Nawaz, Syed Sartaj

In the Court of Criminal
Appeals of Texas
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No. PD-0408-21
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SYED SARTAJ NAWAZ,
Appellant,
v.
THE STATE OF TEXAS
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On State’s Petition for Discretionary Review
From the Fifth Court of Appeals
Collin County
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YEARY, J., delivered the opinion of the Court, in which KELLER,
P.J., and RICHARDSON, KEEL, SLAUGHTER, and MCCLURE, JJ., joined.
HERVEY and NEWELL, JJ., concurred in the result. WALKER, J.,
dissented.
In a single trial, Appellant was convicted of two instances of
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injury to a child. His convictions were for conduct prohibited under two
different subsections of Section 22.04(a) of the Texas Penal Code. See
TEX. PENAL CODE § 22.04(a)(1) & (2) (“(a) A person commits an offense if
he intentionally, knowingly, recklessly, or with criminal negligence . . .
causes a child . . . (1) serious bodily injury; [or] (2) serious mental
deficiency, impairment, or injury[.]”). 1 Appellant argued on appeal that
his two convictions constituted the imposition of multiple punishments
for the “same” offense, in violation of the Double Jeopardy Clause of the
Fifth Amendment to the United States Constitution.
This Court has previously concluded that, at least for purposes of
a defendant’s right to a unanimous jury verdict, Sections 22.04(a)(1) and
22.04(a)(2) constitute discrete offenses. Stuhler v. State, 218 S.W.3d 706,
719 (Tex. Crim. App. 2007). Nevertheless, the court of appeals in this
case determined that convicting Appellant for both offenses constituted
multiple punishments for the “same” offense, in violation of federal
double-jeopardy protections. Nawaz v. State, No. 05-19-00092-CR, 2021
1 In its entirety, Section 22.04(a) reads:
(a) A person commits an offense if he intentionally, knowingly,
recklessly, or with criminal negligence, by act or intentionally,
knowingly, or recklessly by omission, causes to a child, elderly
individual, or disabled individual:
(1) serious bodily injury;
(2) serious mental deficiency, impairment, or
injury; or
(3) bodily injury.
TEX. PENAL CODE § 22.04(a).
2
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WL 1884551 at *5 (Tex. App.—Dallas May 11, 2021) (mem. op., not
designated for publication). We granted the State’s petition for
discretionary review to examine the court of appeals’ conclusion. And we
now reverse its judgment, in part, and remand the cause for further
proceedings.
I. BACKGROUND
In separate counts, the indictment alleged that, on or about the
same date, September 19, 2016, Appellant knowingly caused serious
bodily injury to a child (Count I), and also knowingly caused the same
child to suffer a serious mental deficiency, impairment, or injury (Count
II). 2 Evidence at trial showed that, on the date alleged, which was more
than two years prior to the trial, while in Appellant’s exclusive care and
custody, the child suffered abusive head trauma, caused by a “whip-lash
type [of] mechanism”—such as violently shaking her or slamming her
into a soft surface of some kind. Id. at *14. The child suffered no
apparent external injury. But she presented with widely diffuse brain
bleeding, which caused developmental delays (though it was still too
early at the time of trial to ascertain the full extent of the mental
2 Count I of the indictment alleged that on September 19, 2016,
Appellant “did . . . knowingly cause serious bodily injury [to the complainant],
a child fourteen (14) years of age or younger,” in a number of different ways,
including by “shaking” her, or causing her to strike a “couch” or “mattress,” or
by some other manner unknown to the grand jury. Count II alleged that, on
that same date, Appellant “did . . . knowingly cause serious mental deficiency,
impairment, and injury” to the child-complainant in the same ways he was
alleged in Count I to have caused the serious bodily injury.
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deficiency). 3 She also suffered retinal bleeding in both eyes that was so
extensive as to essentially render her blind.
The State was unable to establish by what specific act (or acts)
Appellant caused these “whip-lash”-induced injuries. Nonetheless, the
jury convicted Appellant of both counts. It then assessed his punishment
at sixteen years’ confinement in the penitentiary for each count, which
the trial court ruled he should serve consecutively.
