“What is the unit of prosecution for failure to appear, Tex. Penal Code § 38.10?”
Kuykendall was on deferred adjudication probation on two counts charged in a single indictment. The trial court set the hearing on the State’s motion to adjudicate and revoke both counts for a single hearing. Kuykendall failed to appear. He pled guilty to two counts of failure to appear, and the trial court sentenced him to ten years’ confinement on each count.
Kuykendall argued on appeal that two convictions violated the multiple-punishments prong of the Double Jeopardy Clause because the allowable unit of prosecution is each failure to appear. The court of appeals agreed: because he failed to appear for only one court date, the State was entitled to only one conviction.
The State argues that the gravamen of the offense is the failure to appear “in accordance with the terms of his release.” Failing to appear on multiple counts constitutes multiple violations because each count included a bond conditioned on the promise to appear. Any other construction would mean the unit of prosecution is dictated by scheduling decisions.