Fourth Court of Appeals
                                     San Antonio, Texas
                                              OPINION
                                        No. 04-16-00337-CR

                                EX PARTE Jennifer RODRIGUEZ

                      From the County Court at Law No. 2, Bexar County, Texas
                                      Trial Court No. 496800
                               Honorable Jason Wolff, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: February 15, 2017

AFFIRMED

           In the underlying cause, Appellant Jennifer Rodriguez was charged by information with

the offense of prostitution. She filed a pretrial application for writ of habeas corpus, arguing that

the charge violated her right to be free from double jeopardy under the federal and Texas

Constitutions. The trial court considered the merits of her application, but denied relief. Rodriguez

then appealed. We affirm the trial court’s order denying habeas relief.

                                            DOUBLE JEOPARDY

           In her pretrial application for writ of habeas corpus, Rodriguez argued that her double

jeopardy rights were being violated in the underlying cause because, in a separate case pending in

San Antonio Municipal Court, she had already pled nolo contendere to the Class C offense of

Loitering for the Purpose of Prostitution in violation of San Antonio Code of Ordinance § 21-25(c)
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and had been given a deferred disposition order. Rodriguez argued that the criminal proceedings

in municipal court arose out of the same transaction as the prostitution charge in the underlying

case. The State does not dispute that the charge against Rodriguez in municipal court for violating

the city ordinance of loitering for the purpose of prostitution and the charge of prostitution pending

in the underlying cause arose from the same transaction. Instead, the State argues that the offenses

are not the same for double jeopardy purposes.

         A. Multiple-Punishment Protection Under the Double Jeopardy Clause

         The Double Jeopardy Clause of the United States Constitution protects an accused from

impermissible multiple punishments or successive prosecutions for the same offense after an

acquittal or conviction. U.S. CONST. amend. V, cl. 2. “In the multiple-punishment context, the

double-jeopardy clause prevents a court from prescribing greater punishment than the legislature

intended.” Ex parte Benson, 459 S.W.3d 67, 71 (Tex. Crim. App. 2015). “How legislative intent

is ascertained depends in part on whether the offenses at issue are codified in a single statute or in

two distinct statutory provisions.” Id. “The codification of offenses in two distinct statutory

provisions is, by itself, some indication of a legislative intent to impose multiple punishments.”1

Id. “When two distinct statutory provisions are at issue, the offenses must be considered the same

under both an ‘elements’ analysis and a ‘units’ analysis for a double-jeopardy violation to occur.”

Id.




1
 This case is unusual in that the laws at issue were enacted by different legislative bodies: one by the Texas Legislature
and the other by the San Antonio City Council. The Double Jeopardy Clause of the Constitution does not bar
successive prosecutions brought by different sovereigns, i.e. one prosecution brought by the state and another brought
by the federal government. Waller v. Florida, 397 U.S. 387, 393-95 (1970). A municipality, however, is not a separate
“sovereign” from the state for purposes of double jeopardy. Id. at 392-95. Because a municipality is not considered a
“sovereign,” a defendant cannot under the “dual sovereignty” doctrine be criminally prosecuted twice “for the same
alleged crime” in a municipal court and then in a state court. Id.

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       B. “Elements” Analysis

       When, as here, two distinct statutory provisions are at issue, “the elements analysis . . .

begins with the Blockburger same-elements test.” Ex parte Benson, 459 S.W.3d at 72 (citing

Blockburger v. United States, 284 U.S. 299, 304 (1932)). “That test asks ‘whether each provision

requires proof of a fact [that] the other does not.” Id. (quoting Blockburger, 284 U.S. at 304). The

application of the Blockburger same-elements test “is governed by the cognate-pleadings

approach, which entails comparing the elements of the greater offense as pleaded to the statutory

elements of the lesser offense.” Id. “If the two offenses, so compared, have the same elements,

then a judicial presumption arises that the offenses are the same for purposes of double jeopardy

and that the defendant may not be punished for both, but that presumption can be rebutted by a

clearly expressed legislative intent to impose multiple punishments.” Id. (internal quotation

omitted).

       “Conversely, if the two offenses have different elements under the Blockburger test, the

judicial presumption is that the offenses are different for double-jeopardy purposes and that

cumulative punishment may be imposed.” Id. “This presumption can be rebutted by a showing,

through various factors, that the legislature clearly intended only one punishment.” Id. (internal

quotation omitted). A non-exclusive list of these factors was set forth by the Texas Court of

Criminal Appeals in Ex parte Ervin, 991 S.W.2d 804, 814 (Tex. Crim. App. 1999); see Ex parte

Benson, 459 S.W.3d at 72 (explaining the factors set forth in Ex parte Ervin are applicable to

determining whether the legislature clearly intended only one punishment). Those factors include

the following: (1) whether the offenses are in the same statutory section or chapter; (2) whether

the offenses are phrased in the alternative; (3) whether the offenses are named similarly; (4)

whether the offenses have common punishment ranges; (5) whether the offenses have a common

focus or gravamen; (6) whether the common focus tends to indicate a single instance of conduct;
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(7) whether the elements that differ between the two offenses can be considered the same under

an imputed theory of liability that would result in the offense being considered the same under

Blockburger; and (8) whether there is legislative history containing an articulation of an intent to

treat the offenses as the same or different for double-jeopardy purposes. Ex parte Benson, 459
S.W.3d at 72-73 (discussing Ervin factors).

