Page 116 - TPA - A Peace Officer's Guide to Texas Law 2015

indictment and within the statutory limitation period." What that means in the instant case is that the State could
have obtained a conviction for any solicitations by appellant to "Molly" that occurred on or before the date in the
indictment up to the statute-of-limitations cutoff date. Even using the shortest possible statute of limitations
period, three year no conduct the State attempted to prove occurred outside that time frame.

The jury charge also included the "on or about" language. As a result, the jury could very well have
concluded that appellant was guilty of criminal solicitation of a minor based solely on his conduct in April 2004,
not on conduct from a later date. If that was the case, then "Molly" would be under seventeen and appellant
would have been within three years of her age. Thus, there would have been some evidence to raise the
affirmative defense in §22.011(e). Therefore, the court of appeals erred when it ruled that appellant was not
entitled to that defensive instruction.

The affirmative defense in §22.011(e) of the Penal Code is applicable in a prosecution under §15.031(b)
and can be raised by a defendant if the evidence at trial warrants its inclusion in the jury charge. We reverse the
judgment of the court of appeals and remand this case to the court of appeals to consider whether appellant was
harmed when the trial court omitted such an affirmative-defense instruction.

Report writing lesson: Even though the on or about language in this case was contained in the indictment,
its probably a good idea to stay away from that language in reports especially if you know the precise date of
an incident. In cases where dates are critical and timing is close, report language of on or about a date could
jeopardize a successful prosecution.
Sanchez v. State, No. PD 1289-12, Ct. Crim App. June 12, 2013.

DOUBLE JEOPARDY

DOUBLE JEOPARDY: ROBBERY AND ASSAULT

In 2005, the two complainants went to the suspect's residence. While there, the complainants were
assaulted and robbed by the suspect and two other men. Each of the two indictments at issue here charged the
suspect with one count of aggravated assault and one count of aggravated robbery. The jury found him guilty of
all four charges, with the sentences to run concurrently. The Court of Appeals affirmed the trial court's judgment.

The suspect argues that his convictions for both aggravated robbery and aggravated assault of the same
person during a single transaction constitute multiple punishments for the same offense, in violation of the
constitutional prohibition against double jeopardy. He asserts that, since the double-jeopardy clause prohibits
multiple punishments for the same offense, two of his convictions and resulting punishments are prohibited.

The Fifth Amendment's Double Jeopardy Clause provides that no person shall "be subject for the same
offence to be twice put in jeopardy of life or limb." U.S. Const. amend. v. The Double Jeopardy Clause of the
Fifth Amendment, applicable to the states through the Fourteenth Amendment, protects an accused against 1) a
second prosecution for the same offense after acquittal, 2) a second prosecution for the same offense after
conviction, and 3) multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165 (1977); Ex parte
Amador, 326 S.W.3d 202, 205 (Tex. Crim. App. 2010). There are two variations of a multiple-punishments
claim: 1) where there are both a greater and a lesser-included offense and the same conduct is punished twice-
once for the basic conduct and a second time for that conduct plus more; and 2) where the same criminal act is
punished under two distinct statutes and the legislature intended the conduct to be punished only once-such as
causing a single death and being charged with both intoxication manslaughter and involuntary manslaughter.
Langs v. State, 183 S.W.3d at 685. Aggravated assault may be a lesser-included offense of aggravated robbery,
depending upon the facts proved. Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App. 1981); Watson v. State,
605 S.W.2d 877, 884 (Tex. Crim. App. 1979).

As plead in the indictments, the counts for both aggravated robbery and aggravated assault assert that

A Peace Officer’s Guide to Texas Law 109 2015 Edition