Opinion
PD-0148-23
11-13-2024
JAMES EARNEST FLOYD, JR., Appellant v. THE STATE OF TEXAS
ON THE COURT'S OWN MOTION FOR DISCRETIONARY REVIEWFROM THE SECOND COURT OF APPEALS TARRANT COUNTY
McClure, J., delivered the opinion of the Court in which Keller, P.J., and Hervey, Newell, Keel, and Slaughter, JJ., joined. Keller, P.J., filed a concurring opinion. Yeary, J., filed a concurring opinion. Richardson, J., concurred. Walker, J., filed a dissenting opinion.
OPINION
McClure, J.
This is a jury unanimity case. We are tasked with determining whether, under Section 29.03, the specific acts of aggravated robbery Appellant committed are elements of the offense or whether they are merely the manner and means by which one of the elements is accomplished. If they are the former, then jury unanimity is required; if they are the latter, then jury unanimity is not required. The State alleged two different methods of committing aggravated robbery in a single count-aggravated robbery by threat and aggravated robbery causing bodily injury. See Tex. Penal Code §§ 29.02; 29.03. But in order to convict someone of aggravated robbery, does the jury have to unanimously agree on whether the person committed injury-robbery or threat-robbery? No. We hold that the commission of the different variations of aggravated robbery constitute a different manner and means of committing the single offense of aggravated robbery. We affirm the court of appeals' holding that the trial court did not err in instructing the jury in the disjunctive in this case.
BACKGROUND
i. Facts
On March 28, 2017, Diane Porter heard a noise in her garage. She went to investigate the noise and saw her husband John fighting with an intruder (later identified as Appellant). As she approached, Appellant shot her in the stomach. Diane passed out. When she "came to", Diane saw Appellant striking John's head with the iron legs of an end table. Appellant then shot John in the back of the head.
After retrieving the Porters' debit card from John's back pocket, Appellant demanded the PIN, and Diane made up a false number. Appellant fired a shot near Diane's head, warning her that if the number didn't work, he would return to kill them. Appellant then fled in the Porters' car.
Diane was taken to the hospital. Diane identified the robber to law enforcement as a "young black man with curly hair," approximately 5'3" in height, and "kind of stocky." At the hospital, she identified Appellant as the intruder by picking his photo out of a photo spread. At trial, in open court, Diane identified Appellant as the intruder who robbed and shot her and her husband.
Appellant was charged with aggravated robbery pursuant to Texas Penal Code sections 29.02 and 29.03.
ii. Jury Charge
In the charge, the trial court defined robbery as follows:
A person commits the offense of robbery if, in the course of committing theft and with intent to obtain and maintain control of property of another, he intentionally or knowingly causes bodily injury to another or threatens or places another in fear of imminent bodily injury or death.
The application paragraph was written as follows:
Now, if you find from the evidence beyond a reasonable doubt that on or about the 6th day of April, 2017, in Tarrant County, Texas, the Defendant, James Earnest Floyd, Jr., did intentionally or knowingly, while in the course of committing theft of property and with intent to obtain or maintain control of said property, threaten or place Diane Porter in fear of imminent bodily injury or death, and the Defendant used or exhibited a deadly weapon, namely a firearm; or if you find from the evidence beyond a reasonable doubt that on or about the 6th day of April, 2017, in Tarrant County, Texas, the Defendant, James Earnest Floyd, Jr., did intentionally or knowingly, while in the course of committing theft of property and with intent to obtain or maintain control of said property, cause bodily injury to another, Diane Porter, by shooting her with a firearm and the defendant used or exhibited a deadly weapon, namely a firearm, then you will find the Defendant guilty of the offense of aggravated robbery.
The charge contained the following general statement regarding unanimity: "Any verdict you render must be unanimous." The court did not separately instruct the jury that it must be unanimous on at least one of the two paragraphs charged in the aggravated robbery count. The jury found Appellant guilty of aggravated robbery and sentenced Appellant to life imprisonment.
iii. Appeal
On appeal, Appellant argued, among other things, that the trial court failed to adequately instruct the jury that it was required to be unanimous as to whether he was guilty of aggravated robbery by threat or bodily-injury aggravated robbery. Instead, Appellant continues, the general unanimity instruction allowed the jury to convict Appellant without reaching a unanimous decision regarding the act involved. That is, Appellant argues, part of the jury could have convicted him for threatening or placing Diane in fear of imminent bodily injury or death, while other jurors could have convicted him for causing bodily injury to Diane by shooting her in the stomach. Appellant relied on Loville v. State, No. 14-12-00297-CR (Tex. App.-Houston [14th Dist.] May 2, 2013, pet. ref'd) (not designated for publication) and Woodard v. State, 294 S.W.3d 605, 608 (Tex. App.- Houston [1st Dist.] 2009, pet. ref'd) to argue that aggravated robbery by causing bodily injury is a separate offense from aggravated robbery by threat.
At trial, Appellant did not object to the jury charge. However, we will review "all alleged jury-charge error…regardless of preservation in the trial court." Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012).
The Second Court of Appeals disagreed, holding that aggravated robbery by threat and aggravated robbery bodily injury are different methods of committing a single offense and, therefore, a special unanimity instruction is not required. Reading Cooper v. State, 430 S.W.3d 426 (Tex. Crim. App. 2014), and French v. State, 563 S.W.3d 228 (Tex. Crim. App. 2018), the court below observed: "[W]hen the Court of Criminal Appeals has determined that different provisions of a statute constitute the same crime for double-jeopardy purposes (as it did in Cooper), the Court has essentially held that they are the same offense for purposes of jury unanimity as well." The court also declined to rely on other courts' decisions reaching the opposite conclusion because they are not binding and are distinguishable factually from the jury charge here.
iv. Petition for Discretionary Review
In his petition for discretionary review, Appellant argues that the court of appeals' decision directly conflicts with two other courts of appeals. See Loville, No. 14-12 00297-CR at *28; Woodard v. State, 294 S.W.3d at 608. However, both of these opinions predate this Court's opinion in Cooper, so there is not technically a split of authority. Therefore, we granted review on our own motion to decide whether the court of appeals erred in holding that the charge did not have to include a special jury unanimity instruction requiring that the jury be unanimous as to whether appellant was guilty of aggravated robbery by threat or aggravated robbery by bodily injury.
