Stephen Joseph Boswell v. the State of Texas

In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-25-00205-CR
     ___________________________

 STEPHEN JOSEPH BOSWELL, Appellant

                      V.

          THE STATE OF TEXAS


  On Appeal from the 213th District Court
         Tarrant County, Texas
        Trial Court No. 1817293


  Before Sudderth, C.J.; Kerr and Bassel, JJ.
  Memorandum Opinion by Justice Bassel
                            MEMORANDUM OPINION

                                    I. Introduction

       In three issues, Appellant challenges his convictions by a jury for the offenses

of aggravated assault, assault/family violence, and continuous family violence. See

Tex. Penal Code Ann. §§ 22.01(b)(2)(B) (assault/family violence), 22.02(a)(2)

(aggravated assault), 25.11(a), (e) (continuous family violence). The jury assessed the

following punishments: (1) five years’ confinement for aggravated assault; (2) two

years’ confinement for assault/family violence; and (3) five years’ confinement for

continuous family violence.1

       Appellant’s first issue turns on his contention that the evidence is insufficient

to support his conviction for aggravated assault because the indictment alleged that

“on or about” one date he had “use[d] or exhibit[ed] a deadly weapon” and the record

shows that he committed the offense on another date. Because this contention is

directly at odds with precedent, we reject it.

       Appellant’s second and third issues challenge his conviction for continuous

family violence. We do not reach these issues because the State concedes that

Appellant would suffer multiple punishments in violation of the principles of double

jeopardy should he be punished for both aggravated assault and continuous family

violence. Therefore, we reverse the judgment of conviction for continuous family


       Based on the jury’s verdict, the trial court rendered a judgment of acquittal on
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count three—another charge of assault/family violence.

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violence and render a judgment of acquittal for that offense, but we affirm the

convictions for aggravated assault and assault/family violence.

                                      II. Analysis

      A.     A sufficiency complaint may not be based on a discrepancy
             between an indictment’s “on or about” date and the occurrence
             date proven at trial.

      There is no controversy about the fraught and abusive relationship that

Appellant had with the complainant; both parties’ briefs portray the tempest. Because

of the narrow focus of Appellant’s first issue, we will not catalog the abuse that the

complainant suffered at his hands. The narrow focus of the first issue turns on the

indictment’s allegation that Appellant committed an aggravated assault by use or

exhibition of a deadly weapon “on or about the 30th day of August 2023.” Because

the record shows that he threatened the complainant with a handgun some months

before that date, Appellant argues that this discrepancy means that the evidence is

insufficient to support his conviction for aggravated assault.      We disagree.     As

Appellant himself acknowledges, his argument is directly at odds with a wealth of

precedent, which holds that an indictment’s allegation that an offense occurred “on or

about” a certain date does not make the date alleged an element of the offense that

cannot be varied by the proof at trial.2


      2
       Again, because of the narrow focus of Appellant’s issue, we will not detail the
principles of a sufficiency review in a criminal appeal. See Brooks v. State, 323 S.W.3d
893, 894–95 (Tex. Crim. App. 2010) (establishing principles of a sufficiency review in
a criminal appeal).

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      The Court of Criminal Appeals has itemized the reasons why an indictment’s

allegation that an act occurred “on or about” a certain date is not an element of an

offense or a date that a defendant may rely on as the date that the State will eventually

prove that the act occurred:

      First, time is not a material element of an offense (at least, not usually).
      O’Connell v. State, 18 Tex. 343, 366 (1857). Second, the primary purpose
      of specifying a date in the indictment is not to notify the accused of the
      date of the offense but rather to show that the prosecution is not barred
      by the statute of limitations. Presley v. State, . . . 131 S.W. 332, 333 (Tex.
      Crim. App. 1910). Third, it may be impossible for the State to know
      precisely, or even approximately, when the charged offense occurred.
      See Sledge v. State, 953 S.W.2d [253, 256 n.8 (Tex. Crim. App. 1997)].
      Thus, we reaffirm our prior holdings that it is not error, constitutional or
      otherwise, for an indictment to allege an “on or about” date for the
      charged offense. See, e.g., Presley . . . , 131 S.W. at 333 . . . . Such an
      indictment will, except in rare instances, provide an accused with notice
      adequate to enable him to prepare a proper defense. In the unlikely
      event that the defendant is unfairly surprised at trial by evidence fixing
      the date of the offense very differently from that specified in the
      indictment, then “he should for that reason ask for a postponement that
      he might obtain evidence to meet the charge as made by the testimony.”
      Lingenfelter v. State, . . . 163 S.W. 981, 983 (Tex. Crim. App. 1914) [(op. on
      reh’g)]. [Accord] A. Scott, Fairness in Accusation of Crime, 41 Minn. L.[ ]
      Rev. 509, 532 (1957).

