Pierre Andrews v. the State of Texas

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________

No. 02-25-00226-CR
___________________________

PIERRE ANDREWS, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 16th District Court
Denton County, Texas
Trial Court No. F22-2654-16

Before Sudderth, C.J.; Birdwell and Walker, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION

In a single issue, Pierre Andrews challenges, on double-jeopardy grounds, his

convictions and concurrent sentences for two counts of improper relationship

between a student and educator.1 See Tex. Penal Code § 21.12. We affirm.

Background

While employed as a coach at a Texas public school, Andrews engaged in a

sexual relationship with one of the school’s students. The complainant testified that

she and Andrews engaged in sexual acts in his classroom during the school day,

starting when she was sixteen and continuing until she was seventeen. According to

the complainant, these acts included around fifty instances of her giving him oral sex

and at least forty instances of them engaging in sexual intercourse, which occurred

“almost every time there was oral sex, . . . with [the] exception of a few times.”

Andrews was charged with four criminal offenses: (1) one count of sexual

assault by intentionally or knowingly penetrating the sexual organ of the complainant

when she was under seventeen; (2) one count of sexual assault by intentionally or

1
Although Andrews did not complain about this issue in the trial court, a
double-jeopardy complaint may be raised for the first time on appeal when (1) the
undisputed facts show that the violation is apparent from the record’s face and (2)
enforcement of the usual procedural-default rules serves no legitimate purpose.
Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000). Andrews also raised four
issues related to judgment errors, but as the State has pointed out in its brief, those
issues are moot because the trial court has entered judgments nunc pro tunc that
resolve the complaints. See Chacon v. State, 745 S.W.2d 377, 378 (Tex. Crim. App.
1988) (“Generally a cause, issue or proposition is or becomes moot when it does not,
or ceases to, rest on any existing fact or right.”).

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knowingly penetrating the under-seventeen-year-old complainant’s mouth; (3) one

count of improper relationship between an educator 2 and student by engaging in

sexual intercourse with the complainant; and (4) one count of improper relationship

between an educator and student by engaging in deviate sexual intercourse “by placing

his genitals in contact with the mouth of the complainant.”

A jury acquitted Andrews of the two sexual-assault counts but convicted him

of both improper-relationship counts. On appeal, Andrews contends that punishing

him for two separate improper-relationship offenses with the same complainant

impermissibly subjects him to multiple punishments in violation of the United States

and Texas constitutions.

Applicable Law and Standard of Review

The Double Jeopardy Clause provides that no person shall have life or limb

twice put in jeopardy for the same offense. U.S. Const. amend. V; see also Tex. Const.

art. I, § 14.3 Generally, this provision protects against impermissible successive

prosecutions and multiple punishments for the same offense. Brown v. Ohio, 432 U.S.

2
Although the statute defining the offense is entitled “Improper Relationship
Between Educator and Student,” it applies to “employee[s]” of public and private
primary and secondary schools, not just teachers. See Tex. Penal Code § 21.12. In this
opinion, we use the terms interchangeably.
3
Andrews does not argue that the Texas constitution provides any greater
protection in this context. See Ex parte Mitchell, 977 S.W.2d 575, 580 (Tex. Crim. App.
1997) (noting the Court’s long-standing precedent holding that the double-jeopardy
provisions of both constitutions provide “substantially identical protections”).

3
161, 165, 97 S. Ct. 2221, 2225 (1977); Nawaz v. State, 663 S.W.3d 739, 743 (Tex. Crim.

App. 2022); see Ex parte Estevez, 713 S.W.3d 913, 918 (Tex. Crim. App. 2025).

How we review a multiple-punishments double-jeopardy complaint differs

depending on whether the convictions arose from the same or different statutes.

When the convictions are for offenses described within the same statute, we perform

only a “units analysis.” See Ex parte Benson, 459 S.W.3d 67, 71 (Tex. Crim. App. 2015);

see also Nawaz, 663 S.W.3d at 744–45 & n.6 (noting that, even within same subsection,

a statute might contain “more than one distinct theory for how the offense may be

committed”). If the offenses are the same according to that analysis, then multiple

punishments are prohibited. Benson, 459 S.W.3d at 71.

