Cooper v. State No. PD-1022-12
JOHNSON, J., delivered the opinion of the Court in which KELLER, P.J., and MEYERS, COCHRAN, and ALCALÁ, JJ., joined. 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.
Cooper 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 Cooper’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 Cooper 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. Crim. App. 2012).
Issue: Was the Double Jeopardy Clause of the United States constitution violated when Cooper 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 Cooper’s convictions for two separate counts of aggravated robbery; one for each of two named complainants-----Andrew Chaney and James Barker.
The Court held that Cooper’s challenged convictions do violate the double jeopardy clause. The judgment of the court of appeals is reversed and remanded for further proceedings and appropriate disposition.
Keller, P.J. concurring
Presiding Judge Keller concurred with the majority, concluding that two convictions for aggravated robbery violates double jeopardy because the two convictions were for the same transaction and the same victim, rather than a lesser-included offense of aggravated assault. Cooper’s convictions both arose under the same robbery statute instead of two separate statutes. The significance being that two separate statutes would tend to indicate that the legislature intended to authorize multiple prosecutions.
Presiding Judge Keller outlines the two instances that courts must ascertain the units of prosecution under a single statute. The first instances arises when the court must address whether the State can punish a defendant multiple times for the same statutorily prohibited conduct because, for example, there is more than one victim, more than one item taken, or more than one item of contraband possessed. The second instance arises when ‘‘when the same statutory section lists multiple methods of committing an offense, and [a 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.’’
After looking at all relevant factors in the present case, Presiding Judge Keller determined that the robbery statute and the ‘‘threat’’ and ‘‘bodily’’ injury elements of robbery are simply alternative methods of committing a robbery. Thus, the unit of prosecution in a robbery case is each individual subjected to assaultive conduct during the course of a theft. Finally, at best, the factors for either multiple prosecutions for the same prohibited conduct or multiple methods of committing the same offense counterbalance each other, and the determinative weight should be given to legislature’s decision to place these different means of committing robbery in the same statutory section and hold that they are alternative methods of committing the offense.
Cochran, J. concurring
Judge Cochran, after noting the complexity of the issue at hand, analogizes the current situation to the basic distinguishing factors between assault and battery. Judge Cochran agrees with Presiding Judge Keller that ‘‘the ‘threat’ and ‘bodily injury’ elements of [assault and] robbery are simply alternative methods of committing [an assault or] a robbery.’’ That is because the unit of prosecution for assault is either or both an ‘‘assault’’ (threat) or a ‘‘battery’’ (bodily injury) upon one person at one time and place. Therefore, the unit of prosecution for robbery is either or both an ‘‘assault’’ or a ‘‘battery’’ upon one person at one time and place during the course of a theft. Additionally, Judge Cochran explains that the unit of prosecution for aggravated robbery is either or both an ‘‘assault’’ with a deadly weapon or a ‘‘battery’’ that causes serious bodily injury upon one person at one time and place during the course of a theft.
Ultimately, because the State proved only one unit of assaultive conduct-----a threat to harm with a deadly weapon immediately followed by causing serious bodily injury--against each robbery victim at one time and place, double jeopardy principles bar two convictions for Cooper robbing Mr. Barker and two convictions for Cooper robbing Mr. Chaney.
Price, J. dissenting
Judge Price explains that he would affirm the judgment of the court of appeals because according to this Court’s precedents, the number of victims should not be regarded as the only determinant in a units-of-prosecution analysis. In Ex parte Hawkins, 6 S.W.3d 554 (Tex. Crim. App. 1999), the Court reasoned that, ‘‘[s]ince robbery is a form of assault, the allowable unit of prosecution for robbery should be the same as that for an assault.’’ But Judge Price points out that the Court never said that the number of victims is the only indicium of legislative intent with respect to allowable units of prosecution for the offense of assault.
Additionally, with respect to the related question of whether a jury must be unanimous with respect to its verdict in an assault prosecution, the Court concluded in Landrian v. State, 268 S.W.3d 532, 541 (Tex. Crim. App. 2008) that the Legislature intended that alternative statutory methods of committing assault should be regarded as discrete offenses, requiring jury unanimity with respect to each one separately. Judge Price believes there is no reason why the Court would not say the same thing with respect to the assault statute when it comes to a double jeopardy units-of-prosecution analysis-----that robbery by causing bodily injury and robbery by threatening or placing the victim in fear of bodily injury or death are discretely actionable offenses.
Judge Price believes the Court recently did say this in Ex parte Denton, 399 S.W.3d 540, 546 (Tex. Crim. App. 2013). Since the allowable units of prosecution for robbery ‘‘should be the same as that for an assault,’’ it is more than plausible to conclude, as the court of appeals did in this case, that Cooper may constitutionally be punished for as many statutorily alternative ways that he robbed both Chaney and Barker as the evidence will support.