Ramos, Enrique Angel ( 2021 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0788-20
ENRIQUE ANGEL RAMOS, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRTEENTH COURT OF APPEALS
HIDALGO COUNTY
YEARY, J., delivered the opinion of the Court in which KELLER, P.J., and
RICHARDSON, NEWELL, KEEL, SLAUGHTER and MCCLURE, JJ., joined. HERVEY and
WALKER, JJ., concurred in the result.
OPINION
In a single trial, Appellant was convicted both of continuous sexual abuse of a child,
under Section 21.02(b) of the Texas Penal Code, and of prohibited sexual conduct under
Section 25.02(a)(2). The latter conviction was for an act he committed against the same
victim (his stepdaughter) as in the continuous sexual abuse of a child offense. It was also
committed within the same timeframe during which he committed the acts comprising the
continuous sexual abuse. The jury imposed his punishment at forty years and five years,
RAMOS— 2
respectively, in the penitentiary, and the trial court ordered his sentences to be served
consecutively. 1
On appeal, Appellant argued that punishment for both offenses violated the Double
Jeopardy Clause of the Fifth Amendment to the United States Constitution. U.S. CONST.
amend. V. The Thirteenth Court of Appeals agreed and vacated Appellant’s conviction for
prohibited sexual conduct. Ramos v. State, No. 13-17-00429-CR, 2020 WL 4219574, at
*7–11 (Tex. App.—Corpus Christi July 23, 2020) (mem. op., not designated for
publication). We now reverse the judgment of the court of appeals and remand the cause
to that court to address an outstanding point of error related to Appellant’s conviction for
the prohibited sexual conduct offense. 2
I. BACKGROUND
In two counts, the indictment alleged both continuous sexual abuse of a child and
prohibited sexual conduct. 3 In Count I, alleging continuous sexual abuse, it was alleged
1
The trial court had discretion to stack the sentences for these two offenses under Section
3.03(b)(2)(A) of the Texas Penal Code, since the victim was younger than seventeen years of age.
See TEX. PENAL CODE § 3.03(b)(2)(A) (“If the accused is found guilty of more than one offense
arising out of the same criminal episode, the sentences may run concurrently or consecutively if
each sentence is for a conviction of . . . an offense . . . under Section . . . 21.02, [or] 25.02 . . .
committed against a victim younger than 17 years of age at the time of the commission of the
offense regardless of whether the accused is convicted of violations of the same section more than
once or is convicted of violations of more than one section[.]”).
2
Appellant challenged the sufficiency of the evidence to establish that the victim of the
prohibited sexual conduct offense was his stepdaughter. Ramos, 2020 WL 4219574, at *1. Having
vacated Appellant’s conviction for that offense, the court of appeals did not address that
sufficiency issue on original submission. Id. at *11 n.10.
3
Count I of the indictment (Continuous Sexual Assault of a Child) alleged that Appellant:
during a period that was 30 days or more days in duration, to-wit: from on or about
11th day of August, 2011, through on or about 11th day of August, 2016, when the
RAMOS— 3
that Appellant sexually abused the victim over the course of a period of five years, from
August 11, 2011, until August 11, 2016. Among the acts of sexual abuse specified in that
Count was “aggravated assault of a child by intentionally or knowingly causing the
penetration of the sexual organ of [the victim] by [Appellant’s] sexual organ[.]” 4 Count II
defendant was 17 years of age or older, commit two or more acts of sexual abuse
against Alicia Gonzalez, a pseudonym, a child younger than 14 years of age,
namely, aggravated sexual assault of a child, by intentionally or knowingly causing
the sexual organ of Alicia Gonzalez to contact the sexual organ of the defendant,
aggravated sexual assault of a child by intentionally or knowingly causing the
penetration of the sexual organ of Alicia Gonzalez by defendant’s sexual organ,
indecency with a child by, with intent to arouse or gratify the sexual desire of the
defendant, engaging in sexual contact with Alicia Gonzalez, by touching any part
of the genitals of Alicia Gonzalez[.]