ANALYSIS
i. Double-Jeopardy Jurisprudence
The indictment in this case alleged that Appellant committed the offense in two ways that are embraced by Texas Penal Code §§ 29.02 and 29.03. Paragraph One charged Appellant with robbery by threat with a deadly weapon, that is: intentionally or knowingly, while in the course of committing theft of property and with intent to obtain or maintain control of said property, threaten or place Diane Porter in fear of imminent bodily injury or death, and the defendant used or exhibited a deadly weapon, a firearm. Paragraph Two charged Appellant with causing bodily injury with a deadly weapon, specifically: intentionally or knowingly while in the course of committing theft of property and with intent to obtain or maintain control of said property, cause bodily injury to another, Diane Porter, by shooting her with a firearm and the defendant used or exhibited a deadly weapon. The jury charge did not explicitly require the jury to unanimously agree upon which of these Appellant was convicted.
This Court has held that, in the context of double jeopardy claims, threat and bodily injury are different manners and means of committing the same robbery. In Cooper, the defendant challenged the lower court's holding that double jeopardy was not violated by his separate convictions for both aggravated robbery by causing bodily injury and aggravated robbery by threat to the same victims in a single robbery. See Cooper, 430 S.W.3d at 427. A five-judge lead opinion summarily held the challenged convictions violated double jeopardy. Id. Three judges disagreed, concluding that injury-robbery and threat-robbery are not mere manner and means, but are separate and distinct offenses. Id. at 440-44 (Price, J., dissenting). Our double-jeopardy jurisprudence is "closely intertwined" with our jury-unanimity jurisprudence. See Gonzales v. State, 304 S.W.3d at 838, 848 (Tex. Crim. App. 2010) (noting that "double-jeopardy and jury unanimity issues constitute 'closely intertwined strands of our jurisprudence'") (quoting Huffman v. State, 267 S.W.3d 902, 905 (Tex. Crim. App. 2008)). By construing these disjunctive phrases in the robbery statute as alternate theories, or manner and means, of committing the same offense for double jeopardy purposes, we have essentially held that they are the same offense for jury unanimity purposes as well and either means (injury-robbery or threat-robbery) would support a single robbery conviction.
Therefore, given Cooper's holding that double jeopardy was violated by the defendant's separate convictions for aggravated robbery by causing bodily injury and aggravated robbery by threat to the same victims in a single robbery, the court of appeals did not err in holding that the trial court was not required to instruct the jury that it was required to be unanimous about whether appellant was guilty of aggravated robbery by threat or bodily injury aggravated robbery. Since prosecution under the aggravated robbery provision is commonplace, we now take the opportunity to provide the rationale behind the holding in Cooper.
ii. Unanimous Verdict
Under the Texas Constitution and Code of Criminal Procedure, a Texas jury must reach a unanimous verdict. Landrian v. State, 268 S.W.3d 532, 535 (Tex. Crim. App. 2008). The jury must agree that the defendant committed one specific crime, but this does not mean that the jury must unanimously find that the defendant committed that crime in one specific way or even with one specific act. Id. at 535. A jury must unanimously agree on each element of the crime in order to convict. Ngo, 175 S.W.3d at 747.
There are two steps to answer in a jury unanimity challenge case. The first question we address is whether the Legislature intended to create a single offense of aggravated robbery with multiple or alternate modes of commission or multiple offenses. See Jefferson v. State, 189 S.W.3d 305, 312 (Tex. Crim. App. 2006) (quoting Richardson v. United States, 526 U.S. 813, 817-18, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999) (courts must examine the language of a statute to determine whether a particular term in a statute is an element, which requires juror unanimity, or an underlying brute fact or means of committing an element which does not require juror unanimity)).
This Court has held that the focus or 'gravamen' of a penal provision should be regarded as the "best indicator" when it comes to determining whether the Legislature intended to define more than one offense. See Huffman v. State, 267 S.W.3d 902, 907 (Tex. Crim. App. 2008); Jourdan v. State, 428 S.W.3d 86, 95-96 (Tex. Crim. App. 2014) (explaining that in examining statutory language for legislative intent, we inquire into the 'gravamen' of the offense); Jefferson v. State, 189 S.W.3d 305, 312 (Tex. Crim. App. 2006) (recognizing that this Court's prior caselaw also supports a decision that the essential element or focus of the statute is the result of the defendant's conduct and not the possible combinations of conduct that cause the result); Ex parte Ervin, 991 S.W.2d 804, 814 (Tex. Crim App. 1999) ("[W]hether the offenses have a common focus (i.e. whether the 'gravamen' of the offense is the same) and whether that common focus tends to indicate a single instance of conduct, . . .")). However, as discussed below, this analysis is not always the best indicator of legislative intent when, as here, the statute contains different gravamen.
Gravamen of Robbery
A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of property, he: (1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Penal Code § 29.02.
Robbery is an assaultive offense. Young v. State, 283 S.W.3d 854, 862 (Tex. Crim. App. 2009). Each unit of prosecution of the offense of robbery is the victim. Byrd v. State, 336 S.W.3d 242, 251, n.43 (Tex. Crim. App. 2011). Therefore, the gravamen of robbery offenses, including aggravated robbery, is the defendant's assaultive conduct against each victim. Jones v. State, 323 S.W.3d 885, 889 (Tex. Crim. App. 2010).
However, in Garfias v. State, this Court noted that the individual gravamina of aggravated robbery by threat or assault causing bodily injury differ significantly in that an assaultive offense by threat is a conduct-oriented offense, while an assaultive offense causing bodily injury is a result-oriented offense. 424 S.W.3d 54, 60 (Tex. Crim. App. 2014); see also Landrian, 268 S.W.3d at 540; see also Ex parte Denton, 399 S.W.3d 540, 546 (Tex. Crim. App. 2013) ("the gravamen of the offense of aggravated assault is the specific type of assault defined in [the Penal Code]."). The Court in Garfias concluded that this difference in focus results in different units of prosecution for the two offenses and indicates that the Legislature intended to allow multiple punishments for aggravated robbery by threat and aggravated assault causing bodily injury. Garfias, 424 S.W.3d at 61.