On appeal, Appellant contended that convicting him for both
counts—causing serious bodily injury and causing serious mental
deficiency, etc.—violated the Double Jeopardy Clause. The court of
appeals ultimately agreed. It acknowledged our construction of the
statutory language of Section 22.04(a), for jury-unanimity purposes, in
Stuhler. Id. at *4. But rather than rely on our construction of the
identical injury-to-a-child provisions in Stuhler, the court of appeals
instead invoked the double-jeopardy analysis this Court conducted in
Villanueva v. State, 227 S.W.3d 744 (Tex. Crim. App. 2007).
In Villanueva, this Court had discussed the potential double-
jeopardy implications of a different aspect of Section 22.04(a)—causing
injury to a child by an act versus causing injury to a child by omission.
Id. at 748. Nevertheless, relying on Villanueva, the court of appeals in
this case concluded that Appellant’s double-jeopardy right was violated
3 Appellant argued on appeal that the evidence was legally insufficient
to support his conviction under Count II of the indictment, which alleged
serious mental deficiency, impairment, or injury. However, concluding that
Appellant’s conviction under Count II violated the Double Jeopardy Clause,
the court of appeals found it unnecessary to resolve this sufficiency ground.
Nawaz, 2021 WL 1884551, at *5. In light of our disposition of the double-
jeopardy issue, we will remand the case to the court of appeals to address the
sufficiency issue in the first instance.
4
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because “the State did not prove two separate and distinct incidents of
injury.” Nawaz, 2021 WL 1884551, at *4–5. In its petition for
discretionary review, the State now argues that the court of appeals
erred to focus on the act or transaction that caused the injuries rather
than the injuries themselves as the basis for determining whether
Appellant’s double-jeopardy right was violated. 4 Appellant, on the other
hand, argues that the court of appeals found only a single injury which
caused both “the hemorrhage in [the victim’s] [r]etina[s] and the holes
in [her] brain.” Appellant’s Brief at 16.
II. APPLICABLE LAW
We cannot greatly fault the court of appeals for relying on an
opinion by this court respecting the issue of double jeopardy over a case
about the right to jury unanimity. Nevertheless, we hold that Stuhler
controls this case. For purposes of explaining why Stuhler, not
Villanueva, is the controlling precedent, it is useful to begin with an
examination of the text of the Double Jeopardy Clause itself, and a
summary of the relevant opinions addressing the protection that it
affords against multiple punishments.
(A). Double Jeopardy: Multiple Punishments
The Double Jeopardy Clause of the Fifth Amendment provides:
“[N]or shall any person be subject for the same offence to be twice put in
jeopardy of life or limb[.]” U.S. CONST amend. V. The guarantee against
4 In its sole ground for review, the State contends: “In concluding that
Appellant’s convictions for injury to a child causing serious bodily injury and
injury to a child causing serious mental deficiency, impairment, or injury
violated double jeopardy, did the court of appeals erroneously focus on the
transaction rather than the result?”
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double jeopardy affords three basic protections: (1) against prosecution
a second time for the “same” offense after an acquittal; (2) against
prosecution a second time for the “same” offense after a conviction; and
(3) against multiple punishments for the “same” offense. Ramos v. State,
636 S.W.3d 646, 651 (Tex. Crim. App. 2021). The third protection,
against multiple punishments, is the double-jeopardy issue in this case.
To decide whether the double-jeopardy protection against
multiple punishments for the same offense has been infringed, courts
must seek to understand how many punishments the law actually
permits: What has the state legislature prescribed with respect to how
many times an offender may be punished? See Missouri v. Hunter, 459
U.S. 359, 368 (1983) (“Legislatures, not courts, prescribe the scope of
punishments.”); Ex parte Benson, 459 S.W.3d 67, 71 & n.8 (Tex. Crim.
App. 2015) (citing Hunter for the proposition that, in the multiple
punishments context, how many punishments the Double Jeopardy
Clause will permit is a matter for the Legislature).