Count II of the indictment (Prohibit Sexual Conduct) alleged that Appellant:
on or about the 11th day of August, 2016, . . . did then and there intentionally or
knowingly engage in sexual intercourse with Alicia Gonzalez, a pseudonym, a
person the defendant knew to be, without regard to legitimacy, the defendant’s
stepchild[.]
4
Sections 21.02(b) and (c) of the Penal Code read, in relevant part:
(b) A person commits an offense if:
(1) during a period that is 30 or more days in duration, the person
commits two or more acts of sexual abuse, regardless of whether
the acts of sexual abuse are committed against one or more
victims; and
(2) at the time of the commission of each of the acts of sexual abuse,
the actor is 17 years of age or older and the victim is a child
younger than 14 years of age, regardless of whether the actor
knows the age of the victim at the time of the offense.
(c) For purposes of this section, “act of sexual abuse” means any act that is a
violation of one or more of the following penal laws:
* * *
(4) aggravated sexual assault under Section 22.021[.]
RAMOS— 4
alleged that Appellant committed prohibited sexual conduct when, “on or about August 11,
2016,” he “intentionally or knowingly engage[d] in sexual intercourse with [the same
victim], a person [Appellant] knew to be, without regard to legitimacy, [his] stepchild[.]” 5
The victim testified to one main incident that occurred specifically on August 11,
2016, in which Appellant penetrated her vagina with his penis. That date corresponds both
with the last day of the five-year period alleged in Count I (alleging continuous sexual
abuse of a child), and with the date of the offense alleged in Count II (alleging prohibited
sexual conduct). The victim also testified more generally that Appellant had committed
other acts of sexual abuse upon her during the five-year period, and Appellant was
convicted of both offenses. For the first time on appeal, Appellant argued that to convict
him and punish him for both, even in a single criminal proceeding, violated his double-
jeopardy right not to be punished twice for the same offense. 6
TEXAS PENAL CODE § 21.02(b) & (c).
5
Section 25.02(a) of the Texas Penal Code reads, in relevant part:
(a) A person commits an offense if the person engages in sexual intercourse or
deviant sexual intercourse with another person the actor knows to be, without
regard to legitimacy:
* * *
(2) the actor’s current . . . stepchild[.]
TEXAS PENAL CODE § 25.02(a)(2).
6
The State does not directly argue that Appellant procedurally defaulted his double-
jeopardy complaint for appeal. Because we conclude that there was no double-jeopardy violation
in any event, we do not address that issue.
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II. THE APPLICABLE LAW
(a) Double Jeopardy: Multiple Punishments
The Double Jeopardy Clause of the Fifth Amendment, which the United States
Supreme Court has held to be applicable to the states through the Fourteenth Amendment,
is understood to incorporate 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. Kuykendall v. State, 611 S.W.3d 625, 627 (Tex. Crim.
App. 2020); Speights v. State, 464 S.W.3d 719, 722 (Tex. Crim. App. 2015). The present
case involves an argument related to the third of these protections.
The traditional starting point for determining “sameness” for multiple-punishments
double-jeopardy analysis is the Blockburger test. Blockburger v. United States, 284 U.S.
299, 304 (1932). Under Blockburger, two separately defined statutory offenses are
presumed not to be the same so long as each requires proof of an elemental fact that the
other does not. Littrell v. State, 271 S.W.3d 273, 276 (Tex. Crim. App. 2008); Shelby v.
State, 448 S.W.3d 431, 436 (Tex. Crim. App. 2014). In comparing elements of the different
statutory provisions, this Court has said, “[w]e not only examine the statutory elements in
the abstract[,] but we also compare the offenses as pleaded[.]” Shelby, 448 S.W.3d at 436;
see also Bigon v. State, 252 S.W.3d 360, 370 (Tex. Crim. App. 2008) (“[I]n Texas, when
resolving whether two crimes are the same for double-jeopardy purposes, we focus on the
elements alleged in the charging instrument.”).
