Double Jeopardy Bars Aggravated Robbery and Assault | McFarlane v. State (2026)

McFarlane v. State, 02-25-00218-CR, October 08, 2026.

On appeal from Criminal District Court No. 2, Tarrant County, Texas

Synopsis

The Second Court of Appeals held that the Double Jeopardy Clauses prohibit separate convictions for aggravated robbery under Texas Penal Code Section 29.03 and aggravated assault under Section 22.02 when, as charged and proved, both offenses punish the same assaultive conduct and bodily injury. The court reversed the aggravated-robbery conviction and left intact the aggravated-assault conviction carrying the greater punishment.

Relevance to Family Law

Although McFarlane is a criminal appeal, it arose from severe intrafamily violence and has direct evidentiary and strategic relevance to divorce, conservatorship, protective-order, and related property litigation. The court’s application of Texas Code of Criminal Procedure Article 38.371 confirms the broad relevance of evidence describing the nature of a defendant’s relationship with a family or household member. Evidence explaining the parties’ living arrangement, dependency, escalating conflict, prior assaults, threats, coercive control, and the circumstances surrounding the charged conduct may supply essential context rather than constitute an impermissible character attack.

Family-law litigators should not, however, import the criminal double-jeopardy holding into civil proceedings. Double jeopardy generally does not prevent a family court from considering conduct that has already resulted in a criminal conviction when deciding conservatorship, possession, access, protective relief, property division, reimbursement, or related civil remedies. The practical lesson is twofold: criminal counsel must compare overlapping assaultive counts at the indictment and judgment stages, while family-law counsel should develop the underlying conduct independently and connect it to the specific statutory issues before the family court.

Case Summary

Fact Summary

Shawn McFarlane’s mother, Margaret, allowed him to live rent-free in the garage apartment behind her home after learning that he was homeless and “living behind a dumpster.” Over the following months, McFarlane became verbally abusive, damaged property, and, on at least two occasions, grabbed Margaret by the throat.

After Margaret told McFarlane that he needed to move out, he took her phone and later returned in an aggressive state. A struggle followed. McFarlane strangled Margaret, punched her until she was disoriented or unconscious, and restrained her hands with zip ties. He continued the assault when she attempted to escape. Margaret suffered extensive injuries, including severe bruising, bilateral rib fractures, and a collapsed lung.

McFarlane obtained Margaret’s debit-card PIN and left with her wallet, debit card, and vehicle keys. Margaret then escaped to a neighbor’s home and obtained emergency assistance.

The State charged McFarlane with aggravated kidnapping causing bodily injury, aggravated robbery, aggravated assault of a family member with a deadly weapon, and family-violence assault. The jury convicted him on all four counts and assessed sentences of sixty years for aggravated kidnapping, fifty years for aggravated robbery, life imprisonment for aggravated assault, and twenty years for family-violence assault, with the sentences running concurrently.

McFarlane’s original appointed appellate counsel filed an Anders brief. On its initial review, however, the Second Court of Appeals identified an arguable double-jeopardy issue involving the aggravated-robbery and aggravated-assault convictions. The court abated the appeal for appointment of new counsel, who briefed that issue as well as a challenge to the admission of evidence concerning the parties’ relationship.

Issues Decided

• Whether testimony that McFarlane had been living behind a dumpster before Margaret allowed him to move into her garage apartment was relevant and admissible as evidence concerning the nature of their relationship.

• Whether convictions for both aggravated robbery under Texas Penal Code Section 29.03 and aggravated assault under Section 22.02 imposed multiple punishments for the same offense in violation of the federal Double Jeopardy Clause.

• Whether the same dual convictions violated the double-jeopardy protection contained in Article I, Section 14 of the Texas Constitution.

• Whether the apparent double-jeopardy violation could be addressed on direct appeal even though McFarlane had not raised the objection in the trial court.

Rules Applied

Article 38.371(b) of the Texas Code of Criminal Procedure permits the admission, in specified prosecutions involving a defendant’s family or household member, of relevant facts and circumstances that assist the factfinder in determining whether the defendant committed the offense. This expressly includes evidence concerning the nature of the relationship between the defendant and the alleged victim.

Evidence offered under Article 38.371 remains subject to the Texas Rules of Evidence. Under Rule 401, evidence is relevant when it tends to make a consequential fact more or less probable. Rule 402 generally makes relevant evidence admissible unless another constitutional provision, statute, or rule requires exclusion. Rule 403 permits exclusion when probative value is substantially outweighed by dangers such as unfair prejudice, confusion, delay, or needless cumulation.

