## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S

N O S
. A P

- 7 6 , 8 0 1 & A P

- 7 6 , 8 0 2

E X P A R T E W I L L I A M C H A R L E S D E N T O N , A p p l i c a n t

O N A P P L I C A T I O N S F O R W R I T O F H A B E A S C O R P U S

F R O M H E N D E R S O N C O U N T Y

K E L L E R , P .J., fi led a concurring opin ion
. The prese nt case invo lves an exceeding ly complex double-jeopa rdy question, with only

l i m i ted, neutral briefing from the State. Many of t he si g nificant iss ues and authorities relevant t o the questi on are not addre ssed i n the C ourt’s opi nion. When complex issues are not subjected to
adver sarial tes t ing, and when the rele vant issues have not been sufficie ntly aire d out, there is a
dan g er in g ranting relief in any thing other than a brief, unpublished opinion. I believe that that dang er manifests itself in the Court’s opinion. Under the circ umstance s , I agr ee with g ranting applicant r elief but do not join the Court’s opinion.

A. G eneral Double Jeopardy P rinciples

To understand the complexit y of the issue befor e us, we must first revie w some g ener al double-jeopa

rdy principles. There are two way s in which offe nses can be the same or differ ent underDENTON CONCURRENC E — 2

double-jeo p ar d y l aw wh en two statutes are involved: (1) by elements, and (2) by units. For a 1 double-jeopa

rdy violation to occur, the of fense s at issue must be the “sa me” in both re spects. 2

1. Elem ents
An elements inquiry is limit ed to the law and t h e ch arg ing instrument. I n deter mining 3

whether offe nses are the same or differ ent under such an inquiry , the Blockburge r test sets out the 4

starti n g p re s umption, but, at least in the multipl e-punishments context, that presumption can be
rebutted by other indicia clea rly manifesting a leg islative intent to the contra ry

. Under Blockburge r , 5

“whe re the same act or transac tion constitutes a violation of two distinct statutory provisions, the test

Ex parte Ha w ki ns , 6 S.W .3d 554, 557 n.8 (Tex. Crim. App. 1999) (discussing leg al 1 elements ve rsus units of prosec ution).
Id. (quoting Akhil Reed Amar, Double Jeopardy Law Made Simple , Yale L .J

. 1807, 1817- 2 18 (1997) ( “[A]n offense must not only be the sa me in law—it must also be the same in fa ct.”) ). Bigon v. Stat e , 252 S.W .3d 360, 370 (Tex. Crim. App. 2008); Hall v. State , 225 S.W .3d 3 524, 532-33 (Te x . Crim. App. 2007). Blockburge r v. United States , 284 U.S. 299 (1932). 4

Litt rell v. State , 271 S.W .3d 273, 276 (Tex. Crim. App. 2008) (I f one offen s e “i s a 5 lesser- included” of the other under Blockburge r , “the judicial presumption is that they are the same for double-jeopa

rdy purposes” and the “sec ond question, in that event, is whether the L eg islature has clea rly expressed a contra

ry intention that the acc used should in fac t be punished for both the g rea ter and the lesser- included offe nses.”) ; id. at 277 n.23 (“ Of c ourse, e ven whe n two statutorily define d offe nses are clea

rly not the same under a Blockburge r analy sis, other considerations might make it clea r that the L eg islature never theless intended that an ac cu sed not be punished under both p ro visions.”). See also Bigon , 252 S.W .3d at 370 (“When multipl e punishments arise out o f o n e trial, the Blockburge r test is the starting point in analy zing the two offe nses.”) ; Ex parte Ervin , 991 S.W .2d 804, 807 (Tex. Crim. App. 1999) (“[T]he Blockburge r test cannot authoriz e two punishments wher e the leg islature clea rly intended only one.”) ; Gonzales v. State , 304 S.W .3d 838, 845-46 (Te x . Crim. App. 2010) (“T he tra ditional indicium of . . . leg islative intent is the so-called ‘same elements’ test of Blockburge r ,” but “eve n if a straig htforwa rd application of the Blockburge r test would sug g est that two offe nses are not the ‘same’ for double jeopar dy purposes,” the offe nses are never theless considere d the same, “if other indicia manifest a leg islative intent tha t a n acc used not be punished for

both offense s”).DENTON CONCURRENC E — 3

to be applied to deter

mine whether there are two offe nses or only one, is wh et h er each provision

requ i re s p ro o f o f a fac t which the other does not.” I n the multipl e punishments context, if the 6

offe nses have the same e lements under Blockburge r , then an a naly sis can occur unde r Missouri v.

Hunter to deter

mine whether the L eg islature never theless intended to allow multipl e punishments. 7 8 Conversely , if the off

enses ha ve diffe rent e lements under Blockburge r , then an a naly sis can occur
under Ex parte Ervin to deter mine whether the L eg islature never theless intended the offe nses to be

trea ted as the same. The Hunter/Ervin analy sis is part of the elements a spect of D ouble J eopar dy 9

law. The allowable unit of prosec ution presc ribed for the offe nses is a rele vant consideration under 1 0

an Ervin analy sis, but only in the abstrac t, in an eff ort to deter

mine whether , under the law and the 1 1

char g ing instrument, the of fense s are considere d to be the same elementa lly

.