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But the Blockburger presumption is rebuttable. In Ervin v. State, this Court
identified eight factors for courts to consider, among potentially others, in deciding whether
the Blockburger presumption has been overcome:
[W]hether the offenses provisions are contained within the same statutory
section, 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 (i.e. whether
the “gravamen” of the offense is the same) and whether that common focus
tends to indicate a single instance of conduct, whether the elements that differ
between the offenses can be considered the “same” under an imputed theory
of liability which would result in the offenses being considered the same
under Blockburger (i.e. a liberalized Blockburger standard utilizing imputed
elements), 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.
991 S.W.2d 804, 814 (Tex. Crim. App. 1999).
(b) Section 21.02 of the Penal Code
To obtain a conviction for continuous sexual abuse of a child, the State must show
that the defendant committed at least two acts of sexual abuse against a child younger than
14 years of age during a period of at least 30 days’ duration. TEX. PENAL CODE § 21.02(b).
The statutory list of offenses that count as “acts of sexual abuse” are listed in subsection
(c) of Section 21.02, and it includes aggravated sexual assault of a child. TEX. PENAL CODE
§ 21.02(c). One theory by which a defendant may commit aggravated sexual assault of a
child is by intentionally or knowingly causing the penetration of the sexual organ of a child
by any means when the child is younger than 14 years of age. TEX. PENAL CODE §§
22.021(a)(1)(B)(i), 22.021(a)(2)(B). Count I of the indictment in this case (alleging
continuous sexual assault of the child) specifically pled—in addition to other predicate
RAMOS— 7
offenses to the offense of continuous sexual assault of a child—that Appellant committed
aggravated sexual assault of the victim by intentionally or knowingly penetrating her
sexual organ with his own, and that the victim was younger than 14 years of age. Thus, it
satisfied the criteria for pleading an aggravated sexual assault of a child as a predicate of
the offense of continuous sexual abuse.
The Court has construed Section 21.02(e) of the Penal Code to prohibit the State
from obtaining convictions for both the overarching offense of continuous sexual abuse of
a child and for any of the predicate offenses, listed in Subsection 21.02(c), shown to have
occurred as underlying acts of sexual abuse for purposes of proving that continuous sexual
abuse. See Soliz v. State, 353 S.W.3d 850, 853 (Tex. Crim. App. 2011) (“Aggravated sexual
assault committed within the time frame of the indicted offense could be charged in the
alternative or as a lesser-included offense (leading to just one conviction), but it could not
be charged as an additional offense (leading to two convictions).”) (construing TEX. PENAL
CODE §§ 21.02(c); 21.02(e)); 7 Price v. State, 434 S.W.3d 601, 606 (Tex. Crim. App. 2014)
7
Section 21.02(e) of the Texas Penal Code reads:
(e) A defendant may not be convicted in the same criminal action of an offense
listed under Subsection (c) the victim of which is the same victim as the victim of
the offense alleged under Subsection (b) unless the offense listed in Subsection (c):
(1) is charged in the alternative;
(2) occurred outside the period in which the offense alleged under
Subsection (b) was committed; or
(3) is considered by the trier of fact to be a lesser included offense
of the offense alleged in Subsection (b).
TEX. PENAL CODE § 21.02(e).
RAMOS— 8
(“A defendant charged with continuous sexual abuse who is tried in the same criminal
action for an enumerated offense based on conduct committed against the same victim may
not be convicted for both offenses unless the latter offense occurred outside the period of
time in which the continuous-sexual-abuse offense was committed.”); Allen v. State, 620
S.W.3d 915, 921 (Tex. Crim. App. 2021) (“[I]n determining whether a defendant may be
convicted for a continuous abuse offense and an offense listed in § 21.02(c) in the same
criminal action and against the same victim, the proper consideration is whether the
evidence shows that the § 21.02(c) offense occurred outside of the period that the
continuous abuse offense was committed.”). But the offense of prohibited sexual conduct
is not among the discrete statutory offenses listed in Subsection 21.02(c) that qualify as
predicate “acts of sexual abuse” for purposes of prosecuting the offense of continuous
sexual abuse of a child. So, for that reason, convicting and punishing Appellant for both
offenses does not conflict with Section 21.02(e).
