                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-07-00160-CR

MELVIN RAY CHILDRESS,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 2006-1118-C2


                                    OPINION

      Melvin Childress was charged by indictment with two felony offenses:           (1)

dating violence assault (enhanced); and (2) aggravated assault. Childress was alleged to

have poured gasoline on Tamala, his married girlfriend, and then threatened to light it

with a lighter. A jury found him guilty on both charges and assessed prison sentences

of ten and forty-five years, respectively, and a $10,000 fine on each. Asserting three

issues, Childress appeals. We will affirm.
                                   Factual Sufficiency

        We begin with Childress’s third issue, which alleges that the evidence is factually

insufficient. In a factual sufficiency review, we ask whether a neutral review of all the

evidence, though legally sufficient, demonstrates either that the proof of guilt is so

weak or that conflicting evidence is so strong as to render the factfinder’s verdict clearly

wrong and manifestly unjust. Watson v. State, 204 S.W.3d. 404, 414-15 (Tex. Crim. App.

2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). “The court reviews the

evidence weighed by the jury that tends to prove the existence of the elemental fact in

dispute and compares it with the evidence that tends to disprove that fact.” Johnson, 23

S.W.3d at 7. The appellate court “does not indulge in inferences or confine its view to

evidence favoring one side of the case. Rather, it looks at all the evidence on both sides

and then makes a predominantly intuitive judgment. . . .” Id. (quoting William Powers

and Jack Ratliff, Another Look at “No Evidence” and “Insufficient Evidence,” 69 TEXAS L.

REV. 515, 519 (1991)). The nature of a factual sufficiency review authorizes an appellate

court, although to a very limited degree, to act as the so-called “thirteenth juror” to

review the factfinder’s weighing of the evidence and disagree with the factfinder’s

determination. Watson, 204 S.W.3d at 416-17.

        For the State to prove that Childress committed dating violence assault, it was

required to prove that Childress intentionally, knowingly, or recklessly caused bodily

injury to another person (by pouring gasoline on her) with whom he had a dating

relationship. TEX. PEN. CODE ANN. § 22.01(a)(1), (b)(2) (Vernon Supp. 2008). The offense

was enhanced to a third-degree felony by Childress’s stipulation to his prior conviction

Childress v. State                                                                    Page 2
of an assault offense against a family or household member. Id. § 22.01(b)(2). For the

State to prove that Childress committed aggravated assault, it was required to prove

that Childress intentionally or knowingly threatened another person with imminent

bodily harm and exhibited a deadly weapon (gasoline and lighter) during the assault.

Id. §§ 22.01(a)(2), 22.02(a)(2) (Vernon Supp. 2008).

        Tamala testified that she and Childress met in August of 2005 and, despite

Tamala’s being married, they formed a dating and sexual relationship. Childress gave

her attention when her marriage was struggling. They enjoyed each other’s company,

did things together, and took out-of-town trips together.    They talked about their

problems together, and she stayed over at his house.

        On May 5, 2006, Tamala and several friends were at a restaurant having drinks.

While at the restaurant, Childress called Tamala several times, and she lied to him,

saying that she was still at work. On her way home, he called Tamala again, and she

agreed to meet him at a convenience store around 11:00 p.m. When Tamala arrived,

Childress was already there, standing next to his car with the trunk open. Tamala

parked alongside him but did not get out of her car. Childress was angry and asked her

where she had been, and she said she had been at a restaurant with coworkers. Tamala

began to leave, and Childress asked her to wait and asked her again where she had

been. Childress then got a container out of his trunk, poured its contents on Tamala

through her open car window, and told her, “I’m going to set your bitch ass on fire.”

The gasoline blurred and burned her eyes, but she could see that Childress was holding

a lighter. She scrambled out of her car’s passenger side and ran into the store, with

Childress v. State                                                              Page 3
Childress following her.