2. Units

A units (or “allowa

ble unit of prosec ution”) inquiry is separ ate, desig ned to deter mine

284 U.S. at 304. 6 459 U.S. 359 (1983). 7
See id. ; Ervin , 991 S.W .2d at 807. A Missouri v. Hunter inquiry may not be allowed in the 8 multipl e-pr osecution context due to finality conce rns. See State v. Perez , 947 S.W .2d 268, 270 n.3 (Tex. Crim. App. 1997).
See G onzales , 304 S.W .3d at 845-46 (discussing Ervin ). This a naly sis c an occur in both 9 the multiple prosecution and the multiple punishment contexts.

See Hall , 225 S.W .3d at 533 n.39 (re cog nizi ng that Hunter involved a cog nate- pleading s 1 0 analy sis); Bigon , 252 S.W .3d at 372 (under an Ervin an aly sis, looking at char g ing instrument alleg ations to deter

mine the underly ing felony in felony -murder prosec ution); Ervin , 991 S.W .2d at 807 (re cog nizi ng “the inver se conc lusion” from Hunter ). Bigon , 252 S.W .3d at 371-72. 1 1DENTON CONCURRENC E — 4

whether a single leg ally proscr ibed offe nse has been committed mor e than onc e. A units inquiry 1 2

can also be divided into two parts: (1) what the unit is, and (2) whether the requisite number of 1 3

units have been shown. This inquiry involves deter mining such things as whether there wer e two 1 4

murder vic tims, whether a vic tim who was assaulted on Monday was a ssaulted ag ain on Tuesda y ,

or whether multipl e kinds of sex acts wer e committed ag ain s t a v i ct i m

. Evidence at trial can be
considere d in deter

mining whether the requisite number of units has been shown. A units inquiry 1 5 might more commonly arise when a single statute is involved and a court is try ing to discern how 1 6

See S a n a b r i a v. Un ited States , 437 U.S. 54, 69-70, 69 n.24 (1978); Saenz v. State , 166 1 2 S.W .3d 270, 272-74 (Te x . Crim. App. 2005).

See e.g. Vick v. State , 991 S.W .2d 830, 832-34 (Tex. Crim. App. 1999) (Penetra tion of 1 3
anus and sexual org an are differ ent units in ag g rava ted sexual assault.); Hawkins , 6 S.W .3d at 556 (Diff ere nt victims are differ ent units in a robber y .); Ex parte Cavazos , 203 S.W .3d 333, 335-37 (Tex. Crim. App. 2006)(Entry

is the unit in a burg lary .). Blockburge r , 284 U.S. at 303 (Second drug sale was a separate offe nse bec ause it “wa s 1 4 not the result of the or igina l impuls e, but of a fre sh one.”) ; Ex parte Goodbre ad , 967 S.W .2d 859, 860-61 (Tex. Crim. App. 1998) (ca n have multipl e prosec utions for differ ent incidents of the same ty pe of se x ual assault). Blockburge r , 284 U.S. at 303; Goodbread , 967 S.W .2d at 8 6 0 (“ For Double J eopar dy 1 5 purposes, the same offe nse means the identical criminal act, n ot the same offe nse by name

. . . . [W ]hen one cannot deter

mine from the State’s pleading s whether the offe nses prosec uted are the same, the court must look to the proof offe red at trial.”) (citing and quoting favor ably from Luna v. State , 493 S.W .2d 854 (Tex. Crim. App. 1973)); id. at 861 (We look to evidenc e at trial to deter mine what instances of conduct confor ming to the indictment are jeopar dy -bar red.) ; see also Quintano v. People , 105 P.3d 585, 592, 595 (Colo. 2005) (“[W] hile we do not adopt any specific list of fac tors to determine whether the defe ndant’s acts constitute fac tually distinct offe nses, we look to all the evi d ence introduced at trial to deter mine whether the evidenc e on which the jury relied for conviction was suff icient to support distinct and separ ate of fense s.”).
See Bigon , 252 S.W .3d at 371-72 (“U sually , analy sis of an allowable unit of prosec ution 1 6 involves a situation in which two offe nses from the sa me statutory

section ar e cha

rg ed.”)

