AFFIRMED; Opinion Filed April 24, 2014.




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-13-00014-CR

                              JOHN DEREK SAXON, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 397th Judicial District Court
                                  Grayson County, Texas
                              Trial Court Cause No. 061438

                                          OPINION
                          Before Justices Moseley, Bridges, and Evans
                                   Opinion by Justice Evans


       Appellant John Derek Saxon appeals from the judgments adjudicating him guilty of

murder and arson and his accompanying sentences of eighty years’ imprisonment for each count.

Appellant contends that this case should either be reversed for dismissal of one of the two

counts, or the judgments should be amended to delete one of the two convictions. Finding no

merit in appellant’s argument, we affirm the trial court’s judgments.

                                        BACKGROUND

       On January 25, 2012, the Grayson County grand jury indicted appellant for murder

(Count 1) and arson (Count 2). As stated in the indictment, Count 1 provides that appellant did

“intentionally or knowingly cause the death of an individual, namely, Mary Saxon, by striking

Mary Saxon with a shovel or cutting the throat of Mary Saxon or causing Mary Saxon to be set
afire or leaving Mary Saxon in a house, the defendant had set afire, after rendering Mary Saxon

incapacitated.” 1 Count 2 of the indictment provides that appellant did “with intent to damage or

destroy a habitation located at 3755 North Loy Lake Road, start a fire, or cause an explosion, by

setting bedding afire . . . and Mary Saxon suffered death as a result of said fire or explosion.”

Mary Saxon was appellant’s mother.

         Appellant pled not guilty by reason of insanity and his trial commenced on October 16,

2012. At the trial’s conclusion, there was an off-the-record discussion of the charge after which

counsel for the State and appellant stated on the record that they did not have any requests or

objections to the charge. The trial court then read the charge to the jury which instructed as

follows regarding the murder charge:

         Now bearing in mind all the instructions given to you in this charge, if you find
         from the evidence beyond a reasonable doubt that on or about the 28th day of
         October, 2011, in the County of Grayson and State of Texas, the defendant,
         JOHN SAXON, did intentionally or knowingly cause the death of an individual,
         namely, Mary Saxon, by striking Mary Saxon with a shovel or cutting the throat
         of Mary Saxon, then you will find the defendant guilty of Murder as charged in
         Count 1 of the indictment and so say by your verdict.

This language in Count 1 of the jury charge eliminated any mention of fire or arson which had

been included in Count 1 of the indictment, the murder count. The jury charge also provided the

following instruction regarding the arson charge:

         Now bearing in mind all the instructions given to you in this charge, if you find
         from the evidence beyond a reasonable doubt that on or about the 28th day of
         October, 2011, in the County of Grayson and State of Texas, the defendant,
         JOHN SAXON, did with intent to damage or destroy a habitation located at 3755
         North Loy Lake Road, start a fire, by setting bedding afire, knowing that said
         habitation had located within it property belonging to another, namely, Mary


    1
      Count 1 of the indictment initially had two additional paragraphs which alleged felony murder with arson as
the underlying felony and felony murder with aggravated assault as the underlying felony. The State withdrew these
paragraphs of the indictment prior to trial as indicated by the judge’s initialing of two marginal notations on the
indictment and the omission of those paragraphs when the indictment was read to the jury. Unlike the portions of
the indictment that were abandoned in writing, the language of the indictment at issue in this appeal is not stricken
through with the initials of the judge in the margin and that language was read to the jury at the start of trial.


                                                        –2–
       Saxon, then you will find the defendant guilty of Arson as charged in Count 2 of
       the indictment and so say by your verdict.

The language in Count 2 of the jury charge, the arson count, eliminated the language from the

indictment regarding murder which stated, “and Mary Saxon suffered death as a result of said

fire or explosion.” Neither appellant nor the State objected to the jury charge regarding its

omission of these matters contained in the indictment.

       On October 18, 2012, the jury found appellant guilty of murder and arson. The jury set

punishment at eighty years’ confinement for each count. After the trial court denied appellant’s

motion for a new trial, he filed this appeal.

                                            ANALYSIS

       In his sole point of error, appellant argues that his convictions on both the murder and

arson counts constitute double jeopardy in violation of the Fifth Amendment of the U.S.

