Michael McMillian v. the State of Texas

Opinion filed September 19, 2024

In The

Eleventh Court of Appeals
__________

No. 11-22-00155-CR
__________

MICHAEL MCMILLIAN, Appellant

V.
THE STATE OF TEXAS, Appellee

On Appeal from the 42nd District Court
Taylor County, Texas
Trial Court Cause No. 29918-A

MEMORANDUM OPINION
Michael McMillian, Appellant, was indicted for four counts of aggravated
assault, one count of unlawful possession of a firearm, and one count of possession
of a controlled substance. TEX. PENAL CODE ANN. §§ 22.02(a)(2), (b), 46.04(a)(1),
(e) (West Supp. 2023); TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (d) (West
Supp. 2023). The jury found Appellant guilty of all six counts and the trial court
assessed punishment at confinement in the Institutional Division of the Texas
Department of Criminal Justice for terms ranging from forty years to life—all to run
concurrently. Appellant raises a single issue on appeal: that his two convictions for
aggravated assault against the same victim, as alleged in Count I and Count III,
violate the Double Jeopardy Clause of the Fifth Amendment. We affirm.
Factual and Procedural History
Appellant does not challenge the sufficiency of the evidence to support his
convictions, only that the law prevents two convictions for aggravated assault
against the same victim. Consequently, we recite only the facts necessary to address
the sole issue on appeal.
On April 15, 2021, Tahnee Meeks, an emergency medical technician (EMT),
and her partner Zach Bangert, a paramedic, responded to a wellness check involving
Appellant. Before Meeks and Bangert were called, the police and a critical response
team (CRT) responded. The CRT unit believed Appellant had a chemical imbalance
and wanted Appellant transported to the hospital—Meeks and Bangert responded to
that call. After getting Appellant into the ambulance, Appellant’s jacket was
removed, and Meeks checked his vitals. Following his vitals check, Meeks had
Appellant move onto the gurney in the ambulance. Appellant was then transported
to the hospital, with Meeks driving and Bangert sitting in the back of the ambulance
with Appellant. While the ambulance was stopped at a red light, Appellant got up
from the gurney and reached for his jacket. Both Meeks and Bangert asked
Appellant to sit back down, but Appellant refused. Bangert got up to move
Appellant back onto the gurney, but then Appellant pulled a gun and pointed it at
him. Bangert held up his hands and backed away and attempted to use the radio.
Appellant told Bangert not to use the radio, and Meeks attempted to switch the
channels on the radio from the hospital channel to the Metro channel. Appellant told
Meeks to stop what she was doing and then pointed the gun at her.
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While Appellant was focused on Meeks, Bangert was able to jump up and
push the gun away. During the confrontation, two shots were fired. Meeks testified
that the first shot occurred while she was still in the driver’s seat, and the second was
after she got out of the ambulance and moved toward the back doors of the
ambulance. Meeks hesitated in opening the back doors because she could not see
what was happening. When the second shot was fired, Meeks moved back to the
driver’s seat to call in that a “second shot [was] fired,” and to get a better look at
what was happening. After that, Bangert called out for Meeks to “open the back
doors.”
When Meeks opened the back doors, she saw Appellant and Bangert still
struggling. Appellant was holding a knife and making stabbing motions. Bangert
was injured from the knife. Meeks told the jury that she jumped into the ambulance
to grab Appellant’s arm and force the knife away from Bangert. When she did this,
Appellant repositioned the knife and pointed it at Meeks. Meeks was eventually able
to get the knife away from Appellant, and she and Bangert were able to restrain
Appellant until law enforcement arrived.
Counts I and III of the six-count indictment charged Appellant with
committing aggravated assault against Meeks, but differed in the respective deadly
weapons alleged: a firearm in Count I, and a knife in Count III. During trial, Meeks
identified Appellant as the man who threatened her with a gun and a knife, and she
testified that each time, she feared for her life. Although Appellant testified that he
never intended to shoot or stab anyone, the jury found Appellant guilty of both
counts of aggravated assault against Meeks. The trial court sentenced Appellant to
imprisonment for life for Count I and for a term of seventy-five years for Count III.
In Appellant’s sole issue on appeal, he claims that his convictions for
aggravated assault in Count I and Count III violate the state and federal protections