.DENTON CONCURRENC E — 5

to divide conduct (e.g ., a s ex u al assault wit h multipl e manners and means) into units. Parsing a 1 7 single statute “is unlike a situation involving differ ent statutes, which, by itself, is some indication
of legi s l ative intent to authorize multipl e prosec utions simply beca use the offe nses are separ ately
define d in differ ent statutes.” So, while a deter mination that the elements are differ ent under the 1 8 Blockburge r test sets up a presumption in a multipl e-statute elements inquiry , no such presumption
is cre ated in a single -statute units inquiry

. Neve rtheless, if offe nses under differ ent statutes are the 1 9

“same ” elementa lly , then a units analy sis could be appropr iate if, for example, the pleading s or the
evidenc e indicate s that there a re diff ere nt victims. 2 0
B. Aggravate d Robb ery and Aggravat ed Assault

1. The State’s Briefing an d the Habeas Cour t’s Fin dings
The State did not fi l e a b ri ef afte r we filed and set the instant habea s applications, but the
State had ea

rlier f iled a re sponse to the applica tions with t he trial court. The State’s re sponse was essentially neutra l with respe ct t o wh et h er relief should be g rante d. The State conce ded that the
offe nses are the same by their elements: “I f the Court wer e to find that the actions taken by the
defe ndants constituted a single transac tion, then the only conclusio n i s t h at a double jeopar dy
violation has occur

red.” But the State sug g ested that the offe nses might be differ ent by their units.

See Vick , 991 S.W .2d at 833 n.1 (ar riving at the same result under either the Blockburge r 1 7 test or an inquiry

reg arding

how to divide the offe nse into separ ate pr osecuta ble ac ts).
Id. at 832. 1 8
See Vineyard v. State , 958 S.W .2d 834, 836 n.5 (Tex. Crim. App. 1998) (“We also note 1 9 this C o u rt has stated the Blockburge r test is not ‘pre cisely applicable ’ to case s like this wher e a defe ndant’s conduc t violates one statutory provision more than onc e.”)

. See H awkins , 6 S.W .3d at 557 n.8. 2 0DENTON CONCURRENC E — 6

Acc ording to the State, applicant’ s act of firing into the wall during the proce ss of attempting to take
the victims’ money co uld be viewed as the ag g rava ted robber y , while a co-de fenda

nt’s act of shooting one of the victims could be viewed as a separ ate offe nse of ag g rava ted assault. The State
acknow ledg ed that “the issue is debatable .”

I n its finding s of fac t and conclusions of law, the habea s court acc epted the State’s sug g estion
that these were differ ent offenses by their uni ts. Acc ording to th e h ab ea s court, “The first assault

occur red when Wil liam Denton fired a shot into t h e wa l l , and the second assault occur red when
Michae l Wainionpa shot Nicholas Moore in the leg

. Even though the two crimes occur red close in time, t h er e we re t wo separ ate incidents, with a brea k in the action betwee n the two events.” The

h abeas court did not say which assault was part of the ag g rava ted robber

y and which assau l t constituted the separ ate c rime of a g g rava ted assault.

2. Elem ents a. Comparing the Statutes Ag g rava ted robber

y and ag g rava ted assault are define d in differ ent sections—in fac t, in
differ ent chapte rs—of the Penal Code. As explained above, the fac t tha t the offe nses involved are
define d in differ ent statutes is some indication that the L eg islature intended multipl e punishments.
The ag g rava

ted-robbe ry and ag g rava ted-a ssault sta tutes do contain a number of para llel elements.
Both allow an underly ing lesser offe nse to be ag g rava ted by the u s e of a deadly wea pon (the

ag g rava ting fac tor alleg ed in the indi c tm e nt in this case ) or by the infliction of serious bodily injury

. 2 1

The unde rly ing le sser off enses of assault and robber y both contain alter

native manne rs and mea

ns

Compare T E X

. P E N A L C O D E § 22.02(a) (1), ( 2) with i d. § 29.03(a) (1), ( 2). 2 1DENTON CONCURRENC E — 7

involving “bodily

injury ” and a

“thre at.” 2 2

For the purpose of deter mining a lesser- included o ff en s e u n d er § 37.09 of the Code of
Criminal Procedur e, we have rec og nized that assault m ay or m ay not be a lesser- includ ed offe nse
of robbe ry

depending upon which alter native manne rs and mea

ns are alleg ed:

For example, robber

y may be committed either by causing b o d i l y i n j u ry or by threat en i n g imminent bodily injury

. Eac h of these forms of robber y includes, as a lesser offe nse, a form of assault that the other does n o t i nclude. An alleg ation of robber y by threa t includes the lesser offe nse of assault by threa t; it does not inc lude the offe nse of assault by causing bodily injury

. Conversely , an alleg ation of robber y by causing bodily injury would include the lesser offe nse of assault by causing bodily injury , but it would not i nclude the of fense of assa

ult by threa ts. 2 3

b. The W illiams C onstruction
There is at least one substantial differ ence betwee n the underly ing ass au l t an d robber

y

statutes that rela

tes to the case hand. The “thre at” portion of the assault statute provides that a person
commits an offe n s e if he “intentionally or knowing ly threa tens another with imminent bodily injury .” The counter

part provision in the robber y statute provides that a person commits an offe nse 2 4

if he “intentionally or knowing ly threa tens or places another in fear of i m m i n en t bodily injury or
death.” As can be seen, the robber y statute contains the phrase “plac es

