John Towmey A/K/A John Twomey v. the State of Texas

Opinion filed August 30, 2024

In The

Eleventh Court of Appeals
__________

No. 11-23-00089-CR
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JOHN TOWMEY A/K/A JOHN TWOMEY, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CR28744

MEMORANDUM OPINION
John Towmey a/k/a John Twomey, Appellant, was indicted for two counts of
aggravated kidnapping. See TEXAS PENAL CODE ANN. § 20.04 (West Supp. 2023).
Appellant entered an open plea of guilty on both counts. The trial court assessed
punishment at confinement in the Institutional Division of the Texas Department of
Criminal Justice for a term of life for each count and entered judgment sentencing
Appellant accordingly. In Appellant’s sole issue on appeal, he contends that his
convictions for two counts of aggravated kidnapping against the same victim violate
the double jeopardy clause. We affirm in part and vacate in part.
Factual and Procedural History
Appellant does not challenge his open plea, nor the sufficiency of the
evidence. As a result, we recite only those facts that are relevant to the disposition
of the issue raised on appeal.
Appellant and Anna Hamilton (a pseudonym) met online and began
exchanging messages. Appellant traveled from Texas to Alabama to pick Anna up,
telling her that he could save her from her father, whom Appellant said was
“grooming” her. Appellant drove the two from Alabama to Brownwood, Texas—to
Appellant’s parents’ house. Appellant’s parents were told that Anna was twenty
years old, but Anna told the SANE nurse that Appellant knew she was fourteen years
old. Anna was sexually abused by Appellant multiple times on the drive from
Alabama to Texas, and again at Appellant’s parents’ home.
The police department in Ozark, Alabama, along with the sheriff’s office and
the FBI received information that Anna was taken to Brownwood by Appellant.
Lieutenant Troy Carroll, of the Brownwood Police Department, received a call from
the Ozark Police Department reporting that Appellant and Anna were in
Brownwood. Lieutenant Carroll located an address for Appellant and, along with
two other officers, went to investigate. When they arrived, Appellant answered the
door. Appellant first denied that he knew Anna, but he subsequently admitted that
Anna was in the house and that he had had sex with her multiple times.
Police searched the home where they found Appellant and Anna and also
discovered a firearm. The firearm was significant because the investigation revealed
there was a firearm in the front seat of the vehicle when Appellant picked Anna up,
and Anna said that a firearm was “out” during one of the sexual assaults.

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Appellant waived his right to a jury trial and pled guilty to both counts of
aggravated kidnapping. 1 Count I alleged that Appellant kidnapped Anna with the
intent to violate or sexually abuse her and Count II alleged that Appellant used or
exhibited a deadly weapon—a firearm—during the commission of the kidnapping.
Appellant entered a judicial confession, in which he swore that he had “committed
each and every act alleged” in the indictment, except those acts waived by the State.
The trial court found him guilty and assessed his punishment at confinement for a
term of life for each count.
Double Jeopardy
In his sole issue, Appellant claims that the two convictions of aggravated
kidnapping violate the Fifth Amendment’s double jeopardy clause because there was
only one victim in one criminal episode. The State agrees there was a violation of
double jeopardy. Appellant asks this court to vacate Count I and affirm Count II,
claiming the deadly weapon finding is more serious because it impacts Appellant’s
eligibility for parole. The State agrees that Count I should be vacated, but disagrees
as to the reasons.
Applicable Law
To preserve a double jeopardy complaint, the burden is on the defendant to
raise—in some way—a double jeopardy objection “at or before the time the charge
is submitted to the jury.” Langs v. State, 183 S.W.3d 680, 687 (Tex. Crim. App.
2006) (citing Gonzalez v. State, 973 S.W.2d 427, 431 (Tex. App.—Austin 1998),
aff’d, 8 S.W.3d 640 (Tex. Crim. App. 2000)). However, because double jeopardy
protections are fundamental, a double jeopardy claim may be raised for the first time
on appeal if: (1) “the undisputed facts show the double jeopardy violation is clearly

