Joe Herrera v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-24-00005-CR

JOE HERRERA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 54th District Court
McLennan County, Texas1
Trial Court No. 2022-2001-C2, Honorable Alan Bennett, Presiding

July 23, 2025
MEMORANDUM OPINION
Before QUINN, C.J., and DOSS and YARBROUGH, JJ.

Appellant, Joe Herrera, appeals from his convictions for assault family violence by

occlusion (habitual) and assault causing injury family violence with a prior conviction.2 A

1 This appeal was originally filed in the Tenth Court of Appeals and was transferred to this Court by

a docket-equalization order of the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001. In the
event of any conflict, we apply the transferor court’s case law. TEX. R. APP. P. 41.3.

2 TEX. PENAL CODE ANN. § 22.01(a)(1),(b)(2)(A), (B). Appellant pleaded true to the enhancement

and habitual offender provisions. The range of punishment applicable to Appellant was enhanced to a term
of confinement of “life, or for any term of not more than 99 years or less than 25 years.” TEX. PENAL CODE
ANN. § 12.42(d).
jury assessed a punishment of 40 years of confinement for each conviction. The trial

court sentenced Appellant accordingly and ordered the sentences run concurrently. We

overrule Appellant’s two issues and affirm the trial court’s judgment.

BACKGROUND

Appellant and the complainant, Marisa Espinoza, had been in an on-and-off

romantic relationship since 1996. They have two children together, ages 29 and 11.

Espinoza testified they had conducted a marriage ceremony but never filed official

paperwork, and she would introduce Appellant as both her boyfriend or husband. At the

time of the charged offense, Appellant had been living with Espinoza for about eight

months after being released from custody in January 2022.

On September 9, 2022, Appellant and Espinoza had been arguing all day. The

argument intensified after Appellant took Espinoza’s truck and was gone longer than

expected, which angered Espinoza. She began “blowing up his phone”;3 he would not

answer her calls. When Appellant returned, the discussion escalated, with Appellant

calling Espinoza names and then engaging in physical violence.

Appellant grabbed Espinoza by her hair and pulled her inside the house. Once

inside the kitchen and dining room area, Appellant struck her in the face and head area

with his hands. Espinoza testified he hit her “at least three times” with a closed fist.

Appellant also grabbed Espinoza by the throat with his left hand, applying pressure with

a force that caused her to feel she “was being suffocated. Like . . . they’re cutting off your

3 This is a colloquial expression meaning repeatedly calling or texting someone, often in an urgent

or persistent manner. See, e.g., K’ron, Round of Applause, (Atlantic Records 2020). (“She blowin’ up my
phone / Won’t leave me alone / She get on my nerves / Where would I be without her?”).

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airway.” Meanwhile, Appellant told Espinoza “he hates [her], he’s going to kill [her], stuff

like that.” Espinoza had difficulty breathing, was “scared,” and needed “to get help.”

When Espinoza’s brother walked into the room, Appellant released his grip.

Espinoza immediately ran to the front door and called 911. Espinoza’s voice was

noticeably raspy as she tried to catch her breath. Police officers responding to the scene

observed visible injuries on Espinoza’s neck, photographed the injuries, and arrested

Appellant for assault by strangulation.

Two days later, Appellant telephoned Espinoza from jail and told her to instruct

prosecutors to drop the charges. During this call, he admitted he grabbed her by the

“pescuezo,” the Spanish word for “neck.”

ANALYSIS

First Issue: Double Jeopardy

Appellant argues his convictions for both assault family violence by occlusion and

assault family violence with a prior conviction constitute multiple punishments for the

same offense, in violation of the constitutional prohibition against double jeopardy. He

acknowledges the remedy for the alleged violation would be to “retain the conviction with

the most serious punishment and vacate any remaining convictions” that violate double

jeopardy. Appellant was sentenced to concurrent 40-year terms of imprisonment for both

convictions.

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(a) Preservation of Error

The State argues Appellant failed to preserve this issue. But a double-jeopardy

claim may be raised for the first time on appeal when (1) the undisputed facts show the

violation is clearly apparent on the record’s face, and (2) enforcement of procedural

default serves no legitimate state interest. Langs v. State, 183 S.W.3d 680, 687 (Tex.

