Multiple Punishment for Two Offenses in Texas
In Ervin v. State, 991 S.W.2d 804, 810-11 (Tex. Crim. App. 1999), the Texas Court of Criminal Appeals set forth a nonexclusive list of factors to consider when examining the issue of whether two offenses are the same in the context of multiple punishment.
These factors include:
(1) whether the offenses provisions are contained within the same statutory section;
(2) whether the offenses are phrased in the alternative;
(3) whether the offenses are named similarly;
(4) whether the offenses have common punishment ranges;
(5) whether the offenses have a common focus (i.e., whether the "gravamen" of the offense is the same);
(6) whether that common focus tends to indicate a single instance of conduct;
(7) whether the elements that differ between the offenses can be considered the "same" under an imputed theory of liability which would result in the offenses being considered the same under Blockburger v. United States, 284 U.S. 299 (1932) (i.e., a liberalized Blockburger standard utilizing imputed elements);
(8) whether there is legislative history containing an articulation of an intent to treat the offenses as the same or different for double jeopardy purposes. Bigon v. State, 252 S.W.3d at 371.