Flint, Angelo Laventino v. The State of Texas--Appeal from 232nd District Court of Harris County

Affirmed and Opinion filed October 19, 2004

Affirmedand Opinion filed October 19, 2004.

In The

Fourteenth Court of Appeals

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NOS. 14-03-01126-CR

14-03-01127-CR

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ANGELO LAVENTINO FLINT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 929,972; 929,973

O P I N I O N

Appellant, Angelo Laventino Flint, appeals from his convictions for aggravated assault on a public servant and taking a weapon from a peace officer. A jury found him guilty of both offenses, and he was sentenced to seven years imprisonment for the aggravated assault and two years imprisonment for taking a weapon. On appeal, appellant contends that (1) his convictions constitute double jeopardy in violation of the United States and Texas Constitutions, and (2) the two criminal statutes are in pari materia, and thus, he should have only been tried under the more specific statute. We affirm.

Background

On November 9, 2002, Lieutenant M.E. West of the Houston Police Department was working security at the Family Game Room while wearing his uniform and department insignia. At around 1 a.m., West was working in the parking lot in front of the club, while fellow officer Rick Odis was working inside. According to West s testimony, a truck driven by appellant was stopped in front of the building blocking other traffic, while a woman on the passenger side was talking to a man standing outside the truck. Four or five times, West told appellant that appellant needed to move the vehicle. According to West, appellant then opened his door and said, in an aggressive tone, that they were not doing anything wrong. West approached the driver s side, where appellant was then standing, and again asked appellant to move the truck. Appellant said something in the manner of we re not doing a damn thing, in a very aggressive tone. West then pulled his cell phone out of his pocket and began to call for backup, at which point appellant slapped the phone out of West s hand. Appellant then punched West below the left eye, knocking him to his knees. Appellant continued to hit West while he was on the ground, and West reached for his pistol only to discover that appellant already had the firearm in his hand. Appellant pointed it at West, and West grabbed the barrel to try to bring it to the ground. At this point, the man who had been standing beside the truck, said to appellant, Stop. Don t shoot. Don t shoot him. As appellant and West continued to fight over the gun, it discharged; apparently no one was hit. They struggled for approximately another minute before appellant gained control of the gun. Appellant then pointed the weapon at West again and told him to lay on his stomach; when West refused, appellant threatened to kill him. Eventually, Officer Odis came out, and appellant handed the gun to him. West and Odis then arrested appellant.

Officer Odis testified that, on the night in question, he was informed that something was going on in the parking lot, he went outside and approached West and appellant, and appellant placed a weapon in Odis s hand. Odis then handcuffed appellant after a brief struggle. Another officer who arrived on the scene testified that appellant told him that he, appellant, had messed up.

Appellant testified that Officer West exchanged words with the woman who was in appellant s vehicle, then ran around the vehicle and came at appellant with his hand on his weapon. Appellant said that he felt threatened at that point; he grabbed West, and they struggled. He said that West pulled his own weapon, but appellant eventually managed to take the weapon from West. Appellant further said that he told West to just stay where he was, but he denied ever pointed the weapon at West. He said he acted just to defuse the situation.

Double Jeopardy

In his first two issues, appellant contends that his convictions for aggravated assault of a public servant and taking a weapon from a peace officer violated the prohibition against double jeopardy in the United States and Texas Constitutions. U.S. Const. amend. V; Tex. Const. art. I, 14. Because appellant does not assert that the Texas Constitution provides greater or different protection than does the U.S. Constitution, we shall consider the issue only under the U.S. Constitution. See Arnold v. State, 873 S.W.2d 27, 33 (Tex. Crim. App. 1993).

The Double Jeopardy Clause of the U.S. Constitution gives three protections: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense. Roy v. State, 76 S.W.3d 87, 93 (Tex. App. Houston [14th Dist.] 2002, no pet.). The appellant was not subjected to a subsequent trial after acquittal or conviction, so only the provision against multiple punishments potentially applies. See Garner v. State, 852 S.W.2d 687, 688 (Tex. App. Houston [14th Dist.] 1993, no pet.).

