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Philmon v. State

Court of Appeals of Texas, First District

June 18, 2019

MANYIEL PHILMON, Appellant
v.
THE STATE OF TEXAS, Appellee

          On Appeal from the 213th District Court Tarrant County, Texas [1] Trial Court Case No. 1477929D

          Panel consists of Chief Justice Radack and Justices Goodman and Countiss.

          OPINION

          Sherry Radack, Chief Justice.

         A jury 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.

         BACKGROUND

         In 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.

         White 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.

         Appellant 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 arrested.

         DOUBLE JEOPARDY

         In his first issue on appeal, appellant contends that "the conviction in Count Two for [dating-violence assault] violates the double jeopardy clause of the Fifth amendment."

         Applicable Law

         The 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 trial.").

         We 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 punishment. Id.

         Analysis

         In the 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 object.

         In the 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.

         Here, 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").

         Likewise, 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. Id.

         Thus, 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 ...


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