Appeal from the 213th District Court Tarrant County, Texas
Trial Court Case No. 1477929D
consists of Chief Justice Radack and Justices Goodman and
Radack, Chief Justice.
convicted appellant, Manyiel Philmon, of aggravated assault
with a deadly weapon ("Count 1") and assault of a
family member, household member, or person with whom he had a
dating relationship ("Count 2") and assessed
punishment at two years' confinement and five years'
confinement suspended with five years' community
supervision, respectively. In four issues on appeal,
appellant contends that (1) the conviction for
dating-violence assault violates the double-jeopardy clause
of the United States Constitution's Fifth Amendment; (2)
the trial court abused its discretion in assessing a Crime
Victim's Compensation Fee as a court cost; (3) he was
unlawfully assessed duplicate court costs; and (4) the trial
court erred when it allowed the State to cross-examine
appellant with a question that assumed a fact not in
evidence. We affirm the judgment in Count 1. We modify the
judgment in Count 2, and, as modified, affirm.
September 2016, appellant began dating Evonne White.
Eventually, he began spending most nights of the week at
White's apartment. One morning, while appellant was still
asleep, White looked through appellant's cell phone and
discovered text messages showing that he had been unfaithful
to her with other women.
woke appellant and confronted him with her discovery. An
argument ensued, and White told appellant to gather his
belongings and leave her apartment. Appellant gathered his
belongings, placed them near the center of White's
apartment, and tried to light them on fire. When White told
appellant that he was going to burn down the whole apartment,
he pushed her onto an air mattress, took the battery out of
her phone, and threw it across the room. He then threatened
White with a metal bar from an exercise weight. Appellant
also retrieved a gun and told White that he was going to
pistol-whip her with it. Appellant then went into the kitchen
and retrieved a kitchen knife and plastic storage bags.
Appellant threatened White with a knife, then he wrapped the
plastic bag around her head and attempted to suffocate her;
in doing so he used his hands to constrict her throat and
prevent her from breathing.
and White were both screaming during the altercations, and a
neighbor eventually knocked on the door and called 9-1-1.
When appellant answered the door, White pushed him out and
locked the door. The police arrived, and appellant was
first issue on appeal, appellant contends that "the
conviction in Count Two for [dating-violence assault]
violates the double jeopardy clause of the Fifth
Double Jeopardy Clause bars, among other things, multiple
criminal punishments for the same offense. See U.S.
Const. amend. V; Hudson v. United States, 522 U.S.
93, 99 (1997). But, the Double Jeopardy Clause does not
prohibit multiple punishments for the same conduct under two
statutory provisions if this is what the legislature
intended. See Missouri v. Hunter, 459 U.S. 359,
368-69 (1983) ("Where, as here, a legislature
specifically authorizes cumulative punishment under two
statutes, regardless of whether those two statutes proscribe
the 'same' conduct under Blockburger, a
court's task of statutory construction is at an end and
the prosecutor may seek and the trial court or jury may
impose cumulative punishment under such statutes in a single
apply the usual test to determine whether the legislature
intended multiple punishments for the same offense. See
Blockburger v. United States, 284 U.S. 299 (1932). Under
Blockburger, two offenses are not the same if
"each provision requires proof of a fact which the other
does not." Id., 284 U.S. at 304. In Texas, we
look to the pleadings to inform the Blockburger
test. Bien v. State, 550 S.W.3d 180, 184 (Tex. Crim.
App. 2018). If the two offenses have the same elements under
the cognate-pleadings approach, then a judicial presumption
arises that the offenses are the same for purposes of double
jeopardy and the defendant may not be convicted of both
offenses. Id. That presumption can be rebutted by a
clearly expressed legislative intent to create two separate
offenses. Id. Conversely, if the two offenses, as
pleaded, have different elements under the
Blockburger test, the judicial presumption is that
the offenses are different for double-jeopardy purposes and
multiple punishments may be imposed. Id. at 184-85.
This presumption can be rebutted by showing, through various
factors, that the legislature clearly intended only one
first count of the indictment, the State charged appellant
with aggravated assault with a deadly weapon. See
Tex. Penal Code § 22.02(a)(2). The indictment for this
offense alleged the following elements: (1) appellant, (2)
intentionally or knowingly, (3) threatened imminent bodily
injury to Evonne White, and (4) used or exhibited a deadly
weapon, namely, a knife, or a metal bar, or a bag, or a metal
second count of the indictment, the State charged appellant
with dating-violence assault by impeding the normal breathing
or circulation of the blood of the person. See Tex.
Penal Code § 22.01(a)(1), (b)(2)(B). The indictment for
this offense alleged the following elements: (1) appellant,
(2) intentionally, knowingly, or recklessly, (3) caused
bodily injury to Evonne White, (4) 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 (5)
Evonne White was a member of appellant's family or
household or a person with whom he had a dating relationship.
the aggravated-assault-with-a-deadly-weapon charge required
proof that appellant threatened Evonne White with bodily
injury, while the dating-violence assault charge required an
actual assault. Thus, the dating-violence assault charge is
not a lesser-included offense of the aggravated assault
charge because it is not established by proof of the same or
less than all of the facts require to establish the
aggravated assault. See Childress v. State, 285
S.W.3d 544, 549 (Tex. App.-Waco 2009, pet. ref'd)
(holding dating-violence assault not lesser-included offense
of aggravated assault because "the basis for the
underlying assault-the threat of imminent bodily injury-is
distinct from the basis for the dating violence assault,
which was actual bodily injury").
the aggravated-assault-with-a-deadly-weapon charge required
proof that appellant used a deadly weapon, while the
dating-violence assault did not. Compare Tex. Penal
Code § 22.02(a)(2) with Tex. Penal Code §
22.01(b)(2)(B). And, the dating-violence assault required
proof that Evonne White was in a dating relationship with
appellant; the aggravated assault charge did not.
after applying the Blockburger test, because the two
offenses, as pleaded, have different elements, we presume
that the charged offenses are not the same offense for
double-jeopardy purposes. See Bien, 550 S.W.3d at
185. We then must ...