        The store clerk said that Tamala was covering her eyes and crying hysterically as

she entered the store; she smelled like gas. Childress came in and told the clerk that

Tamala had poured gas on herself, but the clerk didn’t believe him; she had seen

Childress outside with a bottle of liquid before the incident. A bystander was in the

store, and he testified that Tamale smelled of gas, was frightened, and said that

Childress had tried to light her on fire. The responding officers also said that Tamala

smelled of gas and told them that Childress had poured gasoline on her.

        After the incident, Tamala said that Childress threatened to tell her husband

about their affair if she did not sign an affidavit of nonprosecution. Tamala said she

signed one because she wanted the whole situation to “go away.” She also continued

her affair with Childress and eventually told her husband about him.

        Childress’s theory is that Tamala poured the gasoline on herself and that she

made up the allegation against Childress, and that her lack of credibility causes the

evidence to be factually insufficient.

        The jury is the exclusive judge of the facts, the credibility of the witnesses, and

the weight to be given to the witnesses’ testimony. Jaggers v. State, 125 S.W.3d 661, 670

(Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (citing Penagraph v. State, 623 S.W.2d

341, 343 (Tex. Crim. App. 1981)). The jury may believe all, some, or none of any

witness’s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Jaggers,

125 S.W.3d at 670. As the reviewing court, we “should not substantially intrude upon

the jury’s role as the sole judge of the weight and credibility of witness testimony.”

Childress v. State                                                                   Page 4
Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002); see also Sharp, 707 S.W.2d at

614; Jaggers, 125 S.W.3d at 670.

        The degree of deference a reviewing court provides must be proportionate
        with the facts it can accurately glean from the trial record. A factual
        sufficiency analysis can consider only those few matters bearing on
        credibility that can be fully determined from a cold appellate record. Such
        an approach occasionally permits some credibility assessment but usually
        requires deference to the jury’s conclusion based on matters beyond the
        scope of the appellate court’s legitimate concern. See GEORGE E. DIX &
        ROBERT O. DAWSON, 42 TEXAS PRACTICE—CRIMINAL PRACTICE AND
        PROCEDURE § 36.69 (Supp. 1999). Unless the available record clearly
        reveals a different result is appropriate, an appellate court must defer to
        the jury’s determination concerning what weight to give contradictory
        testimonial evidence because resolution often turns on an evaluation of
        credibility and demeanor, and those jurors were in attendance when the
        testimony was delivered.

Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).

        By finding Childress guilty, the jury obviously believed Tamala, and the record

in this case warrants our deference to the jury’s credibility determination. Therefore,

considering all of the evidence in a neutral light, we find that the evidence is factually

sufficient to support the jury’s guilty findings. The proof of guilt is not so weak nor the

conflicting evidence so strong as to render the jury’s verdicts clearly wrong and

manifestly unjust. Because the evidence is factually sufficient, we overrule Childress’s

third issue.

                                    Double Jeopardy

        We now turn to Childress’s first issue, which complains of a double-jeopardy

and collateral-estoppel violation arising from multiple punishments for the same

offense. We first note that Childress did not raise this complaint at trial, but he will be


Childress v. State                                                                    Page 5
excused from the ordinary rules of procedural default “when the undisputed facts show

the double jeopardy violation is clearly apparent on the face of the record and when

enforcement of usual rules of procedural default serves no legitimate state interests.”

Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000); accord Murray v. State, 24

S.W.3d 881, 888 (Tex. App.—Waco 2000, pet. ref’d).          Because we have a complete

record, “it can be determined from undisputed facts clearly apparent on the face of the

record” whether there has been a jeopardy violation. See Murray, 24 S.W.3d at 889.

        The Double Jeopardy Clause of the 5th Amendment protects an accused from

being punished more than once for the same offense. U.S. CONST. Amend. V; Littrell v.

