Ex parte Crosby
| Citation | 703 S.W.2d 683 |
| Decision Date | 05 February 1986 |
| Docket Number | Nos. 69535,69536,s. 69535 |
| Parties | Ex parte Bertram CROSBY, Applicant. Ex parte Lillie Rene ERWIN, Applicant. |
| Court | Texas Court of Criminal Appeals |
Applicants filed applications for writs of habeas corpus pursuant to Art. 11.07, V.A.C.C.P. Applicants allege that their constitutional rights against double jeopardy have been violated.
Applicants broke into a residence owned and occupied by W.H. Thurston and his wife, Mary Alice Thurston, with the intent to commit robbery. After causing bodily injury to both W.H. and Mary Alice Thurston, applicants robbed only W.H. Thurston and fled.
On September 21, 1983, each applicant pleaded guilty to the aggravated robbery of W.H. Thurston and was sentenced to life imprisonment. The aggravating element of these indictments alleged that the applicants caused "serious bodily injury to W.H. Thurston." 1 Subsequently, each applicant again pleaded guilty to the aggravated robbery of W.H. Thurston and received an additional life sentence which was to run concurrently with the sentence already imposed. The aggravating element of these subsequent indictments alleged that applicants caused "serious bodily injury to Mary Alice Thurston." 2 Thus, each applicant was convicted twice for the aggravated robbery of W.H. Thurston. The only difference in the offenses charged was the person alleged in the indictments to have suffered serious bodily injury.
Applicants argue that the second conviction is a violation of the guarantee against double jeopardy embodied in the Fifth Amendment to the United States Constitution, Art. I, Sec. 14 of the Texas Constitution and Art. 28.13, V.A.C.C.P.
An examination of the relevant statutory provisions makes clear that the indictment(s) alleged the same offense and that the applicants' rights against double jeopardy have been violated. Under V.T.C.A., Penal Code, Sec. 29.03, a person commits the offense of aggravated robbery if he commits robbery as defined in Sec. 29.02 and (1) causes serious bodily injury to another; or (2) uses or exhibits a deadly weapon. Under V.T.C.A., Penal Code, Sec. 29.02, a person commits the offense of robbery if, while in the course of committing theft as defined in Chapter 31 of the Penal Code and with the intent to obtain and maintain control of the property, the defendant: (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. And under V.T.C.A. Penal Code, Sec. 31.03 a person commits the offense of theft if he unlawfully appropriates property with intent to deprive the owner of the property. In sum, the elements of aggravated robbery as presented in this case are:
(1) while in the course of committing theft;
(2) with the intent to obtain and maintain control of property owned by W.H. Thurston;
(3) with the intent to deprive W.H. Thurston of that property;
(4) without the effective consent of W.H. Thurston;
(5) caused serious bodily injury to another.
The Penal Code makes it clear that theft is an integral part of the offense of aggravated robbery. In the instant case only one theft of one person occurred. Thus, only one aggravated robbery can have taken place. Applicants appropriated property belonging to W.H. Thurston. The fact that they assaulted more than one person in the course of that theft does not mean that more than one aggravated robbery took place. Perhaps applicants could have been indicted for aggravated assault with respect to Mary Alice Thurston but they should not have been indicted and convicted for an additional aggravated robbery.
As the United States Supreme Court said in Brown v. Ohio, 432 U.S. 161, 169, 97 S.Ct. 2221, 2227, 53 L.Ed. 187 (1977):
The Double Jeopardy...
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