Opinion issued June 18, 2019




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-18-00279-CR
                           ———————————
                      MANYIEL PHILMON, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 213th District Court
                          Tarrant County, Texas1
                      Trial Court Case No. 1477929D




1
     The Texas Supreme Court transferred this appeal to this Court from the Court of
     Appeals for the Second District of Texas. See TEX. GOV’T CODE § 73.001
     (authorizing transfer of cases between courts of appeals).
                                  OPINION

      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.




                                        2
      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.”


                                          3
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


                                            4
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




                                           5
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




                                          6
same offense for double-jeopardy purposes. See Bien, 550 S.W.3d at 185. We then

must determine whether the legislature clearly intended only one punishment. Id.

      Other (nonexclusive) considerations relevant to determining whether the

legislature intended multiple punishments are: whether the offenses’ provisions are

contained within the same statutory section, whether the offenses are phrased in the

alternative, whether the offenses are named similarly, whether the offenses have

common punishment ranges, whether the offenses have a common focus (i.e.,

whether the “gravamen” of the offense is the same) and whether that common focus

tends to indicate a single instance of conduct, whether the elements that differ

between the offenses can be considered the “same” under an imputed theory of

liability which would result in the offenses being considered the same under

Blockburger (i.e. a liberalized Blockburger standard utilizing imputed elements),

and whether there is legislative history containing an articulation of an intent to treat

the offenses as the same or different for double jeopardy purposes. Ervin v. State,

991 S.W.2d 804, 814 (Tex. Crim. App. 1999).

      The Childress case has discussed these factors, as applied to the same statutes,

as follows:

      It is apparent to us that the legislature intended these two offenses to be
      treated separately. While they are in the same chapter of the Penal
      Code, they are separate and distinct statutes, and they are not phrased
      in the alternative. They do not have common punishment ranges. While
      they have a related focus—assaults—in this case there is no common
      focus between the two offenses. The dating violence assault focus is on
                                           7
      the bodily injury of a victim in a dating relationship with the defendant,
      while the focus of aggravated assault in this case is the assaultive
      conduct in the form of threatening imminent bodily injury with a deadly
      weapon. The threat of harm was being set on fire, while the harm
      actually suffered was bodily injury to [the complainant’s] eyes and face
      from the gasoline.

      The differing elements between dating violence assault and aggravated
      assault, as charged, cannot be considered the same under an imputed
      theory of liability. Dating violence assault, with its bodily injury
      element (which conceptually would be no different had [the defendant]
      hit [the complainant] in the face), is not similar to an imminent threat
      of bodily injury with a deadly weapon. Finally, neither [defendant] nor
      the State has provided us with any legislative history that might indicate
      whether or not the legislature intended to treat the offenses as the same
      or different for double-jeopardy purposes.

Childress, 285 S.W.3d at 550.

       We agree with the Waco court’s analysis. Additionally, we note that the

gravamen of appellant’s aggravated assault charge was threatening someone with

bodily injury with a deadly weapon, here, a knife, a metal bar, a bag, or a metal

object, while the gravamen of his dating-violence assault charge was actually

causing bodily injury to a person with whom he was in a dating relationship by

choking her with his hand or arm. Though the offenses may have occurred during

the same criminal episode, we hold that they are not “the same offense” for purposes

of the Double Jeopardy Clause. Thus, appellant could be tried and convicted on both

counts. See TEX. PENAL CODE § 3.02(a) (“A defendant may be prosecuted in a single

criminal action for all offenses arising out of the same criminal episode.”).

      Accordingly, we overrule issue one.
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                                 COURT COSTS

      The judgment in Count 1 includes an assessment of court costs in the amount

of $319. The bill of costs attached to that judgment includes an assessment of $133

for “CCC-Felony” as a line item in the $319 total. It does not include a line item

assessment of $45 pursuant to the Crime Victim’s Compensation Act [“C.V.C.A.”].

      The judgment in Count 2 indicates that $0 costs are assessed, but the bill of

costs attached to the judgment includes a line item assessment of $45 for “C.V.C.A.”

      In issues two and three, appellant challenges the total court costs assessed.

Specifically, appellant contends that a $45 C.V.C.A. assessment is included within

the $133 CCC-Felony assessment.

      We begin by noting that court costs, as reflected in a certified bill of costs,

need not be orally pronounced or incorporated by reference in the judgment to be

effective. See Weir v. State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009). Thus,

the fact that the $45 C.V.C.A. assessment was not incorporated into a judgment is

irrelevant. Similarly, the fact that the $45 C.V.C.A. assessment is attached to Count

2 instead of Count 1 is irrelevant because “[i]n a single criminal action in which a

defendant is convicted of two or more offenses . . . the court may assess each court

cost or fee only once against the defendant.” TEX. CODE CRIM. PROC. art. 102.073(a).