. . . in fea r of” that is not 2 5

contained in the a ssault sta tute. I n W illiams v. State , the Fir st Court of Appeals indica ted that this

Compare id. § 22.01(a) (1), ( 2) with i d. § 29.02(a) (1), ( 2). 2 2
Bell v. Stat e , 693 S.W .2d 434, 436 n.3 (Tex. Crim. App. 1985) (citation om itted, citing 2 3 Martinez v. State , 599 S.W .2d 622, 624 (Tex. Crim. App. 1980) (in turn, citing Mitchell v. State 543 S.W .2d 637 (Tex. Crim. App. 1976) (holding that ag g rava ted robber y by t h re at d o es not include ag g rava ted assault by

causing bodily

injury)).
T E X

. P E N A L C O D E § 22.01(a) (2) ( emphasis adde d). 2 4
Id. § 29.02(a) (2) ( emphasis adde d). 2 5DENTON CONCURRENC E — 8

differ ence in lang uag e results in a signific ant differ ence in the meaning of the two statutes, beca use
a thre at is not actually

require d to establish robbery :
We note that an element of the crime of robber y , “ places another in fea

r of imminent bodily injury ,” T E X

. P E N A L C O D E AN N

. § 29.02(a) (2) (Ve rnon 1989) (empha sis added) , differ s from an often compar ed, but va stly dissimi lar e lement for the crime of assault, “ threatens another with imminent bodily I njury ,” T E X

. P E N A L C O D E AN N

. § 22.01(a) (2) (Ve r

n o n 1 9 8 9 ) ( e mp h a sis added)

. The g ener al, passive require ment that another be “pla ced in f

ear ” ca nnot be equated wit h the spec ific, ac tive require ment that the ac tor “thre aten a

nother with imminent bodily injury .” Under the “plac ed in fea r” lang uag e in section 29.02 of the Texas Penal Code, the fac tfinder may conclude that an individual perc eived fea r or was “plac ed in fea

r,” in circ umstances wher e no actua l threats we re c onvey ed by the ac cused. 2 6

I n published opinions, the Third, Six th, and Four teenth courts of appea ls have followed

W illiams

. I n W

ilmeth v. State , the Twe lfth Court of Appeals indicated that “a menacing g lance ” 2 7

could be sufficie nt to show that the defe ndant place d a victim in fea r of imminent bodily injury

. 2 8

A revie w of rec ent unpublished opinions shows other courts of appea ls citing W illiams or its prog eny for the pr oposition t hat the “pla ces in fe ar” element mea ns that a threa t is not r equire d to e stablish

a robber y
. I f both published and unpublished opinions are considere d, the W illiams case articula tes 2 9

827 S.W .2d 614, 616 (Tex. App.–Houston [1 Dist.] 1992) (e mphasis in origina l). 2 6 st
W elch v. State , 880 S.W .2d 225, 227 (Tex. App.–Austin 1994); Ho w a r d v. State , 306 2 7 S.W .3d 407, 410-11 (Tex. App.–Texark an a 2 010); Burton v. State , 230 S.W .3d 846, 852 (Tex. App.–Houston [14 Dist.] 2007). See also Boston v. State , 373 S.W .3d 832, 840 (Tex. App.–Austin t h 2012) (“Mor eover , ‘[b] y defining robber y to be theft plus either threa tening or placing another in fea r, [t he robber

y ] statute demonstrates that the term “thre aten” means something other than placing
a person “in fea

r of imminent bodily injury or death.” ’”) (quoting from Olivas v. State , 203 S.W .3d 341, 345-46 (Te x . Crim. App. 2006), emphasis in Olivas and Boston , brac kets in Boston ).
808 S.W .2d 703, 706 (Tex. App.–Ty ler 1991). 2 8

Ross v. State , 2012 Tex. App. L EXI S 7068 (Tex. App.–For t Worth Aug ust 23, 2012) (not 2 9 desig nated f

or publication) ( citing Burton for the proposition that the defenda nt’s informing teller that this is a “holdup” and dema nding mone y

rea sonably

place d the teller in f

ear of bodily injury); Ree d v. State , 2012 Tex. App. L E XIS 1650, *11 (Tex. App.–Waco Fe bruar y 29, 2012) (notDENTON CONCURRENC E — 9

the near-una

nimous view of the courts of ap peals, ex cepting only (possibly ) t he court in El Paso.

