Geetika Pasrija v. State ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00152-CR
GEETIKA PASRIJA APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 1 OF DENTON COUNTY
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MEMORANDUM OPINION1
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A jury convicted Appellant Geetika Pasrija of family violence assault, and
the trial court sentenced her to serve 365 days’ confinement in the Denton
County Jail, probated for 24 months, and to pay a $100 fine. In her sole point,
Appellant contends that she was twice sentenced for a single offense in violation
of the Double Jeopardy Clause of the Fifth Amendment to the United States
1
See Tex. R. App. P. 47.4.
Constitution. Because no double jeopardy violation occurred, we affirm the trial
court’s judgment.
On November 13, 2008, Appellant was arrested for assault family violence
against her husband, Puneet Arora. The affidavit in support of the arrest warrant
alleged that Frisco police officers had been dispatched to Appellant’s home at
6:26 a.m. on November 5, 2008, in response to a disturbance. Arora told the
officers that during an argument, Appellant had hit him on his arms with the back
of her open hand and had grabbed his arms and pulled at his clothing. Arora
reported that he “did not feel pain but was offended by the contact.” The officers
issued Appellant a citation for assault by contact.
At 9:30 a.m., one of the officers was again dispatched to Appellant’s home
in reference to a disturbance. Arora reported to the officer that Appellant had
continued to argue with him in the approximately three hours since the police had
left and had struck him with her hands and scratched his chest with her
fingernails. Arora also told the officer that Appellant had at some point gone into
the kitchen, turned on a gas burner on the stove, grabbed a lighter, and said that
she wanted to die and would burn herself. Arora called 911, and while he was on
the phone, Appellant strangled him by placing her hands around his neck and
squeezing. The officer saw red marks and scratches on Arora’s neck and chest.
Based on these facts, the affiant officer believed that Appellant “did intentionally,
knowingly, or recklessly cause bodily injury to [Arora], a member of her family, by
2
scratching his neck and chest and by strangling his neck, causing him pain and
injury.”
On December 15, 2008, Appellant was charged in the case before us,
cause number CR-2008-09114-A, with assault family violence against Arora.
The charging instrument alleged that Appellant had, on or about November 5,
2008, intentionally, knowingly, or recklessly caused bodily injury to Arora, a
member of her family or household, by grabbing or striking him with her hand.
On March 6, 2009, Appellant filed a plea in bar asserting that she already
had been charged by complaint in municipal court with the offense of assault and
that that complaint contained the same allegation, including the date, as the
information in the case before us. Appellant attached to her plea in bar a copy of
the complaint filed in the municipal court case, which alleged that on or about
November 5, 2008, she had intentionally and knowingly caused physical contact
with Arora by striking his arm with her hand when she knew or should have
known that he would regard the contact as offensive and provocative. The
municipal court had placed Appellant on deferred adjudication for assault–
physical contact on February 13, 2009.
In the trial court’s hearing on Appellant’s plea in bar in the present case,
the State argued that the two offenses occurred at different times and were
comprised of different elements. The trial court stated that “it’s very clear
from . . . what’s been shown to the Court that these are two separate offenses,”
3
and, accordingly, the trial court denied Appellant’s plea. The case proceeded to
trial, at which the jury found Appellant guilty. Appellant timely appealed.
No person may be punished twice for a single offense. 2 When, however,
as here, a person commits two similar offenses, the person may be punished for
both offenses.3 The State persuasively relies on the reasoning of Luna v. State,4
in which the Texas Court of Criminal Appeals explained,
The same offense means the identical criminal act, not the same
offense by name.
. . . One pleading former acquittal or conviction in this state
may allege and prove the facts which show the identity of the
offense although this may not appear upon the face of the indictment
nor from the recitals in the judgment. Likewise, an offense which
might appear to be the same upon the face of the State’s pleading
and the judgment might be an entirely different criminal act. . . . To
illustrate, there might be two cases against A for assault to murder
on B with a pistol on the same alleged date, and a judgment of
conviction or acquittal occur in one case. On the face of the
pleadings and judgment a plea of former conviction or acquittal
would appear good, and yet A may have tried to [k]ill B on two
different occasions the same day.
The fact that the indictment in the first case would support a
conviction for the sale of heroin in the present case, because both
were within the statute of limitations of three years, does not prevent
2
U.S. Const. amend. V.
3
See Blockburger v. United States, 284 U.S. 299, 301–02, 52 S. Ct. 180,
181 (1932) (upholding Blockburger’s convictions for two separate sales of
morphine for different prices to the same purchaser when one transaction was
completed on the first day and the second transaction began shortly thereafter
but was completed the next day).
4
493 S.W.2d 854 (Tex. Crim. App. 1973).
4
the prosecution in the instant case. The controlling factor is the
proof that they were different offenses.5
Appellant assaulted Arora by offensive contact before 6:26 a.m. and was
later convicted of assault–physical contact for that conduct.6 She committed
family violence assault with bodily injury against him after 6:26 a.m. but before
9:30 a.m. on the same day and was later convicted of that conduct in this case.7
The two assaults were separate offenses and do not merge into a single offense.
The first assault was completed by the time the police, who were dispatched at
6:26 a.m., left the scene of the assault. The second assault occurred after the
first assault was complete and not as part of the first assault.
Because no double jeopardy violation occurred, we overrule Appellant’s
sole point and affirm the trial court’s judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 21, 2011
5
Id. at 855 (quotations and citations omitted).
6
See Tex. Penal Code Ann. § 22.01(a)(3) (Vernon Supp. 2010).
7
See id. § 22.01(a)(1).
5