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Appellant was also convicted on the same day of one count of aggravated sexual assault and two
counts of sexual assault in a separate cause number, which is the subject of the appeal in our cause No. 11-
23-00090-CR.
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apparent on the face of the record” and (2) “when enforcement of the usual rules of
procedural default serves no legitimate state interest.” Id. (quoting Gonzalez, 8
S.W.3d at 643). Here, Appellant admits that he did not raise any double jeopardy
objections during or after the hearing before the trial court. The State acknowledges
that the issue has not been raised prior to this appeal, but also indicates that, in this
case, there is no legitimate state interest served to prevent the issue being raised on
appeal. Because the legitimate state interest is required to prevent a double jeopardy
issue from being raised for the first time on appeal—and the State admits no such
interest exists here—we proceed directly to the double jeopardy claim.
The Fifth Amendment 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 United States Supreme Court has concluded that the Fifth Amendment offers
three separate constitutional protections: (1) protection against a second prosecution
for the same offense after acquittal; (2) protection against a second prosecution for
the same offense after conviction; and (3) protection against multiple punishments
for the same offense. Ex parte Cavazos, 203 S.W.3d 333, 336 (Tex. Crim. App.
2006) (citing N.C. v. Pearce, 395 U.S. 711, 717 (1969) overruled on other grounds
by Alabama v. Smith, 490 U.S. 794 (1989)). When reviewing a multiple-
punishments double-jeopardy complaint, the relevant inquiry is always whether the
legislature intended to permit multiple punishments. Loving v. State, 401 S.W.3d
642, 646 (Tex. Crim. App. 2013). Thus, in such a case, we must assess whether an
appellant has been “convicted of more offenses than the legislature intended.” Ex
parte Milner, 394 S.W.3d 502, 507 (Tex. Crim. App. 2013) (quoting Ervin v. State,
991 S.W.2d 804, 807 (Tex. Crim. App. 1999)).
To determine whether there are multiple convictions for the same offense, we
first apply the “same elements” test laid out in Blockburger. Bien v. State, 550
S.W.3d 180, 184 (Tex. Crim. App. 2018). Under the Blockburger test, “two offenses
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are not the same if each provision requires proof of a fact which the other does not.”
Id. (citing Blockburger v. U.S., 284 U.S. 299, 304 (1932)). In Texas, we look to the
pleadings and relevant statutory provisions—not to the evidence presented at trial—
to inform this test. Nawaz v. State, 336 S.W.3d 739, 744 (Tex. Crim. App. 2022);
Bien, 550 S.W.3d at 184. If the two offenses have the same elements, we presume
the offenses are the same for double jeopardy purposes. Bien, 550 S.W.3d at 184.
This presumption can be rebutted by a clearly expressed legislative intent to create
two separate offenses. Id. If, however, the two offenses do not have the same
elements, the judicial presumption is that the offenses are different, and that multiple
punishments are permitted. Id. at 185. This presumption can also be rebutted if it is
clear the legislature intended that only one punishment be assessed. Id.
The legislature also decides whether a particular course of conduct involves
one or more distinct offenses under a given statute. Barnes v. State, 665 S.W.3d
192, 201 (Tex. App.—Eastland 2023, no pet.) (citing Bien, 550 S.W.3d at 185)).
This is referred to as the “allowable unit of prosecution.” See Cavazos, 203 S.W.3d
at 336. “Absent an express statement defining the allowable unit of prosecution, the
gravamen of an offense best describes the allowable unit of prosecution.” Loving,
401 S.W.3d at 647 (citing Gonzales v. State, 304 S.W.3d 838, 847–48 (Tex. Crim.
App. 2010); Vick v. State, 991 S.W.2d 830, 832 (Tex. Crim. App. 1999)). The
gravamen of an offense can be (1) the result of the conduct, (2) the nature of the
conduct, or (3) the circumstances surrounding the conduct. Id.
When multiple convictions violate the double jeopardy clause, the remedy is
to vacate one of the convictions. Bien, 550 S.W.3d at 188. The conviction which is
the “most serious offense” is retained. Id. (citing Cavazos, 203 S.W.3d at 338).
“The most serious offense is the offense of conviction for which the greatest sentence
was assessed.” Id. (internal quotation marks omitted). For example, in Cavazos, the
tiebreaker was that restitution was imposed for only one offense. See Cavazos, 203
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S.W.3d at 338–39. In Bien, the Court of Criminal Appeals reviewed other possible