(c) Section 25.02 of the Penal Code
As incorporated into Count II of Appellant’s indictment, prohibited sexual conduct
consists of “engag[ing] in sexual intercourse . . . with another person the actor knows to
be, without regard to legitimacy[,] . . . the actor’s current . . . stepchild[.]” TEX. PENAL
CODE § 25.02(a)(2). “Sexual intercourse” in this context is defined as “any penetration of
the female sex organ by the male sex organ.” TEX. PENAL CODE § 25.02(b)(2). Section
25.02 contains no explicit provision to address whether an act that violates it may also be
RAMOS— 9
prosecuted under another statute it may also have violated. 8 But the absence of such an
explicit provision does not on its own definitively answer whether this offense is the
“same” offense, for multiple-punishments double-jeopardy purposes, as continuous sexual
abuse of a child in Section 21.02, as alleged in Count I.
III. ANALYSIS
(a) The Blockburger Presumption
The Blockburger test reveals that the two offenses at issue in this appeal, as pled,
each contain a distinct element that the other does not. Continuous sexual abuse of a child,
as pled in Count I of the indictment, requires evidence of at least two acts of sexual abuse,
perpetrated over the course of at least thirty days, against a child younger than 14 years of
age. And prohibited sexual conduct, as pled in Count II, requires proof that the “person”
with whom the actor had sexual intercourse was his “stepchild”—which “person” need not
actually be a “child,” 9 and, in any event, would not have to be (and is not alleged in Count
II to be) a child younger than 14 years of age. The court of appeals therefore correctly
concluded that Blockburger operates to create a presumption in this case that the two
8
See Littrell, 271 S.W.3d at 278 & n.30 (“The Legislature knows well enough how to
plainly express its intention that an accused should suffer multiple punishments for the same
offense.”) (citing, e.g., TEX. PENAL CODE § 22.04(h), which provides: “A person who is subject to
prosecution under both this section [Injury to a Child, Elderly Individual, or Disabled Individual]
and another section of this code may be prosecuted under either or both sections.”).
9
See, e.g., McKnight v. State, No. 05-12-00445-CR, 2013 WL 4517276, at *4 (Tex. App.—
Dallas Aug. 23, 2013, no pet.) (not designated for publication) (holding that a stepchild’s age is
not an element that must be proven in a prosecution for prohibited sexual conduct under Section
25.02(a)(2)).
RAMOS— 10
offenses are not the same for multiple-punishment double-jeopardy purposes. Ramos, 2020
WL 4219574, at *8.
(b) The First Four, the Seventh, and the Eighth Ervin Factors
In its discussion of the Ervin factors, the court of appeals rightly concluded that
many of those factors confirm the Blockburger presumption of separate offenses in this
case. Id. at *8–9. It began by addressing Ervin’s first four factors, which include:
(1) whether the offenses provisions are contained within the same statutory section;
(2) whether the offenses are phrased in the alternative;
(3) whether the offenses are named similarly; and
(4) whether the offenses have common punishment ranges.
Ervin, 991 S.W.2d at 814. We will begin by addressing the court of appeals’ treatment of
those first four factors.
With regard to the first Ervin factor—whether the offenses provisions are contained
within the same statutory section—the court of appeals observed that “the offenses do not
appear in the same statutory section.” Ramos, 2020 WL 4219574, at *8. This, according to
the court of appeals, “suggests that the Legislature did not intend for these offenses to be
treated [as] the same [offense] for double jeopardy purposes or to disallow multiple
punishments under these circumstances and weighs against a finding of a double jeopardy
violation.” Id. We agree. We observe that, not only do the two offenses appear in separate
statutes, and even in separate chapters of the Penal Code, but they also appear in separate
titles of that code. So, the first factor militates in favor of the Blockburger presumption that
the offenses are different for multiple-punishment double-jeopardy purposes.
RAMOS— 11
The second factor—whether the offenses are phrased in the alternative—in the view
of the court of appeals, was simply “inapplicable.” Ramos, 2020 WL 4219574, at *8. The
court of appeals observed that, “[b]ecause the statutes appear in separate sections of the
code, they cannot be construed to be phrased in the alternative.” Id. We agree. Thus, the
second Ervin factor cuts neither for nor against the Blockburger presumption.