Applying the distinction between the two gravamina in this case, the threat-robbery allegation in the indictment focused on his threatening conduct, while the injury-robbery allegation in the indictment focused on the actual harm inflicted. Following the logic in Garfias, aggravated robbery has different individual gravamina, which should indicate that the Legislature intended to allow multiple punishments for aggravated robbery. But less than three months after Garfias, the Court held that double jeopardy was in fact violated when a defendant was convicted of aggravated robbery causing bodily injury and aggravated robbery by threat to the same victim during a single robbery. Cooper, 430 S.W.3d at 427. So why the difference?
First, there was only one statute at issue in Cooper: aggravated robbery. This is unlike Garfias which involved different statutes (aggravated robbery and aggravated assault). Different statutes are "some indication of legislative intent to authorize multiple prosecutions simply because the offenses are separately defined in different statutes." Vick v. State, 991 S.W.2d 830, 832 (Tex. Crim. App. 1999).
Second, in Garfias, the State limited its theory of aggravated robbery to aggravated robbery by threat and pursued aggravated assault by causing bodily injury as a separate offense.
In the instant case, the application paragraph of the jury charge instructed the jurors that they could convict Appellant of aggravated robbery if they found that Floyd intentionally or knowingly, while in the course of committing theft of property and with intent to obtain or maintain control of said property did:
• threaten or place Diane Porter in fear of imminent bodily injury or death, and the Defendant used or exhibited a deadly weapon, namely a firearm; or
• cause bodily injury to another, Diane Porter, by shooting her with a firearm and the defendant used or exhibited a deadly weapon, namely a firearm.
Appellant asserted that the failure to include the jury unanimity instruction denied him the opportunity to have a unanimous verdict on aggravated robbery. We disagree. The charge above submitted the two aggravated robbery allegations disjunctively. Thus, the jury charge set forth the single, specific statutory offense of aggravated robbery and included two alternative manner and means of committing that offense. "'[M]anner or means' describes how the defendant committed the specific statutory criminal act." Ngo, 175 S.W.3d at 745. The State is permitted to plead alternate manner and means of committing the same offense. Landrian, 268 S.W.3d at 535-36. "'Therefore, different modes of commission may be presented in a jury instruction in the disjunctive when the charging instrument, in a single count, alleged the different means in the conjunctive.'" Jourdan, 428 S.W.3d at 94 (quoting Pizzo, 235 S.W.3d at 715). Alternate manner and means of committing the same offense may be submitted to the jury without violating the right to a unanimous jury verdict. See Martinez v. State, 129 S.W.3d 101, 103 (Tex. Crim. App. 2004) ("The unanimity requirement is not violated by instructing the jury on alternate theories of committing the same offense[.]").
In this case, whether Appellant was guilty of aggravated robbery by threat or bodily-injury aggravated robbery, only a single robbery occurred. The jury charge instructed the jury to find Appellant guilty if it found either that he had threatened or placed Diane Porter in fear of imminent bodily injury or death or had caused bodily injury to her. This charge did not deprive Appellant of his constitutional right to a unanimous verdict. Appellant robbed the complainant by obtaining her property after he shot and threatened her. Therefore, the court of appeals did not err by holding that a special unanimity instruction was not necessary under the facts of this case. The robbery by threat to place Diane Porter in fear of imminent bodily injury or death or the robbery causing bodily injury to Diane Porter were simply alternative methods of committing the same robbery offense. Hence, the trial court did not err by instructing the jury that it was required to be unanimous as to whether Appellant was guilty of aggravated robbery by threat or bodily-injury aggravated robbery as no such unanimity was required.
CONCLUSION
There is no jury unanimity problem in this case. The jury unanimously found Appellant guilty of at least one of the two ways of committing aggravated robbery for which they were disjunctively authorized to find him guilty. We affirm the judgment of the court of appeals.
CONCURRING OPINION
Keller, P.J., filed a concurring opinion.
The Court gets it exactly right when it concludes that the double-jeopardy holding in Cooper means that there is no jury-unanimity violation in the present case. In my concurring opinion in Cooper, I made the point that the offense of robbery is sufficiently like the offense of capital murder to be treated the same way in determining whether different statutory methods of commission are merely different manners and means or are separate offenses. For both capital murder and robbery, many of the methods of commission are compound offenses, which suggests that the different methods of commission are mere manners and means and are not separate offenses.
Cooper v. State, 430 S.W.3d 426 (Tex. Crim. App. 2014).
Id. at 429-32 (Keller, P.J., concurring) (heading titled "Structure of the Robbery Statute and the Capital Murder Analogy").
There is a general pattern in the Penal Code for compound offenses: (1) a shared offense that is the same for every version of the compound offense, and (2) an underlying offense that varies, resulting in different methods of committing the compound offense. For capital murder, the shared offense is murder. A number of offenses can serve as the underlying offense for capital murder, including, for instance, kidnapping, burglary, robbery, and a second murder. Burglary is another example of an offense that can be a compound offense. The shared element in a burglary is entry.The underlying offense in a burglary can be a felony, a theft, or an assault. And robbery, too, can be a compound offense, although the list of underlying offenses is much shorter. The shared offense in a robbery is a theft. The possible underlying offenses for robbery are bodily injury assault and threat assault.
Id. § 19.03(a)(2), (4), (7).
Id. § 30.02(a)(1), (3).
Id.
Id. § 29.02(a).
Id. § 29.02(a)(1), (2).
Not every version of capital murder, burglary, and robbery are compound offenses. There are a number of ways to commit capital murder without an underlying offense, including murdering a peace officer, murdering for hire, and murdering a child under age 10. A burglary can be committed if entry is made with intent to commit certain offenses, even if an actual or attempted commission of the underlying offense never occurs. And a robbery can be committed if a person, while in the course of committing theft, "intentionally or knowingly . . . places another in fear of imminent bodily injury or death" even if that conduct does not rise to the level of a "threat" needed to establish an assault.
Id. § 19.03(a)(1), (3), (8).