tiebreakers: (1) the consideration of parole eligibility, retaining the conviction which
included a deadly weapon finding; (2) the degree of the felony; (3) the offense that
was indicted first; and (4) the offense named first in the judgment. 550 S.W.3d at
188. The court in Bien also considered that—in circumstances where it is practically
impossible to determine which offense is most serious—it may also be preferable to
give the State “prosecutorial discretion” to choose which conviction to retain. Id. at
188–89.
Analysis
Appellant was convicted of two counts of aggravated kidnapping, each count
differing only in the aggravating circumstance alleged. Count I tracked the statutory
language of subsection 20.04(a) of the Penal Code. See PENAL § 20.04(a) (“A person
commits an offense if he intentionally or knowingly abducts another person with the
intent to . . . violate or abuse him sexually.”). Count II charged Appellant under
subsection 20.04(b) of the Penal Code. See id. § 20.04(b) (“A person commits an
offense if the person intentionally or knowingly abducts another person and uses or
exhibits a deadly weapon during the commission of the offense.”). The offenses in
Count I and Count II are the same—does the person intentionally or knowingly
abduct another—but consider the execution of the offense under different
aggravating circumstances. Bien, 550 S.W.3d at 184. Thus, under the Blockburger
test, these two offenses have the same elements, and a judicial presumption arises
that the offenses are the same for double jeopardy. Id.
Here, there is nothing in the statute to indicate that the legislature intended to
create multiple offenses under this section. See PENAL § 20.04; Bien, 550 S.W.3d at
185; Loving, 401 S.W.3d 646; Barnes, 665 S.W.3d at 201. Further, the allowable
unit of prosecution for kidnapping is related to the abduction of a victim. Llorens v.
State, 520 S.W.3d 129, 138 (Tex. App.—Austin 2017, pet. ref’d) (citing Gonzales v.
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State, 270 S.W.3d 282, 288 (Tex. App.—Amarillo 2008, pet. ref’d)). The ultimate
issue in a kidnapping is the abduction of the victim, rather than how the offender
restrains or prevents the liberation of the victim. Id. Aggravated kidnapping, like
kidnapping, is a result-oriented offense. Gonzales, 270 S.W.3d at 288. Aggravated
kidnapping raises the level of culpability in a kidnapping by the addition of an
aggravating circumstance—the State may prosecute a person for each victim, but
not for the number of aggravating factors that may be present. Id. Thus, the
allowable unit of prosecution for aggravated kidnapping is also related to the
abduction of a victim—and in this case, one victim. Id.
Because the offenses were part of the same criminal transaction, and were
committed against a single victim, we conclude Appellant’s convictions and
punishments violate the double jeopardy clause. When multiple convictions violate
the double jeopardy clause, the remedy is to vacate one of the convictions. See Bien,
550 S.W.3d at 188. Here, both Appellant and the State agree that Count II—which
includes a deadly weapon finding—should be retained. The offenses are both first
degree felonies, and Appellant received the same sentence in each. See PENAL
§ 20.04. Appellant recommends we consider the impact of the deadly weapon
finding on parole, and the State recommends we allow them prosecutorial discretion
as to which sentence to vacate. As the parties agree which count to vacate, and both
recommend appropriate “tiebreakers” as outlined by the Court of Criminal Appeals,
we need not determine which method or tiebreaker to use here. See Bien, 550
S.W.3d at 188; see also TEX. R. APP. P. 47.1 (“The court of appeals must hand down
a written opinion that is as brief as practicable.”). As such, we vacate Appellant’s
conviction under Count I and retain the conviction under Count II. Appellant’s sole
issue on appeal is sustained.

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This Court’s Ruling
We vacate Appellant’s aggravated kidnapping conviction under Count I
because it violates the double jeopardy clause. Accordingly, we reverse the
judgment of the trial court as to Count I and render a judgment of acquittal as to that
count. See Saenz v. State, 131 S.W.3d 43, 53 (Tex. App.—San Antonio 2003), aff’d,
166 S.W.3d 270 (Tex. Crim. App. 2005). We uphold the aggravated kidnapping
conviction under Count II, and we affirm the judgment of the trial court as to that
count.

W. BRUCE WILLIAMS
JUSTICE

August 30, 2024
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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