We cannot consider the unpublished decisions as authority , but they demonstrate that the W illiams holding is an issue of law circ u l at i n g i n t h e courts of appea ls that we need to addre ss in an

appropr iate ca se. 3 0

desig nated for publication) (“U nder the ‘plac ed in fea r’ lang uag e of section 29.02, the fac t-finder may conclude that an indi vidual was ‘placed in fea r’ in circ umstances where no actu al t h rea ts are convey ed.”) ; Britton v. Stat e , 2011 Tex. App. L EXI S 5421, *3 (Tex. App.–Dallas J uly 15, 2011 ) (not desig nated for publication) (“I f no actua l threa ts wer e convey ed by the defe ndant, the fac tfinder must conclude the victim ‘per ceive d fea r’ or was ‘plac ed in fea

r’ by the circ umstances, including the defe ndant' s words and actions

. ”) ; Hi n es v. State , 2010 Tex. App. L EXI S 6739, 12 (Tex. App.–Corpus Christi Aug ust 19, 2010) (not desig nated for publication) (“U nder the ‘plac ed in fea r’ lang uag e contained in penal code section 29.02, the fac tfinder may conclude that an individual was ‘plac ed in fea

r’ in circ umstances when no actua l threa ts are convey ed.”) ; Barrow v. State , 2010 Tex. App. L EXI S 4128, *7 (Tex. App.–Amar illo May 28, 2010) (not desig nated for publication) (“U nder the ‘plac ed in fea

r’ lang uag e in section 29.02 of the Penal Code, the fac tfinder may conclude that an individual perc eived fea

r or was ‘plac ed in fea

r,’ in circ umstances wher e no actua l threa ts wer e convey ed by the acc used.”) ; Mesquiti v. State , 2005 Tex. App. L EXI S 39, *2-3 (Tex. App.

– San Antonio January 5, 2005) (not desig nated f or publication) ( “The g ener al, passive r equire ment that another be ‘plac ed in fea

r’ cannot be equate d with the specific , active requir em ent that the actor ‘threaten another with imminent bodily injury .’ Under the ‘plac ed in fea r’ lang uag e, the fac tfinder may conclude that an individual perc eived f ear or wa s ‘place d in fea

r,’ in cir cumstance s where no actua l threa ts wer e conveyed by the acc used.”) (citations omitted); Bradley v. State , 2004 Tex. App. L EXI S 866. *3 ( Tex. App.–B eaumont J anuar y 28, 2004) (not desig nated f or publication) ( “Unde r the ‘plac ed in fea

r’ lang uag e, the fac tfinder may find that an individual perc eived fea r in a situation wher e the acc u s ed m ad e n o actua l threa ts.”); Lavender v. State , 2003 Tex. App. L EXI S 8367, *6 (Tex. App.–Eastland Sept. 25, 2003) (not desig nated for p u b l ication) (“The acc used need not ex pressly threa ten another or display a wea pon to commit robber

y
. I t is sufficie nt to const i t u t e robber y if the acc used place s the complainant in fea r of bodily injury or death to the deg ree that ‘re ason and common experience ’ will likely induce the complainant to part with his proper ty ag ainst his will.”) (citations to W illiams and other case s omitted); Adkins v. State , 2003 Tex. App. L EXI S 2644 (Te x. A

p p

. – F o r t Wo r th M a r c h 24, 2003) (not desig nated for publication) (Unde r assault statute, “ther e must at least be evidenc e of some overt conduct by the defe ndant that sug g ests he acte d with
an intent to threa ten”—c iting W illiams as “compa

ring robber

y statute that require s ‘plac ing’ another in fea r with the assa

ult statute.”). See Alford v. State , 358 S.W .3d 647, 657 & n.21 ( Tex. Crim . App. 2012) (Unpublished 3 0 opinions cannot be cited as authority but can be cited to demonstrate conflict among the courts of appea ls or to demonstrate how this Court and other courts have interpre ted and applied constitutional law.). See also T E X

. R. A P P

. P. 77.3.DENTON CONCURRENC E — 10 c. Application of Blockburge r
I f the W illiams decision is corr ect, th en “thre atens” and “plac es in fea r” are alterna

tive
statutory methods of committing the offe nse of robber y and the “plac es in f

ear ” varia nt of robber

y
is differ ent under the Blockburge r test than the offe nse of ag g rava ted assault by threa t. The next

q u e s ti o n w ould be whether an ag g rava ting element that raises a robber y to aggrava te d r o b b e r

y w o u ld

nece ssarily entail a threa t element not otherwise found in the “plac es in fea r” varia nt of robber

y
. I f
that ag g rava ting element would nece ssarily entail a threa t, by itself or in conjunction with the other
elements of robber

y , then ag g rava ted assault by threa t could be a lesser- included offe nse of t h e “plac es in fea

r” varia nt of aggravated robber

y
. The ag g rava ting element for robber y in applicant’ s
indictments is “use or exhibi t a deadly wea pon.” Although the ag g rava ted-a ssault count alleg es how
the deadly wea

pon was used—“f

iring a firea

rm”—the ag g rava ted-robbe ry count does not. Given 3 1

the broad meaning assig ned to “use” of a deadly wea pon in our case law, it seems likely that such use
could occ ur in a robbe ry

offe nse (a ssuming W

illiams is corre ct) without requir ing a threa t. 3 2 d. Ervin Analysis

I f we deter

mine that the offe nses of “ag g rava ted robber y by placing in fea

r” and “ag g rava ted
assault by threa t” are differ ent under Blockburge r , we must then conduct an Ervin analy sis to
deter mine whether other fac tors persua de us that the leg islature n ev er t h eless intended that the

