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Childress was alleged to have poured gasoline on Tamala, his married girlfriend, and then threatened to light it with a lighter. Asserting three issues, Childress appeals. We will affirm.

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We begin with Childress's third issue, which alleges that the evidence is factually insufficient. In a factual sufficiency review, we ask whether a neutral review of all the evidence, though legally sufficient, demonstrates either that the proof of guilt is so weak or that conflicting evidence is so strong as to render the factfinder's verdict clearly wrong and manifestly unjust.

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Watson v. State, S. State, 23 S. Watson, S. For the State to prove that Childress committed dating violence assault, it was required to prove that Childress intentionally, knowingly, or recklessly caused bodily injury to another person by pouring gasoline on her with whom he had a dating relationship. Code Ann. The offense was enhanced to a third-degree felony by Childress's stipulation to his prior conviction of an assault offense against a family or household member.

For the State to prove that Childress committed aggravated assault, it was required to prove that Childress intentionally or knowingly threatened another person with imminent bodily harm and exhibited a deadly weapon gasoline and lighter during the assault. Tamala testified that she and Childress met in August of and, despite Tamala's being married, they formed a dating and sexual relationship. Childress gave her attention when her marriage was struggling.

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They enjoyed each other's company, did things together, and took out-of-town trips together. They talked about their problems together, and she stayed over at his house. On May 5,Tamala and several friends were at a restaurant having drinks.

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While at the restaurant, Childress called Tamala several times, and she lied to him, saying that she was still at work. On her way home, he called Tamala again, and she agreed to meet him at a convenience store around p. When Tamala arrived, Childress was already there, standing next to his car with the trunk open. Tamala parked alongside him but did not get out of her car. Childress was angry and asked her where she had been, and she said she had been at a restaurant with coworkers. Tamala began to leave, and Childress asked her to wait and asked her again where she had been.

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She scrambled out of her car's passenger side and ran into the store, with Childress following her. A bystander was in the store, and he testified that Tamale smelled of gas, was frightened, and said that Childress had tried to light her on fire. The responding officers also said that Tamala smelled of gas and told them that Childress had poured gasoline on her. After the incident, Tamala said that Childress threatened to tell her husband about their affair if she did not an affidavit of nonprosecution.

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Childress's theory is that Tamala poured the gasoline on herself and that she made up the allegation against Childress, and that her lack of credibility causes the evidence to be factually insufficient. The jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to the witnesses' testimony.

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Jaggers v. The jury may believe all, some, or none of any witness's testimony. Sharp v. State, 67 S. The degree of deference a reviewing court provides must be proportionate with the facts it can accurately glean from the trial record.

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A factual sufficiency analysis can consider only those few matters bearing on credibility that can be fully determined from a cold appellate record. Such an approach occasionally Casual sex Childress some credibility assessment but usually requires deference to the jury's conclusion based on matters beyond the scope of the appellate court's legitimate concern.

See George E. Unless the available record clearly reveals a different result is appropriate, an appellate court must defer to the jury's determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor, and those jurors were in attendance when the testimony was delivered. By finding Childress guilty, the jury obviously believed Tamala, and the record in this case warrants our deference to the jury's credibility determination. Therefore, considering all of the evidence in a neutral light, we find that the evidence is factually sufficient to support the jury's guilty findings.

The proof of guilt is not so weak nor the conflicting evidence so strong as to render the jury's verdicts clearly wrong and manifestly unjust.

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Because the evidence is factually sufficient, we overrule Childress's third issue. We now turn to Childress's first issue, which complains of a double-jeopardy and collateral-estoppel violation arising from multiple punishments for the same offense. State, 8 S. State, 24 S. See Murray, 24 S. The Double Jeopardy Clause of the 5th Amendment protects an accused from being punished more than once for the same offense.

Two offenses may be the same if one offense stands in relation to the other as a lesser-included offense, or if the two offenses are defined under distinct statutory provisions but the legislature has made it clear that only one punishment is intended.

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Littrell, S. When multiple punishments arise out of one trial, the Blockburger test is the starting point in analyzing the two offenses. Bigon, S. Under the Blockburger test, two offenses are not the same if one requires proof of an element that the other does not. United States, U. In Texas, when resolving whether two crimes are the same for double-jeopardy purposes, we focus on the elements alleged in the charging instrument.

In the first count of the indictment, the State charged Childress with dating violence assault enhanced. See Tex. See id. Childress's principal argument is that the pouring of gasoline on the victim is the same act in both counts, that the entirety of the acts in the first count is included within the acts making up the second count, and that the same acts are elements of the same criminal episode.

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We are not persuaded. See United States v. Dixon, U. And under Texas law, an accused may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode.

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At trial there may be a substantial overlap in the proof of each offense, but under the Blockburger test, we must examine the separately charged elements of each offense. Ex parte McWilliams, S. When comparing the two charges as indicted, and taking into all of the elements that the State must prove for these two charges, the offenses are not the same under a strict application of the Blockburger test. The State concedes that an aggravated assault requires an underlying assault, but we agree with it that, in this case, the basis for the underlying assault-the threat of imminent bodily injury-is distinct from the basis for the dating violence assault, which was actual bodily injury.

See Schmidt v.

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But while the offenses are not the same for the purpose of the Blockburger test, our inquiry does not end. See Bigon, S. We also consider a non-exclusive list of factors to consider when examining whether two offenses are the same in the context of multiple punishments. See Ervin v. - chattanooga's source for breaking local news

These factors are not exclusive, and the question ultimately is whether the legislature intended to allow the same conduct to be punished under both of the offenses. It is apparent to us that the legislature intended these two offenses to be treated separately. While they are in the same chapter of the Penal Code, they are separate and distinct statutes, and they are not phrased in the alternative. They do not have common punishment ranges. The dating violence assault focus is on the bodily injury of a victim in a dating relationship with the defendant, while the focus of aggravated assault in this case is the assaultive conduct in the form of threatening imminent bodily injury with a deadly weapon.

The threat of harm was being set on fire, while the harm actually suffered was bodily injury to Tamala's eyes and face from the gasoline.

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The differing elements between dating violence assault and aggravated assault, as charged, cannot be considered the same under an imputed theory of liability. Dating violence assault, with its bodily injury element which conceptually would be no different had Childress hit Tamala in the faceis not similar to an imminent threat of bodily injury with a deadly weapon. Finally, neither Childress nor the State has provided us with any legislative history that might indicate whether or not the legislature intended to treat the offenses as the same or different for double-jeopardy purposes.

After reviewing the Ervin factors, we determine that the offenses as charged are not the same in the context of multiple punishments. Accordingly, no double-jeopardy violation occurred. Woodson v. State, 47 S. In its review of a challenged statute, the court will begin with a presumption of constitutionality.

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Thus, the burden to establish unconstitutionality falls upon the challenger. Ex parte Granviel, S. There are two basic requirements for a constitutional vagueness challenge that does not involve a First Amendment right. First, the challenger must demonstrate that he has suffered some actual or threatened injury under the statute.

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In other words, the challenger must have standing to contest the statute. Texas Workers' Compensation Comm'n v.

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