Stephen Joseph Boswell v. The State of Texas

Summary

The Texas Court of Appeals, Second Appellate District, held that a discrepancy between an indictment's "on or about" date and the date proven at trial did not support an evidentiary-sufficiency challenge to the aggravated-assault conviction. The court vacated the conviction for continuous family violence and rendered an acquittal because punishing the defendant for both that offense and the aggravated assault violated double-jeopardy principles, while affirming the other convictions.

Holdings

1. An indictment's allegation that an offense occurred 'on or about' a specified date does not make that date an element of the offense. When the offense is proved to have occurred on another date within the applicable limitations period and before presentment of the indictment, the discrepancy is not a variance and cannot support an evidentiary-sufficiency challenge.
2. Punishing Boswell for continuous family violence and for aggravated assault violated the Double Jeopardy Clause because the aggravated assault was one of the discrete acts underlying the continuous-family-violence offense.
3. The court retained the aggravated-assault conviction and reversed the continuous-family-violence conviction because both received five-year sentences, but aggravated assault was the greater-degree felony.

Questions Presented

1. Whether the evidence was insufficient to support the aggravated-assault conviction because the indictment alleged that the offense occurred 'on or about' August 30, 2023, while the evidence showed that the charged conduct occurred on a different date.
2. Whether Boswell could receive multiple punishments for aggravated assault and continuous family violence when the aggravated assault was one of the discrete acts underlying the continuous-family-violence offense.
3. What remedy was required for the double-jeopardy violation.

Disposition

other