Id. § 30.02(a)(1).
See id. § 29.02(a)(2) ("intentionally or knowingly threatens or places another in fear of imminent bodily injury or death"); 22.01(a)(2) ("intentionally or knowingly threatens another with imminent bodily injury"). See also Cooper, 430 S.W.3d at 432-34 (Keller, P.J., concurring) (arguing that a completed assault is not always required for a robbery).
At least ordinarily, and perhaps always, when a statute creates an offense that is a compound offense in some of its variations, all of the variations of the offense are simply different manners and means of commission, and they constitute a single offense for both double jeopardy and jury unanimity purposes. We have held this to be true, in the double-jeopardy and jury-unanimity context, for both capital murder and burglary. In the double-jeopardy context, we held it to be true of robbery in Cooper. The Court's holding in the present case is simply the natural progression of those cases.
Gardner v. State, 306 S.W.3d 274, 301-02 (Tex. Crim. App. 2009) (capital murder / jury unanimity); Kitchens v. State, 823 S.W.2d 256 (Tex. Crim. App. 1991) (capital murder / jury unanimity); Davis v. State, 313 S.W.3d 317, 342 (Tex. Crim. App. 2010) (capital murder and burglary / jury unanimity); Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex. Crim. App. 2006) (burglary / double jeopardy); Ramirez v. State, 621 S.W.3d 711, 713 n.2 (Tex. Crim. App. 2021) (capital murder / double jeopardy).
The dissent focuses on the offense of assault, which is never a compound offense. Focusing on the type of gravamen an offense involves-result of conduct, nature of conduct, or circumstances surrounding the conduct-works well for an offense that is never a compound offense. But a compound offenses create complications. The two different offenses that make up a compound offense can have different gravamina. Gravamina can also vary across possible underlying offenses.
In capital murder, for example, the shared murder element is a result offense but underlying offenses are mainly nature-of-conduct offenses (e.g., kidnapping or aggravated sexual assault), though a second murder would be a result offense, and burglary and robbery are themselves often compound offenses. In addition, some methods of committing capital murder that do not involve an underlying offense involve circumstances surrounding the conduct such as the victim being a peace officer or a child under age 10.
In a burglary, any felony can be an underlying offense, which would include offenses that fall in all three categories of gravamina. And both forms of assault-by bodily injury or by threat-could be alleged as underlying offenses for a burglary, but no one would seriously think that the inclusion of both methods of assault in a burglary case would result in separate offenses for jury unanimity purposes. Even setting aside that scenario, there could be a situation in which a defendant commits a single entry and then commits both a felony and an assault. The gravamen of the felony at issue (e.g., kidnapping with a nature-of-conduct gravamen) could be of a different type than the gravamen of the assault (e.g., a bodily injury assault with a result gravamen).
So it should not be a surprise that robbery, as an offense that is often (perhaps usually) a compound offense, could have alternate manners and means of commission with different types of gravamina. What complicates the question for the offense of robbery is that this Court has previously emphasized the "assaultive" nature of the offense in determining that the unit of prosecution is each victim rather than what is stolen. The common "theft" element of robbery does not have quite the prominence as the "murder" element in capital murder or the "entry" element in burglary. But the structure of the robbery statute mirrors the structure of the capital murder statute: a shared element (murder for capital murder, theft for robbery) followed by subsections enumerating alternative circumstances, many (but not all) of which constitute separate underlying offenses. That is different from the assault statute, in which three methods of committing assault are set forth in independent subsections. So, on balance, the robbery offense appears to be much more like the offense of capital murder than the offense of assault when it comes to how we view alternative methods of commission. And we essentially made that determination in Cooper when we found the different variations of robbery to be the same offense for double-jeopardy purposes. The dissent's arguments, if accepted, would also undermine the double-jeopardy holding in Cooper. The Court is correct not to accept those arguments. As with other offenses that fall within the "compound offense" category, robbery should be treated as a single offense with multiple manners and means of commission for both double jeopardy and unanimity purposes.
See id. at 430 (Keller, P.J., concurring) (discussing Ex parte Hawkins, 6 S.W.3d 554 (Tex. Crim. App. 1999)).
Compare Tex. Penal Code § 19.03(a) with id. § 29.02(a).
See id. § 22.01(a)(1), (2), (3).
I join the Court's opinion.
Yeary, J., filed a concurring opinion.
We granted discretionary review in this case, on our own motion, in order to address whether the two theories of robbery contained respectively in Sections 29.02(a)(1) and 29.02(a)(2) of the Texas Penal Code represent, for purpose of jury unanimity: (a) separate and distinct elemental ways of committing the offense; or (b) alternative manner or means by which a single statutory offense may be committed. Tex. Penal Code § 29.02(a). If the former, then to convict, a jury must reach a unanimous verdict that the defendant committed the offense in at least one of the separate and distinct elemental ways of committing it before the jury may convict him. If the latter, then the jury may convict the defendant of the single statutory offense without necessarily reaching unanimous agreement about which of the statutory alternatives he committed.
Section 29.02(a) reads:
(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 and with intent to obtain or maintain control of the property, he:
(1) intentionally, knowingly, or recklessly causes bodily injury to another; or
(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.Tex. Penal Code § 29.02(a).
Ramos v. Louisiana, 590 U.S. 83, 90 (2020) ("A jury must reach a unanimous verdict in order to convict.").
Today, the Court concludes that robbery by causing bodily injury (Section 29.02(a)(1)), and robbery by threat or placing another in fear of imminent bodily injury or death (Section 29.02(a)(2)), are simply different manner or means of committing the same statutory offense. It therefore concludes that jury unanimity is not required. Majority Opinion at 11. But the Court does not, to my satisfaction, explain why this ought to be the proper way to read the statute. Instead, it seems to base its conclusion about the requirement of unanimity entirely on the fact that this Court has already announced its conclusion that the same two statutory alternatives at issue in this case are the same for double jeopardy purposes. Id. at 7.