       1. Loitering for the Purpose of Prostitution

       In municipal court, Rodriguez pled nolo contendere to having loitered for the purpose of

prostitution in violation of section 21-25(c) of the San Antonio Code of Ordinances. Section 21-

25(c)(1) provides that “[i]t is unlawful for any person to loiter in or near any street or place open

to the public in a manner and under circumstances manifesting the purpose of inducing, enticing,

soliciting or procuring another to commit prostitution.” SAN ANTONIO, TEX., CODE                  OF

ORDINANCES ch. 21, art. I, § 21-25(c)(1) (2016). Section 21-25(c)(3) further provides that “[n]o

arrest shall be made for a violation of this section unless the arresting officer first affords such

person an opportunity to explain such conduct, and no person shall be convicted of violating this

section if it appears that the explanation given was true, and additionally did disclose a lawful

purpose.” Id. § 21-25(c)(3).

       2. Prostitution

       In the underlying cause, Rodriguez has been charged with prostitution in violation of

section 43.02(a)(1) of the Texas Penal Code. Section 43.02(a)(1) provides that a “person commits

an offense if, in return for receipt of a fee, the person knowingly: (1) offers to engage, agrees to

engage, or engages in sexual conduct.” TEX. PENAL CODE ANN. § 43.02(a)(1) (West Supp. 2016).

The information specifically alleged that “on or about the 29th Day of July 2015, JENNIFER

PATLAN [Rodriguez], hereinafter called defendant, did knowingly offer and agree to engage in



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sexual conduct, namely: DEVIATE SEXUAL INTERCOURSE with Santos Sauceda, in return for

a fee.”

          3. Application of Same-Elements Test

          In applying the same-elements test, we conclude that the San Antonio ordinance (section

21-25(c)) and the prostitution statute as charged in this case (section 43.02(a)(1)) each require

proof of a fact that the other does not. To commit the offense of loitering for prostitution in

violation of the San Antonio ordinance, an individual must loiter in a public place in a manner

“manifesting the purpose of inducing, enticing, soliciting or procuring another to commit

prostitution.” SAN ANTONIO, TEX., CODE            OF   ORDINANCES ch. 21, art. I, § 21-25(c)(1) (2016).

However, the prostitution statute does not require the act to be in a public place. See TEX. PENAL

CODE ANN. § 43.02(a)(1) (West Supp. 2016). Further, the San Antonio ordinance requires the act

of loitering, which the prostitution statute does not. Compare TEX. PENAL CODE ANN. § 43.02(a)(1)

(West Supp. 2016), with SAN ANTONIO, TEX., CODE OF ORDINANCES ch. 21, art. I, § 21-25(c)(1)

(2016). 2 Additionally, while the prostitution statute requires an individual to knowingly offer to

engage, agree to engage, or engage in sexual conduct, the San Antonio ordinance has no such

requirement. Compare TEX. PENAL CODE ANN. § 43.02(a)(1) (West Supp. 2016), with SAN

ANTONIO, TEX., CODE OF ORDINANCES ch. 21, art. I, § 21-25(c)(1) (2016). Therefore, because the

San Antonio ordinance and the prostitution statute have different elements under the Blockburger

same-elements test, “the judicial presumption is that the offenses are different for double-jeopardy

purposes and that cumulative punishment may be imposed.” Ex parte Benson, 459 S.W.3d at 72.

          Rodriguez argues that this presumption is rebutted when applying the factors set forth in

Ervin. She points out that both the San Antonio ordinance and prostitution statute are found in


2
 Rodriguez admits in her brief that “[u]nder a strict reading of the cognate-pleadings approach, these two statutes
have different elements that would allow the State to prosecute each without violating double jeopardy.”

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sections of their respective codes under the category of “prostitution.” Rodriguez notes that the

San Antonio ordinance even references the Texas Penal Code. See SAN ANTONIO, TEX., CODE OF

ORDINANCES ch. 21, art. I, § 21-25(c)(4) (2016) (“Peace officers enforcing this section shall have

the same amount of discretion as allowed under the Texas Penal Code.”). Rodriguez also stresses

that the ordinance and the statute have similar punishment ranges in the sense that the ordinance

has a punishment range consistent with being a lesser-included offense of the statute. Rodriguez

further argues the gravamen of both offenses is to criminalize and punish people engaged in

prostitution. And, according to Rodriguez, while the ordinance punishes loitering, it only does so

for individuals promoting prostitution. Thus, Rodriguez concludes the legislative intent was to

penalize prostitution and not simply loitering.

