Michael Phillip Trujillo v. the State of Texas

Court of Appeals
Tenth Appellate District of Texas

10-24-00258-CR
10-24-00259-CR
10-24-00260-CR

Michael Phillip Trujillo,
Appellant

v.

The State of Texas,
Appellee

On appeal from the
County Court at Law No. 2 of Ellis County, Texas
Judge A. Gene Calvert, Jr., presiding
Trial Court Cause Nos. 2312384, 2312385, 2312386

JUSTICE SMITH delivered the opinion of the Court.

MEMORANDUM OPINION

Michael Phillip Trujillo appeals his convictions for interfering with

public duties, evading arrest, and resisting arrest. After a jury found him

guilty, he was sentenced in each case to 100 days in county jail. Imposition of

the sentences was suspended, and he was placed on community supervision for

twelve months. In three issues, Trujillo asserts his convictions violate the
Double Jeopardy Clause of the United States Constitution, the State engaged

in improper jury argument, and the trial court erroneously assessed costs. We

affirm the trial court’s judgments.

BACKGROUND

Officer Jacorey Jefferson of the Waxahachie Police Department

approached the driver’s side of a vehicle parked at a motel at 2:00 a.m. The

driver and two passengers, one of which was Trujillo, got out of the car. Officer

Jefferson was talking to the driver, whom he intended to detain, when Trujillo

attempted to step between them, shouting at the officer. Then, Officer

Jefferson decided to arrest Trujillo and attempted to place handcuffs on him.

Trujillo pulled his arms away, struggled with Officer Jefferson and another

officer, and tried to run away, while continuing to talk. He said they would

have to hurt him, and told them to leave him alone, and that he was not doing

anything. He was arrested and charged with interfering with public duties,

evading arrest, and resisting arrest, all arising from the same episode.

After a jury trial, he was found guilty of all three charges and, in each

case, sentenced to 100 days in jail, each sentence suspended. He was placed

on community supervision for twelve months.

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DOUBLE JEOPARDY

In his first issue, Trujillo asserts his conviction for resisting arrest

violates the Double Jeopardy Clause of the United States Constitution by

imposing multiple punishments for interference with public duties. He argues

that both offenses arose out of the same event, and the State used the same

evidence to prove both offenses. Because proof of resisting arrest necessarily

entails proof of interfering with public duties, he asserts, this Court should

enter a judgment of acquittal for the charge of interference with public duties.

Applicable Law

The Double Jeopardy Clause of the United States Constitution provides,

in part, 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. There are three distinct types

of double jeopardy claims: 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. Ex parte Milner, 394 S.W.3d 502,

506 (Tex. Crim. App. 2013). A multiple punishments claim can arise in two

contexts:

1) The lesser-included offense context, in which the same conduct is
punished twice; once for the basic conduct, and a second time for that
same conduct plus more; and
2) Punishing the same criminal act twice under two distinct statutes
when the legislature intended the conduct to be punished only once.

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Langs v. State, 183 S.W.3d 680, 685 (Tex. Crim. App. 2006).

The same elements test first articulated by the United States Supreme

Court in Blockburger v. United States is used to determine if two convictions

constitute multiple punishment under the Double Jeopardy Clause.

Blockburger v. United States, 284 U.S. 299, 304 (1932); Langs, 183 S.W.3d at

685. The established rule is that, where the same act or transaction constitutes

a violation of two distinct statutory provisions, the test to be applied to

determine whether there are two offenses or only one is whether each provision

requires proof of a fact which the other does not. Blockburger, 284 U.S. at 304.

However, the Blockburger test cannot negate a clearly expressed

legislative intent to impose multiple punishments. See Missouri v. Hunter, 459

U.S. 359, 366-68 (1983); Ervin v. State, 991 S.W.2d 804, 807 (Tex. Crim. App.

1999). Some considerations relevant to determining whether the Legislature

intended multiple punishments are: whether the offenses are contained within

the same statutory section, whether the offenses are phrased in the

alternative, whether the offenses are named similarly, whether the offenses

have common punishment ranges, whether the offenses have a common focus

or “gravamen,” and whether that common focus tends to indicate a single

instance of conduct, whether the elements that differ between the offenses can

be considered the “same” under an imputed theory of liability which would

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result in the offenses being considered the same under Blockburger, and

whether there is legislative history containing an articulation of an intent to

treat the offenses as the same or different for double jeopardy purposes. Ervin,

991 S.W.2d at 814. Double jeopardy does not apply if separate and distinct

offenses occur during the same transaction. Phillips v. State, 787 S.W.2d 391,

394 (Tex. Crim. App. 1990).

Analysis

Trujillo was charged in separate informations, each alleging a separate

and distinct offense that took place on or about July 26, 2023. The resisting

arrest offense, as alleged in the information, required proof that Trujillo

intentionally prevented or obstructed Officer Jefferson, a person Trujillo knew

to be a peace officer, from effecting Trujillo’s arrest, by using force against the

peace officer. See TEX. PENAL CODE ANN. § 38.03(a). The interfering with

public duties offense required proof that Trujillo, with criminal negligence,

interrupted, disrupted, impeded, or interfered with Officer Jefferson while he

was performing a duty or exercising authority imposed or granted by law,

namely investigating a suspect, by inserting himself physically between Officer

Jefferson and the suspect. See id. at 38.15(a)(1).

Based on the allegations in each case, the offenses required proof of

different facts. To prove resisting arrest, the State had to prove Trujillo

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intentionally prevented or obstructed the officer from arresting Trujillo by

using force against the officer. To prove interference with public duties, the

State had to prove Trujillo inserted himself physically between Officer

Jefferson and the suspect, interrupting, disrupting, impeding, or interfering

with the officer’s investigation. The two offenses are not the same offenses

under the Blockburger test. See Blockburger, 284 U.S. at 304.