Crim. App. 2006).

We hold these conditions are met. A claim is apparent on the face of the record if

its resolution does not require additional proceedings to introduce more evidence. Ex

parte Denton, 399 S.W.3d 540, 544 (Tex. Crim. App. 2013). Appellant’s double jeopardy

claim does not require additional proceedings. Moreover, the State presents no

persuasive argument why enforcing procedural default serves any legitimate state

interest under these circumstances. See Brown v. State, 640 S.W.3d 889, 892 (Tex.

App.—Waco 2021, pet. ref’d); Anderson v. State, No. 10-01-00306-CV, 2003 Tex. App.

LEXIS 6008, at *3 (Tex. App.—Waco July 2, 2003, pet. ref’d).

(b) Applicable Law

The Double Jeopardy Clause prohibits multiple punishments for the same offense.

Brown v. Ohio, 432 U.S. 161, 165 (1977); Ramos v. State, 636 S.W.3d 646, 651 (Tex.

Crim. App. 2021). Multiple-punishment violations occur when the same conduct is

punished under distinct statutes where the Legislature intended punishment only once.

Garfias v. State, 424 S.W.3d 54, 58 (Tex. Crim. App. 2014).

Here, Appellant contends that the Legislature intended only one punishment,

arguing section 22.01(a) is the lesser-included offense of section 22.01(b)(2)(B)

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(impeding normal breathing or circulation), which is merely an enhancement of the same

criminal conduct. “A multiple-punishments violation can arise either in the context of

lesser-included offenses, where the same conduct is punished under a greater and a

lesser-included offense, and when the same conduct is punished under two distinct

statutes where the Legislature only intended for the conduct to be punished once.”

Garfias v. State, 424 S.W.3d 54, 58 (Tex. Crim. App. 2014).

Accordingly, we look to the statute’s text to determine legislative intent. Stevenson,

499 S.W.3d at 850. It is undisputed that occlusion assault (Count I) and assault family

violence with a prior (Count II) have different elements and that the State proved these

elements at trial. Occlusion assault requires the State prove that a defendant impeded

the normal breathing or blood circulation of the complainant, while this element is not

required for assault family violence with a prior conviction.

This distinction is of critical importance. In Ortiz v. State, 623 S.W.3d 804 (Tex.

Crim. App. 2021), the Court of Criminal Appeals addressed whether bodily-injury assault

can be a lesser-included offense of occlusion assault and answered “No.” The Court

employed an “allowable unit of prosecution” analysis to examine what facts are required

to prove each offense. Occlusion assault requires proof of a specific injury—“impeding

normal breathing or circulation of the blood”—whereas simple assault requires proof of

any “bodily injury,” broadly defined as “physical pain, illness, or any impairment of physical

condition.” Id. at 806–07. While impeding breathing constitutes bodily injury, it is a distinct

type that excludes other injuries. The Court illustrated this principle with an analogy:

Impeding is exclusive of other injuries in the same way that a square is
exclusive of other rectangles: A square is a rectangle, but other rectangles

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are not squares; specifying “square” excludes non-square rectangles; and
specifying “impeding” excludes non-impeding injuries.

For example, if a defendant were charged with occlusion assault, and the
evidence showed that he stomped on the complainant’s foot and caused
pain, that assault would not be included in the charged offense because a
non-impeding injury is not required to prove occlusion assault.

Id. at 807. The Court explained that even a non-impeding injury inflicted on the neck

would not be proven by the same facts needed to prove occlusion assault. If pinching the

neck caused pain but did not impede normal breathing or blood circulation, the assault

would not be included because the assault by pinching would require proof of a different

injury than impeding.

The facts in this appeal are very similar to those in Brown v. State, 640 S.W.3d 889

(Tex. App.—Waco 2021, pet. ref’d). Brown involved a defendant who committed both

strangulation and other assaultive acts against his intimate partner during the same

episode. The defendant was convicted of both occlusion assault of a household/family

member and aggravated assault with a deadly weapon.