Garcia v. State, 981 S.W.2d 683, 686 (Tex. Crim. App. 1998) (footnote omitted).

      To further amplify, the Court of Criminal Appeals noted that an evidentiary-

sufficiency analysis turns on whether there is an immaterial or a material variance

between a charging instrument’s allegations and the proof: “Immaterial variances do

not affect the validity of a criminal conviction [because] we have held that a

hypothetically correct jury charge [by which the efficiency of the evidence is tested]


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need not incorporate allegations that would give rise to only immaterial variances.”

Thomas v. State, 444 S.W.3d 4, 9 (Tex. Crim. App. 2014). A discrepancy between an

indictment’s allegation that an act occurred “on or about” a date and proof that it

occurred on a different date is an additional step removed from the

material/immaterial distinction. Id. So long as the date alleged places the offenses

within the limitations period before the indictment’s presentment, the discrepancy is

not a ground for a sufficiency challenge at all because the discrepancy is not a variance

of any type:

      Article 21.02 of the Texas Code of Criminal Procedure sets out the
      requisites for an indictment. Tex. Code Crim. Proc. [Ann.] art. 21.02.
      The sixth requirement states that the alleged time that the offense was
      committed must be “anterior to the presentment of the indictment[] and
      not so remote that the prosecution of the offense is barred by
      limitation.” Id. In Sledge, this Court addressed the “on or about”
      language used in many charging instruments and concluded that, so long
      as the date on which the offense is proven to have occurred complies
      with Article 21.02, a conviction is not rendered infirm merely because
      the State proved that the offense occurred on another day. See . . . 953
      S.W.2d at 255–56; see also Thomas v. State, 753 S.W.2d 688, 693 (Tex.
      Crim. App. 1988). This is because such a discrepancy is not a fatal
      variance. See Thomas, 753 S.W.2d at 693. It is not a variance at all.
      Rather, when the State uses “on or about” language and proves that the
      offense was committed on a date different from that alleged in the
      indictment, but before presentment of the indictment and expiration of
      the applicable statute of limitations, the offense took place “on or
      about” the date alleged in the indictment.

Id.; see also Hart v. State, 721 S.W.3d 667, 676 (Tex. App.—Corpus Christi–Edinburg

2025, pet. ref’d) (“This evidence is also akin to Thomas . . . where the Texas Court of

Criminal Appeals held that ‘on or about’ language is often used and ‘a conviction is


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not rendered infirm merely because the State proved that the offense occurred on

another day.’ 444 S.W.3d [at] 9 . . . .”). The principles quoted are a blanket rejection

of Appellant’s contention that he has a viable sufficiency complaint based on the

alleged discrepancy between the indictment’s allegation and the proof at trial.

      Appellant wants to take himself out of the general rule because the situation in

which he allegedly finds himself is one that should create an exception; he argues as

follows:

      First, the purpose of the “on or about date” is not to specify a date-of-
      offense or give notice to a defendant of the offense date[] but rather to
      show that the prosecution is not barred by the statute of limitations.
      Garcia . . . , 981 S.W.2d [at] 686 . . . . Second, it may be impossible to
      prove an exact date when the charged offense occurred. Id. These
      concerns are not germane to Appellant’s situation. There is no dispute
      about the statute of limitations, and the very nature of [the
      complainant’s] testimony removes any confusion about the incidents
      concerned. In other words, this is not a situation of several vague
      accusations [that] could have all occurred during the limitations period.
      These are two discreet and separate events—one with a gun and one
      without.

      As the quoted authority set forth above demonstrates, the Court of Criminal

Appeals has not limited the sweep of its holdings to create an exception of the type

that Appellant claims.    Appellant cites no case holding that the categorical rule

established by that authority applies only when there are “vague accusations” that

create uncertainty about when an act occurred, and the absence of precedent to

support Appellant’s argument is telling. At the end of the day, Appellant’s contention

fails that the evidence is insufficient because of a discrepancy between the


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indictment’s allegation that he exhibited a deadly weapon “on or about” a certain date

while the evidence showed that the alleged act occurred on a different date—that

discrepancy is not a variance upon which a sufficiency complaint may be predicated.

      We overrule Appellant’s first issue.

      B.     We vacate the judgment of conviction for continuous family
             violence without reaching the merits of Appellant’s second and
             third issues.