The Court has often said that, when we construe a penal statute in such a way as "to carve out separate offenses for double jeopardy purposes, we have essentially held that they are separate offenses for jury unanimity purposes as well." French v. State, 563 S.W.3d 228, 234 (Tex. Crim. App. 2018). And in the double-jeopardy context, the Court has indeed already construed Section 29.02, subsections (a)(1) and (a)(2), to constitute the same offense. Cooper v. State, 430 S.W.3d 426, 427 (Tex. Crim. App. 2014). I can certainly see, then, how one might conclude that the Court's opinion in French ought to dictate the answer to the jury unanimity question as well. See, e.g., Burton v. State, 510 S.W.3d 232, 237 (Tex. App.-Fort Worth 2017) (relying upon Cooper "to conclude that it was not error for the charge of aggravated robbery to be submitted in the disjunctive because causing bodily injury or threatening the victim are different methods of committing the same offense"). That is certainly the State's position in this case. Brief for the State at 9-10.
The problem is with Cooper itself. There, the five-judge majority opinion did not even attempt to offer a rationale in support of its holding. Instead, the Cooper majority simply announced in its three-paragraph opinion that, "[a]fter reviewing the opinion of the court of appeals, the record, and the briefs of the parties, we conclude that appellant's challenged convictions do violate the double jeopardy clause." Cooper, 430 S.W.3d at 427. It did not explain why it reached that conclusion.
The Cooper case did generate two concurring opinions and one dissenting opinion. Presiding Judge Keller offered her opinion as to why she believed a conviction under both subsections would be jeopardy barred, and she was joined in her concurring opinion by Judge Johnson (the author of the Court's majority opinion) Id. at 427-35 (Keller, P.J., concurring) Judge Cochran separately wrote to convey her own concurring rationale, joined only by Judge Alcala Id. at 435-39 (Cochran, J, concurring). Judge Price, joined by Judges Keasler and Hervey, dissented, arguing that Sections 29.02(a)(1) and 29.02(a)(2) should be construed as defining separate offenses. Id. at 440-44 (Price, J., dissenting). Judge Womack did not participate, and Judge Meyers joined only the abbreviated majority opinion, while joining neither of the concurring opinions that offered rationales in support of the majority's naked holding.
Meanwhile, the United States Fifth Circuit Court of Appeals has recently construed Sections 29.02(a)(1) and 29.02(a)(2) differently than the Cooper majority. More specifically, the Fifth Circuit concluded that the two statutory alternatives at issue in this case constitute more than mere manner or means of committing the same offense. See United States v. Garrett, 24 F.4th 485, 489-90 (5th Cir. 2022) (concluding that Sections 29.02(a)(1) and 29.02(a)(2) "unambiguous[ly]" constitute "divisible" offenses, not merely alternative manner or means of committing the same statutory offense, relying on this Court's opinion in Landrian v. State, 268 S.W.3d 532 (Tex. Crim. App. 2008)).
Other federal courts of appeals have come to the same conclusion as the Fifth Circuit did in Garrett. See Martin v. Kline, No. 19-15605, 2021 WL 6102175 (9th Cir. 2021) (not designated for publication); United States v. Wilkins, 30 F.4th 1198 (10th Cir. 2022). The majority opinion today reaches the opposite conclusion without mentioning, much less refuting, any of the arguments and considerations that led these various federal courts to conclude that Sections 29.02(a)(1) and 29.02(a)(2) constitute "divisible" offenses. See note 4, post.
We granted discretionary review in this case to address these disparities of judicial interpretation-to try to provide not only a definitive answer to the jury-unanimity question, but also, unlike the various separate opinions in Cooper, hopefully to present a unified rationale. A worthy objective, no doubt, but somewhat lacking today in the Court's execution. The Court's opinion today offers little more in the way of rationale than did the majority opinion in Cooper. And today's separate opinions offer no more definitive justification for the Court's conclusion than did the separate opinions in Cooper. Presiding Judge Keller essentially reiterates the rationale she articulated in her concurrence in Cooper. Judge Walker, like Judge Price in Cooper, provides a detailed argument why the majority's conclusion is wrong.
For my part, I agree that jury-unanimity issues, like double jeopardy issues, are primarily a matter of statutory construction. And I know that, in struggling to implement the Court's approach for construing statutes to determine jury-unanimity issues, I have been far less inclined than the Court to declare that statutory language describes mere non-elemental manner and means. E.g., Dunham v. State, 666 S.W.3d 477, 492-98 (Tex. Crim. App. 2023) (Yeary, J., dissenting) (arguing that subsections of the Deceptive Business Practices statute (Tex. Penal Code § 32.42, subsections (b)(1)-(b)(12)) set out alternative elements of the offense rather than mere manner or means of committing a single offense, for jury-unanimity purposes, for the kinds of reasons this Court has identified in the past). But I also acknowledge that, if the Legislature has included language in a penal statute that does not define an element of an offense, but instead merely consists of a statutorily defined manner or means for its commission, that is a matter within the Legislative prerogative alone. Similarly, if the Legislature has defined what an element of an offense is, it seems to me that we should acknowledge that definition and afford appropriate deference to the exercise of the legislative prerogative. Our Legislature is, after all, the department of government charged with enacting our laws. Tex. Const. art. III, § 1 ("The Legislative power of this State shall be vested in a Senate and House of Representatives[.]").
And there is a statute in our Penal Code, which does not appear to have been considered by the Court, that seems at least relevant to the determination of whether certain statutory words define elements of an offense or, instead, mere manners or means. Section 1.07(a)(22) of our Texas Penal Code provides that the phrase "'[e]lement of offense' means[,]" among other things, "the forbidden conduct[.]" Tex. Penal Code § 1.07(a)(22) (emphasis added). It seems odd to me, then, that the Court does not even attempt to offer any explanation for why the statutory alternatives at issue here-"causes bodily injury[,]" from Penal Code Section 29.02(a)(1), and "places another in fear of imminent bodily injury or death[,]" from Penal Code Section 29.02(a)(2)-are not properly understood to describe "the forbidden conduct[.]"
If the alternative statutory provisions at issue here do describe "forbidden conduct[,]" then the Court may be mistaken today, in light of the definition laid out in Penal Code section 1.07(a)(22), to conclude that the statutory alternatives are not elemental. The existence of a statute seeming to address the very question the Court struggles with should be the first place to look for an appropriate answer to a question of statutory construction like the one the Court faces in this case. Ultimately, though, I need not struggle with the Court's methodology long, because I conclude that any error in this case was clearly harmless.
