Mccrary v. State , 06–09–00232–CR.

• Decision Date: 02 November 2010
• Docket Number: No. 06–09–00232–CR.,06–09–00232–CR.
• Parties: Doyle Lee McCRARY, Appellant,v.The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

327 S.W.3d 165

Doyle Lee McCRARY, Appellant,

v.The STATE of Texas, Appellee.

No. 06–09–00232–CR.

Court of Appeals of Texas, Texarkana.

Submitted: Sept. 16, 2010.Decided: Nov. 2, 2010.

William M. Curley, Palestine, for appellant.Donna Kaspar, Dist. Atty., Crockett, for appellee.Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Justice MOSELEY.

In a single jury trial, Doyle Lee McCrary was tried and convicted, ¹ and his punishment was assessed, for aggravated assault with a deadly weapon, injury to an elderly person, and aggravated robbery, arising from his role in the botched attempt to steal thousands of dollars from Hollis Ellis, an elderly person, who was repeatedly struck in the head with a hammer by Rebecca Cleveland on December 9, 2008.² We affirm the judgment of the trial court because McCrary's convictions do not violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution ³ and because McCrary was not entitled to the inclusion of certain purported lesser-included offenses in the charge of the court.

I. FACTS AND PROCEDURAL POSTURE

In a multi-count indictment, McCrary was charged with aggravated assault with a deadly weapon, injury to an elderly person, and aggravated robbery, committed against the same victim on the same date. The jury charge authorized the jury to convict McCrary of all three offenses, which it did. The jury assessed punishment at fifteen years' imprisonment in the Texas Department of Corrections—Institutional Division—for the aggravated assault conviction, thirty years' imprisonment for the injury to an elderly person conviction, and twenty-five years' imprisonment for the aggravated robbery conviction. All sentences are to run concurrently. McCrary contends on appeal that he could not be punished for all three offenses consistent with the Fifth Amendment prohibition against double jeopardy. He further contends the trial court erred in failing to submit certain lesser-included charges to the jury for consideration.

The evidence at trial showed that during the afternoon hours of December 9, 2008, Eric Cleveland and his wife, Rebecca, along with McCrary, traveled to Ellis' home in Houston County, Texas, with the intention of robbing Ellis of the thousands of dollars he was known to routinely carry in his pants pocket. The three planned the robbery the preceding day, and determined that Rebecca would hit Ellis with a hammer she had hidden in the sleeve of her pullover jacket, take his money, and leave.⁴ McCrary was to attack Jimmy Lenox ⁵ if he got in the way and Cleveland was to act as a lookout and drive the car. As they arrived at Ellis' house, McCrary grabbed the hammer and told Rebecca to hit Ellis with it, but not to kill him. Rebecca told Lenox, who answered the door, that she was having car trouble and asked him to go out and take a look at it.

Once outside, Lenox saw Cleveland and McCrary, who was wearing a bandana around his face. After McCrary (who knew Lenox and Ellis) explained it was a joke, Lenox proceeded to check the car for problems. Meanwhile, inside the house, Rebecca approached eighty-one-year-old Ellis and asked for money. When Ellis stated that he did not have any money, Rebecca retrieved a hammer from under her shirt, fell in Ellis' lap, and beat him in the head with the hammer. Here, the testimony differs. According to Ellis, he caught the hammer and she ran from the house. According to Cleveland, who entered the house when he heard Ellis shout for help, he grabbed his wife's wrist and pulled her out of the house. When they saw Lenox approach with a gun, the three ran from the house and sped away in the car in which they arrived—one that had no problems, according to Lenox. Even though Lenox fired on the car as the three made their getaway, they were able to escape without injury. Each of the three were arrested a short time later for the actions committed on that December afternoon. Ellis was hospitalized in the intensive care unit of the local hospital overnight, but recovered from his injuries and testified at trial.

II. ANALYSISA. Double Jeopardy

The indictment contained three counts accusing McCrary of aggravated assault with a deadly weapon ⁶ (count one), injury to an elderly person ⁷ (count two), and aggravated robbery ⁸ (count three). McCrary made no objection at trial regarding the submission of each of the three counts to the jury, and all counts were therefore submitted. The jury convicted McCrary on each count. On appeal, McCrary claims all three charges are the result of conduct-oriented behavior, and allege the same act, the same injury, and the same individual, thus violating the protections afforded by the Double Jeopardy Clause of the Fifth Amendment.