In considering whether the two statutory provisions punish the same offense, we must determine whether each charge requires proof of an additional fact that the other does not. Blockburger v. United States, 284 U.S. 299, 304 (1932). We do not examine whether the two offenses occurred in the same instance of conduct but whether they require proof of the same elements. Mallett v. State, 65 S.W.3d 59, 68 (Tex. Crim. App. 2001) (citing United States v. Dixon, 509 U.S. 688 (1993)). A double jeopardy analysis must focus on the elements of the offenses as alleged in the charging instruments rather than as listed in the Penal Code. Parrish v. State, 869 S.W.2d 352, 354-55 (Tex. Crim. App. 1994); Ex parte Tarlton, 105 S.W.3d 295, 298 (Tex. App. Houston [14th Dist.] 2003) (orig. proceeding).

The indictment for aggravated assault charged that appellant did . . . unlawfully, intentionally and knowingly threaten with imminent bodily injury M.E. West . . . while [West] was lawfully discharging an official duty, by using and exhibiting a deadly weapon, namely a firearm, knowing that [West] was a public servant (emphasis omitted).[1] The indictment for the taking of a weapon charged that appellant did . . . unlawfully, intentionally and knowingly and with force take, by removing from a secured holster a firearm from M.E. West, a peace officer . . . wearing a distinctive uniform and badge indicating his employment with the Houston Police Department, and having the intention of harming M.E. West (emphasis omitted).[2]

Both indictments clearly required proof that appellant did something unlawfully, intentionally, and knowingly; both indictments also required proof West was identified or identifiable as a peace officer. However, each charged offense required proof of at least one additional element that the other offense did not: the assault indictment additionally required proof that appellant threatened West with imminent bodily injury by using and exhibiting a firearm, and the taking a weapon indictment required proof appellant took a firearm by force from West. Although both of these additional elements involved a firearm, the two alleged actions are not the same: one involved taking someone s firearm, while the other required threatening someone with a firearm. Thus, each of the indictments required proof of at least one element not required for conviction under the other indictment. Accordingly, prosecution under both instruments does not fail the Blockburger double jeopardy test. See Mallet, 65 S.W.3d at 68 (holding that convictions for aggravated assault and criminal mischief were not barred by double jeopardy because each required different elements threat of injury compared to damage to property without the consent of the owner); Vineyard v. State, 958 S.W.2d 834, 836 (Tex. Crim. App. 1998) (holding that successive prosecutions for child pornography did not violate double jeopardy because, although both charges arose from one instance, proof of a video tape and proof of a photograph required different elements); Atkinson v. State, 848 S.W.2d 813, 815 (Tex. App. Houston [14th Dist.] 1993, pet. ref d) (holding that failure to drive within one lane and DWI were separate offenses requiring different elements of proof).

Blockburger, however, is not the sole test for determining whether two offenses should be considered the same under the multiple punishments prong of double jeopardy analysis. Ervin v. State, 991 S.W.2d 804, 814 (Tex. Crim. App. 1999). Other considerations relevant to determining whether multiple punishments were meted out for the same offense include: whether the 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 gravamen of the offenses are the same, whether the focus indicates a single instance of conduct, whether the differing elements could be considered the same under an imputed theory of liability, and whether there is legislative history suggesting an intent to treat the offenses as the same. Id.

In the present case, appellant argues only that the offenses share the same gravamen, that the focus indicates a single instance of conduct, and that the elements could be considered the same under an imputed theory of liability.[3] Appellant asserts that the common gravamen is the protection of public servants. Id. However, the offenses placement in the Penal Code aggravated assault being in Chapter 22, titled Assaultive Offenses, and taking a weapon being in Chapter 38, titled Obstructing Governmental Operation does not support that contention. Based on the chapter headings, it is clear that while the charge of assault was created to protect individuals, including public servants,[4] the taking of a weapon charge was created primarily to prevent or punish obstruction of governmental operations.[5] Thus the provisions do not share the same gravamen.

Appellant argues that the offenses common focus indicates a single instance of conduct. However, as noted in regard to the gravamen argument, it does not appear that the offenses have a common focus. Certainly, as shown by the facts of this case, a person could commit both offenses during one transaction; however, just as clearly, a person could commit just one or the other offense.[6] Thus, the focus of the provisions do not indicate a single instance of conduct.