(B). Different Statutes: Blockburger
When separately enumerated penal statutes are involved, this
Court has said, “the traditional starting point for determining
‘sameness’ for multiple-punishment double-jeopardy analysis is the
Blockburger test.” Ramos, 636 S.W.3d at 651 (citing Blockburger v.
United States, 284 U.S. 299, 304 (1932)). Implementing its “cognate-
pleadings approach” to the Blockburger “same-elements” test, this Court
asks whether each offense, as pled in the charging instrument, contains
at least one element that the other does not. Benson, 459 S.W.3d at 72.
If not, then the Court presumes that the two offenses are the same for
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multiple-punishment double-jeopardy purposes. Id. But if each offense
does contain an element that the other does not, then the presumption
is that the offenses are different, and the Court goes on to inquire
whether other considerations may operate to defeat that presumption.
Id. at 72–73 (citing Ervin v. State, 991 S.W.2d 804, 814 (Tex. Crim. App.
1999)). 5 In conducting this “same-elements” analysis, the Court looks
only to “the pleadings and the relevant statutory provisions[,]” not “the
evidence presented at trial.” Id. at 73.
(C). Same Statute: “Allowable Units of Prosecution”
But when the question is how many times a defendant may be
punished for violating a single statute, the analysis does not begin with
Blockburger’s elements approach. Instead, the Court simply conducts an
“allowable units of prosecution” analysis. See Benson, 459 S.W.3d at 71
(“When only one statute is at issue, the ‘elements’ analysis is necessarily
resolved in the defendant’s favor, and only a ‘units’ analysis remains to
be conducted.”). A “units of prosecution” analysis, in turn, may involve
one of at least two questions, depending on whether (1) the defendant is
being convicted more than once for an offense defined under the
identical statutory subsection, or whether (2) he is being convicted more
than once (as in the instant case) under different statutory subsections
of the same penal statute.
(1). Same Statute: Same Subsection
5 Appellant argues that consideration of the Ervin factors establishes
that the offenses in this case should be regarded as the same for multiple-
punishments double-jeopardy purposes. For reasons we will explain in the text
post, we disagree.
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Under the first of these two “units of prosecution” analyses, the
question will often devolve into a determination of when one violation of
the statutory offense has come to an end and another identically defined
violation of the same statutory offense has begun; or it may depend on
how many victims of the identically defined offense there were. See id.
at 73 (“This . . . inquiry involves determining such things as whether
there were two murder victims [or] whether a victim who was assaulted
on Monday was assaulted again on Tuesday[.]”). Our cases provide ready
examples of this kind of “units of prosecution” inquiry.
For instance, in Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex.
Crim. App. 2006), the Court determined that, because our penal code
defines burglary as a property offense and not an assaultive-type
offense, “the allowable unit of prosecution in a burglary is the unlawful
entry.” Thus, when a defendant breaks into a dwelling and commits a
discrete felony against each of two of its inhabitants, he has violated the
burglary statute only once. Id. In contrast, Ex parte Hawkins, 6 S.W.3d
554, 555 (Tex. Crim. App. 1999), the Court addressed how many times
a defendant could be punished under the identical provisions of the
robbery statute when he assaults two people at the same time in order
to take the property of only one of them. The Court held there that,
because (unlike burglary) robbery is an assaultive offense under our
current penal code, the appropriate “unit of prosecution” is the number
of assault victims, not the number of victims from whom property was
taken. Id. at 560.
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(2). Same Statute: Different Subsections 6
This case, however, involves the second kind of “units of
prosecution” inquiry mentioned above. In this context, the Court must
ask a different question: whether, when a single act or course of conduct
by a defendant violates more than one subsection of the same penal
statute, the defendant may be punished separately for violating each
discrete subsection, or may he be punished only once?
Examples of “units of prosecution”-analyses of this kind may be
found in Loving v. State, 401 S.W.3d 642 (Tex. Crim. App. 2013),
Gonzales v. State, 304 S.W.3d 838 (Tex. Crim. App. 2010), and Haight v.