Next, we analyze whether other factors nevertheless require us to hold

that the offenses are the same for double jeopardy purposes. Resisting arrest,

search, or transportation and interference with public duties are both in the

“Obstructing Governmental Operation” chapter under the “Offenses Against

Public Administration” title of the Texas Penal Code. See TEX. PENAL CODE

ANN. §§ 38.03, 38.15. The offenses are not phrased in the alternative and not

similarly named. Resisting arrest, a Class A misdemeanor, is punishable by a

fine not to exceed $4,000 and confinement in jail for a term not to exceed one

year. Id. §§ 12.21, 38.03(c). While interference with public duties is a Class B

misdemeanor, punishable by a fine not to exceed $2,000 and confinement in

jail for a term not to exceed 180 days. Id. §§ 12.22, 38.15(b). The focus, or

gravamen, of the offense of resisting arrest is the use of force to prevent an

arrest of oneself. See id. § 38.03. In contrast, the gravamen of the offense of

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interference with public duties is the defendant’s interference with the

performance of an officer’s duties. See id. § 38.15.

Section 38.15, creating the offense of interference with public duties, was

enacted in 1989. See Act of May 27, 1989, 71st Leg., R.S., ch. 1162, § 1, 1989

Tex. Gen. Laws 4780 (amended 1993, 1997, 2005, 2007, 2015) (current version

at TEX. PENAL CODE ANN. § 38.15). In the bill analysis, supporters noted that

police, fire fighters, and paramedics often encounter third parties who interfere

with their work in ways that endanger them or the public. Opponents argued

that the bill was unnecessary because other statutes, including Section 38.03,

cover all possible interference that peace officers might encounter. See HB 507,

House Research Organization Bill Analysis, April 17, 1989. This infers that

the legislature discussed the difference between the new offense of interference

with public duties and other criminal offenses. Passage of the new statute

shows legislative intent to treat it as different from the other criminal offenses

for double jeopardy purposes.

After consideration of the Ervin factors, we conclude there was a

legislative intent to impose multiple punishments. See Ervin, 991 S.W.2d at

814. Trujillo was not punished twice for the same offense. Accordingly,

Trujillo’s convictions for interference with public duties and resisting arrest do

Trujillo v. State Page 7
not violate the Double Jeopardy Clause. See id. We overrule Trujillo’s first

issue.

JURY ARGUMENT

In his second issue, Trujillo asserts the State, during its closing

argument, made an improper demand for a particular sentence at punishment.

Specifically, Trujillo complains of the following argument by the State: “I’m

going to ask that your sentence for each of these cases be 100 days.” Trujillo

contends the prosecutor, in effect, told the jurors that based on the facts of

these cases and his special expertise, “he knew the average time served which

thereby took from the jurors their right to consider the full range of

punishment.”

To preserve error regarding improper jury argument for appellate

review, a defendant must object and pursue his objection to an adverse ruling.

See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). Trujillo did

not object to the State’s jury argument. Therefore, the complaint is waived.

See TEX. R. APP. P. 33.1(a); Cockrell, 933 S.W.2d at 89. While acknowledging

his failure to preserve error, Trujillo asks this Court to view the State’s

argument as fundamental error and dispense with the preservation

requirement. He cites to a case that held that closing argument by the

prosecuting attorney asking the jury to convict or punish the defendant upon

Trujillo v. State Page 8
public sentiment or desire rather than upon the evidence the jury received is

improper. See Cortez v. State, 683 S.W.2d 419, 421 (Tex. Crim. App. 1984).

The defendant in Cortez objected to the prosecution’s jury argument.

Therefore, the question of preservation of error of jury argument complaints

was not before the Court of Criminal Appeals in Cortez. See id. at 420-21.

Error related to jury argument is not “fundamental.” Rather, it is

forfeitable by a failure to object. See Cockrell, 933 S.W.2d at 95 (Maloney, J.,

concurring). We overrule Trujillo’s second issue.

ASSESSMENT OF COSTS

In his third issue, Trujillo contends the trial court erred in assessing

costs in two of his cases. He asserts that because he was convicted of three

offenses in a single criminal action, the court may assess each court cost only

once. See TEX. CODE CRIM. PROC. ANN. art. 102.073(a). Further, he argues,

the cost of $295 assessed in the evading arrest case should remain, while costs

in the other two cases should be vacated. See id. art. 102.073(b).

The trial court announced the amounts assessed as costs in each case in

open court. After a discussion of possible conditions of community supervision,

the trial court commented: “So you will have the court costs balance in each

case.” The court explained that each eight hours of additional community

service could earn $100 credit toward the balance of Trujillo’s costs. Further,

Trujillo v. State Page 9
the court explained the required payment plan. At no point in the proceedings

did Trujillo object to the assessment of costs.

Because Trujillo did not object to the assessment of costs when they were

announced in open court, he waived this complaint. See TEX. R. APP. P. 33.1(a);

see also London v. State, 490 S.W.3d 503, 507 (Tex. Crim. App. 2016) (Held

that an appellant may generally challenge the imposition of even mandatory

court costs for the first time on direct appeal when those costs are not imposed

in open court and the judgment does not contain an itemization of the imposed

court costs.). We overrule Trujillo’s third issue.

CONCLUSION

Having overruled each of Trujillo’s issues, we affirm the trial court’s

judgments in each case.

STEVE SMITH
Justice

OPINION DELIVERED and FILED: August 14, 2025
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirmed
Do Not Publish
CR25

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