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Duvall v. State

Aggravated kidnapping and aggravated assault are not the "same offense" under Blockburger.

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Appellant Christopher Lee Duvall pleaded guilty to aggravated kidnapping and aggravated assault. See Tex. Pen. Code Ann. �� 20.04, 22.02 (West 1994 & Supp. 2001). After accepting the pleas and receiving evidence relevant to punishment, the district court adjudged appellant guilty of both offenses and sentenced him to imprisonment for twelve years in both causes. Appellant now urges that these convictions violate the constitutional guarantee against double jeopardy, that the court considered improper evidence in assessing punishment, and that his trial counsel was ineffective. We will overrule these contentions and affirm.

Appellant, a seventeen-year-old high school student at the time of the offenses, dated the complainant for about one year. On the night in question, appellant called the complainant and asked her to come to his house to talk. She agreed to do so. When the complainant arrived, appellant took her to his room, locked the door, and turned up the volume on his radio. Appellant, enraged because the complainant had been friendly with another boy, pushed the complainant’s face with the palm of his hand with sufficient force to break her nose. The complainant fell onto appellant’s bed, where appellant straddled her and held a knife to her throat. He also burned her arm and stomach with a cigarette lighter, and choked her until she became dizzy. Appellant placed a paint ball pistol in the complainant’s mouth and “acted like he was going to shoot it.” When the complainant attempted to flee, appellant seized her and began to beat her with a leather belt. The complainant testified, “And then he told me it wasn’t hurting bad enough because he wasn’t using the metal part so then he started using the buckle and started hitting me like on my arms and on my legs.” By this time, the complainant was on the floor, where appellant kicked her and struck her with his fists. Appellant finally permitted the complainant to leave his room and he walked her outside. There, he struck her three more times, causing her to fall to the ground.

The entire episode lasted just under an hour. Appellant’s parents were at home while appellant assaulted the complainant in his room. Appellant’s father twice came to the door and said “to be quiet, we needed to quit arguing. And [appellant] told him to go away so he did.”

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