State, 271 S.W.3d 273, 275 (Tex. Crim. App. 2008). Two offenses may be the same if one

offense stands in relation to the other as a lesser-included offense, or if the two offenses

are defined under distinct statutory provisions but the legislature has made it clear that

only one punishment is intended. Littrell, 271 S.W.3d at 275-76; Bigon v. State, 252

S.W.3d 360, 370 (Tex. Crim. App. 2008). When multiple punishments arise out of one

trial, the Blockburger test is the starting point in analyzing the two offenses. Bigon, 252

S.W.3d at 370. Under the Blockburger test, two offenses are not the same if one requires

proof of an element that the other does not. Id.; see Blockberger v. United States, 284 U.S.

299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). In Texas, when resolving whether two

crimes are the same for double-jeopardy purposes, we focus on the elements alleged in

the charging instrument. Bigon, 252 S.W.3d at 370.

        In the first count of the indictment, the State charged Childress with dating

violence assault (enhanced). The indictment alleged the following elements for dating

Childress v. State                                                                    Page 6
violence assault, enhanced to a third-degree felony: (1) Childress, (2) intentionally,

knowingly, or recklessly, (3) caused bodily injury to Tamala, (4) a person with whom

Childress had a dating relationship, (5) by pouring gasoline on her, and (6) Childress

had a prior conviction for family violence assault.         See TEX. PEN. CODE ANN. §

22.01(a)(1), (b)(2).

        In the second count, the State charged Childress with aggravated assault,

alleging the following elements:      (1) Childress, (2) intentionally or knowingly, (3)

threatened Tamala with imminent bodily injury by burning, (4) and used or exhibited a

deadly weapon—gasoline and a lighter—during the commission of the assault. See id.

§§ 22.01(a)(2), 22.02(a)(2).

        Childress’s principal argument is that the pouring of gasoline on the victim is the

same act in both counts, that the entirety of the acts in the first count is included within

the acts making up the second count, and that the same acts are elements of the same

criminal episode.      We are not persuaded.     First, we note that the Supreme Court

eliminated the “same conduct” rule—the idea that just because Childress engaged in

only one “culpable act,” he cannot be convicted of more than one offense. See United

States v. Dixon, 509 U.S. 688, 704, 113 S.Ct. 2849, 2860, 125 L.Ed.2d 556 (1993); Bigon, 252

S.W.3d at 369. And under Texas law, an accused may be prosecuted in a single criminal

action for all offenses arising out of the same criminal episode. TEX. PEN. CODE ANN. §

3.02(a) (Vernon 2003).

        At trial there may be a substantial overlap in the proof of each offense, but under

the Blockburger test, we must examine the separately charged elements of each offense.

Childress v. State                                                                    Page 7
Ex parte McWilliams, 634 S.W.2d 815, 824 (Tex. Crim. App. 1982). When comparing the

two charges as indicted, and taking into account all of the elements that the State must

prove for these two charges, the offenses are not the same under a strict application of

the Blockberger test.       The State concedes that an aggravated assault requires an

underlying assault, but we agree with it that, in this case, 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.1 The dating violence assault is not a

lesser-included offense of the aggravated assault; it is not established by proof of the

same or less than all the facts required to establish the commission of the aggravated

assault.2 Texas law has no bright-line rule that a threat of harm and actual harm cannot

arise from the same act and occur simultaneously and that the threat must precede the

initial harm. See Schmidt v. State, 232 S.W.3d 66, 67-69 (Tex. Crim. App. 2007).

        But while the offenses are not the same for the purpose of the Blockberger test, our

inquiry does not end. See Bigon, 252 S.W.3d at 370. We also consider a non-exclusive

list of factors to consider when examining whether two offenses are the same in the

context of multiple punishments. See Ervin v. State, 991 S.W.2d 804, 814 (Tex. Crim.

App. 1999). These factors include: (1) whether the offenses are in the same statutory

1Family and dating violence assault can only be predicated on bodily injury. See TEX. PEN. CODE ANN. §
22.01(b).

