CROSSOVER: Fort Worth: “On or About” Date Mismatch Does Not Defeat Sufficiency, but Double Jeopardy Bars Stacking Predicate Assault with Continuous Family Violence

Boswell v. State, 02-25-00205-CR, April 30, 2026.

On appeal from 213th District Court of Tarrant County, Texas

Synopsis

A Fort Worth panel held that a criminal defendant cannot turn an indictment’s “on or about” date into a legal-sufficiency defect when the trial proof shows the offense occurred on a different date, so long as the proved date predates indictment and falls within limitations. The court also accepted the State’s double-jeopardy concession and set aside the continuous-family-violence conviction because the aggravated assault was one of the predicate acts supporting that count, leaving the aggravated-assault and assault/family-violence convictions intact.

Relevance to Family Law

For Texas family-law litigators, Boswell matters less for criminal pleading doctrine in the abstract than for how assaultive conduct is framed, sequenced, and reused across related proceedings. In divorce, SAPCR, and protective-order litigation, parties routinely argue over whether a family-violence incident happened on the exact date pleaded in a petition, motion, or affidavit; Boswell is a useful reminder that date imprecision will not necessarily undermine the underlying event if the proof otherwise identifies a discrete act within an actionable period.

The case also has strategic consequences when a family-violence history is built from multiple incidents. In custody and conservatorship litigation, counsel often rely on a pattern of abuse while also highlighting a particularly severe event involving a weapon. Boswell underscores the importance of tracking whether one incident is being used as a stand-alone adjudicative event and also as part of a broader course-of-conduct theory. That analytical discipline can affect credibility determinations, evidentiary framing, res judicata-style arguments in later proceedings, and how opposing counsel attacks overreach in pleadings and requested relief. In property disputes, the same fact pattern may shape reimbursement claims, waste allegations, exclusive-use requests, injunction practice, and disproportionality arguments.

Case Summary

Fact Summary

The defendant was tried before a jury on charges arising from an abusive domestic relationship with the complainant. The jury convicted him of aggravated assault, assault/family violence, and continuous family violence, and the trial court entered judgment consistent with those verdicts, while acquitting on another assault/family-violence count.

On appeal, the defense focused first on the aggravated-assault count. The indictment alleged that the defendant, “on or about” August 30, 2023, used or exhibited a deadly weapon. But the trial evidence showed that the handgun threat occurred months before that pleaded date. The defense attempted to recast that mismatch as a legal-sufficiency problem, arguing that the State had proved a different event on a different date than the one charged.

The appeal also challenged the continuous-family-violence conviction. Although the defendant raised additional merits arguments concerning that count, the State conceded that punishing him both for aggravated assault and for continuous family violence created an impermissible multiple-punishments problem because the aggravated assault was one of the predicate acts underlying the continuous-family-violence count. The court accepted that concession.

Issues Decided

• Whether the evidence was legally insufficient to support aggravated assault because the indictment alleged the offense occurred “on or about” August 30, 2023, while the proof showed the handgun threat occurred on a different date.
• Whether the defendant could be punished for both aggravated assault and continuous family violence when the aggravated assault was one of the discrete acts supporting the continuous-family-violence charge.
• Whether the court needed to reach the defendant’s additional challenges to the continuous-family-violence count after resolving the double-jeopardy problem.

Rules Applied

The court relied primarily on settled Texas criminal law governing “on or about” pleading and variance doctrine.

• Tex. Penal Code § 22.02(a)(2) governed the aggravated-assault charge.
• Tex. Penal Code § 22.01(b)(2)(B) governed the assault/family-violence charge.
• Tex. Penal Code § 25.11(a), (e) governed continuous family violence.
• Tex. Code Crim. Proc. art. 21.02 requires that the charged time be anterior to indictment and not outside limitations.

The court’s sufficiency analysis tracked Court of Criminal Appeals precedent holding that time is ordinarily not a material element of the offense and that “on or about” pleading does not bind the State to a single precise date.

• Garcia v. State, 981 S.W.2d 683 (Tex. Crim. App. 1998), reaffirmed that “on or about” allegations generally provide adequate notice and are not constitutionally defective merely because the proof fixes the offense on another date.
• Thomas v. State, 444 S.W.3d 4 (Tex. Crim. App. 2014), explained that immaterial variances do not defeat convictions and, more specifically, that when the State uses “on or about” language, proof of a different date within the permissible period is not a variance at all.
• The opinion also referenced Sledge v. State, 953 S.W.2d 253 (Tex. Crim. App. 1997), and earlier Thomas authority for the proposition that a conviction is not infirm merely because the State proved the offense occurred on another day, so long as the date proved is before indictment and within limitations.