A units analysis starts with determining the “allowable unit of prosecution”

according to statutory-construction principles and “generally requires ascertaining the

focus or gravamen of the offense.” Benson, 459 S.W.3d at 73–74; see also Nawaz, 663

S.W.3d at 744; Ex parte Hawkins, 6 S.W.3d 554, 556–57 (Tex. Crim. App. 1999). In

making this determination, we may look to cases construing the statute for other

purposes because “the issue is the same: the meaning of the statute.” Nawaz, 663

S.W.3d at 746 (quoting Jones v. State, 323 S.W.3d 885, 889 (Tex. Crim. App. 2010)). If

the allowable unit of prosecution is the same, we then determine how many units have

been shown based on the record. Nawaz, 663 S.W.3d at 744; Benson, 459 S.W.3d at 73.

A statute’s proper construction is a question of law that we review de novo. Joe

v. State, 726 S.W.3d 482, 486 (Tex. Crim. App. 2025). “Statutory construction depends

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on the plain meaning of the statute’s language unless it is ambiguous or the plain

meaning would lead to absurd results that the legislature could not have possibly

intended.” Lopez v. State, 600 S.W.3d 43, 45 (Tex. Crim. App. 2020). We determine

plain meaning by reading the statute in context, and in doing so, we must give effect

to each word, phrase, clause, and sentence if reasonably possible, construing them

“according to any applicable technical definitions and otherwise according to the rules

of grammar and common usage.” Joe, 726 S.W.3d at 486 (quoting Lopez, 600 S.W.3d at

45). “If the plain meaning is not ambiguous or does not lead to absurd results, we do

not consider extra-textual factors.” Lopez, 600 S.W.3d at 45.

“The foundational rule of statutory construction is to presume that the

legislature meant what it said.” Joe, 726 S.W.3d at 486. This requires showing “respect

for the legislature” and recognizing that if it “enacted into law something different

from what it intended, it should amend the statute to conform to its intent.” Id.

(quoting Getts v. State, 155 S.W.3d 153, 158 (Tex. Crim. App. 2005)).

Construing a statute to determine its allowable unit of prosecution requires

determining the offense’s proper classification, either “as a result-of-, nature-of-, or

circumstances-surrounding-conduct offense.” Ortiz v. State, 623 S.W.3d 804, 806 (Tex.

Crim. App. 2021). Result-of-conduct offenses “concern the product of certain

conduct,” i.e., they are concerned with the result, and thus the result is the unit of

prosecution. See Stevenson v. State, 499 S.W.3d 842, 850 (Tex. Crim. App. 2016); Young

v. State, 341 S.W.3d 417, 423 (Tex. Crim. App. 2011) (listing murder as an example).

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Nature-of-conduct offenses, on the other hand, punish the act or conduct proscribed,

regardless of the result; thus, the different types of conduct described in the statute

are considered separate offenses. Stevenson, 499 S.W.3d at 850; Young, 341 S.W.3d at

423 (noting that many sex offenses are nature-of-the-conduct crimes). And

circumstances-of-conduct offenses “prohibit otherwise innocent behavior that

becomes criminal only under specific circumstances.” Young, 341 S.W.3d at 423

(providing unlawful firearm discharge as an example). If an offense’s focus is the

circumstances surrounding the conduct, then the different acts described provide

alternative methods of committing the same offense––i.e., different manner and

means––rather than define separate offenses. Stevenson, 499 S.W.3d at 850–51 (also

holding that violation of civil-commitment order is a circumstances-of-conduct

offense).

An offense may have more than one focus, and if so, one may predominate or

all may be equally significant. Ortiz, 623 S.W.3d at 806. Importantly, most sex offenses

are classified as nature-of-conduct offenses in which the specific acts described define

separate offenses. See, e.g., Metcalf v. State, 597 S.W.3d 847, 857 (Tex. Crim. App. 2020)

(“[S]exual assault is a nature-of-conduct offense”; thus, “penetration of the anus and

sexual organ constitute discrete acts.”); Aekins v. State, 447 S.W.3d 270, 278 (Tex.

Crim. App. 2014) (holding, in describing sexual-assault statute, that “[a] person who

commits more than one sexual act against the same person may be convicted and

punished for each separate and discrete act, even if those acts were committed in

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close temporal proximity”); Loving v. State, 401 S.W.3d 642, 649 (Tex. Crim. App.