Thus, the issue is not whether the $45 C.V.C.A. cost was improperly assessed in




                                         9
Count 2 rather than Count 1, but whether it was assessed twice when considering

both judgments together.

      The State agrees that it was. See Smith v. State, No. 02-16-00412-CR, 2017

WL 2276751, at *2 (Tex. App.—Fort Worth May 25, 2017, pet. ref’d) (mem. op.,

not designated for publication) (holding that Crime Victim’s Compensation Fee

could not be assessed separately from $133 cost charged for felony conviction); see

also Aviles-Barroso v. State, 477 S.W.3d 363, 388 (Tex. App.—Houston [14th Dist.]

2015, pet. ref’d) (holding same).

      Accordingly, we sustain issues two and three. We modify the judgment in

Count 2 to delete the $45 “C.V.C.A” assessment attached thereto because that cost

is already included in the $133 CCC-Felony assessment in Count 1.

                           ADMISSION OF EVIDENCE

      During appellant’s testimony, the following exchange took place:

      Q: Okay. Do you think your memory could be at all affected by the fact
      that you were using cocaine or under the influence at the time this
      happened?

      Defense Counsel: Judge, I’m going to object. There hasn’t been any
      testimony—

      Appellant: I—I

      Trial Court: Excuse me. Hold on. Let him make his objection. Go
      ahead.

      Defense Counsel: I’m going to object to any allusion to him using
      cocaine. There hasn’t been any testimony about that.
                                        10
      The trial court overruled the objection.

      In issue four, appellant contends that “[t]he trial court erred when it allowed

the State to cross examine [a]ppellant regarding his cocaine use during the assault

where such a question had no basis in fact.”2

Standard of Review and Applicable Law

      We review a trial court’s ruling on the admission or exclusion of evidence for

an abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App.

2011); Walker v. State, 321 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2009,

pet. ref’d, untimely filed). We will uphold the trial court’s ruling unless it falls

outside the zone of reasonable disagreement. Dabney v. State, 492 S.W.3d 309, 318

(Tex. Crim. App. 2016); accord Walker, 321 S.W.3d at 22. If the trial court’s

evidentiary ruling is reasonably supported by the record and correct on any theory

of applicable law, we will uphold the decision. See State v. Story, 445 S.W.3d 729,

732 (Tex. Crim. App. 2014); Tarley v. State, 420 S.W.3d 204, 206 (Tex. App.—

Houston [1st Dist.] 2013, pet. ref’d).

      It is improper to cross-examine a witness with a question that assumes a fact

not in evidence. Ramirez v. State, 815 S.W.2d 636, 652 (Tex. Crim. App. 1991); see




2
      We note that appellant did not object, either at trial or on appeal, that the evidence
      regarding cocaine usage was an inadmissible, extraneous offense.
                                            11
Duncan v. State, 95 S.W.3d 669, 673 (Tex. App.—Houston [1st Dist.] 2002, pet.

ref’d).

Analysis

          Thus, the issue is whether there was evidence of appellant’s use of cocaine in

evidence. The State argues that there was, and we agree.

          During the complainant’s testimony, which was before appellant testified, the

following exchange took place when she was being questioned about whether

appellant asked her to drop the charges:

          Q: Did [appellant] offer you any kind of explanation of why that
          happened on November 20th?

          A: He told me—because when we would have our arguments in the
          past, he—I would—I would say things like “Are you on drugs?” And
          he would get really upset. But then once he went to jail, that’s when he
          told me, he was like, you know, when you used to always ask me if I
          was on drugs, well, yeah, I—I do—I experiment with cocaine or I snort
          cocaine and I was high that night.

          Thus, there was evidence before the jury that appellant admitted to cocaine

use the night before as a way to explain or justify his conduct on the morning of the

offense in an effort to get White to drop the charges. As such, the trial court did not

abuse its discretion in admitting the testimony.3


3
          To the extent that appellant is now complaining about the timing of his use of
          cocaine, i.e., that he used it the night before rather than during the offense, that issue
          is waived. Appellant objected that “there hasn’t been any testimony about—cocaine
          and he’s—stating it like it’s a fact.” He did not object regarding the timing of his
          use of cocaine, only that there was no evidence that he used it at all. He cannot
                                                  12
                                    CONCLUSION

      We affirm the judgment in Count 1. We modify the judgment in Count 2,

delete the assessment of $45 costs for C.V.C.A., and, as modified, we affirm.




                                                Sherry Radack
                                                Chief Justice

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

Justice Goodman, concurring.

Publish. TEX. R. APP. P. 47.2(b).




      object to the timing of his use of cocaine for the first time on appeal. See TEX. R.
      APP. P. 33.1(a).
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