HARO, RUBEN ORTIZ

Haro pleaded guilty to one count of possession of child pornography and one count of promotion of child pornography. Tex. Penal Code § 43.26(a), (e). Neither count described the prohibited visual material using detailed factual averments or references to an image file. Instead, both counts merely said the images were of children “engaging in sexual conduct, namely actual or simulated sexual intercourse.” However, evidence introduced at the plea hearing—including Haro’s admission to an officer—suggested Haro possessed more than three hundred items of child pornography.

On appeal, Haro complained for the first time that the multiple-punishments prong of the double jeopardy clause permitted only one conviction. His argument hinged on the fact that both counts use the same description. Specifically, he argued there is no indication the legislature intended punishments for both the possession and promotion of the same item of child pornography because one is a lesser-included offense. The court of appeals agreed. It held, based on the indictment alone, the elements of Counts 1 and 2 are the “same” under a modified Blockburger analysis. See Ervin v. State, 991 S.W.2d 804, 814 (Tex. Crim. App. 1999) (setting forth factors to consider when offenses “pass” the test set out in Blockburger v. United States, 284 U.S. 299, 304 (1932)). Further, the court held there is no indication of legislative intent that overcomes the presumption against multiple punishments. And because this violation is apparent on the face of the record, Haro was entitled to relief without having objected at trial; the court perceived no legitimate state interest served by enforcement of the usual rules of procedural default. See Gonzalez v. State, 8 S.W.3d 640, 645 (Tex. Crim. App. 2000).

The State argues that the court of appeals approached the issue incorrectly. This is not an “elements” case to be decided by Blockburger and Ervin. It is a “units” case. A defendant may be punished for multiple violations of the “same” offense if the allowable unit of prosecution is greater than one. The record shows—or at least suggests—Haro possessed possibly hundreds of prohibited images. He can be prosecuted for each one. Had the court of appeals considered the record, it would have recognized that a “units” violation is not apparent on the face of the record and that an objection might have given the State the opportunity to clarify the pleadings to avoid the claim raised on appeal.