State, 137 S.W.3d 48 (Tex. Crim. App. 2004). Each of these cases
involved a statute prohibiting numerous alternatively described acts,
any one of which would constitute a commission of the offense. The
question was: When the defendant’s conduct included more than one of
these actionable acts, could he be punished for each of them, or only one?
In Loving, the Court concluded that the appellant was properly
6 We use the word “subsection” somewhat advisedly here, for the sake
of convenience. It is sometimes the case that the same, identical subsection of
a penal provision will itself contain more than one distinct theory for how the
offense may be committed. When we say “different subsection” in this portion
of our discussion, we should be understood to mean not only a different
subsection, but also a different theory for committing the offense that is also
contained within that same subsection. See our discussion of Gonzales v. State,
304 S.W.3d 838 (Tex. Crim. App. 2010), and Haight v. State, 137 S.3d 48 (Tex.
Crim. App. 2004), in the text, post. As will be seen, in our discussion of Gonzales
and Haight, the Court treats cases addressing statutes that define different
theories for committing an offense entirely within the same subsection
similarly to those cases in which the statutes involved distinctly define
different theories of commission in different subsections of the same statute.
This case involves commission of distinct offenses defined in different
subsections of the same statute.
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convicted and punished under separate subsections of the indecency-
with-a-child statute⸻both for exposure and for contact. 401 S.W.3d at
649. In Gonzales, the Court sanctioned multiple convictions and
punishments for the commission of distinct statutorily defined acts of
aggravated sexual assault of a child—even as defined within the same
subsection of the statute. See 304 S.W.3d at 849 (defendant convicted of
both anal and vaginal penetration of a child victim pursuant to TEX.
PENAL CODE § 22.021(a)(1)(B)(i)). Similarly, in Haight, the Court
permitted multiple convictions and punishments under the same
subsection of the official misconduct statute for separate statutorily
defined instances of that offense, since the two theories of commission
were separated by the conjunctive “or,” and each “would cause a
different type of harm to a victim.” See 137 S.W.3d at 50–51 (defendant
convicted for subjecting his victim to both arrest and mistreatment,
which were deemed to be independently unlawful under TEX. PENAL
CODE § 39.03(a)(1)).
(D). “Focus” or “Gravamen”
Ultimately, however, regardless of which of these types of
analysis is the appropriate one in a given case, this Court has said that
“the best indicator” of the allowable unit of prosecution “seems to be the
focus or ‘gravamen’ of the offense.” Jones v. State, 323 S.W.3d 885, 889
(Tex. Crim. App. 2010). In the same-statute/different subsections cases
discussed above (Loving, Gonzales, and Haight), the gravamen of the
offense was deemed to be the controlling factor. And when examining a
statute to determine “the focus or gravamen” of the offense for double-
jeopardy purposes, the Court will look to see what it has said when
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construing that statute for other purposes. It does this because
“[w]hether statutory construction occurs in the double jeopardy context,”
or in some other context such as jury unanimity, “the issue is the same:
the meaning of the statute.” Id.III. ANALYSIS
(A). Section 22.04(a), Subsections (1) and (2): Stuhler
In Stuhler, this Court observed that Section 22.04(a) is a result-
of-conduct type of offense. That is to say, it is unconcerned with how the
offense is committed, and it focuses instead on the various types of harm
it seeks to avert. See 218 S.W.3d at 718 (noting that prior cases of this
Court have “regarded the gravamen of the offense of injury to a child to
be, not the particular conduct that caused the injury, but the resulting
injury that the conduct caused”). Relying on the so-called “eighth grade
grammar” rule of thumb for construing the gravamen of penal statutes,
first articulated by Judge Cochran in Jefferson v. State, 189 S.W.3d 305,
315–16 (Tex. Crim. App. 2006) (Cochran, J., concurring), the Court
concluded that the proper way to construe Section 22.04(a)—for
purposes of deciding whether a jury had to be unanimous with respect
to a verdict under any one subsection—was to hold that each subsection
constituted a distinct offense. Stuhler, 218 S.W.3d at 718–19.