Thus, the ag g rava ted-robbe ry count does not expand the deadly -we apon alleg ation bey ond 3 1 the statutory lang uag e under the cog nate- pleading s test in Hall

. See Hall , 225 S.W .3d at 526, 533- 35.
See Clint on v. State , 354 S.W .3d 795, 802-03 (Tex. Crim. App. 2011); id. at 807 (Price,

3 2 J ., concur ring ); Patterson v. State , 769 S.W .2d 938, 940-42 (Te x . Crim. App. 1989).DENTON CONCURRENC E — 11

offe nses be trea ted as the same. We have h el d t h at “robbe ry is a form of assault” and that “the 3 3

allowable unit of pros ec u tion for robber y should be the same as that for an assault.” But, as 3 4 explained above, assault is not alway s a lesser- included offe nse of robber y , and though the 3 5

ag g rava ted-rob b er y and ag g rava ted-a ssault statutes contain signific ant para llels, there are some
notable non-par allel elements. Rece ntly , the Second Court of Ap p ea l s held, under an Ervin 3 6 analy sis, that ag g rava ted assault and a g g rava ted robbe ry are the same of

fense

. 3 7

e. Prese rvation - Face of the Rec ord

I f we deter

mine that “ag g rava ted ro b b er y b y placing in fea r” and “ag g rava ted assault by
threa t” are differ ent offe nses unde r B lo c k b u r ge r a nd Ervin , then applicant has a prese rvation-of -er ror problem. His indictments pled both the “thre at” and “plac ing in fea r” varia nts of ag g rava ted robber

y ,
prese nting a situation in which one of the varia nts (threa t) is the same offe nse as ag g rava ted assault by threa t but the other varia nt (plac ing in fea

r) is differ ent. Be cause the two varia nts of ag g rava ted
robber y wer e part of the same g ener al verdic t, we do not know which theory the jury relied upon in

I f the offe nses are deter

mined to be the same under Blockburge r , then a Hunter analy sis 3 3 would be conducte d to deter mine if the “cle arly ex p ressed leg islative intent” was to allow punishment for both offe nses. See Hunter , 459 U.S. at 368. I do not contend th at there is any possibili ty

that State would preva il under a Hunter analy sis.
Hawkins , 6 S.W .3d at 560. 3 4
Bell v. State , 693 S.W .2d at 436 n.3. 3 5

I n addition to the fac t that the robber y statute contains the “plac es

. . . in fea r of” lang uag e 3 6 not prese nt in the assault s t at u t e, t h e robbery statute contains the word “death” not found in the assault statute, and the assault statute contains the phrase “including the p er s o n ’s spouse” not contained in the robber

y statute. Compare T E X

. P E N A L C O D E § 22.01(a) (2) with id. § 29.02(a) (2). Whether the latter

two differ ence s have a

ny substantive eff

ect is uncle ar. Garfias v. State , 381 S.W .3d 626, 630-35 (Te x . App.–For t Worth 2012). 3 7DENTON CONCURRENC E — 12

finding applicant g uilty

. Under those circ umstances and as s u mptions, and assuming that the
evidenc e is sufficie n t t o s u p port the “plac ing in fea r” varia nt of ag g rava

ted robber

y , a doublejeopar dy violation would not be clea rly appar ent on t h e fa ce of the rec ord and would thus be

proce durally

defa ulted. 3 8

A colora ble sufficie ncy -of- the-e vidence claim might perha ps be made in connec tion with the

ag g rava ted robber

y committed ag ainst Moore. Moore testified that he did not believe that applicant

or his cohorts would shoot him, even afte r applicant shot into the wall. On the basis of this 3 9 testimony , it mig ht be arg ued that Moore was not, in fac t, pla ced in f ear of imminent bodily injury

or death afte r this first shot. No such arg ument can be made with respe ct victim Foster , who testified
that she was in fea

r afte r the first shot was fired. And althoug h the State in its response posited the 4 0

Langs v. State , 183 S.W .3d 680, 686-87 (Tex. Crim. App. 2006) (“I n this case , appellant’ s 3 8 two convictions may or may not violate the double jeopar dy clause

. Be cause of the jury char g e and structure of the verdic t form, we cannot be cer tain whether the jury relied upon the first (entry with intent to commit a felony ) or second (entry and then commission of a fe lony ) burg lary theory