2013) (“[T]he gravamen of the indecency-with-a-child statute is the nature of the

prohibited conduct, regardless of whether the accused is charged with contact or

exposure”; thus, “the commission of each prohibited act determines how many

convictions may be had”); Gonzales v. State, 304 S.W.3d 838, 847–49 (Tex. Crim. App.

2010) (explaining that aggravated-sexual-assault statute is conduct-oriented and

holding that different conduct types described in same subsection of aggravated-

assault statute constituted distinct offenses and citing Vick v. State, 991 S.W.2d 830,

832–33 (Tex. Crim. App. 1999)); see also Hernandez v. State, 631 S.W.3d 120, 124 (Tex.

Crim. App. 2021) (“[S]ex offenses are narrowly focused, and the statutes defining sex

offenses minutely detail the prohibited conduct.”). But cf. Jourdan v. State, 428 S.W.3d

86, 95–96 (Tex. Crim. App. 2014) (construing Penal Code Section 22.021(a)(1)(A)(i)––

which makes it an offense to, without the complainant’s consent, cause the

penetration of the sexual organ or anus “by any means”––to bar multiple

punishments for digital penetration and penile penetration of the vagina during the

same episode but to allow multiple punishments for vaginal and anal penetration

during the same episode).

Section 21.12(a)(1) Describes Different Offenses

Arguments on Appeal

Andrews contends that Section 21.12 establishes a “circumstances surrounding

the conduct” offense, in which the focus is on the employee–student relationship

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rather than on the specific sexual acts defined or how many times they occurred with

the same complainant. Therefore, he contends that the unit of prosecution for this

offense is the relationship itself and that, here, there can be only one unit of

prosecution. He also argues that “the State cannot bifurcate multiple convictions from

the same subsection of the statute.”

The State, on the other hand, urges that Section 21.12(a)(1)’s language

“demonstrates a legislative intent to criminalize discrete sexual acts rather than the

existence of an educator-student relationship.”

Section 21.12 Elements

Penal Code Section 21.12(a)(1) provides in part that “[a]n employee of a public

or private primary or secondary school commits an offense if the employee . . .

engages in sexual contact, sexual intercourse, or deviate sexual intercourse with a

person who is enrolled in a public or private primary or secondary school at which the

employee works.” Tex. Penal Code § 21.12(a)(1). The Penal Code defines “[s]exual

intercourse” as “any penetration of the female sex organ by the male sex organ” and

“[d]eviate sexual intercourse” in part as “any contact between any part of the genitals

of one person and the mouth . . . of another person.” Id. § 21.01(1)(A), (3). 4 Sexual

contact is defined specifically as the following acts if done with the intent to arouse or

gratify any person’s sexual desire: touching of the complainant’s anus, breast, or

4
Other acts are included in the definition of deviate sexual intercourse, but we
confine our discussion in this opinion solely to the alleged genital-to-mouth contact.

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genitals; or any touching of any part of the complainant’s body with the employee’s

anus, breast, or genitals. Id. § 21.12(e).

Section 21.12 criminalizes the conduct described even in circumstances in

which it would not otherwise be criminal but for the actor’s status as a school

employee and the complainant’s status as a student. See Ramirez v. State, 557 S.W.3d

717, 719–21 (Tex. App.––Corpus Christi–Edinburg 2018, pet. ref’d); Toledo v. State,

519 S.W.3d 273, 280–83 (Tex. App.––Houston [1st. Dist.] 2017, pet. ref’d); Collins v.

State, 479 S.W.3d 533, 538 (Tex. App.—Eastland 2015, no pet.) (mem. op., not

designated for publication); Colleps v. State, Nos. 02-12-00396–400-CR, 2014 WL

1324422, at *2–3 (Tex. App.––Fort Worth Apr. 3, 2014, no pet.) (per curiam) (mem.

op., not designated for publication); Ex parte Morales, 212 S.W.3d 483, 490–96 (Tex.

App.––Austin 2006, pet. ref’d). In this way, the statute parallels the indecency-with-a-

child statute that criminalizes sexual contact with a person under seventeen––conduct

that would be legal but for the complainant’s status as a minor. See Tex. Penal

Code § 21.11; Irielle v. State, 441 S.W.3d 868, 876 (Tex. App.––Houston [14th Dist.]

2014, no pet.).

