Cooper v. State

• Decision Date: 14 May 2014
• Docket Number: No. PD–1022–12.,PD–1022–12.
• Citation: 430 S.W.3d 426
• Parties: Michael COOPER, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

430 S.W.3d 426

Michael COOPER, Appellant

v.The STATE of Texas.

No. PD–1022–12.

Court of Criminal Appeals of Texas.

May 14, 2014.

Linda Icenhauer–Ramirez, Austin, TX, for Appellant.

Elizabeth Phillips, Assistant District Attorney, Lisa C. McMinn, State's Attorney, Austin, TX, for the State.

OPINION

JOHNSON, J., delivered the opinion of the Court in which KELLER, P.J., and MEYERS, COCHRAN, and ALCALÁ, JJ., joined.

Appellant was convicted of five counts of aggravated robbery pursuant to an indictment that named three different complainants, with all counts arising from a single home invasion. Two counts named Andrew Chaney as the complainant, two counts named James Barker as the complainant, and one count named Paul Linden as the complainant. The jury found him guilty of all five counts in the single indictment and assessed appellant's punishment at imprisonment for 60 years on two of the counts, 80 years on two other counts, and 65 years on the remaining count. The trial court sentenced appellant accordingly and ordered all five sentences to be served concurrently. The court of appeals affirmed the judgments. Cooper v. State, 373 S.W.3d 821 (Tex.App.–Austin 2012).

In his petition to this Court, appellant raises two grounds, both of which challenge the court of appeals's holding that the Double Jeopardy Clause of the United States Constitution was not violated when he was convicted of both aggravated robbery by causing bodily injury and aggravated robbery by threat to the same victim during a single robbery. These grounds involve appellant's convictions for two separate counts of aggravated robbery of each of two of the named complainants, Andrew Chaney and James Barker. He does not challenge his conviction for robbing Linden.

We granted review. After 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. Accordingly, we sustain appellant's grounds for review. We reverse the judgment of the court of appeals and remand this cause to that court for further proceedings and appropriate disposition.

KELLER, P.J., filed a concurring opinion in which JOHNSON, J., joined.

COCHRAN, J., filed a concurring opinion in which ALCALÁ, J., joined.

PRICE, J., filed a dissenting opinion in which KEASLER and HERVEY, JJ., joined. WOMACK, J., did not participate.

KELLER, P.J., filed a concurring opinion in which JOHNSON, J., joined.

This case presents “an exceedingly complex double-jeopardy question” ¹ regarding whether the State may obtain two aggravatedrobbery convictions involving the same victim and the same transaction. At issue is whether the State may obtain a conviction for aggravated robbery by “threat” and a conviction for aggravated robbery by causing bodily injury. Had one of those two convictions been for the lesser-included offense of aggravated assault instead (the bodily injury count), this case would have been legally indistinguishable from our recent opinion in Garfias v. State.² But the State in the present case did not settle for one conviction for aggravated robbery and one conviction for aggravated assault. Instead, the State obtained two convictions for aggravated robbery. I agree with a majority of this Court that the two convictions for aggravated robbery violates double jeopardy. I further agree to remanding this case to the court of appeals to determine the appropriate remedy in the first instance.

A. Error: The Underlying Elements are Alternative Methods of Committing the Same Offense

1. Only One Statute is at Issue

The offense of aggravated robbery incorporates the elements of the lesser offense of robbery, and it is the provisions of the robbery statute, alone, that are at issue here. Parsing the provisions of a single statutory section “is unlike a situation involving different statutes,” because the codification of offenses in different statutes is by itself “some indication of legislative intent to authorize multiple prosecutions.” ³ When a double-jeopardy claim involves the provisions of a single statute, we perform a “units” analysis to determine the allowable unit of prosecution that the statute prescribes and how many units have been shown at trial.⁴ The allowable unit of prosecution a statute prescribes is purely a matter of statutory construction, but it is a less structured analysis than that required in the two-statute scenario, with all relevant information being reviewed in an attempt to ascertain the legislature's intent.⁵