The State makes a harmlessness argument in its brief on discretionary review. Brief for the State at 12-17. It is true that the Court of Appeals did not have to, and did not, address this question, and that this Court does not ordinarily decide an issue on discretionary review unless the court of appeals has first resolved it. Gilley v. State, 418 S.W.3d 114, 119 (Tex. Crim. App. 2014). But there are exceptions, id. at 119 & n.18 (citing Davison v. State, 405 S.W.3d 682, 691-92 (Tex. Crim. App. 2013)), and one seems to apply here. When an error is "plainly harmless," the Court has said, it can say so for the first time on discretionary review "for the sake of judicial economy." Johnstone v. State, 145 S.W.3d 215, 224 (Tex. Crim. App. 2004). I would do so here, and I would conclude that it is appropriate to uphold the court of appeals' unpublished opinion in this case as having, at the very least, reached the right bottom-line result.
Appellant apparently failed to object to the jury charge based on his present jury unanimity claim, since he argued on direct appeal that it caused him "egregious" harm. Appellant's Brief on Appeal at 16-17; see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g) (construing Tex. Code Crim. Proc. art. 36.19 to provide that unpreserved jury charge error will be reversible only if it causes "egregious" harm). In assessing the harmfulness of jury charge error, courts should consider four factors: (1) the entire jury charge; (2) the state of the evidence; (3) the jury arguments; and (4) any other relevant information as revealed by the record as a whole. Id. Considering these factors, it is clear enough to me that Appellant suffered no egregious harm, even assuming that the jury charge should have required unanimity with respect to whether he committed robbery-by-bodily-injury or robbery-by-threat.
Nothing in the balance of the jury charge either exacerbated or ameliorated the error (if any) in failing to require the jury to be unanimous with respect to the State's theories for how robbery was committed. Nothing in the final arguments of the parties even broached the subject of unanimity. And nothing else in the record served particularly to encourage the jury to reach a non-unanimous verdict with respect to the State's theories of robbery.
Regarding the state of the evidence, suffice it to say that, on the present record, there is no reason to doubt that the jury would have been unanimous with respect to both theories of robbery. See Majority Opinion at 2 (describing the offense). The contested issue in the case was not how the robbery was perpetrated. It was, instead, whether Appellant was the perpetrator at all. Floyd v. State, No. 02-22-00082-CR, 2023 WL 2033831, at *2-6 (Tex. App.-Fort Worth Feb. 16, 2023) (mem. op., not designated for publication).
This Court has said that "where a record reveals a risk of harm that is so small that it may properly be characterized as not 'remotely significant,' or where the risk of harm is 'almost infinitesimal,' any harm resulting from the error is only theoretical harm." French, 563 S.W.3d at 239 (internal footnotes omitted). We have also explained that mere theoretical harm will not even support a conclusion of "some" harm, much less "egregious" harm. Id. at 237 (citing Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986)). Considering the factors identified in Almanza, and indeed the record of this case as a whole, it is apparent to me that Appellant did not suffer egregious harm from the trial court's failure to sua sponte instruct the jury that it had to be unanimous about which statutory alternative was sufficiently supported by the evidence to justify Appellant's conviction.
For that reason alone, I concur in the result. But for now, I refrain from taking a final position with respect to the Section 29.02(a) jury-unanimity question by joining a majority opinion that, in my view, ill-explains its rationale. Instead of resolving the conundrum left by the Court's opinion in Cooper, as was our manifest ambition in granting discretionary review in this case, the Court's opinion seems merely to have perpetuated it.
The closest to a suggested rationale I can find in the Court's opinion appears on page 10: that, unlike in Garfias v. State, 424 S.W.3d 54 (Tex. Crim. App. 2014), which involved provisions from separately enumerated statutes, the instant case involves separate subsections of the same statute. Majority Opinion at 9-10. But that circumstance is far from determinative. In Garrett, to take but one example, the Fifth circuit observed:
The Texas simple robbery statute creates two distinct crimes, robbery-by-injury and robbery-by-threat. The pertinent portion of the statute is divided into two separate, numbered subdivisions separated by a semicolon. Moreover, the significance of this structural feature is confirmed by the conceptually distinct nature of each alternative; causing bodily injury is behavior meaningfully different from threatening or placing another in fear. And the different nature of these two crimes is further made apparent by their different culpable mental state requirements; robbery-by-injury can be committed "intentionally, knowingly, or recklessly," while robbery-by-threat can only be committed "intentionally or knowingly."Garrett, 24 F.4th at 489; see also id. at 489-90 (pointing out that Section 29.02(a) is structured much the same way as Texas's simple assault statute (Tex. Penal Code § 22.01(a)(1), (2)), which this Court has construed to contain "divisible" offenses, in Landrian v. State, 268 S.W.3d 532, 540 (Tex. Crim. App. 2008)). I simply cannot tell how the majority opinion arrives at its contrary, mere-manner-or-means conclusion today, and my suspicion is that it may, in fact, be wrong to draw that conclusion.
I therefore concur only in the result.
DISSENTING OPINION
Walker, J. filed a dissenting opinion.
The issue is whether aggravated robbery by threat is a separate offense from bodily-injury aggravated robbery or whether they are simply the manner and means by which one of the elements of a general aggravated robbery offense is accomplished. Because they are separate offenses, I respectfully dissent from the majority.
I. JURY CHARGE ERROR EXISTED
A. L AW
Pursuant to Texas law, a unanimous jury verdict is required in all criminal cases. Saenz v. State, 451 S.W.3d 388, 390 (Tex. Crim. App. 2014); Tex. Code Crim. Proc. Ann. art. 36.29(a) (the verdict "must be concurred in by each juror"). "[T]he jury must unanimously agree about the occurrence of a single criminal offense, but they need not be unanimous about the specific manner and means of how that offense was committed." Young v. State, 341 S.W.3d 417, 422 (Tex. Crim. App. 2011). In other words, the jury must unanimously agree on "each specific violation . . . that it found the defendant had committed." Ngo, 175 S.W.3d at 747; see Richardson v. United States, 526 U.S. 813, 817 (1999) (holding that "a disagreement about means-would not matter as long as all 12 jurors unanimously concluded that the Government had proved the necessary related element").