. . . . When offe nses, one of which could give rise to a multiple-punishment double-jeopar dy violation,
are listed disjunctively in a jury char g e, the b u rd en i s upon the defe ndant to ‘pre serve , in some fashion a double jeopar dy objection at or be fore the time the cha rg e is submitted to the jury .’ . . . . [W ]hen separ ate theories for an offe nse are issued to the jury disjunctively , a double jeopar dy violation is not clea

rly appar ent on the face of the record i f o n e of t he theories char g ed would not constitute a double jeopar dy violation and there is sufficie nt evidenc e to support that valid theory .”); Gonzalez v. State , 8 S.W .3d 640 (Tex. Crim. App. 2000).
Moore testified that he was uncooper ative in the robber y beca use, “I ’ve been around these 3 9 g uy s a long period of time, and I never woul d have drea med they ’d actua lly shoot me.” The prosec utor responde d, “Oka y
. So y ou still didn’t think so afte r the first shot was fired?” Moore
answe red, “Not a doubt in my mind.” Then the prosec utor asked, “So afte r y ou said, You’re g oing to have to shoot me, wha t happene d next? ” Moore responde d, “Micha el shot me.”
At various times Foster

testified to her f

ear , including: 4 0 Q. Did the def

endant sa y any thing to . . . Moore about his persona l effe cts?
* * *DENTON CONCURRENC E — 13

first shot (into the wall) as the assault part of the ag g rava ted robber y , one could rea sonably arg ue that
the second shot (in which Moore was injured) was part of the ag g rava ted robber y , and the question
would then be whether Moore was place d in fea r of imminent bodily injury or death afte r he was in
fac t injured. f. Absence of Briefing and Analysis
The Court addre sses only some of the issues discussed above and addre sses those in only a

cursor y manner

. This is perha

ps understanda

ble, g iven that the State conce ded the elements aspec t
of the double-jeopa

rdy claim in its response and did not submit any further briefing when we filed
and set the case

. And the State’s actions are also perha ps understanda

ble, g iven that g ranting relief simply sets aside twenty -y ear concur rent sentenc es, and that applicant will continue to serve twenty

A. I ’m not r eal clea

r on whether it wa s him or someone else at this point. I rea lly

– I don’t reme mber. I

was sca red. I still am.

*** Q. [W ]ere y ou in fea

r of injury

during this robbery ? A. Yes, sir.

*** Q. And desc ribe how this def endant–

A. He ask ed h im to take the watch off and [Moore] ref used. And t hat’s when him and I srae l had his g un come out and ever y body was pointing g uns and he asked if he thought they wer e p l ay i n g an d he pointed–he turned his pistol to the side and shot throug h the wall. Q. Were y ou in fea

r of injury

at that point? A. Yes, sir.DENTON CONCURRENC E — 14

five-y ear sentenc es in two case s. I n its pleading s, the S t ate also expli citly relied on its interest in seeing justice done. Out of defe renc e to a defe ndant’s ri gh t aga inst double jeopar dy , we might perha ps acc ept a State’s conce ssion with respe ct to a particula r case when the double-jeopa rdy issue
is inordinately complex. But we sho u l d n o t enshrine such a conce ssion in the law, beca use in a
future c ase, the issues might be more thoroug hly debate d in the cruc ible of adve rsar ial testing.

3. Units

As discussed ear lier, in a multipl e-statutes case , an elements analy sis is only half the battle:

E ven if the offe nses proscr ibed by multipl e statutory provisions are considere d to be the “sam e”
under Blockburge r or Ervin , it is possibl e t o h ave the repe ated commission of the same offe nse.
Murder and manslaug hter, th oug h proscr ibed in differ ent statutes, are the same offe nse by their
eleme nts under Blockburge r
. But if the murder is of Mary and the manslaug hter is of J ohn, then the
offe nses ar e diffe rent by

their units

. The prese nt case contains an obvious and uncontested example o f m u l t i ple units. The
offe nses wer e separ ately indicted based upon the separ ate victims. S o t h er e ar e four indicted
offe nses: an ag g rava ted robber y ag ainst Moore, an ag g rava ted assault ag ainst Moore, an ag g rava ted
robber y ag ainst Foster , and an ag g rava ted assault ag ainst Foster

. No one disputes that the State may

rec eive at least one separ ate conviction per victim. Howeve r, the State sug g ested in its response , 4 1

and the habea s court conclude d, that eac h g unshot could also be the basis for a separ ate conviction.
Whether that is so depends upon how the leg islature divides units in the ag g rava ted-robbe ry

See J ones v. State , 323 S.W .3d 885, 889 (Tex. Crim. App. 2010) (discussing Hawkins ); 4 1 Hawkins , 6 S.W .3d at 560.DENTON CONCURRENC E — 15

and ag g rava ted-a ssault statutes and it is purely a question of statutory construction. Gene rally , the 4 2

best indicator of leg islative in t ent wit h respe ct t o the uni t of prosecution is the focus or gra vamen
of the offe nse. We know that, for both ag g rava ted robber y and ag g rava

ted assault, the focus or 4 3

g rava men of the offe nse includes the v i ct i m

. Do es it also include the assaultive act? I s eac h
assaultive act a separ ate offe nse? Or is eac h “tra nsaction” the rele vant unit of prosec ution? Clearly
if a de fenda

nt robs (or a ssaults) the victim on Monday and then r obs (or a ssaults) the victim ag ain on Tuesday , separ ate robber ies (or a ssaults) have oc curr ed. B ut can se para te robbe ries or a ssaults

occur ag ainst the same victim in the same tra nsaction?