2  We reject Childress’s argument that the “allowable unit of prosecution” double-jeopardy concept
applies to this case. See Ex parte Hawkins, 6 S.W.3d 554, 556 (Tex. Crim. App. 1999). That concept applies
where a single statute has been violated numerous times, either with different victims or by individually
listed acts within the same statute, and it is particularly applicable when each alleged violation of the
statute is proved in part by the same evidence. Id. at 556-57. This concept is inapplicable in this case
because two separate offenses, under two different statutes, were committed once. See id.; cf. Ex parte
Rathmell, 717 S.W.2d 33, 35 (Tex. Crim. App. 1986) (Blockburger applies to situations in which criminal
conduct violates two separate and distinct statutes).

Childress v. State                                                                                 Page 8
section; (2) whether the offenses are phrased in the alternative; (3) whether the offenses

are named similarly; (4) whether the offenses have common punishment ranges; (5)

whether the offenses have a common focus; (6) whether the common focus tends to

indicate a single instance of conduct; (7) whether the elements that differ between the

two offenses can be considered the same under an imputed theory of liability that

would result in the offenses being considered the same under Blockburger; and (8)

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

offenses as the same or different for double-jeopardy purposes. Id. These factors are

not exclusive, and the question ultimately is whether the legislature intended to allow

the same conduct to be punished under both of the offenses. Bigon, 252 S.W.3d at 371.

        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.3 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 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




3 Family and dating violence assault, when enhanced by a prior conviction of the same offense, is a third-
degree felony, and the punishment range is two to ten years. TEX. PEN. CODE ANN. § 22.01(b); Id. §
12.34(a) (Vernon 2003); id. § 12.42(a)(3) (Vernon Supp. 2008). Aggravated assault is a second-degree
felony (enhanced here to a first-degree felony because of a prior felony conviction), with a punishment
range of two to twenty years. Id. § 22.02(b); id. § 12.33(a) (Vernon 2003); id. § 12.42(b).

Childress v. State                                                                                 Page 9
fire, while the harm actually suffered was bodily injury to Tamala’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 Childress hit Tamala in the face), is not similar to an imminent threat of

bodily injury with a deadly weapon.                Finally, neither Childress 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.

        After reviewing the Ervin factors, we determine that the offenses as charged are

not the same in the context of multiple punishments. Accordingly, no double-jeopardy

violation occurred.4 We overrule Childress’s first issue.

                     Facial Challenge to “Dating Relationship” as Vague

        We next address Childress’s claim in his second issue that the “dating

relationship” statute that elevated the assault to a third-degree felony is facially

unconstitutional because of its alleged vagueness and overbreadth.5 A complaint that a


4Because Childress has not briefed his collateral estoppel argument, he presents nothing for review and
we will not address it. Strange v. Continental Cas. Co., 126 S.W.3d 676, 678 (Tex. App.—Dallas 2004, pet.
denied); see TEX. R. APP. P. 38.1(h).

5 Childress’s second issue mentions the alleged overbreadth of the statute, but overbreadth is not briefed.
Nor is it applicable, as Childress does not contend that the statute covers protected First Amendment
freedoms. See Smith v. State, 959 S.W.2d 1, 24 (Tex. App.—Waco 1997, pet. ref’d) (statute is impermissibly
overbroad when, “in addition to proscribing activities which may constitutionally be forbidden, it sweeps
within its coverage speech or conduct which is protected by the First Amendment”) (quoting Bynum v.
State, 767 S.W.2d 769, 772 (Tex. Crim. App. 1989)).

Childress v. State                                                                                 Page 10
statute is facially unconstitutional may be made for the first time on appeal. Woodson v.

State, 181 S.W.3d 280, 282 (Tex. App.—Waco 2006, pet. ref’d); Bryant v. State, 47 S.W.3d

80, 84 (Tex. App.—Waco 2001, pet. ref’d).

        In Bryant, we articulated how we review such a vagueness claim:

               In its review of a challenged statute, the court will begin with a
        presumption of constitutionality.        Thus, the burden to establish
        unconstitutionality falls upon the challenger. Ex parte Granviel, 561 S.W.2d
        503, 511 (Tex. Crim. App. 1978); Kaczmarek v. State, 986 S.W.2d 287, 292
        (Tex. App.—Waco, 1999[, no pet.]).