The court of appeals decided, however, that Ervin’s third factor—whether the
offenses are named similarly—weighed “in favor of treating the offenses as being the same
for double jeopardy purposes” merely because the two offenses both share the word
“sexual” in their names. Id. We disagree. There is more to determining whether offenses
are “similarly named” as called for by the third Ervin factor than to simply notice that a
single word is shared between names of both offenses. When the names of two offenses
share a common word, but they are found within distinctly named Titles and Chapters of
the Penal Code, more must be considered before concluding that they are “named
similarly” as described by Ervin’s third factor.
The offense of continuous sexual abuse of a child is found in Title 5, which is named
“Offenses Against the Person,” and, within that title, it is placed in Chapter 21, which is
designated “Sexual Offenses.” The offense of prohibited sexual conduct does share the
word “sexual” with Chapter 21 in Title 5, but it is set out in Section 25.02, which appears
in Chapter 25, and in Title 6 of the Penal Code (Chapter 25 being the only chapter in Title
6), which is designated “Offenses Against the Family.” And no other offense defined in
Chapter 25 contains the word “sexual” in its caption. All of these additional considerations
cause us to conclude that, even though both offenses share a common word in their names,
RAMOS— 12
they are not “similarly named” as the court of appeals concluded in its analysis of Ervin’s
third factor. Ramos, 2020 WL 4219574, at *8. 10
What is more, we conclude that the court of appeals rightly observed, with regard
to Ervin’s fourth factor, that the two offenses carry widely different punishment ranges. Id.Continuous sexual abuse of a child is a much more serious offense: a first-degree felony
with a mandatory minimum punishment of 25 years in the penitentiary. TEX. PENAL CODE
§ 21.02(h). Prohibited sexual conduct, at least of the kind alleged in Count II of the
indictment, is but a third-degree felony, with a maximum punishment of ten years in the
penitentiary. TEX. PENAL CODE §§ 25.02(c), 12.34(a).
The court of appeals thus conceded that three of the first four Ervin factors are either
“inapplicable” or point in the same direction as the Blockburger analysis: that continuous
sexual abuse and prohibited sexual conduct are not the same for purposes of a multiple-
punishments double-jeopardy analysis. Ramos, 2020 WL 4219574, at *8–9. And, as we
have explained, we reject the court of appeals’ conclusion that the third Ervin factor—that
“the offenses are named similarly”—“weighs in favor” of finding the offenses to be the
same, contrary to the Blockburger presumption. Id. at *8.
Although the court of appeals next purported to address the “remaining [Ervin]
factors”, which at least implicitly would have included the seventh and eighth factors in
addition to the fifth and sixth factors, it does not appear to have addressed the seventh and
10 This was the only one of the first four factors that the court of appeals found to support
the conclusion that the offenses are the “same” under Ervin, Blockburger notwithstanding.
RAMOS— 13
eighth factors at all, at least not expressly. Ervin’s seventh and eighth factors are: (7)
whether the elements that differ between the offenses can be considered the “same” under
an imputed theory of liability which would result in the offenses being considered the same
under Blockburger (i.e. a liberalized Blockburger standard utilizing imputed elements), and
(8) whether there is legislative history containing an articulation of an intent to treat the
offenses as the same or different for double jeopardy purposes. We perceive nothing in the
court of appeals’ opinion that expressly addressed these factors.
Nevertheless, we conclude that Ervin’s seventh and eighth factors do not counsel in
favor of rejecting the Blockburger presumption. First, the elements that differ between the
offenses are nothing at all alike. Continuous sexual abuse of a child requires proof that a
defendant engaged in at least two acts of sexual abuse. Prohibited sexual conduct requires
proof that the defendant engaged in sexual intercourse with a stepchild. The former’s
distinctive element addresses a repetition of sexual conduct. The latter’s distinctive element
addresses the familial relationship of the person with whom the defendant engaged in
sexual intercourse. There is no sense in which these very distinct elements might be
considered to be imputed for purposes of the analysis called for by Ervin’s seventh factor.