We must decide wheth er the applicable unit is act or transac tion beca use the prese nt case
involves multipl e acts in a single transac tion. Although the habea s judge found a “br ea k in the
action betwee n the two events,” he acknow ledg ed that the incidents occur red close in time, so I do

not think he was say ing that the incidents occur red in separ ate transac tions. I n any event, the rec ord
does not support the notion that there wer e multipl e transac tions. The evidenc e shows that applicant
and his cohorts demande d money and proper ty , that Moore ref

used to cooper ate, that applicant shot
into the wall to procur e Moore’ s cooper ation, that Moore continued to ref use to cooper ate and told
the robber s that they would have to shoot him, and that one of applicant’ s cohorts then shot Moore
in the leg

. Nothing in the rec ord sug g ests any thing but an unbroken chain of events betwee n the first
and sec ond shots fired.
So, can two g unshots occur ring in the sam e transac tion constitute separ ate assaults with

respe ct to the same victim? Do they constitute multipl e threa ts that can be punished separ ately ? I

See J ones , 323 S.W .3d at 888. 4 2
Id. at 889. 4 3DENTON CONCURRENC E — 16

am unawa re of any published case s from this Court that have addre ssed the question. I n its holding

in a case involving t h e p ro s ec u t ion of both an ag g rava ted robber y and an ag g rava ted assault, the Second Court of Appe als has sugg ested that multipl e assa ults ag ainst the same victim in the same

transac tion can constitute only one offe nse. Although I do not nece ssarily ag ree with all of the 4 4

rea soni n g i n t h e Second Court’s opinion, I ag ree with the implication that the leg islature did not contemplate separ ately punishing multipl e assaults ag ainst the same victim in the same transac tion.

4. P rese rvation - Legitim ate Stat e Inter ests

Even if, afte r addre ssing all of the prior issues, we conclude d that a double-jeopa rdy violation
is appar ent on the fac e of the rec ord, there would rema in the second prong of the prese rvation analy sis: whether the enfor ceme nt of the usual rules of proce dural defa ult serve s no leg itimate state
interests. The Court writes this second “no leg itimate state interest” prong out of the law when it

4 5

s ay s that it perc eives no leg itimate state interest in maintaining convictions wher e it is clearl y

appar ent from the fac e of the rec ord that they are in contra vention of double-jeopa

rdy protec tions. This is directly

contra ry to our dec ision in Gonzalez , which espoused the above two-par t test after noting that our

case law on pre serva tion of double-jeopa

rdy claims was “ not a model of c larity .” 4 6

Garfias , 381 S.W .3d at 633 (I n a ca se whe re the defe ndant s hot a st ore clerk four t imes 4 4 in a single transac tion: “We cannot fathom, howeve r, that under the circ umstances of this case , the leg islature would i n tend to punish one continuous assaultive act under multipl e assault-re lated offe nses. For example, we cannot imag ine that if a person commi t t ed o n e u n i nterrupte d act of slowly rea

ring back with a closed fist and p unching someone, the leg islature would intend for the person to be convicted of b o t h causing-bodily -injury assault, which is ty pically a Class A misdemeanor under section 22.01(a) (1) of the penal code, an d threa tening -anothe r-with- -imminent-bodily -injury assault, which is ty pically a Class C misdemeanor under section 22.01(a) (2).” ).

See Langs , 183 S.W .3d at 687. 4 5
Gonzalez , 8 S.W .3d at 642-43. 4 6DENTON CONCURRENC E — 17

W e reaffirme d the two-par t test in Langs , wher e we said that requiring a defe ndant to rai s e h i s double-jeopa

rdy claims in the trial court does serve leg itimate state interests. What the “ser ves no 4 7 leg itimate state interests” pr ong rea lly means is that g ranting the defendant double- jeopar dy relief place s the State in no worse a position than it would have been in had a timely objection been made.
The issue in the prese nt case wou l d b e t h e p o ssibili ty that the State might have pursued multipl e

prosec utions for lesser- included offe nses that might have survived a double-jeopa rdy analy sis. I will
not, at this time, attempt to deter mine whether the State could or should have been allowed to pursue

s u ch a s trateg y
. I n its neutra l response to the habea s application, the State addre sses the seco n d

prong of the prese rvation test by say ing, “[T] he State does not have any overr iding interests at stake.
The State wa s not require d to g o throug h additional trials, as both case s wer e tried as one. Additionally , the State cer tainly has an interest in seeing that justice is done, and in this case , if a
double jeopar dy violation is deeme d valid, the State has an interest in seeing that relief is g rante d.”
Given that re sponse, I

conclude that the State does not believe that applicant’ s tardiness in ra ising
a double- jeopar dy claim has pre

judiced its interests.

I respe ctfully

concur in the Court’s judgme nt. Filed: May

22, 2013 Publis h

See Langs , 183 S.W .3d at 686 n. 22.

4 7