Ex parte Hawkins, 120899

• Decision Date: 08 December 1999
• Parties: (Tex.Crim.App. 1999) EX PARTE MARK ANTHONY HAWKINS, Applicant NO. 73,548
• Court: Texas Court of Criminal Appeals

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6 S.W.3d 554 (Tex.Crim.App. 1999) EX PARTE MARK ANTHONY HAWKINS, Applicant NO. 73,548 IN THE COURT OF CRIMINAL APPEALS OF TEXAS December 8, 1999

ON APPLICATION FOR A WRIT OF HABEAS CORPUS FROM DALLAS COUNTY

Before the court en banc.

WOMACK, J., delivered the opinion of the Court, in which MCCORMICK, P.J., and MANSFIELD, KELLER, PRICE, HOLLAND, and KEASLER, JJ., joined.

In this case we revisit the question, how many robbery prosecutions may be brought when an actor assaults more than one person in the course of stealing one item of property.

In January, 1993 a grand jury presented an indictment that alleged that the applicant

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committed aggravated robbery of Gilberto Trevino, III on or about January 3, 1993.¹ In July another grand jury presented an indictment that alleged that he committed aggravated robbery of Chris Shipman on the same date.² On September 9 the applicant pleaded guilty to both indictments and was sentenced to two concurrent life terms. There was no plea-bargain agreement. The judgments were affirmed on appeal.

The applicant now seeks habeas corpus relief. He claims, among other things, that the Double Jeopardy Clause of the Fifth Amendment was violated by the two convictions.³ He alleges, "Gilberto Trevino III, took the defendant, Mark Anthony Hawkins, to his manager once - not twice. ... You can not take money then turn around and take the same money again when you have the initial money already. Applicant was convicted in a single trial in two counts ... for the same offense of aggravated robbery." The judge of the convicting court has found, "The facts of this case indicate that Applicant held a gun to the head of Gilbert Trevino and led him to the cashier, Chris Shipman and pointed the gun at both of them as the bag was filled."

The applicant's claim is supported by a line of three of our cases, which we shall reexamine. We shall look first at their treatment of the Double Jeopardy Clause. We shall find that, when the applicable law of jeopardy is correctly understood, the constitutional protection depends on the legislature's choice of the allowable unit of prosecution. When we turn to our holdings on that legislative choice, we shall find that the line of three cases conflicts with another line of our cases.

The leading case in the line that supports the applicant is Ex parte Crosby, 703 S.W.2d 683 (Tex. Cr. App. 1986). Crosby and an accomplice broke into a residence, caused serious bodily injury to the husband and wife who lived there, and took a wallet from the person of the husband. They each pleaded guilty to two aggravated robberies for two concurrent life sentences. Then each sought habeas relief from the second conviction on double jeopardy grounds.

As to double jeopardy law, the Crosby Court rejected the Blockburger test because two distinct statutory provisions were not involved.⁴ It relied on Brown v. Ohio, 432 U.S. 161, 169 (1977), for the rule that prosecutors could not avoid the Double Jeopardy Clause by "dividing a single crime into a series of temporal of spatial units [sic]."⁵

The Court was correct that the Blockburger test was irrelevant, but it was not quite right in its citation to Brown v. Ohio. Brown was convicted under two statutes for offenses that were continuous, and one of which was a lesser included offense of the other.⁶ So the state was trying to

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divide one offense into two. This is not true of Crosby, in which only one statute was involved and, as everyone agrees, two offenses were committed. The Crosby problem is that each offense was proved in part by the same evidence. The jeopardy concept that applies is the "allowable unit of prosecution," which ultimately is determined by penal statutes.

The concept of the allowable unit of prosecution was set out in Sanabria v. United States, 437 U.S. 54, 6970 (1978):

It is Congress, and not the prosecution, which establishes and defines offenses. Few, if any, limitations are imposed by the Double Jeopardy Clause on the legislative power to define offenses. Brown v. Ohio, 432 U.S. 161, 165 (1977). But once Congress has defined a statutory offense by its prescription of the "allowable unit of prosecution," United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 221 (1952) [(allowable unit of prosecution under Fair Labor Standards Act was a course of conduct in setting wages below the statutory minimum, not each week's payment to each employee)]; Bell v. United States, 349 U.S. 81 (1955) [(allowable unit of prosecution under the Mann Act was an act of transportation for immoral purposes, not the number of women transported)]; Braverman v. United States, 317 U.S. 49 (1942) [(a single agreement to violate several penal statutes can result in only one conspiracy conviction)]; In re Nielsen, 131 U.S. 176 (1889) [(Double Jeopardy Clause would not permit government to convict a man of bigamy, a continuous offense, and then prosecute him for committing adultery with the same wife on the next day)], that prescription determines the scope of protection afforded by a prior conviction or acquittal. Whether a particular course of conduct involves one or more distinct "offenses" under the statute depends on this congressional choice.

