirm the remainder of his convictions.
GINA M. BENAVIDES
Justice
Publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
8th day of June, 2023.
5 Gunter has not asked us to examine whether his convictions for intoxication manslaughter and
endangering a child violate double jeopardy, and we decline to address this unassigned error. See Bigon
v. State, 252 S.W.3d 360, 369 (Tex. Crim. App. 2008) (“In the case of a double-jeopardy violation, the issue
may be addressed as an unassigned error when the violation is apparent from the face of the record.” (citing
Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000))).
16