To clarify what requires jury unanimity, this Court distinguished three categories of criminal offenses: (1) result of conduct offenses, (2) nature of conduct offenses, and (3) circumstances of conduct offenses:
First, "result of conduct" offenses concern the product of certain conduct. For example, murder is a "result of conduct" offense because it punishes the intentional killing of another regardless of the specific manner (e.g., shooting, stabbing, suffocating) of causing the person's death. Thus, the death of one victim may result in only one murder conviction, regardless of how the actor accomplished the result. With the second category, "nature of conduct" offenses, it is the act or conduct that is punished, regardless of any result that might occur. The most common illustration of this second category is that of many sex offenses, where the act itself is the gravamen of the offense. Finally, "circumstances of conduct" offenses prohibit otherwise innocent behavior that becomes criminal only under specific circumstances.Young, 341 S.W.3d at 423. As a general rule, the statutory language determines what category of crime the offense falls under. Id. "A 'result of conduct' offense generally requires a direct object for the verb to act upon." Id. For example, in the murder statute, "'causes' is the verb, and 'death'- the result-is the direct object." Id. at 423-24.
In O'Brien, this Court explained how unanimity applies to each category of offense. O'Brien v. State, 544 S.W.3d 376, 383 (Tex. Crim. App. 2018). First, if a crime is categorized as "a result of the conduct offense," then "the jury must be unanimous about the specific result required by the statute." Id. Second, if a crime is categorized as a "nature of the conduct offense," then "the jury must be unanimous about the specific criminal act committed." Id. Third, if the offense is categorized as a "circumstances surrounding the conduct offense," then the jury must be unanimous about "the existence of the particular circumstance of the offense." Id.
B. APPLICATION
(1) The Two Offenses at Issue are Categorized as Different Offense Types.
Section 29.03(a) of the Texas Penal Code defines the crime of aggravated robbery as "[a] person commits an offense if he commits robbery as defined in Section 29.02 [.]" Tex. Pen. Code Ann. § 29.03(a) (emphasis added). Therefore, in order to analyze aggravated robbery, this Court first needs to examine the statute defining robbery. Section 29.02(a) defines the crime of robbery as "in the course of committing theft . . . and with intent to obtain or maintain control of the property" the perpetrator (1) "intentionally, knowingly or recklessly causes bodily injury to another" or (2) "intentionally or knowingly threatens or places another in fear of imminent bodily injury or death." Id.
Aggravated bodily-injury robbery is a result-oriented offense because it focuses on bodily injury, regardless of the act. Consequently, in order for the defendant to be convicted, the jury is required to unanimously agree that the defendant caused bodily injury to the victim. See O'Brien, 544 S.W.3d at 383. On the other hand, aggravated threat-robbery is a conduct-oriented offense, because it "focus[es] upon the act of making a threat, regardless of any result that threat might cause." See Landrian v. State, 268 S.W.3d 532, 536 (Tex. Crim. App. 2008) (distinguishing bodily injury assault from threat assault). Accordingly, each type of offense requires that the jury come to a unanimous decision about a different aspect-either the defendant caused injury to the victim, or the defendant threatened the victim. Hence, the two different kinds of offenses are not interchangeable, and the jury must come to a unanimous decision about which one, if any, the State proved beyond a reasonable doubt in order to convict the defendant.
(2) Cooper Does Not Support the Majority's Opinion.
But the majority, heavily relying on Cooper, holds that aggravated robbery by threat and bodily-injury aggravated robbery are the same offense because a conviction of both violates the double jeopardy clause. Cooper v. State, 430 S.W.3d 426 (Tex. Crim. App. 2014). However, Cooper does not support this conclusion because, as the majority emphasizes, the Cooper Court provided no discussion or analysis for its conclusion. Majority op. at 6. Cooper simply stated that two separate convictions of aggravated robbery violated double jeopardy, but this Court did not address jury unanimity. Cooper, 430 S.W.3d at 427. An answer to a double jeopardy question is not a conclusive answer to a jury unanimity question.
(3) Bodily-Injury Robbery and Threat-Robbery have Different Gravamina.
As the majority notes, the first step to answering a jury unanimity question is determining whether the Legislature intended to create multiple offenses or a single offense with alternate modes of commission. Majority op. at 8 (citing Jefferson v. State, 189 S.W.3d 305, 312 (Tex. Crim. App. 2006)). Further, the majority acknowledges that "[t]his Court has held that the focus or 'gravamen' of a penal provision should be regarded as the 'best indicator' when it comes to determining whether the Legislature intended to define more than one offense." Majority op. at 8 (citing Huffman v. State, 267 S.W.3d 902, 907 (Tex. Crim App. 2008) and Jourdan v. State, 428 S.W.3d 86, 95-96 (Tex. Crim. App. 2014)).
But while the majority recites those basic principles, it nevertheless veers away from the "best indicator" and instead focuses on the non-conclusive connections between jury unanimity and double jeopardy questions. I am more persuaded to stick with whether the Legislature intended to create multiple offenses based on the gravamina of the statute. Because the gravamen of the offense is the "best indicator" of Legislative intent, this Court should find that the Legislature intended to create two separate offenses under § 29.02: (1) robbery by causing bodily injury, and (2) robbery by threat. Tex. Pen. Code Ann. § 29.02(a).
(4) Bodily-Injury Offenses v. Threat-Based Offenses
Offenses based on bodily-injury are distinct from threat-based offenses. In Landrian, this Court decided a jury unanimity question regarding only bodily-injury offenses. Landrian, 268 S.W.3d 532. Even though, here, this Court is tasked with analyzing a bodily-injury offense and a threat-based offense, this Court's analysis in Landrian is important to this case because it illustrates why the distinguishable offenses warrant a different conclusion.