The court distinguished relevance from remoteness. Temporal remoteness does not, standing alone, render evidence irrelevant, although it may bear on a Rule 403 balancing analysis. Because McFarlane did not preserve or present a Rule 403 complaint, the court analyzed the testimony under the relevance objection he actually made.

The Fifth Amendment’s Double Jeopardy Clause, applicable to the states through the Fourteenth Amendment, protects against both successive prosecutions and multiple punishments for the same offense. Article I, Section 14 of the Texas Constitution provides a comparable protection. The court relied on authorities including Brown v. Ohio, Littrell v. State, Ex parte Adams, and Speights v. State.

In a multiple-punishments case, the analysis turns on the statutory elements as framed by the charging instruments and on whether the Legislature authorized cumulative punishment. Courts therefore examine the offenses as charged and proved, not merely their abstract statutory labels. When two convictions punish the same conduct and cumulative punishment was not authorized, one conviction must be set aside.

Ordinarily, a double-jeopardy claim must be preserved in the trial court. Under Garfias v. State, however, an appellate court may address an unpreserved claim when the violation is clearly apparent from the face of the record and applying procedural-default rules would serve no legitimate state interest.

When a multiple-punishments violation requires elimination of one conviction, the reviewing court retains the conviction carrying the more serious punishment and reverses the less serious conviction.

Application

The court first considered Margaret’s testimony that she had found McFarlane living behind a dumpster before she permitted him to live in her garage apartment. That evidence helped explain how the parties came to share a residential setting and provided context for the nature and progression of their relationship. It therefore fell within the type of relationship evidence contemplated by Article 38.371.

McFarlane argued that the event was too remote to be relevant. The court rejected that framing because remoteness, by itself, does not negate relevance. It may affect the weight of evidence or support a Rule 403 objection, but McFarlane had not made or briefed a Rule 403 complaint. The trial court consequently acted within the zone of reasonable disagreement by admitting the testimony. The court further observed that any error would have been harmless given the substantially more probative evidence of McFarlane’s guilt, including Margaret’s detailed account of the strangulation, punches, restraint, and resulting injuries.

The double-jeopardy analysis produced a different result. The aggravated-robbery and aggravated-assault counts, as pleaded and proved, relied on the same assaultive conduct and bodily injury. The convictions therefore imposed two punishments for the same offense rather than punishing distinct criminal acts or separately authorized units of prosecution. The State conceded the error, and the court agreed that the duplication was apparent from the record.

Although McFarlane had not raised double jeopardy in the trial court, the face of the record established the violation, and enforcing procedural default would have served no legitimate state interest. The court therefore reached the merits and eliminated the duplicative conviction. Because the aggravated-assault conviction resulted in a life sentence while the aggravated-robbery conviction resulted in a fifty-year sentence, the court retained the aggravated-assault conviction and reversed the aggravated-robbery conviction.

Holding

The trial court did not abuse its discretion by admitting Margaret’s testimony concerning McFarlane’s circumstances before he moved into her garage apartment. The testimony was relevant to the nature of their relationship under Article 38.371, and temporal remoteness alone did not make it irrelevant. Any assumed nonconstitutional evidentiary error also would have been harmless in light of the remaining evidence.

The aggravated-robbery and aggravated-assault convictions violated the Double Jeopardy Clauses because, as charged and proved, they punished the same assaultive conduct and bodily injury. The error was apparent from the record and could be considered for the first time on appeal.

The court reversed the aggravated-robbery conviction, which carried a fifty-year sentence. It affirmed the aggravated-assault conviction carrying a life sentence, as well as the judgments for aggravated kidnapping and family-violence assault.

Practical Application

For family-law litigators, McFarlane reinforces the importance of building a relationship narrative rather than presenting violent incidents in isolation. In a custody dispute, evidence that one parent provided housing or financial assistance, followed by escalating threats, property destruction, strangulation, restraint, or financial exploitation, may illuminate patterns relevant to conservatorship and possession decisions. Counsel should connect that evidence to the Family Code’s best-interest analysis, statutory family-violence provisions, and any presumptions or restrictions implicated by credible evidence of abuse.

In protective-order litigation, the progression of the relationship may help prove the likelihood of future family violence. Prior choking, threats, destruction of property, coercive control, interference with communications, confinement, and financial domination may contextualize the precipitating event. Counsel should plead and prove each incident with sufficient specificity rather than relying exclusively on the existence of a criminal charge.

