Philmon v. State

• Decision Date: 21 October 2020
• Docket Number: NO. PD-0645-19,PD-0645-19
• Citation: 609 S.W.3d 532
• Parties: Manyiel PHILMON, Appellant v. The STATE of Texas
• Court: Texas Court of Criminal Appeals

609 S.W.3d 532

Manyiel PHILMON, Appellant

v.The STATE of Texas

NO. PD-0645-19

Court of Criminal Appeals of Texas.

DELIVERED: October 21, 2020

OPINION

Walker, J., delivered the opinion of the Court in which Keller, P.J., and Richardson, Newell, Keel, and Slaughter, JJ., joined.

Appellant was convicted of and sentenced for aggravated assault with a deadly weapon and family-violence assault. On appeal, Appellant argued that a conviction and sentence for both offenses violated his right against double jeopardy. The court of appeals disagreed and affirmed the trial court's judgment on this issue. We granted Appellant's petition to determine whether the court of appeals was correct in ruling that Appellant was properly convicted of and sentenced for both counts. Because each offense required proof of an element the other offense did not and a showing cannot be made that the Legislature clearly intended only one punishment for these two offenses, we affirm the court of appeals on this issue.

I — Background

In 2016, Appellant and Evonne White began dating. One morning, after Appellant stayed the night with White, White went through Appellant's phone and discovered Appellant had been unfaithful. White subsequently confronted Appellant about her discovery, and the two began fighting. During the altercation, Appellant gathered some clothing in the center of the room and tried to light it on fire. After White told Appellant that he was going to burn the whole apartment down, Appellant pushed White onto a mattress, removed the battery from her phone, and threw the phone across the room. Next, he threatened her with a metal bar, telling her "Bitch, I don't give a fuck about you right now. I'm going to beat the shit out of you." Then, he grabbed a gun, waved it in her face, and threatened to "pistol-whip" her. Then, Appellant went to the kitchen and retrieved a knife and some plastic kitchen bags. He threatened her with the knife and wrapped a plastic bag around her head and attempted to suffocate her by raising the bag and constricting her breathing. A neighbor heard White screaming and called the police. Consequently, Appellant was arrested.

I(A) — Trial

Appellant's indictment included two counts. Count one alleged aggravated assault with a deadly weapon under Texas Penal Code § 22.02(a)(2). This count contained four paragraphs, each of which specified a different deadly weapon, including a knife, a metal bar, a bag, and a metal object. Count two alleged family-violence assault by impeding breathing or circulation under Texas Penal Code § 22.01(b)(2)(B). Appellant was convicted and sentenced for both counts.

I(B) — Appeal

Appellant appealed his convictions and sentences, claiming, among other things, that they violated his right against double jeopardy. The court of appeals concluded that both offenses had at least one element that the other did not and, even though the offenses occurred during the same criminal episode, they did not constitute the same offense for purposes of the protection against double jeopardy. Accordingly, the court of appeals affirmed the trial court's judgment on this issue.

II — Double Jeopardy

Appellant, maintaining that his right against double jeopardy was violated, now asks us to review the court of appeals's decision. Specifically, Appellant claims that, because count one can be proved by the same facts needed to support count two, they are the same offense for purposes of double jeopardy.

II(A) — Applicable Law

The Fifth Amendment's Double Jeopardy Clause offers protection against multiple prosecutions and multiple punishments for the same offense.¹ To determine whether two offenses are the "same offense" for purposes of double jeopardy, we apply the "same-elements" test, as set forth in Blockburger v. United States .² Under the "same-elements" test, "two offenses are not the same if ‘each provision requires proof of a fact which the other does not.’ "³ Additionally, the Supreme Court has long held that simply because an individual engaged in only one "culpable act," he is not precluded from conviction and punishment for more than one offense.⁴ If both offenses, as pleaded, have different elements under the Blockburger test, a judicial presumption arises that the offenses are different for double jeopardy purposes, and the defendant may be convicted and punished separately for each offense.⁵ That presumption, however, can be rebutted if it can be shown that the Legislature clearly intended only one punishment for both offenses.⁶