While McCrary did not raise his double jeopardy claim in the trial court, under certain circumstances, a double jeopardy claim may be raised for the first time on appeal when the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and when enforcement of usual rules of procedural default serve no legitimate state interests. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex.Crim.App.2000).

The Fifth Amendment guarantee against double jeopardy protects against a second prosecution for the same offense following conviction, a second prosecution for the same offense following an acquittal, and against multiple punishments for the same offense. Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); Ex parte Cavazos, 203 S.W.3d 333, 336 (Tex.Crim.App.2006). McCrary invokes the third of these protections. For convictions involving multiple punishments for the same offense, the double jeopardy violation is clearly apparent on the face of the record when the record affirmatively shows multiple punishments resulting from the commission of a single act that violated two separate penal statutes, one of which is subsumed in the other. See Cervantes v. State, 815 S.W.2d 569, 572 (Tex.Crim.App.1991). Because it is apparent that McCrary's convictions are based on the same conduct, if there is a double jeopardy violation, it is apparent on the face of the record. See, e.g., Johnson v. State, 208 S.W.3d 478, 510 (Tex.App.-Austin 2006, no pet.). McCrary is therefore entitled to raise his double jeopardy complaints for the first time on appeal.

(1) Conviction for Injury to an Elderly Individual is Not a Double Jeopardy Violation

We begin our analysis of McCrary's double jeopardy claim by looking to the second count of the indictment, which alleges injury to an elderly person, pursuant to Section 22.04 of the Texas Penal Code. Tex. Penal Code Ann. § 22.04 (Vernon Supp.2010).⁹ McCrary was convicted of “[i]ntentionally or knowingly caus[ing] serious bodily injury to Hollis Ellis, an individual 65 years of age or older, by hitting him in the head with a hammer.” Section 22.04(h) plainly authorizes multiple punishments when a defendant's conduct violates both Section 22.04 and another Penal Code section:

A person who is subject to prosecution under both this section and another section of this code may be prosecuted under either or both sections....Tex. Penal Code Ann. § 22.04(h).

The double jeopardy guarantee against multiple punishments for the same offense is designed to prevent the sentencing court from prescribing greater punishment than the Legislature intended. Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); Ex parte Kopecky, 821 S.W.2d 957, 959 (Tex.Crim.App.1992). When the same conduct violates more than one distinct penal statute and each statute requires proof of a fact that the other does not, it is presumed that the two offenses are not the same and that the Legislature intended to authorize multiple punishments. Hunter, 459 U.S. at 366, 103 S.Ct. 673; Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Conversely, if all the elements of one statutory offense are contained within the other, it is presumed that the two offenses are the same and that the Legislature did not intend to authorize punishment for both. Whalen v. United States, 445 U.S. 684, 693–94, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). An accused may be punished for two offenses that would be regarded as the same offense if the Legislature has manifested its intention that he should be. Littrell v. State, 271 S.W.3d 273, 276 (Tex.Crim.App.2008).

Because the Legislature has clearly stated that an accused may be punished for two offenses that could be regarded as the same offense, we find no double jeopardy violation based on McCrary's punishment for injury to an elderly individual in addition to the punishment received for violation of another section of the Texas Penal Code.¹⁰ When the Legislature specifically authorizes multiple punishments under two statutes, even if those two statutes proscribe the same conduct, “a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.” Hunter, 459 U.S. at 368–69, 103 S.Ct. 673; Johnson, 208 S.W.3d at 511 (conviction for violation of injury to elderly individual and capital murder did not violate double jeopardy protections; multiple convictions plainly authorized under statute). Thus, we find no violation of McCrary's double jeopardy protections as a result of his conviction of and punishment for injury to an elderly person in conjunction with additional punishment resulting from violations of other Penal Code provisions.

(2) Convictions for Aggravated Assault and Aggravated Robbery Do Not Violate Double Jeopardy

The remaining issue in our double jeopardy analysis is whether McCrary's double jeopardy protections were violated as a result of his conviction and punishment for both aggravated assault with a deadly weapon and aggravated robbery. The principal test for determining whether two offenses are...