On the double-jeopardy issue, the court invoked the Fifth Amendment multiple-punishments principle as applied through the Fourteenth Amendment and cited modern Texas authority recognizing that a defendant may not receive multiple punishments for the same offense absent legislative authorization.

Application

The defendant’s sufficiency argument failed because he tried to transform a familiar pleading rule into a substantive proof defect. The court treated the issue as controlled by long-settled authority: when the indictment alleges that an offense occurred “on or about” a certain date, the State is not required to prove commission on that exact day. Instead, the relevant inquiry is whether the date shown by the evidence occurred before presentment of the indictment and within the applicable limitations period. If so, the proof still supports the pleaded offense.

The panel was explicit that this is not merely an immaterial variance analysis. In the “on or about” setting, the difference between the pleaded date and the proved date is not a variance at all. That distinction mattered because the defense attempted to argue that the facts presented an exceptional circumstance: the complainant described separate, identifiable incidents rather than a vague sequence of abuse, so, in the defense view, the State should have been held to the pleaded date for the handgun event. The court rejected that proposed carveout, noting that the cited precedent does not limit the “on or about” doctrine to cases involving uncertainty, indistinct episodes, or proof difficulties. The categorical rule remained categorical.

On the continuous-family-violence count, the court did not engage the defendant’s additional merits attacks because the State conceded the dispositive constitutional error. Where the aggravated assault served as one of the predicate acts supporting continuous family violence, imposing punishment for both counts created an impermissible multiple-punishments problem. The appellate remedy was correspondingly direct: the court reversed the continuous-family-violence conviction and rendered a judgment of acquittal on that count, while leaving the remaining convictions undisturbed.

Holding

The court held that the evidence was sufficient to support aggravated assault despite the mismatch between the indictment’s “on or about” date and the date shown by the evidence. Under Texas law, that sort of date discrepancy is not a variance and cannot support a sufficiency challenge so long as the proved date is before indictment and within limitations. The court therefore overruled the defendant’s first issue.

The court further held that punishing the defendant for both aggravated assault and continuous family violence violated double-jeopardy multiple-punishments principles because the aggravated assault was one of the acts underlying the continuous-family-violence charge. Accepting the State’s concession, the court reversed the continuous-family-violence judgment and rendered a judgment of acquittal on that count.

Finally, because the double-jeopardy ruling disposed of the continuous-family-violence conviction, the court did not reach the defendant’s remaining appellate complaints directed to that count. The aggravated-assault and assault/family-violence convictions were affirmed.

Practical Application

For family-law practitioners, Boswell is most useful as a litigation-discipline case. First, it reinforces that counsel should not overinvest in attacking abuse allegations solely because the pleaded date and the proved date do not align perfectly. In protective-order hearings, temporary-orders proceedings, modification trials, and jury-tried divorce cases involving family violence, exact-date impeachment can still be useful for credibility, but it is often not dispositive where the event is otherwise identified with sufficient clarity. If the broader evidentiary record establishes a particular assaultive act within the relevant period, date drift alone may not dismantle the allegation.

Second, the case is a strong reminder to map each alleged family-violence incident across all related proceedings. In practice, one weapon-based assault may be doing several jobs at once: supporting a protective order, justifying temporary exclusive possession, informing conservatorship restrictions under Chapter 153, supporting a fault-based disproportionate division, and anchoring a narrative of coercive control. That is effective advocacy when done carefully, but Boswell warns against careless stacking. The more often one incident is repurposed as both a discrete event and a component of a larger pattern-based theory, the more likely opposing counsel will scrutinize overlap, duplication, and overstatement.

Third, in custody litigation, this opinion supports drafting that distinguishes between exact-date allegations and pattern allegations. If your theory depends on a course of abusive conduct, plead and prove the course of conduct as such; if your theory depends on a specific aggravated event involving a firearm, isolate it, tie it to corroborating proof, and avoid ambiguity about whether that same event is also being counted elsewhere for a separate statutory or remedial purpose. Precision in narrative architecture matters.