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against double jeopardy.1 See U.S. CONST. amend. V; TEX. CONST. art. 1, § 14. The
State disagrees, and argues that the two events were separate and distinct offenses
during the same criminal transaction.
Standard of Review and 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
apparent on the face of the record” and (2) “when enforcement of the usual rules of
procedural default serves no legitimate state interest.” Id. (citing Gonzalez, 8
S.W.3d at 643 (footnotes omitted)). Because Appellant did not raise any double
jeopardy objections prior to the jury receiving the charge, we must consider whether
the undisputed facts show a violation on the face of the record. See Sledge v. State,
666 S.W.3d 592, 599 (Tex. Crim. App. 2023); Garfias v. State, 424 S.W.3d 54, 58
(Tex. Crim. App. 2014). If such error is apparent, we must determine if there is a
legitimate state interest served in preventing the issue from being raised on appeal.
“A double-jeopardy claim is apparent on the face of the trial record if
resolution of the claim does not require further proceedings for the purpose of

1
In this appeal, Appellant’s first court-appointed appellate counsel submitted an Anders brief and
filed a motion to withdraw. See Anders v. California, 386 U.S. 738 (1967). Following the procedures set
forth in Anders, Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014), and In re Schulman, 252 S.W.3d
403 (Tex. Crim. App. 2008), we independently reviewed the record and concluded that these appeals were
not particularly amenable to disposition under Anders. We granted appellate counsel’s motion to withdraw,
abated the appeal, and remanded the case to the trial court with instructions to appoint new appellate
counsel. New appellate counsel was directed to file a brief on the merits and address any substantive issues
that appellate counsel deemed to be arguable. This appeal was reinstated after the trial court appointed new
appellate counsel.
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introducing additional evidence in support of the double-jeopardy claim.” Llorens v.
State, 520 S.W.3d 129, 133 (Tex. App.—Austin 2017, pet. ref’d) (quoting Ex parte
Denton, 399 S.W.3d 540, 544 (Tex. Crim. App. 2013)).
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 Ala. v. Smith, 490 U.S. 794 (1989)). The Double Jeopardy Clause imposes few,
if any, limitations on the legislative power to establish and define offenses. Ex parte
Hawkins, 6 S.W.3d 554, 556 (Tex. Crim. App. 1999) (citing Brown v. Ohio, 432
U.S. 161 (1977)). The legislature, therefore, determines whether offenses are the
same for double jeopardy purposes by defining the “allowable unit of prosecution.”
Id. (citing Sanabria v. United States, 437 U.S. 54, 69–70 (1978)).
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
are not the same if each provision requires proof of a fact which the other does not.”
Id. (citing Blockburger v. United States, 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, a judicial presumption arises that the offenses are the same for purposes
of double jeopardy. Bien, 550 S.W.3d at 184. This presumption can be rebutted by
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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 for double jeopardy purposes and multiple punishments are
permitted. Id. at 185. This presumption can 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 v.
State, 401 S.W.3d 642, 647 (Tex. Crim. App. 2013) (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)). “[T]he 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.
Analysis
Appellant’s double-jeopardy complaint rests on his two convictions for
assaultive offenses arising from the same criminal episode, against the same victim.
The offense itself is the same for both counts—the only difference is the type of
deadly weapon used to commit the aggravated assault. However, on the occasion
that “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 distinct acts of assault occur, even if close in
time, the defendant may be charged with two separate counts of assault. Id.
(Comparing Sanchez v. State, 269 S.W.3d 169, 171 (Tex. App.—Amarillo 2008,
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pet. ref’d) (holding that no double jeopardy violation occurred where defendant was
charged with both assault by causing bodily injury and assault by threat against same
victim because, “[t]hough rather close in time, the latter arose after a break from the
former”), with Teeter v. State, No. PD-1169-09, 2010 WL 3702360, at *6 (Tex.
