Cook v. State

• Decision Date: 29 April 1992
• Docket Number: No. 624-91,624-91
• Citation: 840 S.W.2d 384
• Parties: Stacey Allan COOK, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 384

840 S.W.2d 384

Stacey Allan COOK, v. The STATE of Texas, Appellee.

No. 624-91.

Court of Criminal Appeals of Texas En Banc.

April 29, 1992.

Rehearing Denied Nov. 4, 1992.

Randy Schaffer (on appeal only), Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Alan Curry and Bill Hawkins, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

Appellant was charged with two counts of the offense of attempted capital murder of a police officer and two counts of the offense of aggravated robbery. Appellant pled not guilty to all four counts. A jury acquitted appellant on both counts of attempted capital murder and convicted appellant on both counts of attempted capital murder and convicted appellant on both counts of aggravated robbery. Punishment was assessed at 75 years in the Texas Department of Corrections ¹ and a $2500.00 fine on count two of the indictment, and 50 years in the Texas Department of Corrections and a $2500.00 fine on count four. In an unpublished opinion, the court of appeals reformed the judgment to show an acquittal as to count four on double jeopardy grounds and affirmed the judgment as reformed. Cook v. State, No. 6-90-068-CR, Tex.App.--Texarkana, delivered March 26, 1991. We granted the State's petition for discretionary review to consider the limited ground of whether a person can be convicted in one proceeding for two counts of aggravated robbery, where two assaults but only one theft occurred, without violating double jeopardy prohibitions. We will affirm the judgment of the court of appeals. ²

A review of the pertinent facts will be necessary before beginning an analysis on double jeopardy grounds. The facts will be presented in the light most favorable to the State. Butler v. State, 769 S.W.2d 234 (Tex.Crim.App.1989). On November 25, 1988, Charlotte Mann went shopping at a Houston mall and became suspicious of two men in a pickup truck which had pulled up beside her car. She told police officer Jesus Thomas, who was on patrol at the mall, and he drove over toward Mann's car; Officer Thomas pulled up in front of the truck, and when he indicated he wanted to speak with the appellant (driver), the appellant drove away. A high speed chase ensued where Officer Thomas followed the appellant into a nearby neighborhood. The appellant stopped to let a passenger out and drove off, and Officer Thomas stopped, picked up the passenger, and transported him back to the mall. At that point, Mann told the officer that a hubcap was missing from her car.

Meanwhile, Officers Brooks, Sanchez and Pierce of the Houston Police Department, who had been separately patrolling the area, were informed of the high speed chase, the description and license plate number of the truck, and the theft at the mall. The officers joined in the chase which took them through residential areas at speeds up to seventy miles per hour, and onto highways, occasionally travelling in the wrong direction. Eventually, the appellant struck another truck in an intersection, causing him to lose control of his truck and run into a ditch. Officer Sanchez got out of his patrol car to arrest the appellant. Appellant, however, restarted his truck and drove it straight at Officer Sanchez, who later testified that he was afraid the appellant would run over and kill him. The appellant then drove at Officer Brooks' patrol car. Officer Pierce, meanwhile, had gotten out of his patrol car with his weapon drawn and had walked toward the truck which was now stopped. According to both police and civilian witnesses, the truck then lunged or jumped forward a foot or two toward Pierce. Pierce testified that he was in fear for his life because it seemed the appellant would run over and seriously hurt or kill him; as a result, he fired one shot through the windshield which struck the appellant in the shoulder. The appellant was arrested, and Charlotte Mann's hubcap was found in the truck on the passenger side floorboard.

On appeal, the appellant argued that when there is only a single theft of property from one person only one conviction on one count of aggravated robbery may be sustained, regardless of how many people were placed in fear of imminent bodily injury or death during the attempted flight from the theft. Therefore, conviction on more than one count of aggravated robbery would be a violation of the double jeopardy provisions under the Fifth Amendment to the United States Constitution and Article I, § 14 of the Texas Constitution.