In reaching that conclusion in Stuhler, the Court observed:
In Section 22.04(a) of the Penal Code, the main verb
defining the offense of injury to a child is, of course,
“causes.” The direct object of that main verb is, variously,
“serious bodily injury,” “serious mental deficiency,
impairment, or injury,” or plain “bodily injury.” The
Legislature has thus defined the offense of injury to a child
according to the kind and degree of injury that results. As
the court of appeals noted, these various results are set out
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in different subsections of the statute, and the degree of the
offense is determined, at least in part, according to which
of the results the defendant’s act or omission caused.
Id.; see also Pizzo v. State, 235 S.W.3d 711, 718–19 (Tex. Crim. App.
2007) (relying on Stuhler’s analysis to support the conclusion that each
of the types of “sexual contact” defined in the indecency-with-a-child
statute constituted a distinct offense requiring jury unanimity).
Jury unanimity and double jeopardy, the Court has said, “are
closely intertwined strands of our jurisprudence” that “address the same
basic question: In a given situation, do different legal theories of
criminal liability comprise different offenses, or do they comprise
alternate methods of committing the same offense?” Huffman v. State,
267 S.W.3d 902, 905 (Tex. Crim. App. 2008). Having found the various
“theories of criminal liability” set out in the subsections of Section
22.04(a) to constitute “different offenses” for jury unanimity purposes in
Stuhler, we perceive no basis to construe the statute any differently for
purposes of double jeopardy. 218 S.W.3d at 719; see also Huffman, 267
S.W.3d at 905 (“In the injury to a child context, whether separate legal
theories comprise separate offenses depends upon whether the theories
differ with respect to the result of the defendant’s conduct.”).
(B). Distinguishing Villanueva
The court of appeals was mistaken to draw a different conclusion
based upon this Court’s later opinion in Villanueva. It is true that,
unlike Stuhler, Villanueva was a double-jeopardy case, not a case about
jury unanimity. Even so, in resolving the double-jeopardy issue there,
the Court followed its conclusion in Jefferson, 189 S.W.3d at 312,
another case addressing jury unanimity. The question in Jefferson was
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whether committing injury to a child by act is a different offense than
committing injury to a child by omission. There, the Court expressly
held that the “focus” of the injury to a child statute was the result of
conduct, not whether any of the specified results are caused by act or
omission. Id. Whether the particular result was caused by act or by
omission was considered by the Court in Jefferson to be non-elemental—
as merely alternative “means of committing a single criminal offense
and not . . . separate criminal offenses.” Id. at 313. And applying that
construction to the double-jeopardy question in Villanueva, the Court
concluded that:
“serious bodily injury committed against the same victim
at the same time should be considered the same offense for
purposes of the double-jeopardy prohibition against
multiple punishments, regardless of whether that injury to
that victim resulted from the actor’s act, his omission, or
by a combination of his act and omission.”
227 S.W.3d at 748.
Unlike this case, Villanueva involved only one of the statutorily
defined results identified in Section 22.04(a)(1), serious bodily injury.
Whether that one injury was caused by act or by omission had no
bearing on the question of how many “offenses” the appellant could be
punished for under the Double Jeopardy Clause. 7 Only one injury
7 It is true that in Villanueva the Court discussed, albeit in dicta, a
hypothetical situation in which a defendant might be punished more than once
for an act and an omission. The Court hypothesized that if, after causing
serious bodily injury by act, the defendant failed to seek medical attention, and
that omission “resulted in a separate and discrete, or at least incrementally
greater injury” than was caused by the act alone, then the defendant might be
susceptible to multiple punishments. 227 S.W.3d at 748–49. But this would
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occurred. Because the “focus” or “gravamen” of injury to a child is the
result of conduct (the injury), the Court has continued to insist—even
after Villanueva—that the different statutorily defined results in the
injury to a child statute constitute separate offenses, at least for jury
unanimity purposes. See Huffman, 267 S.W.3d at 906 (recognizing that
jury unanimity is required with respect to the various injury to a child
results even after Villanueva because the “legal theories of injury to a
child . . . differed with respect to the type of injury inflicted”).
We can perceive no plausible justification for altering our settled
construction of the statute for purposes of the double-jeopardy inquiry.