Lastly, appellant contends that there are no differences between the elements of the offenses, except perhaps in wording; thus, the elements would be considered the same under an imputed theory of liability. However, as explained above, there are differences between the elements, and these differences are more than just matters of form. Each offense requires a different, specific act be proven taking a weapon compared to threatening the officer with a weapon.

Because under no test do the two charges at issue in this case constitute one offense, prosecution and punishment under both charges did not violate appellant s constitutional right against double jeopardy. Accordingly, appellant s first two issues are overruled.

In Pari Materia

In his third issue, appellant contends that because the statutes under which he was prosecuted are in pari materia, he should have been tried only under the more specific offense. The doctrine of in pari materia is a rule of statutory construction that holds that, when two statute are in pari materia, they should be read in harmony with each other so that effect will be given to all the provisions of each act if they can be made to stand together and have concurrent efficacy. Burke v. State, 28 S.W.3d 545, 546 (Tex. Crim App. 2000) (quoting Mills v. State, 722 S.W.2d 411, 413-14 (Tex. Crim. App. 1986)). When general and specific acts are in pari materia, they should be construed together, such that any conflict is solved by applying the more specific statute, unless a contrary legislative intent can be discerned. Tex. Gov t Code 311.026 (Vernon 1998); Burke, 28 S.W.3d at 546-47.

In pari materia analysis shares several key aspects with double jeopardy analysis. The two statutes must have been enacted with the same purpose in mind to justify interpreting one in light of the other. Burke, 28 S.W.3d at 547. Other considerations include whether the two statutes require the same elements of proof, whether they are contained in the same legislative acts, whether they apply different penalties, and whether they appear to be intended to be interpreted together. Id. at 547-48.

As discussed in more detail above, the two provisions involved in this case do not share the same purpose or gravamen, nor do they require the same elements of proof; each requires at least one additional element that the other does not. Further, the provisions were not created or even modified in the same legislation, and they do not apply the same penalty range. In conclusion, the two statutes do not appear intended to be read together, and hence, they are not in pari materia.[7] Appellant s third issue is overruled.

The trial court s judgment is affirmed.

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Adele Hedges

Chief Justice

Judgment rendered and Opinion filed October 19, 2004.

Panel consists of Chief Justice Hedges and Justices Fowler and Seymore.

Do Not Publish Tex. R. App. P. 47.2(b).

[1] Under the Penal Code, the charge of aggravated assault in the second degree includes the elements of (1) intentionally or knowingly (2) threatening with imminent bodily injury (3) while using or exhibiting a deadly weapon (4) a public servant (5) who is lawfully discharging an official duty. Tex. Pen. Code Ann. 22.02 (Vernon 2002).

[2] Under the Penal Code, the charge of taking a weapon from a peace officer includes the elements of (1) intentionally or knowingly (2) taking or attempting to take (3) a firearm, nightstick, or personal protection chemical dispensing device (4) by force (5) from a peace officer (6) with intent to harm the officer or a third person. Tex. Pen. Code Ann. 38.14 (b) (Vernon 2002).

[3] The Penal Code provisions in question, sections 22.02 ( Aggravated Assault ) and 38.14 ( Taking or Attempting to Take Weapon From Peace Officer, Parole Officer, or Community Supervision and Corrections Department Officer ), are not in the same section; indeed, they are in different chapters, respectively 22 and 38. The offenses are not phrased in the alternative, nor are they named similarly. Aggravated assault, under the circumstances of this case, is a second degree felony, whereas taking a weapon is a third degree felony. Tex. Pen. Code Ann. 22.02(b), 38.14(e). Further, appellant does not suggest that there is any legislative history treating the offenses as the same.

[4] Chapter 22 also includes such offenses as sexual assault, injury to a child, and tampering with a consumer product, all of which involve protecting individuals from harm.

[5] Chapter 38 also includes such offenses as hindering apprehension or prosecution, preventing execution of civil process, and unauthorized practice of law, all of which involve preventing obstruction of governmental operation.

[6] Indeed, the charges and facts of the present case could be interpreted such that appellant could not have committed the aggravated assault, using West s weapon, until he had completed the taking a weapon offense.

[7] Even if the statutes were considered in pari materia, they could be harmonized and each given effect because of the differing elements required for conviction under each. See Burke, 28 S.W.2d at 546.