In Texas, the Blockburger "same-elements" test is informed only by the pleadings, and a reviewing "court may not consider the evidence presented at trial" to make the determination.⁷ Moreover, we have held that even where there is a substantial overlap in the proof required for each offense, the offenses are not the "same offense" for double jeopardy purposes if each offense, as pleaded, requires at least one element not required by the other offense.⁸ Once a presumption is raised that count one and count two are different offenses under the Blockburger "same-elements" test, we consider a non-exclusive set of factors we listed in Ex parte Ervin to determine whether the Legislature clearly intended only one punishment for these separate offenses:

whether 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.⁹

If, as pleaded, the offenses each have at least one element the other does not, and if, according to the relevant statutory provisions, it is not clear that the Legislature intended both offenses to be punished as one, then separate convictions and punishments for each offense does not violate one's right against double jeopardy.

II(B) — Analysis

In this case, the indictment for aggravated assault with a deadly weapon (count one) required proof that Appellant:

(1) intentionally or knowingly,

(2) threatened imminent bodily injury to Evonne White, and

(3) used or exhibited a deadly weapon, namely, a knife, or a metal bar, or a bag, or a metal object.

The indictment for family-violence assault (count two) required proof that appellant:

(1) intentionally, knowingly, or recklessly,

(2) caused bodily injury to Evonne White,

(3) by impeding the normal breathing or circulation of the blood of Evonne White by applying pressure to her throat with his hand or arm, and

(4) Evonne White was a member of appellant's family or household or a person with whom he had a dating relationship.

The court of appeals, in examining both of these charged offenses, determined that they differed on three bases.¹⁰ First, the court of appeals found that the aggravated assault with a deadly weapon count required proof of a threat, whereas the family-violence assault count did not.¹¹ Second, the court of appeals also found that the aggravated assault with a deadly weapon count required proof of a deadly weapon, whereas the family-violence assault count did not.¹² Third, the court of appeals noted that the family-violence assault count required proof of a dating relationship, whereas the aggravated assault with a deadly weapon count did not.¹³ Appellant, in both his petition for discretionary review and brief on the merits, argues that the court of appeals erred on the issue of whether both counts required proof of a deadly weapon.¹⁴ The State in its brief argues that the court of appeals correctly found a difference between the two counts in the threat element.¹⁵ We address both parties' arguments in turn.¹⁶

Appellant argues that the facts needed to prove that he impeded White's breathing or circulation necessarily constitute proof of assault with a deadly weapon. First, as we stated in Ex parte McWilliams , simply because there is a substantial overlap in proof required for both offenses does not mean the offenses are the same for double jeopardy purposes.¹⁷ Second, even though in some cases the facts proving that one impeded another's breathing or circulation may also prove the use or exhibition of a deadly weapon, that does not mean that impeding one's breathing or circulation necessarily constitutes proof of using or exhibiting a deadly weapon.

We have interpreted "impeding" under Texas Penal Code § 22.01(b)(2)(B) to include any degree of impediment to one's normal breathing or circulation of blood flow. Because the statute does not define "impeding," in Marshall , we relied on the ordinary understanding of the word which is "[a] hindrance or obstruction."¹⁸ In Marshall , the complainant was still able to breathe, just not deeply.¹⁹ Nevertheless, because "the plain meaning of the statutory language indicates that any impediment to normal breathing" is sufficient, we held that the evidence of the complainant simply being unable to take deep breaths supported the defendant's conviction under § 22.01(b)(2)(B).²⁰ The Marshall holding implies that any hindrance, obstruction, or impediment for any amount of time to one's breathing or blood flow is per se a bodily injury and therefore sufficient to satisfy family-violence assault. This is an exceptionally low bar. It takes very little effort or force to slightly hinder another's breathing or circulation, and there is notably no injury or threat of injury requirement aside from the impediment, however minimal.

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