Beltran v. State

760 S.W.2d 353, 1988 Tex. App. LEXIS 2648, 1988 WL 112699
CourtCourt of Appeals of Texas
DecidedOctober 27, 1988
DocketNos. 01-88-00018-CR & 01-88-00019-CR
StatusPublished
Cited by2 cases

This text of 760 S.W.2d 353 (Beltran v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beltran v. State, 760 S.W.2d 353, 1988 Tex. App. LEXIS 2648, 1988 WL 112699 (Tex. Ct. App. 1988).

Opinion

[354]*354OPINION

DUGGAN, Justice.

In a single trial under separate indictments, a jury found appellant guilty of aggravated kidnapping (cause number 470,-224) and aggravated sexual assault of a child (cause number 487,001). Appellant pleaded true to the enhancement allegation in each indictment, and the trial court assessed his punishment at 60 years confinement in each case.

In his first point of error, appellant, having been convicted under the first indictment for aggravated kidnapping, contends that he was placed in jeopardy for the same offense when he was also convicted of the offense of aggravated sexual assault.

The constitutional prohibition against double jeopardy protects against a second prosecution for the same offense after an acquittal, a second prosecution for the same offense after a conviction, and multiple punishments for the same offense. Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980). Because appellant was jointly tried for the two offenses, the third classification applies to the instant case. Multiple prosecutions for two statutory offenses committed in the same transaction are not prohibited by the federal or state constitutions, nor the Texas statutes. Ex parte McWilliams, 634 S.W.2d 815, 834 (Tex.Crim.App.) (op. on reh’g), cert. denied, 459 U.S. 1036, 103 S.Ct. 447, 74 L.Ed.2d 602 (1982). However, the question is whether the two statutorily distinct offenses of aggravated kidnapping and aggravated sexual assault of a child are the “same offense” for double jeopardy purposes.

In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the United States Supreme Court held that the test to be applied where the same act or transaction violates two distinct statutory prohibitions is “whether each provision requires proof of a fact which the other does not.” In the instant case, appellant was found guilty of both aggravated kidnapping and aggravated sexual assault of a child. These offenses are proven by showing the following elements:

Aggravated kidnapping: A person commits an offense if he intentionally or knowingly abducts another person with the intent to inflict bodily injury on him or violate or abuse him sexually. Tex. Penal Code Ann. sec. 20.04(a)(4) (Vernon 1974).
Aggravated sexual assault: A person commits an offense if the person causes the penetration of the anus or female sexual organ of a child by any means; or if the person by acts or words places the victim in fear that death, serious bodily injury, or kidnapping will be imminently inflicted on any person. Tex.Penal Code Ann. sec. 22.021(a)(l)(B)(i), 22.-021(a)(2)(A)(ii) (Vernon Supp.1988).

The court in Ex parte McWilliams, 634 S.W.2d at 824, found that because the offenses of aggravated kidnapping and aggravated robbery each required proof of a fact that the other did not, there was no double jeopardy violation. Appellant concedes in the instant case that the offenses of aggravated kidnapping and aggravated sexual assault each require proof of a fact that the other does not, but contends that Blockburger is not the sole criteria for determining if a defendant has been twice put in jeopardy for the same offense.

Relying on May v. State, 726 S.W.2d 573, 574 (Tex.Crim.App.1987), appellant asserts that the test in In re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889), should control in the instant case. Nielsen held that “where a person had been tried and convicted for a crime which has various incidents in it, he cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offense.” Id. at 188, 9 S.Ct. at 676. Nielsen suggests that where proof of part of the conduct of the criminal episode comprises proof of additional conduct that occurred in the same transaction, only one conviction will stand. Appellant argues that the aggravating factor in the kidnapping was the intent to commit sexual assault, and this was proven by the same [355]*355facts that were admitted to prove the offense of aggravated sexual assault.

We note that in each case cited by appellant where the Nielsen analysis was applied, the defendant was prosecuted for two offenses in separate trials. The case on which appellant relies, May v. State, 726 S.W.2d at 575, distinguishes the situations in which the defendant is tried in a single trial:

Successive prosecutions [as distinguished from multiple punishments at a single trial] will be barred in some circumstances where the second prosecution requires the relitigation of factual issues already resolved by the first.

(Citing Davis v. Herring, 800 F.2d 513, 518 (5th Cir.1986)) (emphasis added).

In Davis, the Fifth Circuit stated that the United States Supreme Court, other circuit courts, and various commentators have “consistently distinguished between situations involving multiple punishments imposed at a single trial of several offenses and those involving successive trials for related offenses based on the same criminal conduct.” According to the court, a second trial “implicates constitutional protections that multiple punishments at a single trial do not.” Id. at 517. Further, the court held that although “under the Block-burger test, two offenses are sufficiently different to permit the imposition of consecutive sentences at a single trial, that ‘test is not the only standard for determining whether successive prosecutions impermissibly involve the same offense,’ and the ‘successive prosecutions will be barred in some circumstances....’” Id. at 518 (citing Brown v. Ohio, 432 U.S. 161, 166 n. 6, 97 S.Ct. 2221, 2226 n. 6, 53 L.Ed.2d 187 (1977)) (emphasis added).

In United States v. Rodriguez, 612 F.2d 906 (5th Cir.), cert. denied sub nom., Albernaz v. State, 449 U.S. 835, 101 S.Ct. 108, 66 L.Ed.2d 41 (1980), aff'd, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981), the Fifth Circuit addressed the question of whether double jeopardy precludes cumulative punishment where a defendant is tried under two separate statutes in one proceeding. Blockburger was held to be the applicable test, and the court was required to focus on the “elements of the offense charged, not on the evidence adduced at trial.” Id. at 919 (emphasis in original).

Appellant concedes that the statutes involved in the instant case each require an element of proof that the other does not. We find that Blockburger

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Bluebook (online)
760 S.W.2d 353, 1988 Tex. App. LEXIS 2648, 1988 WL 112699, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beltran-v-state-texapp-1988.