And finally, the legislative history of the two statutes at issue here—addressed
pursuant to Ervin’s eighth factor—reveals no basis to conclude that they are meant to be
treated as the same for double jeopardy purposes. The two statutes are of entirely different
vintages. Prohibited sexual conduct appeared in the 1973 Penal Code at its inception, a
carryover from earlier penal codes. Indeed, in one form or another, the crime of incest has
long been a feature of statutory law in Texas. Johnson v. State, 20 Tex. App. 609, 615
RAMOS— 14
(1886); McGrew v. State, 13 Tex. App. 340, 342 (1883). Continuous sexual abuse of a
child, in contrast, was only added in 2007, apparently as a prompt legislative response to
Judge Cochran’s concurring opinion in Dixon v. State, 201 S.W.3d 731, 737 (Tex. Crim.
App. 2006) (Cochran, J., concurring), in which she decried the need for a more overarching
statute “the real gravamen” of which would address “the existence of a sexually abusive
relationship with a young child . . . marked by continuous and numerous acts of sexual
abuse of the same or different varieties.” See Price, 434 S.W.3d at 608 (discussing Judge
Cochran’s concurrence in Dixon); Acts 2007, 80th Leg., ch. 593, § 1.17, eff. Sept. 1, 2007
(enacting Section 21.02). While the evident purpose of Section 21.02 is, thus, to facilitate
the protection of vulnerable young children from sexually predatory adults, Section 25.02
addresses a different societal interest altogether—the sanctity and integrity of the family
unit—by criminalizing various acts of incest, regardless of whether children are involved.
(c) The Focus or Gravamen: Ervin’s Fifth and Sixth Factors
So why did the court of appeals ultimately conclude that the Blockburger
presumption was nevertheless overcome in this case? The court of appeals acknowledged
Appellant’s concession that prohibited sexual conduct was not one of the listed predicate
offenses of continuous sexual abuse of a child. But it also noted that Ramos claimed that
“the language of the prohibited sexual conduct charge mirrors that of the predicate offense
charged here: aggravated sexual assault; [and that] as such, the two convictions cannot
contemporaneously stand.” Id. at *10. The court of appeals addressed this claim, in its
analysis of Ervin’s fifth and sixth factors—(5) whether the offenses have a common focus
. . . and (6) whether that common focus tends to indicate a single instance of conduct—by
RAMOS— 15
comparing what it perceived to be the focus or gravamen of aggravated sexual assault of a
child, as pled as a predicate offense in Count I of the indictment, with the focus or gravamen
of prohibited sexual conduct, as alleged in Count II.
In addressing the gravamens of the two statutes, the court of appeals first observed
that both offenses are nature-of-conduct type of offenses. Id. at *10. It then determined that
the common focus of the two provisions was Appellant’s penetration of the victim’s sexual
organ with his own on a particular date (August 11, 2016). Id. It ultimately agreed with
Appellant that “[w]hen the two charges stem from the impermissible overlap of the same
underlying instances of conduct against the same victim during the same time period, the
record shows a double jeopardy violation.” Id. at *11. For support of this conclusion, the
court of appeals relied heavily upon language it excerpted, albeit with interlineations, from
this Court’s opinion in Bigon: it declared that “it is hard to fathom that the Legislature
intended for the same conduct against the same complaining witness and time period to
result in multiple convictions.” Id. (quoting—with interlineations—Bigon, 252 S.W.3d at
372) (brackets omitted).
We disagree with the court of appeals’ assessment of the respective gravamens of
the two offenses at issue in this case. Beginning with Section 21.02, we observe that
continuous sexual abuse of a child has a nature-of-conduct component: the repeated
commission of sexual abuse. But it also has several essential circumstance-surrounding-
conduct components: that the victim of the repeated sexual abuse must be a child younger
than 14 years of age, and that the instances of sexual abuse must occur over a period of at
least 30 days in duration. As for the list of predicate offenses in Section 21.02(c), the statute
RAMOS— 16
is indifferent as to which specific offenses are committed, so long as at least two are
committed against a child of the requisite age over a period of thirty days or more. They
operate essentially as manner and means of committing discrete aspects of the overarching
continuous sexual abuse offense, but they do not define its essence.
