Paul David Doughtery v. The State of Texas

Waco, TX - Criminal defense attorney represented Paul David Doughtery with an Aggravated Assault charge.

Appellant has filed one notice of appeal challenging his convictions in Trial Court

Case Number 2017-1407-C2. The appeal therefore bears one cause number—appellate

cause number 10-19-00021-CR.

Appellant's court-appointed appellate counsel filed a brief challenging only the

judgment and sentence for Count 2. Because appellant's brief did not challenge his

conviction in Count 1, this Court issued an order requiring counsel to allege error as to

Count 1 or to file an Anders-type motion to withdraw and supporting brief, as well as a

motion to sever. In response, appellant has filed a motion to sever his appeal in Count 1

from his appeal in Count 2 and a motion to dismiss his appeal as to Count 1. Pursuant

to appellant's request, we sever appellant's appeal in Count 1 from his appeal in Count

2. See TEX. R. APP. P. 43.6. The Clerk shall docket appellant's appeal in Count 1 as 10-21-

00030-CR, styled Doughtery v. State.

With respect to appellant's motion to dismiss filed in appellate cause number 10-

21-00030-CR, we note that the motion to dismiss was signed by both appellant and his

counsel and indicates an intent to dismiss this appeal. See TEX. R. APP. P. 42.2(a). We

grant appellant's motion. Appellant's appeal in 10-21-00030-CR is dismissed. See id.

II. APPELLATE CAUSE NUMBER 10-19-00021-CR

In one issue in appellate cause number 10-19-00021-CR, appellant argues that his

conviction in Count 2 for assault family violence with a prior conviction violates the

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Double Jeopardy Clauses of the United States Constitution and the Texas Constitution.

We affirm.

A. Background

As mentioned earlier, appellant was charged with one count of aggravated assault

(Count 1) and one count of assault family violence with a prior conviction (Count 2).

Specifically, the indictment alleged the following with respect to Count 1:

PAUL DAVID DOUGHTERY . . . on or about the 2nd day of May,

2017 . . . did then and there intentionally knowingly, and recklessly cause

bodily injury to [K.K.] . . . by punching her and/or hitting her with a hard

object and/or slamming her head into the ground and/or hitting her with

the hard plastic part of a tent, and the Defendant did then and there use or

exhibit a deadly weapon, to wit: hard plastic part of a tent and/or an

unknown object and/or his hands and/or the ground, during the

commission of the assault.

(Emphasis in original). Regarding Count 2, the indictment alleged:

PAUL DAVID DOUGHTERY . . . on or about the 2nd day of May, 2017,

did then and there intentionally, knowingly, and recklessly cause bodily

injury to [K.K.], a member of the Defendant's household or a person with

whom the Defendant has had a dating relationship, as described by Section

71.005 or 71.0021(b) of the Texas Family Code, by punching her and/or

hitting her with a hard object and/or slamming her head into the ground,

and before the commission of the charged offense, the Defendant had

previously been convicted of an offense under Chapter 22 of the Texas

Penal Code, against a member of the Defendant's family or a member of the

Defendant's household or a person with whom the Defendant has or has

had a dating relationship, as described by Section 71.003 or 71.005 or

71.0021(b) of the Texas Family Code, to wit: on the 2nd day of December

2016, in the 54th District Court of McLennan County, Texas, in Cause

Number 2016-334-C2.

(Emphasis in original).

Doughtery v. State Page 4

At trial, the evidence showed that appellant and the complainant, K.K., were in an

on-again, off-again relationship and lived together in a tent under the North 19th Street

bridge at the time of the offense. On the night in question, an argument and multiple

"incidents” ensued after appellant accused K.K. of calling someone to pick her up from

the bridge residence. The events of that evening were hotly contested at trial with K.K.

and appellant accusing each other of assault.

However, appellant testified that there were "two different incidents” that

evening—"the time that she got knocked out and the time that she got cut on her face.”

Appellant testified that one incident was funny while the other was not. He further noted

that the entire altercation lasted at least thirty minutes, and he tried to distinguish the

two incidents by noting that the first incident resulted in K.K. being unintentionally

injured by her own actions and that the second incident was an accident.

B. Discussion

"The Double Jeopardy Clause of the Fifth Amendment . . . protects an accused

against . . . multiple punishments for the same offense.” Evans v. State, 299 S.W.3d 138,

140-41 (Tex. Crim. App. 2009). A double-jeopardy claim must generally be raised in the

trial court to preserve error for appellate review. Gonzalez v. State, 8 S.W.3d 640, 643-46

(Tex. Crim. App. 2000); Rangel v. State, 179 S.W.3d 64, 70 (Tex. App.—San Antonio 2005,

pet. ref'd). However, a double-jeopardy claim may be raised for the first time on appeal

when (1) the undisputed facts show the double-jeopardy claim violation is clearly

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apparent from the face of the record, and (2) enforcement of the usual rules of procedural

default serves no legitimate State purpose. See Gonzalez, 8 S.W.3d at 643; see also Rangel,

179 S.W.3d at 70.

"[W]hen separate theories for an offense are issued to the jury disjunctively,

a double jeopardy violation is not clearly apparent on the face of the record

if one of the theories charged would not constitute a double jeopardy

violation and there is sufficient evidence to support that valid theory. The

fact that the jury's verdict could have relied on a theory that would violate

the Double Jeopardy Clause, is not sufficient to show a constitutional

violation "clearly apparent on the face of the record.”

Langs v. State, 183 S.W.3d 680, 687 (Tex. Crim. App. 2006) (citing Gonzalez, 8 S.W.3d at

641-43) (emphasis in original).

"When separate and distinct offenses occur in the same transaction, the protection

against double jeopardy does not apply.” Urtado v. State, 333 S.W.3d 418, 424 (Tex.

App.—Austin 2011, pet. ref'd) (citing Spradling v. State, 773 S.W.2d 553, 556 (Tex. Crim.

App. 1989)). "Thus, if two different attacks occur, even if close in time, a defendant may

be charged with two separate assaults.” Id. (citing Teeter v. State, No. PD-1169-09, 2010

Tex. Crim. App. LEXIS 1206, at *24 (Tex. Crim. App. Sept. 22, 2010) (holding that a doublejeopardy violation occurred where charges of assault by threat and attempted capital

murder were both based on a single act of pointing a gun at the victim); Sanchez v. State,

269 S.W.3d 169, 171 (Tex. App.—Amarillo 2008, pet. ref'd) (holding that no doublejeopardy violation occurred where the defendant was charged with both assault by

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causing bodily injury and assault by threat against the same victim because, "[t]hough

rather close in time, the latter arose after a break from the former.”)).

Appellant concedes that he did not object in the trial court on double-jeopardy

grounds. Further, based on the fact that appellant testified that there were two separate

and distinct "incidents” during the transaction, we cannot say that the Double Jeopardy

Clause applies. See Spradling, 773 S.W.2d at 556; Urtado, 333 S.W.3d at 424; Sanchez, 269

S.W.3d at 171. Therefore, we also cannot say that appellant's double-jeopardy claim is

apparent from the face of the record; and as such, appellant has not properly preserved

his double-jeopardy claim.1

See Spradling, 773 S.W.2d at 556; Urtado, 333 S.W.3d at 424;

Sanchez, 269 S.W.3d at 171. We overrule appellant's sole issue in appellate cause number

10-19-00021-CR.

Based on the foregoing, we dismiss appellant’s appeal in appellate cause number

10-21-00030-CR, and we affirm the trial court’s judgment in appellate cause number 10- 19-00021-CR.