[Footnote 24:] See Note, Twice in Jeopardy, 75 Yale L. J. 262, 268, 302310 (1965). Because only a single violation of a single statute is at issue here ... the case [is not] controlled by decisions permitting prosecution under statutes defining as the criminal offense a discrete act, after a prior conviction or acquittal of a distinguishable discrete act that is a separate violation of the statute. See, e. g., Ebeling v. Morgan, 237 U.S. 625 (1915)[(permitting multiple convictions for opening multiple sacks of mail during a single incident)]; Burton v. United States, 202 U.S. 344 (1906) [(permitting convictions for both agreeing to receive, and receiving, compensation for doing prohibited act)]. Cf. Ladner v. United States, 358 U.S. 169 (1958) [(single shotgun blast at multiple federal law enforcement agents is a single assault)]; Bell v. United States, 349 U.S. 81 (1955) [see text above].

This passage from Sanabria tells us several things: The Double Jeopardy Clause is offended if a defendant is successively prosecuted for the same offense. The legislature defines whether offenses are the same. It does so by prescribing the "allowable unit of prosecution," which is "a distinguishable discrete act that is a separate violation of the statute." And the

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discovery of the allowable unit of prosecution is a task of statutory construction.⁷

Our line of cases got off on the wrong foot when the Crosby Court identified the double jeopardy question as the one addressed in Brown v. Ohio rather than the one that is resolved by finding the allowable unit of prosecution.

The next case in the line, Simmons v. State, 745 S.W.2d 348 (Tex. Cr. App. 1987), went another step off the correct constitutional path. Simmons was convicted in two trials under two indictments for aggravated robberies of a man and a woman during the course of committing theft from the man. The court of appeals used the Blockburger test to overrule his double jeopardy claim. Id. at 350. This Court began by holding that Crosby controls.

As to the double-jeopardy law, the Simmons Court said a "second basis for reversal was found in January v. State, 695 S.W.2d 215 (Tex. App. - Corpus Christi, 1985), affirmed on State's petition for discretionary review in January v. State, 732 S.W.2d 632 (Tex. Cr. App. 1987)." Simmons v. State, 745 S.W.2d at 351. We recognize now that the issue in January was not the same as that in Simmons.

In January, convictions in one trial for kidnapping and attempted capital murder in the course of kidnapping were held to violate the Double Jeopardy Clause. The Thirteenth Court of Appeals correctly looked to In re Nielsen, 131 U.S. 176 (1889), in which it was held to be double jeopardy to convict a man for bigamy and then prosecute him for committing adultery, a continuous offense, with the same wife on the next day after the end of the bigamy offense. In Nielsen the Supreme Court held that the adultery was a necessary part of, and a lesser included offense of, the bigamy. Similarly, January's continuous kidnapping was a necessary part of the attempted capital murder of the same victim.

The Simmons Court misapplied January by saying that, just as the same adultery could not be prosecuted twice in Nielsen, and the same kidnapping could not be prosecuted twice in January, the same theft could not be used for two robberies. The difference between the cases is that Nielsen and January were prosecutions under different statutes, and one prosecution was for a continuous offense that functionally included the other offense, while Simmons was prosecuted for repeated offenses of the same statute, under which the question was the allowable unit of prosecution.⁸

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In the third case in the line, Cook v. State, 840 S.W.2d 384 (Tex. Cr. App. 1992), the Court turned directly to double-jeopardy law. Cook was convicted of two aggravated robberies on evidence that he committed aggravated assault of two police officers in immediate flight after the commission of a single theft. The Cook Court identified the issue by saying, "We are concerned here with the protection against multiple punishments for the same offense." Id. at 389.

But there really was no independent double-jeopardy issue in Cook. There was no issue of successive prosecutions because the defendant was convicted of two offenses in one trial.⁹ And the issue of multiple punishments in one trial is entirely a question of legislative intent. See Missouri v. Hunter, 459 U.S. 359 (1983). Cf. Sanabria v. United States, supra. So the determinative issue was one of state law: whether the legislature intended a person to be convicted for two robberies when he tried to injure two persons, but property was stolen only from...