The gravamen of a Section 21.02 offense is not a particular instance of one of the
offenses listed in Section 21.02(c). Instead, it is the commission of at least two such
offenses. Indeed, the jury need not even be unanimous with respect to which predicate
offenses were committed, or when they were committed; they need only agree that at least
two such offenses were committed over a greater-than-thirty-day period. 11
Turning to Section 25.02(a), we disagree with the court of appeals that the focus of
the prohibited sexual conduct statute is exclusively the act of sexual intercourse. We have
said that “[w]hen a culpable mental state is required to attach to a particular circumstance,
it is because that circumstance is the gravamen of the offense.” Huffman v. State, 267
S.W.3d 902, 908 (Tex. Crim. App. 2008). Sexual intercourse is not an inherently culpable
act. It is criminally actionable under Section 25.02(a)(2)—the theory of the offense alleged
in Count II—only if the actor knows that the person with whom he is having intercourse is
11
This is so because of Section 21.02(d), which reads:
(d) If a jury is the trier of fact, members of the jury are not required to agree
unanimously on which specific acts of sexual abuse were committed by the
defendant or the exact date when those acts were committed. The jury must agree
unanimously that the defendant, during a period that is 30 or more days in duration,
committed two or more acts of sexual abuse.
TEX. PENAL CODE § 21.02(d).
RAMOS— 17
(or was) his stepchild. TEX. PENAL CODE § 25.02(a)(2). The gravamen of the offense is,
therefore, sexual intercourse with a stepchild.
What this all means is that each statute at issue in this case has a different and
discretely identifiable element that must be present before any penetration becomes part of
an actionable offense: repeated sexual abuse of a child over time, on the one hand, versus
sexual conduct in the context of a familial relationship, on the other. Thus, the Ervin
focus/gravamen factors also militate in favor of the conclusion that the offenses are not the
same. And, even though the same conduct happens to violate both statutes, that fact does
not operate to reverse the Blockburger presumption that, because each has an element (even
as alleged) that the other does not, they are not the same offense for purposes of the Double
Jeopardy Clause’s multiple-punishments protection.
Finally, although the court of appeals relied on this Court’s opinion in Bigon, that
case is plainly distinguishable from this one. In Bigon, the Court addressed two result-of-
conduct types of offenses: felony murder and intoxication manslaughter. 252 S.W.3d at
370–72. The Court observed that “[t]he focus of the two offenses is the same: the death of
an individual.” Id. at 371. So long as the same homicide victim is involved, “the sameness
of the result is an indication that the Legislature did not intend to impose multiple
punishments.” Id. Indeed, the Court determined that this indication was sufficiently strong
that it trumped the Blockburger presumption that the offenses were different based on the
Court’s comparison of the elements as pled in the indictment. Id. at 370, 372. But neither
continuous sexual abuse of a child nor prohibited sexual conduct even has a result-of-
conduct element, much less could either be described overall as a result-of-conduct type of
RAMOS— 18
offense. The Court’s analysis of the respective gravamens of the offenses at issue in Bigon
is not dispositive of how the respective gravamens in this case should be analyzed. The
court of appeals was mistaken to believe otherwise.
IV. CONCLUSION
The Ervin factors—including the focus/gravamen factor—ultimately militate in
favor of concluding that continuous sexual abuse of a child and prohibited sexual conduct
are not the same offense for purposes of a multiple-punishments double-jeopardy analysis.
Consequently, the Blockburger presumption—i.e., that they are not the same offense—has
not “clearly” been rebutted. Ex parte Benson, 459 S.W.3d 67, 89 (Tex. Crim. App. 2015).
We therefore reverse the judgment of the court of appeals to the extent that it vacated
Appellant’s conviction and punishment for the offense of prohibited sexual conduct, and
we remand the cause to the court of appeals for it to consider Appellant’s remaining point
of error with respect to that offense.
DELIVERED: October 20, 2021
PUBLISH