Constitution. Specifically, appellant contends that the jury was allowed to find him guilty of the

death of Mary Saxon twice—once as murder and once as arson causing death.

       The Fifth Amendment’s double jeopardy clause states that no person shall “be subject for

the same offence to be twice put in jeopardy of life or limb.” U.S. CONST. amend. V. The

double jeopardy clause protects an accused against a second prosecution for the same offense

after acquittal, a second prosecution for the same offense after conviction and, as appellant

contends, multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165 (1977).

       To determine if an accused has been charged with multiple punishments for the same

offense, courts use the “same elements” or “Blockburger test.” See Blockburger v. U.S., 284

U.S. 299 (1932).      The Blockburger test provides that, where the same act or transaction

constitutes a violation of two distinct statutory provisions, the test to be applied to determine

whether there are two offenses or only one, is whether each provision requires proof of an

element which the other does not. Id. at 304. In Texas, the Blockburger analysis is expanded
                                                –3–
even further by holding that double jeopardy occurs even when offenses that have differing

elements under Blockburger are alleged in the indictment to have been committed on the same

facts.   Bigon v. State, 252 S.W.3d 360, 370 (Tex. Crim. App. 2008). Accordingly, appellant

argues that because the indictment failed to elect the means of death, the jury was allowed to find

him guilty on identical fact—death by fire—to two different crimes in violation of the Fifth

Amendment.

         Appellant, however, does not take into account that the State may abandon allegations in

the indictment. See Eastep v. State, 941 S.W.2d 130, 133 (Tex. Crim. App. 1997) (“When a

statute provides multiple means for the commission of an offense and those means are subject to

the same punishment, the State may plead them conjunctively. However, the State is required to

prove only one of the alleged means in order to support the conviction. Therefore the State may

abandon one or more of the alleged means.”), overruled on other grounds by Riney v. State, 28

S.W.3d 561 (Tex. Crim. App. 2000), and Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App.

2001); see also Tooke v. State, 642 S.W.2d 514, 517 (Tex. App.—Houston [14th Dist.] 1982, no

pet.) (“It is proper to allege conjunctively alternative means by which a murder is committed,

prove one of these means and charge only on the means which is supported by the evidence.”).

Further, the State is allowed to abandon a portion of the indictment by not objecting to the

charge’s omission of a portion of the indictment although jeopardy will attach if the

abandonment took place after the jury was impaneled. See In re Preston, 833 S.W.2d 515, 517

(Tex. Crim. App. 1992) (although there was “no evidence in the record that the State took any

affirmative action to dismiss, waive or abandon or that the State obtained permission from the

trial judge to dismiss, waive or abandon the first and third counts in that indictment,” the State

was barred from later litigating those two counts in the indictment because the State abandoned

these counts after the jury was impaneled.).

                                               –4–
       In this instance, the State elected to abandon all language in both counts of the indictment

that linked Mary Saxon’s death to the fire or explosion because the State did not object to the

jury charge that omitted the language, even though the State neither took any affirmative action

nor obtained permission from the trial court to abandon such language. As the case law allows

for such abandonment by the State by omission of the language from the charge without the

State’s objection, appellant was not convicted of murdering Mary Saxon by means of fire nor

was he convicted of arson causing her death. Therefore, even if the offenses were “the same” as

originally charged, there was no double jeopardy violation because appellant was convicted of

(1) murder by shovel or cutting of the throat and (2) arson. We resolve appellant’s sole point of

error against him and hold that appellant’s convictions for murder and arson do not violate the

Fifth Amendment’s double jeopardy provision.

                                        CONCLUSION

       We resolve appellant’s issue against him and affirm the trial court’s judgment.



                                                            /David Evans/
                                                            DAVID EVANS
                                                            JUSTICE


  Publish
  TEX. R. APP. P. 47.2(b)
  130014F.P05




                                               –5–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

JOHN DEREK SAXON, Appellant                            On Appeal from the 397th Judicial District
                                                       Court, Grayson County, Texas
No. 05-13-00014-CR         V.                          Trial Court Cause No. 061438.
                                                       Opinion delivered by Justice Evans.
THE STATE OF TEXAS, Appellee                           Justices Moseley and Bridges participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 24th day of April, 2014.




                                                       / David Evans/
                                                       DAVID EVANS
                                                       JUSTICE




                                                 –6–