Section 21.12 has two affirmative defenses: (1) that “ the actor was the spouse

of the enrolled person at the time of the offense”; and (2) that “the actor was not

more than three years older than the enrolled person and, at the time of the offense,

the actor and the enrolled person were in a relationship that began before the actor’s

employment.” Tex. Penal Code § 21.12(b-1). Section 21.12 also specifically provides

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that “[i]f conduct constituting an offense under [that] section also constitutes an

offense under another [Penal Code] section . . . , the actor may be prosecuted under

either section or both sections.” Id. § 21.12(c); see Mauro v. State, 221 S.W.3d 896, 903–

06 (Tex. App.—Beaumont 2007, no pet.) (holding that use of the word “prosecuted”

in subsection (c) indicated legislative intent to allow multiple punishments of conduct

under Section 21.12 and other applicable statutes).

Section 21.12 is intended to prohibit school employees from using their access

to, and inherent power over, students to engage in sexual relationships with them and

also to prevent disruption of the educational environment. See Colleps, 2014 WL

1324422, at *3; Mauro, 221 S.W.3d at 904; see also Toledo, 519 S.W.3d at 281 (noting

that Texas has a rational interest in prohibiting such conduct to (1) prevent harm to

students susceptible to coercion, or unable to easily refuse, due to the inherent power

imbalance present in the educational setting and (2) preserve an educational

environment conducive to learning); Morales, 212 S.W.3d at 494 (same).

Irielle v. State

Our analysis of Section 21.12 is informed by the Fourteenth Court of Appeals’s

opinion in Irielle v. State, in which that court determined the classification and

gravamen of a substantively similar statute that uses Section 21.12(a)(1)’s same

conduct description––Penal Code Section 39.04(a)(2), which prohibits “sexual

contact, sexual intercourse, or deviate sexual intercourse” between a correctional

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employee and a person in custody. 5 In that case, the appellant had been charged with

having the complainant give him oral sex. 441 S.W.3d at 872–73.

The court construed the statute using the eighth-grade grammar test as

illustrated by the Texas Court of Criminal Appeals in its construction of the

indecency-with-a-child statute in Pizzo v. State, 235 S.W.3d 711, 716–19 (Tex. Crim.

App. 2007). Irielle, 441 S.W.3d at 875–76; see Stuhler v. State, 218 S.W.3d 706, 718 (Tex.

Crim. App. 2007) (describing eighth-grade grammar test as a general rule of thumb for

determining legislative intent that requires the court to at the very least determine the

statute’s subject, main verb, and direct object if the main verb requires one). Like the

Court of Criminal Appeals did with the then-applicable version of the indecency

statute in Pizzo, the Fourteenth Court determined that because the conduct included

in the definition of “sexual contact” in Section 39.04(a)(2) was the focus of the

offense, the acts described––“sexual contact,” “sexual intercourse,” and “deviate

sexual intercourse”––are elemental and therefore describe separate offenses. Irielle,

441 S.W.3d at 875–76; see also Pizzo, 235 S.W.3d at 715–19. 6

5
These terms also have the same definitions as they do in Section 21.12. Tex.
Penal Code § 39.04(e)(3).
6
The version of the indecency statute under which Pizzo was charged provided
that “[a] person commits an offense if, with a child younger than 17 years and not his
spouse, whether the child is of the same or opposite sex, he: (1) engages in sexual
contact with the child.” 235 S.W.3d at 715. Sexual contact was then defined as “any
touching of the anus, breast, or any part of the genitals of another person with intent
to arouse or gratify the sexual desire of any person.” Id. The Court concluded that by
referring to the definition of sexual contact that expressly defined distinct ways of

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Application

Applying the eighth-grade grammar test and general statutory-construction

concepts––as well as keeping in mind how the Court of Criminal Appeals has

construed statutes defining other sex offenses7––we can discern Section 21.12(a)(1)’s

focus. Incorporating the definitions of the terms “sexual intercourse” and “deviate

sexual intercourse” into the “if” clause, Section 21.12(a)(1) describes distinct ways in

which a school employee can commit an offense:

• if the school employee engages in “penetration of the female sex organ
by the male sex organ” 8 (sexual intercourse) with a student; or

engaging in sexual contact, the legislature intended in the indecency statute to
enumerate separate offenses. Id. at 718–19; see Tex. Penal Code § 21.11(a)(1), (c).
7
The eighth-grade grammar test “is only one tool, among others, that we use to
identify the allowable unit of prosecution permitted by a statute.” Kuykendall v. State,
611 S.W.3d 625, 629 (Tex. Crim. App. 2020).
8
As used here, “engages in” is a transitive phrasal verb, meaning it requires a
direct object to complete its meaning. See engage in, Merriam-Webster,
https://www.merriam-webster.com/dictionary/engage%20in (last visited June 16,
2026); Phrasal Verbs, Bryan A. Garner’s Modern English Usage 830 (5th ed. 2022);
Jacob M. Carpenter, The Problems, and Positives, of Passives Exploring Why Controlling
Passive Voice and Nominalizations Is About More Than Preference and Style, 19 Legal Comm.
& Rhetoric: JALWD 95, 98 (2022). The direct object of engages in is a noun––
“penetration”––which is modified by two phrases––“of the female sex organ by the
male sex organ.” The noun “penetration” is a nominalization: “a verb (an act) that the
writer turned into a noun (a thing).” See id. Although nominalizations are not
grammatically incorrect, they are less direct and more abstract than verbs. Id. Here,
the nominalization’s use allows for a conviction regardless of whether the school
employee is male or female.

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• if the school employee engages in “any contact between any part of the
genitals of one person and the mouth of another person” (deviate sexual
intercourse) with a student.

See, e.g., Jourdan, 428 S.W.3d at 96 (providing example of how to analyze a statute using

this rule of thumb); see also Pizzo, 235 S.W.3d at 721–22 (Price, J., concurring)

(observing that eighth-grade grammar test “will not necessarily work invariably, in

every scenario, to accurately identify legislative intent” but agreeing that statutory-

construction principles led to same result as majority’s in that case); cf. Irielle, 441

S.W.3d at 876 (concluding same with Section 39.04(a)(2)).

In Vick v. State, the Court of Criminal Appeals construed the following

language in Penal Code Section 22.021(a)(1)(B):

(a) A person commits an offense:

(1) if the person:

(B) intentionally or knowingly:

(i) causes the penetration of the anus or female sexual organ of
a child by any means;

(ii) causes the penetration of the mouth of a child by the sexual
organ of the actor;

(iii) causes the sexual organ of a child to contact or penetrate
the mouth, anus, or sexual organ of another person, including
the actor; or

(iv) causes the anus of a child to contact the mouth, anus, or
sexual organ of another person, including the actor . . . .

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991 S.W.2d at 832. The court determined that the specificity with which each section

“entail[ed] different and separate acts to commit the various, prohibited conduct”

reflected “the legislature’s intent to separately and distinctly criminalize any act which

constitutes the proscribed conduct.” Id. at 833.

Structurally, Section 21.12(a)(1) bears resemblance to the other sex-related

offenses in the Penal Code, particularly with its reference to specific and discrete types

of conduct.9 Accordingly, similarly to the court in Irielle, we conclude that the different

types of conduct proscribed in Section 21.12(a)(1) set forth separate and distinct

offenses for which a defendant can be assessed multiple punishments, even when

these separate and distinct offenses occur during the same criminal transaction. See

Phillips v. State, 787 S.W.2d 391, 394 (Tex. Crim. App. 1990); cf. Irielle, 441 S.W.3d at

876.

Based on our construction of Section 21.12(a)(1), we hold that Andrews has

not been subjected to impermissible multiple punishments. Therefore, we conclude

that no double-jeopardy violation is clearly apparent from the face of the record, and

we overrule his first issue.

9
Andrews argues alternatively that “[e]ven if [Section] 21.12 is a nature of
conduct offense, the State cannot bifurcate multiple convictions from the same sub-
section of the statute.” But the Court of Criminal Appeals has rejected this categorical
argument: “We have made clear that discretely proscribed conduct even within the
same subsection of a penal statute may still serve to delineate separately actionable
offenses for both double jeopardy and jury unanimity purposes when they are
‘specified within separate and disjunctive phrases in the same subsection.’” Jourdan, 428
S.W.3d at 95 (quoting Gonzales, 304 S.W.3d at 849).

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Conclusion

Having overruled Andrews’s first issue and determining that his remaining

issues are moot, we affirm the trial court’s judgments.

/s/ Wade Birdwell

Wade Birdwell
Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: June 18, 2026

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