Crim. App. Sept. 22, 2010) (not designated for publication) (holding that double
jeopardy violation occurred where charges of assault by threat and attempted capital
murder were both based on a single act of pointing gun at victim)).
In Urtado v. State, the appellant raised a double jeopardy complaint for his
convictions for one count of assault by causing serious bodily injury and one count
of assault by threatening bodily injury against the same victim. 333 S.W.3d at 424.
The victim was hit, and her hair was pulled while being dragged up the stairs. Id.
Then, the appellant shifted to focus on another victim, attacking with a knife. Id.
After that, the appellant announced to the entire room—the first victim was also
present—that he was going to kill all of them. Id. The Third Court of Appeals
concluded that there was no double jeopardy violation on the face of the record
because, based on the evidence the assault by threat was a separate event from the
assault causing bodily injury. Id. at 424–25.
Here, as in Urtado, each aggravated assault against Meeks was a distinct
event. Appellant first pointed his gun at Bangert and Meeks while they were all in
the ambulance; thereby completing the first aggravated assault using a gun. Once
Appellant shifted his focus to Meeks, Bangert attempted to stop Appellant. Meeks
radioed in that shots were fired and got out of the ambulance and moved toward the
rear of the ambulance. Meeks then went back to the front of the ambulance to report
another shot and assess the situation. During that time, Appellant was not pointing
a gun at Meeks, and she was removed from his immediate area. Then, Meeks heard
Bangert ask her to open the ambulance back doors. She returned to the back of the
ambulance and opened them, noticing that Appellant also had a knife and was
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attempting to stab Bangert. In an effort to stop Appellant, Meeks gained control of
Appellant’s arm, at which point, he turned the knife on Meeks and attempted to stab
her as well, which supports the second conviction for aggravated assault using a
knife. Meeks testified that, in each instance, she was in fear for her life.
The testimony shows there was a separation—though short—between the first
time Appellant threatened Meeks with a gun, and the second time Appellant
threatened Meeks with a knife. Meeks described the time in which she was not in
the ambulance and was not in a direct struggle with Appellant. Meeks additionally
was able to radio for help two times, once at the end of the first threat, and again
right before the second threat. Double jeopardy defines the “same offense” as
identical criminal acts—not merely the same offense by name. See Ex parte
Goodbread, 967 S.W.2d 859, 860 (Tex. Crim. App. 1998) (citing Luna v. State, 439
S.W.2d 854, 855 (Tex. Crim. App. 1973)). Here, Appellant was charged with,
convicted of, and punished for two separate violations of a single statutory offense.
Therefore, the double jeopardy protections are not implicated here. See Urtado, 333
S.W.3d at 424. Because there is no double jeopardy violation on the face of the
record, we overrule Appellant’s sole issue.
Modification of Judgments
While we overrule Appellant’s sole issue on appeal, we note that the trial
court’s judgments contain a clerical error. 2 This court has the authority to modify a
judgment to correct a clerical error when the evidence necessary to correct the
judgment appears in the record. See TEX. R. APP. P. 43.2; Arndt v. State, No. 11-20-
00032-CR, 2021 WL 5934652, at *3 (Tex. App.—Eastland Dec. 16, 2021, pet. ref’d)
(citing Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993)). In the Judgment
of Conviction for Count I—aggravated assault—the record reflects that Appellant

2
We note that the judgments for Counts II, IV, V, and VI all contain the same error, but as
they are not at issue on appeal, we only modify the judgments for Count I and Count III.
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elected for the trial court to assess punishment, but the judgment reflects it was
assessed by the jury. We modify the Judgment of Conviction for Count I to reflect
that punishment was assessed by the trial court. In the Judgment of Conviction for
Count III—aggravated assault—the error is the same. We modify the Judgment of
Conviction for Count III to reflect that punishment was assessed by the trial court.
This Court’s Ruling
We affirm the judgments of the trial court as modified.

W. BRUCE WILLIAMS
JUSTICE

September 19, 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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