In divorce proceedings, the same conduct may affect a just-and-right property division when it constitutes fault in the breakup of the marriage, fraud, waste, destruction of community property, or misuse of funds. Taking a wallet, debit card, vehicle, or other property during or after an assault may have consequences separate from the criminal prosecution. Family counsel should trace the assets, obtain account records, and identify whether the conduct supports reconstitution of the community estate, reimbursement, injunctive relief, or a disproportionate division.

The double-jeopardy ruling also warrants careful treatment of criminal records used in family court. A vacated count should not be described as an existing conviction. Nevertheless, reversal of a duplicative conviction does not necessarily erase the underlying conduct or prevent its proof through admissible testimony, medical records, photographs, financial records, or other evidence. The family-law advocate should distinguish among an allegation, an arrest, a charging instrument, a conviction, and a conviction later vacated on a multiple-punishments ground.

Finally, family lawyers coordinating with criminal counsel should recognize that concurrent sentences do not cure a double-jeopardy violation. A duplicative conviction can carry collateral consequences even when it does not increase the time served. Criminal judgments should therefore be reviewed count by count, particularly when aggravated robbery, assault, kidnapping, unlawful restraint, or other offenses arise from a single episode.

Checklists

Developing Family-Violence Evidence

• Identify the parties’ family, household, dating, financial, and residential relationships.

• Prepare a chronology showing escalation, including threats, property damage, stalking, strangulation, restraint, and interference with communications.

• Obtain 911 recordings, body-camera footage, photographs, medical records, and emergency-response records.

• Document prior incidents even if they did not result in an arrest or conviction.

• Identify witnesses who observed injuries, property damage, behavioral changes, or requests for assistance.

• Connect each item of evidence to a disputed issue such as best interest, future violence, possession restrictions, or credibility.

• Anticipate Rules 401, 403, 404, and hearsay objections rather than relying solely on the broad relevance of relationship evidence.

Using Criminal Records in a Family Case

• Obtain certified copies of the indictment, verdict, judgment, sentence, appellate opinion, and mandate.

• Confirm which counts remain valid after appeal.

• Do not characterize a reversed or vacated count as a current conviction.

• Determine whether reversal was based on insufficient evidence, trial error, procedural error, or multiple punishments.

• Develop admissible evidence of the underlying conduct independently of the criminal judgment.

• Evaluate issue-preclusion arguments carefully and confirm that the relevant issue was actually litigated and necessarily decided.

• Coordinate discovery and testimony with criminal counsel when a prosecution or post-conviction proceeding remains pending.

Evaluating Overlapping Criminal Counts

• Compare the statutory elements of every charged offense.

• Review the indictment’s specific allegations rather than relying only on offense titles.

• Identify the injury, threat, weapon, property, victim, and assaultive act alleged in each count.

• Determine whether the State relies on separate acts or the same conduct for multiple convictions.

• Research whether the Legislature clearly authorized cumulative punishment.

• Request jury-charge language that distinguishes separate acts when the evidence supports that distinction.

• Raise double jeopardy before trial, during the charge conference, after the verdict, and in post-judgment motions when appropriate.

• Do not assume concurrent sentences eliminate a multiple-punishments problem.

Preparing Custody and Protective-Order Relief

• Plead the relevant family-violence allegations with dates, locations, acts, injuries, and witnesses.

• Address any statutory presumptions affecting conservatorship, possession, or access.

• Request safety conditions tailored to the evidence, including supervised possession or protected exchanges where justified.

• Consider temporary restraining orders and temporary injunctions addressing contact, property, finances, and access to the residence.

• Preserve findings concerning family violence and the factual basis for possession restrictions.

• Ensure the proposed order is specific enough to be enforced.

• Distinguish between criminal punishment and civil measures designed to protect a child, victim, or marital estate.

Addressing Property and Financial Misconduct

• Trace withdrawals, debit-card use, transfers, vehicle possession, and missing property.

• Preserve bank records, account alerts, surveillance footage, and electronic communications.

• Determine whether the conduct supports waste, fraud on the community, reimbursement, or reconstitution claims.

• Seek temporary financial restraints when there is a continuing risk to the marital estate.

• Avoid double recovery by identifying the distinct legal basis and measure of each requested remedy.

• Make a clear record linking the misconduct to the requested property division or equitable relief.

Citation

McFarlane v. State, No. 02-25-00218-CR (Tex. App.—Fort Worth Oct. 8, 2026, no pet. h.) (mem. op.).

Full Opinion

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