New Service Rule Applicable to the State Prosecuting Attorney Per Misc. Docket No. 19-012
“Did the court of appeals err in holding that conviction in Count Two for assault on a family member did not violate the double jeopardy clause of the Fifth Amendment?”
During a single incident, Philmon pushed his girlfriend, threatened her with a knife and a metal bar, threatened to pistol-whip her with a gun, placed a plastic bag over her head in an attempt to suffocate her, and in doing so, used his hands to constrict her throat and impede her ability to breathe. He was convicted of two offenses: aggravated assault by threat with a deadly weapon (a knife, metal bar, bag, or metal object) and family-violence-assault by occlusion with his hand or arm.
On appeal, Philmon argued his convictions for aggravated assault and family-violence-assault by occlusion violated Double Jeopardy. The court of appeals rejected his claim and held that the gravamen and focus of each offense was different: causing bodily injury to a person the defendant is dating versus threatening another with a deadly weapon.
Philmon argues that under the multi-factor test for determining legislative intent in Ervin v. State, 991 S.W.2d 804, 814 (Tex. Crim. App. 1999), he is being punished twice for the same offense. The two offenses are in neighboring Penal Code sections, both include the word “assault,” are only one-degree different in punishment range, and share the same focus: protecting people from assault. He contends the indictment’s alternative manners and means overlap between the offenses and risk convicting him twice for the same conduct. He points out that the unit of prosecution for assaultive offenses is the victim. He also asserts that the similarity between these offenses are even greater than in Shelby v. State, 448 S.W.3d 431 (Tex. Crim. App. 2014), which permitted only one conviction for aggravated assault with a deadly weapon against a public official or intoxication assault against the same person.