The Tenth Court of Appeals relied on Ortiz’s methodology to hold that convictions

for both offenses from the same incident did not violate double jeopardy. Using unit-of-

prosecution analysis, the court determined that both result-oriented offenses have distinct

gravamina: impeding is the focus of occlusion assault and defines its allowable unit of

prosecution while excluding other injuries, whereas bodily-injury assault lacks a statutorily

specified injury. Id. at 893. The court emphasized that the defendant’s “actions in

occluding the complainant’s breathing or blood circulation were separate from other

assaultive acts he committed against her . . . [even] [t]hough the offenses may have

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occurred during the same criminal episode . . . .” Id. at 894. Therefore, the court reasoned

the Double Jeopardy Clause was not implicated. Id. at 893–94.

Appellant argues that Brown’s “conclusions are incorrect and both offenses are

subject to double jeopardy protection.” But as a transferee court from the Tenth Court of

Appeals, we are required to follow Brown’s holding, as that constitutes binding precedent

on that court. See TEX. R. APP. P. 41.3; Baker v. State, No. 07-22-00286-CR, 2023 Tex.

App. LEXIS 5857, at *1 (Tex. App.—Amarillo Aug. 7, 2023, pet. ref’d). “Texas courts follow

vertical stare decisis (lower courts must follow the precedents of all higher courts) and

horizontal stare decisis (three-judge panels must follow materially indistinguishable

decisions of earlier panels of the same court unless a higher authority has superseded

that prior decision).” Earl v. State, No. 03-23-00427-CR, 2025 Tex. App. LEXIS 4527, at

*9–10 (Tex. App.—Austin June 27, 2025, no pet. h.) (citing Mitschke v. Borromeo, 645

S.W.3d 251, 256 (Tex. 2022)).

(c) Application to this Case

These binding decisions establish a clear rule: Espinoza’s injury from occlusion

assault was not merely different in degree from other assault injuries she received—it

was different in kind. Ortiz, 623 S.W.3d at 809; see also McCall v. State, 635 S.W.3d 261,

268 (Tex. App.—Austin 2021, pet. ref’d). Though Appellant’s offenses occurred during

the same criminal episode, they are not the same offense for Double Jeopardy purposes

because they involve different statutorily-specified injuries requiring proof of different

facts. Brown, 640 S.W.3d at 894.

We overrule Appellant’s first issue.

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Second Issue: Evidence of Prior Domestic Violence

In his second issue, Appellant argues the trial court erred by permitting Espinoza

to testify about prior instances of domestic violence between her and Appellant.

To preserve error regarding evidence admission, a party must object each time

inadmissible evidence is offered, obtain a running objection, or request a hearing outside

the jury’s presence. Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003); see

also TEX. R. EVID. 103(b). Here, Appellant voiced a relevance objection when the State

began examining Espinoza about past domestic violence episodes, which the trial court

overruled. He did not reurge that objection or request a running objection thereafter.

Additional evidence of the 2014 judgment documenting Appellant’s guilty plea for assault

family violence was admitted without objection. Espinoza also testified without objection

that she was the victim of that assault and that Appellant routinely asked her to drop

charges after other past incidents.

Moreover, significant evidence of Appellant’s guilt was admitted beyond the prior

violence testimony. The jury also heard Appellant’s recorded jail call admitting he grabbed

her neck and related testimony.4 It heard Espinoza’s raspy voice on her 911 call.

Espinoza described how Appellant pushed her down, hit her, and grabbed her throat, and

showed the jury photographic evidence of her injuries.

Because Appellant did not continue objecting, request a running objection, or seek

a hearing outside the jury’s presence, any error was not preserved. See, e.g., Ethington

4 Without objection, Detective Erin McCullough testified that Appellant told Espinoza on the jail call:

“I didn’t really strangle you, I just put my hands around your neck.” McCullough also testified about studies
showing strangulation victims are seven times more likely to be murdered by their abuser.

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v. State, 819 S.W.2d 854, 859–60 (Tex. Crim. App. 1991); Sanchez v. State, 595 S.W.3d

331, 337–38 (Tex. App.—Houston [14th Dist.] 2020, no pet.).

We overrule Appellant’s second issue.

CONCLUSION

Having overruled Appellant’s two issues, we affirm the judgment of the trial court.

Lawrence M. Doss
Justice

Do not publish.

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