In Landrian, the defendant threw a glass bottle at the victim, causing the victim to lose his left eye. Id. at 533. The defendant was charged with aggravated assault by either "(1) intentionally or knowingly causing bodily injury by using a deadly weapon, a bottle, or (2) recklessly causing serious bodily injury by throwing a bottle in his direction." Id. The jury charge was disjunctive and did not require the jury to "reach a unanimous verdict on whether [Landrian] intentionally or knowingly caused bodily injury by using the bottle as a deadly weapon or whether he recklessly caused serious bodily injury by throwing the bottle in [the victim's] direction." Id. (emphasis added).
There, the Court held that a jury did not have to be unanimous when deciding if the defendant committed aggravated assault by either (1) serious bodily injury or (2) causing a bodily injury using a deadly weapon. Id. at 541-42. To be clear, there was not a question of aggravated assault by threat with a deadly weapon. The Court's reasoning was that "[t]he gravamen of this result-oriented offense is 'causing bodily injury.' Id. at 533. In other words, bodily-injury aggravated assault is proven by the same facts whether the injury was serious or caused by a deadly weapon. "Thus, both statutory aggravators of simple assault involve the use of a deadly weapon, either because a serious bodily injury is necessarily caused by a deadly weapon or because a deadly weapon is explicitly pled in the indictment." Id. at 538. Consequently, the jury did not have to agree whether the bodily injury was (1) serious or (2) caused by a deadly weapon, because both answers would result in the jury agreeing that there was bodily injury caused by a deadly weapon.
In contrast, here, Floyd was charged under § 29.03 with aggravated robbery by either (1) threatening or placing the complainant in fear of imminent bodily injury or death (robbery by threat) and using or exhibiting a deadly weapon (aggravating factor), or (2) causing bodily injury to the complainant (injury robbery) and using or exhibiting a deadly weapon (aggravating factor). The only overlap between the first two offenses is that a deadly weapon was used. However, the offenses, either (1) threatening the complainant or (2) injuring the complainant, are completely different because they have different gravamina. As a result, unlike Landrian, the jury does have to be unanimous when deciding if the defendant committed aggravated robbery by either threating the complainant or injuring the complainant.
(5) This Court has Held that the Assault Statute Describes Three Separate and Distinct Criminal Offenses, and the Offense of Robbery is Defined as an Assault that To ok Place During a Theft.
Additionally, Landrian controls this case because the definition of assault (the offense at issue in Landrian) is relevant to the definition of robbery (the offense at issue here). In Landrian this Court explained that the assault statute defines three separate and distinct offenses.
"[Landrian] begins by correctly noting that the statutory definition of simple assault sets out three distinct criminal offenses under Section 22.01(a)(1)-(3). These are "bodily injury" assault, assault by threat, and "offensive contact" assault. So far, so good. But he then contends that "adding the aggravating elements to the simple assault statute" creates "several different combinations" and "a variety of different ways of having an aggravated assault." That is true only if the underlying simple assault is pled as both "bodily injury" assault and assault by threat. In Marinos v. State, Dolkart v. State, and Gonzales v. State, three different courts of appeals properly held that simple "bodily injury" assault is a separate and distinct crime from simple assault by threat. Thus, aggravated assault under each distinct assaultive crime is a separate crime: aggravated assault with the underlying crime of assault by causing bodily injury and aggravated assault with the underlying crime of assault by threat. The first is a result-oriented offense and the second is a conduct-oriented offense.
But once the underlying type of assault is defined, then either of the aggravating factors set out under Section 22.02(a) may elevate that distinct assaultive crime to a second-degree felony. The aggravating factors or elements are simply the way in which the simple assault becomes a more serious offense."Landrian, 268 S.W.3d at 540 (emphasis added). Landrian illustrates that this Court has previously confirmed that bodily injury assault "is a separate and distinct crime from simple assault by threat." Id. This distinction is vital to our analysis because the offense of robbery is essentially composed of an individual who commits an assault in the course of a theft. In other words, robbery = theft + assault.
Marinos v. State, 186 S.W.3d 167, 174-75 (Tex. App.-Austin 2006, pet. ref'd).
Dolkart v. State, 197 S.W.3d 887, 893 (Tex. App.-Dallas 2006, pet. ref'd).
Gonzales v. State 191 S.W.3d 741, 748-49 (Tex. App.-Waco 2006, pet. ref'd).
Section 22.01(a) defines assault as:
(a) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse;
(2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; or
(3)intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.Tex. Pen. Code Ann. § 22.01(a). Turning again to the robbery statute, § 29.02(a) says:
(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 and with intent to obtain or maintain control of the property, he:
(1) intentionally, knowingly, or recklessly causes bodily injury to another; or
(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.Tex. Pen. Code Ann. § 29.02(a). Subsections one and two of the assault statute, which create two separate offenses, are nearly identical to subsections one and two of the robbery statute. In order for this Court to follow its own precedent, the Court must hold that the robbery statute also defines two separate and distinct offenses. The significance of the statute creating multiple offenses is that a jury must be unanimous in deciding what specific criminal offense occurred, but that unanimity was not present here.
(6) The Implication of the Majority's Decision Results in Permitting Jurors to Violate § 36.29, Which Requires Jury Unanimity.
Section 36.29(a) of the Texas Code of Criminal Procedure requires that every juror concurs in the verdict. Tex. Code Crim. Proc. Ann. art. 36.29(a). Nevertheless, the implication of the majority's decision would be to allow the jury to disagree about which offense they believe occurred, either (1) injury-robbery or (2) threat-robbery. Essentially, the jury would be allowed to disagree on whether the State proved assault through evidence of bodily injury or whether the State proved assault by evidence of threat. Because these are two separate offenses, the jury must be unanimous about which one the State proved occurred.
II. CONCLUSION
Under § 29.02(a), threat-robbery and bodily-injury robbery are separate offenses. As a result, the jury charge should have required the jury to be unanimous as to whether appellant was guilty of aggravated threat-robbery or aggravated bodily-injury robbery. The charge was erroneous, and for that reason I would reverse and remand to the court appeals to consider whether the harm was sufficient to warrant reversal of Appellant's conviction.
The Court "review[s] alleged charge error by considering two questions: (1) whether error existed in the charge; and (2) whether sufficient harm resulted from the error to compel reversal." Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005).