            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                         NO. PD-1460-13

                               JIMMY DON PRICE, Appellant

                                                 v.

                                    THE STATE OF TEXAS

                ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                      FROM THE NINTH COURT OF APPEALS
                                 POLK COUNTY

       P RICE, J., filed a concurring opinion in which C OCHRAN, J., joined.

                                 CONCURRING OPINION

       Whether a defendant may be twice punished for two offenses stemming from a single

prosecution, consistent with the Double Jeopardy Clause, is a question of legislative intent.1

This requires us to engage in construction of the relevant statutes to determine what the

statutory language reveals about the legislature’s intent regarding the availability of multiple

punishments. Typically, statutory language proves facially unrevealing with respect to this

       1

         See, e.g., Littrell v. State, 271 S.W.3d 273, 276 (Tex. Crim. App. 2008) (“Sameness in this
context is a matter of legislative intent.”).
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precise question, and we must resort to certain methods of statutory construction to divine

the legislative intent. Principal among those methods—at least when dealing with the

double-jeopardy implications of punishing a defendant twice in the same prosecution for two

offenses that derive from separate sections of the Penal Code—is “[t]he traditional indicium

of . . . legislative intent [which] is the so-called ‘same elements’ test of Blockburger v. United

States.”2 If two separately defined statutory offenses are the “same” under the Blockburger

lesser-included-offense analysis, then “the judicial presumption is that they are the same for

double-jeopardy purposes and that the accused may not be punished for both.” 3 That

presumption may be defeated, of course, by a clearly expressed intent to the contrary in the

language of the relevant statute or statutes.4

       The statute in question here, Section 21.02 of the Penal Code,5 actually does make it

clear that the Legislature did not intend that a defendant be convicted (and hence punished)

both for this ongoing offense and also for any of the identified predicate offenses (against

the same victim and during the same period of time as alleged for purposes of the

continuous-sexual-abuse-of-a-child offense) that statutorily comprise an “act of sexual

       2

        Id. (citing Blockburger v. United States, 284 U.S. 299 (1932)).
       3

        Id.
       4

        Id.; Garza v. State, 213 S.W.3d 338, 351-52 (Tex. Crim. App. 2007).
       5

        T EX. P ENAL C ODE § 21.02.
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abuse.”6 Continuous sexual abuse of a child is to be regarded as the “same” offense, for

double-jeopardy purposes, as any of the particular predicate offenses that comprise it. One

of those predicate offenses is aggravated sexual assault under Section 22.021 of the Penal

Code.7 But did the Legislature also intend that any lesser-included offense of any of those

predicate offenses (such as an attempted aggravated sexual assault) should be regarded as the

“same” as the continuous-sexual-abuse-of-a-child offense for double-jeopardy purposes?

Section 21.02 does not expressly speak to this question.

        In the absence of any contrary expression of legislative intent in Section 21.02, our

primary consideration is the Blockburger presumption. We know that the Legislature did not

intend multiple punishments for both continuous sexual abuse of a child and any predicate

offense, including aggravated sexual assault, subsumed therein. Attempted aggravated

sexual assault is a lesser-included offense of aggravated sexual assault; they are the “same”

offense for double-jeopardy purposes.8 If the Legislature did not intend that an accused be

punished for both continuous sexual abuse and for any of the named predicate offenses, then

by extension (and entertaining the Blockburger presumption), we may safely assume that the

        6

        Id. § (e).
        7

        Id § (c)(4) (listing T EX. P ENAL C ODE § 22.021).
        8

         See T EX. C ODE C RIM. P ROC. art. 37.09(4) (“An offense is a lesser included offense if . . . it
consists of an attempt to commit the offense charged or an otherwise included offense.”); Littrell, 271
S.W.3d at 277 n.18.
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Legislature did not intend that an accused be susceptible to punishment for both continuous

sexual abuse of a child and also for any offense that is the same as (because a lesser-included

offense of) any of the named predicate offenses.9

       With these supplemental remarks, I join the Court’s opinion.




FILED:         June 25, 2014
PUBLISH




       9

          This is but an application of the transitive property: If a = b, and b = c, then a = c. If
continuous sexual abuse of a child is the same offense as the predicate offense of aggravated sexual
assault, and aggravated sexual assault is the same offense as its lesser-included offense of attempted
aggravated sexual assault, then continuous sexual abuse of a child is the same offense as attempted
aggravated sexual assault.