The appellant relied on Ex Parte Crosby, 703 S.W.2d 683 (Tex.Crim.App.1986), and Simmons v. State, 745 S.W.2d 348 (Tex.Crim.App.1987), which stand for the proposition that after the defendant has been prosecuted and convicted in one trial for aggravated robbery against one victim, he cannot be prosecuted at a second trial for the aggravated robbery of a second victim where the State uses the same theft as the basis of the second prosecution. Although the appellant was convicted of both offenses in a single trial, he argued that because he appropriated the hubcap of only one person, Charlotte Mann, he can only be convicted on one count of aggravated robbery regardless of the fact that he assaulted two different police officers in his immediate flight. The State countered that convictions on two counts of aggravated robbery did not violate double jeopardy prohibitions because the robbery statute is designed to protect people from assault; therefore, the State may prosecute two robberies as long as two different assault victims are involved. The court of appeals, without analysis but citing Crosby and Simmons, agreed with the appellant that double jeopardy provisions had been violated.

The State now argues that the determination by the court of appeals was in conflict with this Court's determinations in Crank v. State, 761 S.W.2d 328 (Tex.Crim.App.1988); Hightower v. State, 629 S.W.2d 920 (Tex.Crim.App.1981) (robbery is an assaultive offense); Phillips v. State, 787 S.W.2d 391 (Tex.Crim.App.1990); and Spradling v. State, 773 S.W.2d 553 (Tex.Crim.App.1989) (punishment for assault of more than one victim of offense does not violate double jeopardy). The State analogizes aggravated robbery to aggravated assault by stating that the Legislature intended to protect the victims of the assault involved in robbery, not just the victims of the theft. The State contends that the Legislature intended that assaultive conduct against each victim constitutes a separate offense, therefore double jeopardy provisions have not been violated where each offense is prosecuted in one proceeding.

In Phillips, this Court stated that:

It is axiomatic the Legislature has the power and the vested authority to establish and define crimes. Few, if any, limitations are imposed by the Double Jeopardy Clause on the legislative power to define offenses.

Phillips, 787 S.W.2d at 395, citing Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978). In Phillips this Court upheld the conviction in a single trial of two counts of aggravated assault on two individual victims. There, the appellant caused serious injuries to two passengers in an automobile after he, while under the influence of alcohol, recklessly drove his car over the median. The charges on each of the indictments differed only in naming the victim. This Court reasoned that the Legislature intended to protect each person in that automobile, therefore the appellant could be punished for each assault on each victim.

[T]he Legislature, when it enacted Section 22.02 (the assault statute of the Texas Penal Code), a result oriented statute, intended the offense of assault to be complete with the injury of a single individual. The wording of Section 22.02 ... is unambiguous, providing that 'a person commits an offense if that person commits an assault against another'.... The Double Jeopardy Clause has no application to a multiple victim offense when, as here, it is the legislative intent to prohibit serious bodily injury to persons, and accordingly, to enforce this intent by proscribing the appropriate punishment for each such offense.

Phillips, 787 S.W.2d at 395.

This Court addressed the issue of multiple prosecutions under one statute in Spradling v. State, 773 S.W.2d 553, 557 (Tex.Crim.App.1989). ³ The issue of multiple prosecutions, however, is not applicable to this case, as the appellant here was twice convicted in a single trial. Yet Spradling, as well as Phillips, is applicable because in both cases this Court interpreted the express wording of the relevant statutes to determine that the Legislature intended to protect each victim of the assault, and thus found no double jeopardy violation.

This Court has interpreted the robbery statute and concluded that the actual completion of a theft is not necessary for the conduct to constitute robbery, but that "theft is a integral part of the offense of aggravated robbery." ⁴ See also Ex parte Santellana, 606 S.W.2d 331 (Tex.Crim.App.1980); Tex.Penal Code Ann. § 29.02. ⁵ This Court concluded in Crosby and Simmons that where only one theft occurs, there is only one robbery.

The State has asked us to revisit Crosby and Simmons. In Crosby the defendants broke into a married couple's home, injured both spouses, and took money only from the husband, W.H. Thurston. The defendants pled guilty to aggravated robbery of W.H. Thurston, the aggravating element being that defendants caused serious bodily injury to W.H. Thurston. Subsequently, the defendants pled guilty to another aggravated robbery of W.H. Thurston, the aggravating element being that defendants caused serious bodily injury to the wife, Mary Alice Thurston. The name of the victim of the assaultive conduct was the only difference between the two indictments. This Court considered the Double Jeopardy implications of the two...