                                   NO. 07-01-0418-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL C

                                 JANUARY 10, 2003
                          ______________________________

                                 KERRY J. MARCOTTE,

                                                         Appellant

                                             v.

                                 THE STATE OF TEXAS,

                                                Appellee
                        _________________________________

             FROM THE 272ND DISTRICT COURT OF BRAZOS COUNTY;

                    NO. 28,520-272; HON. RICK DAVIS, PRESIDING
                         _______________________________

Before JOHNSON, CJ., QUINN and REAVIS, JJ.

       Appellant Kerry J. Marcotte challenges his three convictions of aggravated assault

by contending that 1) two of his convictions violate state and federal prohibitions against

double jeopardy, and 2) the trial court erred in refusing to instruct the jury on the lesser-

included offense of unlawfully carrying a weapon. We affirm the judgment of the trial court.

                                   Background

       On February 7, 2001, appellant and his girlfriend went to a bar and drank alcoholic

beverages. They left around 12:00 a.m., and when they arrived at the girlfriend’s home,

appellant became upset. He left in his truck. Meanwhile, the complainant, Sandra Neblett,
had gone to the store to purchase some cigarettes. When she was returning home, she

noticed a white pickup truck approaching fast from the rear. As the truck passed her, the

driver of the truck pointed a pistol at her, and she thought he was going to shoot her.1 The

truck continued on and made a right turn. Neblett then stopped at a red light at an

intersection and heard gunshots. She decided to stop her car and turn off her lights. After

doing so, she saw a police car go by in the same direction, and she followed the police car

to obtain help. While following the police car, the white pickup reappeared and began to

gain on her. At that time, Neblett heard three more gunshots and believed the driver was

firing at her. The police car pulled into a boy’s detention school. As Neblett attempted to

pull in behind the police car, she failed to slow in time to negotiate the turn and the truck

collided with her. Appellant was identified as the driver of the pickup truck. He was

irrational after the accident and had to be restrained.

                                  Issue One - Double Jeopardy

        In his first issue, appellant argues that his two convictions of aggravated assault

involving the use of a firearm violate the state and federal protections against double

jeopardy.2 We overrule the issue.




        1
           Appellant, an admitted drug abuser, denied at trial that he pointed a gun at the complainant or shot
a gun at her. However, he admitted that he fired his weapon into the air. Moreover, he purportedly did so
to draw the attention of the police in hope that this would dissuade him from buying crack cocaine in the
area, even though he ventured into the area to buy such a substance. The credibility of this testimony was
left to the jury to decide.
        2
         Appellant does not contend that the Texas Constitution affords him greater protection than the
federal constitution, and we will therefore not separately address the matter.

                                                      2
        Appellant was found guilty of aggravated assault as alleged in the first three

separate paragraphs of count two of the indictment.3 In the first paragraph, he was

charged with aggravated assault by threatening Neblett with imminent bodily injury by

exhibiting a deadly weapon. In the second paragraph, appellant was charged with

aggravated assault by striking Neblett’s motor vehicle with his motor vehicle, which was

a deadly weapon. In the third paragraph, appellant was charged with aggravated assault

by threatening Neblett with imminent bodily injury by shooting at her with a deadly weapon.

It is the first and third paragraphs which appellant contends violate his double jeopardy

protections because they occurred over a short period of time, are the same level of

offense, and resulted in the same length of prison sentence.

        The Fifth Amendment guarantee against double jeopardy protects against 1) a

second prosecution for the same offense after an acquittal, 2) a second prosecution for the

same offense after a conviction, and 3) multiple punishments for the same offense. Illinois

v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); Iglehart v. State, 837

S.W.2d 122, 127 (Tex. Crim. App. 1992). In determining whether double jeopardy

attaches, it is the charging instrument that must be examined as opposed to the particular

statute. Parrish v. State, 869 S.W.2d 352, 354 (Tex. Crim. App. 1994); In re L.M., 993

S.W.2d 276, 282 (Tex. App.—Austin 1999, pet. denied); Coleman v. State, 918 S.W.2d

39, 43 (Tex. App.—Houston [1st Dist.] 1996), aff’d, 940 S.W.2d 96 (Tex. Crim. App. 1996).

        When the same act or transaction violates two separate statutes, the two offenses

are the same for purposes of double jeopardy if one of the offenses contains all of the


        3
         The State abandoned count 3 and the fourth paragraph of count 2 of the indictment. The jury found
appellant not guilty of count 1 of the indictment.

                                                    3
elements of the other offense. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct.

180, 76 L.Ed.2d 306 (1932).        However, the protection against double jeopardy is

inapplicable where separate and distinct offenses occur in the same transaction.

Spradling v. State, 773 S.W.2d 553, 556 (Tex. Crim. App. 1989). The same is true even

if the two acts are committed close in time to one another. Hutchins v. State, 992 S.W.2d

629, 633 (Tex. App.—Austin 1999, pet. ref’d, untimely filed) (holding that touching of the

victim’s genitals with the defendant’s fingers was a separate and distinct act from the

defendant’s penetration of her female sexual organ with his penis). In such cases, the

Blockburger test does not apply. Vick v. State, 991 S.W.2d 830, 833 (Tex. Crim. App.

1999).

         At bar, the evidence illustrated that appellant committed separate acts, each of

which constituted distinct and complete crimes. The first involved appellant threatening

his victim by pointing a deadly weapon at her before driving away. The second involved

his shooting at the victim after he returned. Though they occurred relatively close in time,

each was a separate act evincing the commission of a separate crime. And, that each

crime constituted the violation of the same penal statute matters not. Vick v. State, 991

S.W.2d at 832-33. So, appellant was not twice convicted or punished for the same offense

as contemplated by Blockburger.

                              Issue Two - Lesser-Included Offense

         In his second issue, appellant argues the trial court should have charged the jury

on the lesser-included misdemeanor offense of unlawfully carrying a weapon. We overrule

the issue.



                                             4
       As stated by the Texas Court of Criminal Appeals, an offense is a lesser-included

crime if, among other things, its elements are functionally the same or less than those

required to prove the charged offense. Jacob v. State, 892 S.W.2d 905, 908 (Tex. Crim.

App. 1995). To prove that one unlawfully carried a weapon, the State must illustrate that

the accused intentionally, knowingly, or recklessly carried on or about his person a

handgun, illegal knife, or club. TEX . PEN . CODE ANN . §46.02(a) (Vernon Supp. 2003). Yet,

to prove aggravated assault with a deadly weapon, namely a firearm as charged in the

indictment at bar, the State need not prove that the appellant used or exhibited the deadly

weapon with any particular mens rea. Butler v. State, 928 S.W.2d 286, 288 (Tex.

App.—Fort Worth 1996, pet. ref’d). Thus, the elements of unlawfully carrying a weapon

under §46.02 of the Penal Code are not functionally the same or less than those of

aggravated assault as charged in the indictment at bar, and the former is not a lesser-

included offense of the latter.

       Accordingly, the judgment of the trial court is affirmed.



                                                 Brian Quinn
                                                   Justice

Do not publish.




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