In ascertaining the unit of prosecution, a court will face one of two basic fact patterns. Sometimes, the court must address whether the State can punish a defendant multiple times for the same statutorily prohibited conduct. ⁶ This fact pattern is implicated when a court is called upon to determine, for example, whether separate offenses can be prosecuted based upon there being more than one victim, or more than one item taken, or more than one item of contraband possessed.⁷ The second fact pattern occurs “when the same statutory section lists multiple methods of committing an offense, and this Court is called upon to determine whether these different methods of commission are different offenses or are merely alternate means of committing the same offense.” ⁸

In either fact pattern, the best indicator of legislative intent with respect to the unit of prosecution is generally the focus or gravamen of the offense. ⁹ We have also said that the unit of prosecution “tends to be defined by the offense element that requires a completed act.” ¹⁰ And we have also explained that we can use grammar as an aid in determining focus or gravamen.¹¹ But, if after looking at all relevant factors, we find the legislature's intent with respect to the unit of prosecution to be insolubly ambiguous, we should keep in mind that the provisions at issue are in the same statutory section, and we should resolve uncertainty in favor of a conclusion that they are alternative manners and means of committing the same offense.

2. Structure of the Robbery Statute and the Capital Murder Analogy

The robbery statute provides:

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.¹²

Judge Price's position is, at least implicitly, that the two subsections of the robbery statute cited above set forth two separate underlying offenses of assault: assault by threat and assault by causing bodily injury. He further contends that, because assault by threat is a separate offense from assault by causing bodily injury, a robbery that incorporates an assault by threat would be a separate offense from a robbery that incorporates an assault by causing bodily injury.

It is true that we have characterized bodily-injury assault as “a separate and distinct crime” from assault by threat and, also, that an “aggravated assault under each distinct assaultive crime is a separate crime.” ¹³ “[O]nce the underlying type of assault is defined, then either of the aggravating factors set out [in the aggravated-assault statute] 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.” ¹⁴

But the unit of prosecution for a greater offense is not always wholly defined by the unit of prosecution for an underlying lesser offense. For example, no one would dispute that robbery and aggravated sexual assault are separate offenses, even when those offenses are committed against the same person in the same transaction. But incorporate those lesser offenses into a capital-murder charge ¹⁵ and they become alternative methods of committing capital murder rather than separate capital-murder offenses. ¹⁶ The State could not obtain two capital-murder convictions based on the killing of a single person during the course of a robbery and an aggravated sexual assault. But the State could limit its theory of capital murder to murder in the course of a robbery and then pursue the aggravated sexual assault as a separate offense. Analytically, that is exactly what happened in Garfias with respect to the offense of aggravated robbery: 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.

Is robbery more like aggravated assault or more like capital murder? It is true that we emphasized the assaultive aspect of robbery in Hawkins and used that emphasis as part of the reasoning for our later observation in Jones that a gravamen element tends to be one that requires a completed act. ¹⁷ We explained that the robbery statute does not require that a theft be completed; ¹⁸ it requires only that the person be “in the course of committing theft.” ¹⁹ And in Hawkins we characterized robbery as “a form of assault.” ²⁰Hawkins and Jones both involved the first fact pattern in a units inquiry—whether a person can be punished multiple times for the same statutorily prohibited conduct. In Hawkins, the defendant threatened two people but stole only one item,²¹ and we held that the unit of prosecution was each victim threatened.²² In Jones, the defendant made three false statements apiece in two loan applications,²³ and we held that the unit of prosecution was each false statement.²⁴ The observations made in those cases make sense in the context of the fact pattern that existed in those cases, which required counting multiple instances of the same statutorily proscribed behavior. With respect to robbery, if a theft is not complete, there are no stolen items to count. But in every robbery, the assaultive conduct ²⁵ is complete, so...