       Finally, Rodriguez argues that the ordinance is a lesser-included offense of the statute.

According to Rodriguez, nothing in the Texas Penal Code requires an “offer” or “agreement” to

be verbalized; instead, agreements in criminal law “are quite often tacit in nature and inferred from

the circumstances.” Rodriguez contends that “if someone intent on working as a prostitute sees a

potential customer and steps out into the street to make a suggestive offer or to accept the

customer’s suggestive offer by means of gesture, provocative dress, or simply eye contact, the

actor has triggered the gravamen of the offense in two separate statutes.” Rodriguez argues “this

common focus indicates the elements of the two offenses are the same under an ‘imputed theory

of reliability.’” Rodriguez concludes that the “language of the ordinance simply rephrases elements

listed in the Texas Penal Code.” Rodriguez argues that the terms “offer” and “entice” are “virtually

interchangeable,” as are the terms “procure” and “agree.” According to Rodriguez, the “degrees

to which they differ are matters of proof rather than alternative manner and means.” Thus,

Rodriguez contends that the municipal ordinance at issue “amounts to an attempt to commit

prostitution” and is, in essence, a lesser-included offense.
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         While Rodriguez makes a persuasive argument, we cannot agree that application of the

Ervin factors shows “the legislature clearly intended only one punishment.” Ex parte Benson, 459
S.W.3d at 72. In particular, Rodriguez dismisses the requirement of the San Antonio ordinance

that the conduct occur in a “place open to the public.” SAN ANTONIO, TEX., CODE OF ORDINANCES

ch. 21, art. I, § 21-25(c)(1) (2016) (emphasis added). We agree with Rodriguez that the language

of both the San Antonio ordinance and the prostitution statute indicate the city council and state

legislature intended to criminalize and punish people engaged in prostitution. However, the

language of the San Antonio ordinance makes clear that the city council also intended to protect

the public from being exposed to those engaged in prostitution. In contrast, the prostitution statute,

as charged in this case, has no requirement that the conduct occur in public. 3 Given this distinction,

we conclude that the San Antonio ordinance and the prostitution statute do not necessarily have “a

common focus or gravamen” and there is not a “common focus” tending “to indicate a single

instance of conduct.” Ex parte Benson, 459 S.W.3d at 72. Thus, we cannot conclude that Rodriguez

has shown that “the legislature clearly intended only one punishment.” Id. Therefore, Rodriguez

did not rebut the judicial presumption that the offenses are different for double-jeopardy purposes.

See id. We hold Rodriguez’s double jeopardy rights under the United States Constitution have not

been violated by the current prosecution.

         Rodriguez also argues that her double jeopardy rights afforded by article 1, section 14 of

the Texas Constitution have been violated. According to Rodriguez, the Ervin court “suggest[ed]”

that “the Texas Constitution requires a more liberal version of Blockburger than that required by

the Fifth Amendment.” We cannot, however, hold that the Texas Constitution requires more



3
  We noted that Rodriguez was not charged with section 43.02(a)(2), which provides that a person commits the offense
of prostitution if, in return for receipt of a fee, the person knowingly “solicits another in a public place to engage with
the actor in sexual conduct for hire.” TEX. PENAL CODE ANN. § 43.02(a)(2) (West Supp. 2016) (emphasis added).

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protection than the United States Constitution based on “suggest[ive]” language in Ervin. The

court of criminal appeals in Ervin was clear that its holding pertained to the Fifth Amendment’s

protection against double jeopardy. See Ervin, 991 S.W.2d at 806, 817. While the Ervin court

discussed how other jurisdictions had interpreted the Fifth Amendment, the court was clear that

the issue presented was one “of federal constitutional dimension.” Id. at 807. At no point did the

Ervin court discuss double jeopardy rights afforded by the Texas Constitution. We therefore

decline to hold that Ervin recognized an expansion of double-jeopardy rights under the Texas

Constitution beyond those rights protected by the United States Constitution.

                                          CONCLUSION

        Under Blockburger’s same-elements test, the San Antonio ordinance and the prostitution

statute at issue in this case each require proof of a fact that the other does not. Therefore, the

judicial presumption is that the offenses are different for double-jeopardy purposes and that

cumulative punishment may be imposed. This presumption can be rebutted by a showing, through

various factors, that the legislature clearly intended only one punishment. In this case, however,

Rodriguez has failed make a showing rebutting the presumption. Therefore, we hold that

Rodriguez’s double-jeopardy rights have not been violated. The trial court’s order denying habeas

relief is affirmed.

                                                     Karen Angelini, Justice


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