                There are two basic requirements for a constitutional vagueness
        challenge that does not involve a First Amendment right. First, the
        challenger must demonstrate that he has suffered some actual or
        threatened injury under the statute. In other words, the challenger must
        have standing to contest the statute. Texas Workers’ Compensation Comm’n
        v. Garcia, 893 S.W.2d 504, 517-18 (Tex. 1995). Then, the challenger must
        also show that the statute is impermissibly vague in “all of its
        applications.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
        455 U.S. 489, 494-495, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). In Kaczmarek,
        this court set the standard for evaluating vagueness in a criminal statute.
        The statute must provide an ordinary, “law-abiding” individual with
        sufficient notice that his conduct is violative of criminal law. Kaczmarek,
        986 S.W.2d at 292. The statute must also provide explicit standards to law
        enforcement personnel to prevent arbitrary or discriminatory
        enforcement. To successfully show that the statute is unconstitutionally
        vague on its face, the challenge must establish that “no set of
        circumstances exists under which the statute will be valid.” Santikos v.
        State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992) (citing United States v.
        Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)).

Bryant, 47 S.W.3d at 84-85 (footnote omitted).

        We find that Childress has standing; because of the “dating relationship” issue,

his dating violence assault was elevated to a third-degree felony. See id. at 85. We thus

turn to the vagueness complaint. We appear to be the first Texas appellate court to

address such a complaint about the “dating relationship” statute, which provides in

Childress v. State                                                                      Page 11
pertinent part:

          (b) For purposes of this title, “dating relationship” means a relationship
          between individuals who have or have had a continuing relationship of a
          romantic or intimate nature. The existence of such a relationship shall be
          determined based on consideration of:
                  (1) the length of the relationship;
                  (2) the nature of the relationship; and
                  (3) the frequency and type of interaction between the persons
                  involved in the relationship.
          (c) A casual acquaintanceship or ordinary fraternization in a business or
          social context does not constitute a “dating relationship” under Subsection
          (b).

TEX. FAM. CODE ANN. § 71.0021(b, c) (Vernon 2008).6

                  A statute is unconstitutionally vague if it fails to “give the person of
          ordinary intelligence a reasonable opportunity to know what is
          prohibited” or “provide explicit standards for those who apply them.”
          Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298-99, 33
          L.Ed.2d 222 (1972); accord State v. Markovich, 77 S.W.3d 274, 279 (Tex. Crim.
          App. 2002); Coggin v. State, 123 S.W.3d 82, 87 (Tex. App.—Austin 2003,
          pet. ref’d).

Woodson, 181 S.W.3d at 282.

          Childress’s argument is essentially that it “is possible that an ordinary person’s

interpretation of [dating relationship] could be quite inconsistent even given the

guidance set out in the Court’s Charge,” and that people, including law enforcement,

might disagree over whether two persons are in a dating relationship.

           The statute’s definition of “dating relationship” is defined by commonly used

terms; the definition is not complicated.             It takes a common-sense approach to

describing a dating relationship and distinguishes a dating relationship from casual

acquaintances and ordinary fraternizations.

6   The court’s charge contained these definitions.

Childress v. State                                                                           Page 12
         The State correctly points out that the statute does not lack notice; the conduct

that the actor needs notice of is the assault, not the status of the actor’s relationship to

the victim. It is not a crime to be in a dating relationship, and Childress’s conduct

would have been criminal had he poured the gasoline on a stranger. Similarly, police

would have known to arrest Childress for assault had Tamala been a stranger to him.

The fact that their dating relationship, when combined with Childress’s prior

conviction, increased the offense level to a felony does not create a constitutional notice

problem.

         Section 71.0021 is not constitutionally vague. We overrule Childress’s second

issue.

                                        Conclusion

         Having overruled Childress’s three issues, we affirm the trial court’s judgment.



                                                  REX D. DAVIS
                                                  Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed April 1, 2009
Publish
[CRPM]




Childress v. State                                                                   Page 13
