To the third factor, the offenses are similarly named, both sharing the word "sexual"; thus, this Ervin factor weighs in favor of treating the offenses as being the same for double jeopardy purposes. See id. at 436 (analyzing the offenses of aggravated assault with a deadly weapon against a public servant and intoxication assault and determining that although each was not phrased in the alternative, the offenses share similar names "[b]ecause both offenses here have the word assault in their names" and the courts "have held that even in cases where the names of two statutes share no words, but still denote similar offenses that differ only in degree, that this is evidence" of sameness); see also Holt v. State, No. 03-08-00631-CR, 2010 WL 2218543, at *2 (Tex. App.—Austin June 2, 2010, pet. ref'd) (mem. op., not designated for publication) (observing the offenses of "sexual assault" and "prohibited sexual conduct" are similarly named in its Ervin analysis). The two statutes, however, do not carry common punishment ranges, and this factor, therefore, weighs against treating the two offenses as the same for double jeopardy purposes.
The dissent cites to State v. Rosseau,State v. Hernandez, and Holt v. State to hold that bigamy is required in order to prove the enhancement element of 22.011(f). SeeState v. Rosseau, 398 S.W.3d 769, 777 (Tex.App.—San Antonio 2011), aff'd, 396 S.W.3d 550 (Tex.Crim.App.2013) ; State v. Hernandez, 395 S.W.3d 258, 260–61 (Tex.App.—San Antonio 2012, no pet.) ; Holt v.State, No. 03–08–00631–CR, 2010 WL 2218543, at *1 n. 1 (Tex.App.—Austin June 2, 2010, pet. ref'd) ; see also TEX. PENAL CODE ANN. § 22.011(f). However, none of those cases address the issue we are confronted with here, and instead the present case appears to present an issue of first impression.
The dissent cites to State v. Rosseau, State v. Hernandez, and Holt v. State to hold that bigamy is required in order to prove the enhancement element of 22.011(f). See State v. Rosseau, 398 S.W.3d 769, 777 (Tex. App.—San Antonio 2011), aff'd, 396 S.W.3d 550 (Tex. Crim. App. 2013); State v. Hernandez, 395 S.W.3d 258, 260-61 (Tex. App.—San Antonio 2012, no pet.); Holt v. State, No. 03-08-00631-CR, 2010 WL 2218543, at *1 n.1 (Tex. App.—Austin June 2, 2010, pet. ref'd); see also TEX. PENAL CODE ANN. § 22.011(f). However, none of those cases address the issue we are confronted with here, and instead the present case appears to present an issue of first impression.
"When the same act violates two different penal statutes, the two offenses are the same for double jeopardy purposes if one of the offenses contains all the elements of the other; they are not the same if each offense has a unique element." Holt v. State, No. 03-08-00631-CR, 2010 WL 2218543, at *2 (Tex. App.—Austin June 2, 2010, pet. ref'd) (mem. op., not designated for publication) (citing Blockburger v. United States, 284 U.S. 299, 304 (1932)). Thus, if the second offense contains an element not found in the first offense, double jeopardy protections are not violated.