      In his second and third issues, Appellant challenges his conviction for

continuous family violence because (1) the State failed to disprove the complainant

“consented” to the abuse by Appellant, and (2) the trial court should have granted his

motion to quash the indictment’s count on the continuous-family-violence charge

because it failed to allege an element of the offense, specifically, the violence occurred

“during a period that is [twelve] months or less in duration.” We will not reach either

issue. The State concedes that punishing Appellant for continuous family violence

creates a double-jeopardy violation when he is also punished for an aggravated assault

that is one of the discrete acts upon which the continuous-family-violence charge is

based. We agree and will vacate the conviction for continuous family violence.

      “The Double Jeopardy Clause, contained within the Fifth Amendment and

applying to the states through the Fourteenth Amendment, protects an accused

against multiple punishments for the same offense.” Shaw v. State, No. 02-25-00139-

CR, 2026 WL 628150, at *12 (Tex. App.—Fort Worth Mar. 5, 2026, pet. filed) (mem.

op., not designated for publication) (first citing U.S. Const. amends. V, XIV; then

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citing Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 2225 (1977); then citing Ex parte

Adams, 586 S.W.3d 1, 4 (Tex. Crim. App. 2019); then citing Speights v. State, 464

S.W.3d 719, 722 (Tex. Crim. App. 2015); and then citing Littrell v. State, 271 S.W.3d

273, 275 (Tex. Crim. App. 2008)); Birdo v. State, No. 02-22-00142-CR, 2023 WL

4630627, at *5 (Tex. App.—Fort Worth July 20, 2023, pet. ref’d) (mem. op., not

designated for publication).

      The State notes our precedent that a defendant may not be punished for

continuous family violence under Penal Code Section 25.11 and a bodily-injury assault

when the assault offense is one of the underlying instances of violent conduct upon

which a continuous-family-violence offense is predicated. See Shaw, 2026 WL 628150,

at *12; Birdo, 2023 WL 4630627, at *5; Rachal v. State, Nos. 02-18-00500-CR, 02-18-

00501-CR, 2019 WL 5996985, at *6–7 (Tex. App.—Fort Worth Nov. 14, 2019, pet.

ref’d) (mem. op., not designated for publication). We recently faced a similar situation

to the one before us now in which an appellant did not raise the double-jeopardy

issue, but the State noted the double-jeopardy violation. See Shaw, 2026 WL 628150,

at *12. There, we vacated a conviction to remedy the double-jeopardy violation, and

we will do so here as well.

      We usually take the following approach to remedy a double-jeopardy violation

that results in multiple punishments:

      The remedy is to retain the most serious offense and to vacate the other.
      Littrell, 271 S.W.3d at 279 n.34. In most cases, the “most serious
      offense” is the offense of conviction for which the “greatest sentence

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      was assessed.” Bien v. State, 550 S.W.3d 180, 188 (Tex. Crim. App. 2018);
      Birdo, 2023 WL 4630627, at *6.

Shaw, 2026 WL 628150, at *12. We may also use the following “tiebreakers” to decide

which conviction to vacate: the “degree of felony, first-indicted, and offense named

first in the judgment.” Bien, 550 S.W.3d at 188 (citations omitted).

      Here, a five-year sentence was imposed for the aggravated-assault count and

for the continuous-family-violence count. The aggravated-assault offense, however, is

a second-degree felony while the continuous-family-violence offense is a third-degree

felony. See Tex. Penal Code Ann. §§ 22.02(b), 25.11(e). Thus, the aggravated-assault

count is the greater degree of offense. See id. §§ 12.33, 12.34. We will use the

tiebreaker of the greater degree of felony to retain Appellant’s conviction for

aggravated assault and reverse the trial court’s judgment of conviction for the offense

of continuous family violence.3

                                   III. Conclusion

      Having overruled Appellant’s first issue challenging his conviction for

aggravated assault but having agreed with the State’s confession of error directed at

his conviction for continuous family violence, we reverse the trial court’s judgment of

conviction for the continuous-family-violence offense and render a judgment of


      3
        Count one charged the offense of aggravated assault with a deadly weapon,
and count two charged assault of a family or household member by impeding breath
or circulation. No double-jeopardy violation exists for punishing Appellant for these
separate offenses, and on appeal Appellant does not challenge his conviction on count
two.

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acquittal on Appellant’s conviction for continuous family violence (count four). We

affirm the trial court’s judgments of conviction for aggravated assault (count one) and

assault/family violence (count two).

                                                     /s/ Dabney Bassel

                                                     Dabney Bassel
                                                     Justice


Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: April 30, 2026




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