See Jones, 323 S.W.3d at 889 (statutory construction does not vary
depending on the legal issue involved). The allowable units of
prosecution in this case are determined by how many separate and
discrete statutorily defined types of injurious results Appellant’s act or
conduct caused. It does not matter how many acts or incidents of abuse
it may have taken him to inflict those distinct statutorily defined
injuries.
(C). Ervin does not control
Appellant argues that consideration of the non-exclusive Ervin
constitute an application of the “same statute: same-subsection” version of the
units of prosecution analysis discussed above. That is to say, it would involve
the question of how many times the defendant could be punished under the
same statutory subsection, namely, Section 22.04(a)(1) (“serious bodily
injury”). The present case involves application of the second type of units of
prosecution analysis: “same statute: different subsection.” We resolve the
double jeopardy question in this context simply by asking whether the
differently specified statutory results constitute separate offenses. And in
Stuhler, the Court authoritatively construed Subsections (1) and (2) of Section
21.04(a) to identify discrete offenses. 218 S.W.3d at 719.
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factors militates in favor of the conclusion that Section 22.04(a)(1) and
Section 22.04(a)(2) should be regarded as two ways of committing a
single offense for double jeopardy purposes. 8 But in all of the same-
statute/different subsection cases discussed above (Loving, Gonzales,
and Haight), this Court has found its focus/gravamen analysis to be
determinative, notwithstanding consideration of the other Ervin factors.
Loving, particularly, explicitly acknowledged the appellant’s argument
in that case was predicated on Ervin. Loving, 401 S.W.3d at 645. But it
nevertheless based its conclusion that the subsections of the statute at
issue there constituted different offenses primarily on its
focus/gravamen analysis. Id. at 649. In Stuhler, this Court has already
concluded that the focus/gravamen of Section 22.04 resides in the
separate results proscribed in the individual subsections therein, and it
has therefore concluded that they identify different offenses. Stuhler,
8 The Ervin factors are:
(1) whether offenses are in the same statutory section or chapter;
(2) whether the offenses are phrased in the alternative; (3)
whether the offenses are named similarly; (4) whether the
offenses have common punishment ranges; (5) whether the
offenses have a common focus or gravamen; (6) whether the
common focus tends to indicate a single instance of conduct; (7)
whether the elements that differ between the two offenses can
be considered the same under an imputed theory of liability that
would result in the offenses being considered the same under
Blockburger (a liberalized Blockburger standard); 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.
Benson, 459 S.W.3d at 72 (summarizing the factors set out in Ervin, 991
S.W.2d at 814).
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201 S.W.3d at 718–19. And what is true of the statute for jury unanimity
purposes, we conclude today, is equally true for multiple-punishment
double-jeopardy purposes as well.
IV. CONCLUSION
We conclude that punishing Appellant in the same trial for
causing serious bodily injury, under Section 22.04(a)(1), and also for
causing serious mental deficiency, impairment, or injury, under Section
22.04(a)(2), did not violate the Double Jeopardy Clause. There was some
evidence that, by whatever act or acts Appellant inflicted the “whip-
lash-type” injuries to the victim, those injuries included both “serious
bodily injury” in the form of retinal bleeding that caused her blindness, 9
and “serious mental deficiency” in the form of diffuse brain bleeding that
has caused her developmental delays. 10 The judgment of the court of
appeals is therefore reversed insofar as it vacated Appellant’s conviction
and punishment under Count II of the indictment, and the cause is
remanded to that court for further proceedings consistent with this
opinion.
DELIVERED: June 22, 2022
PUBLISH
9 See TEX. PENAL CODE § 1.07(a)(46) (“’Serious bodily injury’ means
bodily injury that causes . . . protracted loss or impairment of the function of
any bodily member or organ.”); id. § 1.07(a)(8) (“’Bodily injury’ means . . . any
impairment of physical condition.”).
10We express no opinion, of course, with respect to the legal sufficiency
of the evidence to establish Appellant’s conviction under Count II of the
indictment, leaving that determination to the court of appeals in the first
instance on remand. See note 3, ante.
16