Fourth, in divorce and property litigation, lawyers should use Boswell as a cautionary lens when arguing fault, fraud, waste, or injunctive relief based on repeated abuse. Courts are receptive to patterns, but they are also sensitive to redundancy. Build a record that shows how each incident matters and why it is being offered, rather than simply repeating the same severe event under multiple labels.

Checklists

Pleading and Proof of Family Violence Incidents

• Identify each incident by approximate date, location, participants, and distinctive facts.
• State whether the allegation concerns a single discrete assault, a course of conduct, or both.
• If the exact date is uncertain, avoid overstating certainty in pleadings or affidavits.
• Tie each incident to corroboration where available, including texts, photos, body-cam, medical records, third-party witnesses, and protective-order filings.
• Assume that a date mismatch may affect credibility, even if it does not defeat legal sufficiency.
• Prepare the witness to explain date confusion without appearing evasive or coached.

Defending Against Date-Based Abuse Allegations

• Do not rely exclusively on the argument that the incident happened on a different day than pleaded.
• Test whether the opposing side has actually identified one event or is conflating multiple incidents.
• Press for specifics through discovery, requests for disclosure, and deposition or pretrial examination.
• Use date inconsistencies to challenge reliability, chronology, and corroboration rather than treating them as automatically fatal.
• If surprise arises from a materially different time frame, preserve the complaint with a continuance or postponement request.
• Build an alternative timeline using phone records, employment records, travel records, school records, or geolocation evidence.

Avoiding Overlap Problems in Pattern-Based Litigation

• Create an incident chart showing every alleged abusive act and each claim or remedy it supports.
• Mark when a single incident is being used as a stand-alone event and when it is being used as part of a broader pattern.
• Evaluate whether a severe predicate act is duplicating another count, theory, or requested finding.
• Distinguish evidentiary use from claim-support use; not every repeated reference is legally identical.
• In briefing and argument, explain the separate legal function of each incident.
• Revise pleadings and proposed findings to avoid unnecessary stacking or double counting.

Trial Strategy for Divorce and SAPCR Cases Involving Family Violence

• Lead with the most corroborated incidents, not merely the most dramatic ones.
• Use chronology demonstratives to show continuity, escalation, and post-separation risk.
• Separate weapon incidents from non-weapon incidents in witness examinations and proposed findings.
• Connect the abuse evidence to the exact family-law relief requested: conservatorship limits, possession restrictions, injunctions, exclusive use, or disproportionate division.
• Anticipate appellate scrutiny by ensuring that each requested finding has independent factual support.
• Preserve objections to duplicative findings, overbroad submissions, and unsupported pattern arguments.

Appellate Preservation Checklist

• Preserve sufficiency complaints with precision as to which element allegedly failed.
• If the proof departs from pleaded timing in a way that causes actual surprise, seek a continuance and make a record of prejudice.
• Raise multiple-punishments concerns as soon as overlap becomes apparent in the charge, verdict, or judgment.
• Compare each submitted count or finding against the evidentiary predicates used to support other counts or findings.
• Request reformation of judgment or vacatur where overlapping punishments or findings cannot stand together.
• Frame the remedy carefully; sometimes the correct appellate result is reversal and rendition on the overlapping count.

Citation

Boswell v. State, No. 02-25-00205-CR, 2026 WL ___ (Tex. App.—Fort Worth Apr. 30, 2026, no pet. h.) (mem. op.).

Full Opinion

Read the full opinion here

Family Law Crossover

Although Boswell is a criminal appeal, it can be weaponized in Texas divorce and custody litigation in two opposite ways. For the proponent of family-violence evidence, the case helps neutralize a familiar defense theme: that the petitioner or responding party cannot be believed because the testimony places the assault on a date slightly different from the date stated in the pleading, affidavit, or prior report. The better response after Boswell is that date imprecision does not erase a discrete act of abuse, especially where the incident is otherwise identifiable and corroborated.

For the opposing side, the more potent use of Boswell is structural rather than defensive. The case highlights the danger of stacking the same violent event into multiple theories without carefully distinguishing the legal role each theory serves. In a divorce or SAPCR, that translates into targeted attacks on duplicative fact findings, repetitive use of a single firearm incident to justify every requested restriction, and arguments that the other side has blurred the line between a specific assault and a broader pattern narrative. In short, Boswell teaches both sides the same lesson: stop fighting only about dates, and start auditing how each abuse allegation is being deployed across the case.

~~a0277c9c-d8ce-4818-943e-08007dae37cb~~