FLOYD, JAMES EARNEST JR. v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-0148-23

JAMES EARNEST FLOYD, JR., Appellant

v.

THE STATE OF TEXAS

ON THE COURT’S OWN MOTION FOR DISCRETIONARY REVIEW
FROM THE SECOND COURT OF APPEALS
TARRANT COUNTY

WALKER, J. filed a dissenting opinion.

DISSENTINGOPINION

The issue is whether aggravated robbery by threat is a separate offense from bodily-injury

aggravated robbery or whether they are simply the manner and means by which one of the elements

of a general aggravated robbery offense is accomplished. Because they are separate offenses, I

respectfully dissent from the majority.
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I. JURY CHARGE ERROR EXISTED

A. LAW

Pursuant to Texas law, a unanimous jury verdict is required in all criminal cases. Saenz v.

State, 451 S.W.3d 388, 390 (Tex. Crim. App. 2014); Tex. Code Crim. Proc. Ann. art. 36.29(a) (the

verdict “must be concurred in by each juror”). “[T]he jury must unanimously agree about the

occurrence of a single criminal offense, but they need not be unanimous about the specific manner

and means of how that offense was committed.” Young v. State, 341 S.W.3d 417, 422 (Tex. Crim.

App. 2011). In other words, the jury must unanimously agree on “each specific violation . . . that

it found the defendant had committed.” Ngo, 175 S.W.3d at 747; see Richardson v. United States,

526 U.S. 813, 817 (1999) (holding that “a disagreement about means—would not matter as long

as all 12 jurors unanimously concluded that the Government had proved the necessary related

element”).

To clarify what requires jury unanimity, this Court distinguished three categories of

criminal offenses: (1) result of conduct offenses, (2) nature of conduct offenses, and (3)

circumstances of conduct offenses:

First, “result of conduct” offenses concern the product of certain conduct. For
example, murder is a “result of conduct” offense because it punishes the intentional
killing of another regardless of the specific manner (e.g., shooting, stabbing,
suffocating) of causing the person’s death. Thus, the death of one victim may result
in only one murder conviction, regardless of how the actor accomplished the result.
With the second category, “nature of conduct” offenses, it is the act or conduct that
is punished, regardless of any result that might occur. The most common illustration
of this second category is that of many sex offenses, where the act itself is the
gravamen of the offense. Finally, “circumstances of conduct” offenses prohibit
otherwise innocent behavior that becomes criminal only under specific
circumstances.
Young, 341 S.W.3d at 423. As a general rule, the statutory language determines what category of

crime the offense falls under. Id. “A ‘result of conduct’ offense generally requires a direct object
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for the verb to act upon.” Id. For example, in the murder statute, “‘causes’ is the verb, and ‘death’—

the result—is the direct object.” Id. at 423–24.

In O’Brien, this Court explained how unanimity applies to each category of offense.

O’Brien v. State, 544 S.W.3d 376, 383 (Tex. Crim. App. 2018). First, if a crime is categorized as

“a result of the conduct offense,” then “the jury must be unanimous about the specific result

required by the statute.” Id. Second, if a crime is categorized as a “nature of the conduct offense,”

then “the jury must be unanimous about the specific criminal act committed.” Id. Third, if the

offense is categorized as a “circumstances surrounding the conduct offense,” then the jury must be

unanimous about “the existence of the particular circumstance of the offense.” Id.

B. APPLICATION

(1) The Two Offenses at Issue are Categorized as Different Offense Types.

Section 29.03(a) of the Texas Penal Code defines the crime of aggravated robbery as “[a]

person commits an offense if he commits robbery as defined in Section 29.02[.]” Tex. Pen. Code

Ann. § 29.03(a) (emphasis added). Therefore, in order to analyze aggravated robbery, this Court

first needs to examine the statute defining robbery. Section 29.02(a) defines the crime of robbery

as “in the course of committing theft . . . and with intent to obtain or maintain control of the

property” the perpetrator (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.” Id.

Aggravated bodily-injury robbery is a result-oriented offense because it focuses on bodily

injury, regardless of the act. Consequently, in order for the defendant to be convicted, the jury is

required to unanimously agree that the defendant caused bodily injury to the victim. See O’Brien,

544 S.W.3d at 383. On the other hand, aggravated threat-robbery is a conduct-oriented offense,
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because it “focus[es] upon the act of making a threat, regardless of any result that threat might

cause.” See Landrian v. State, 268 S.W.3d 532, 536 (Tex. Crim. App. 2008) (distinguishing bodily

injury assault from threat assault). Accordingly, each type of offense requires that the jury come to

a unanimous decision about a different aspect–either the defendant caused injury to the victim, or

the defendant threatened the victim. Hence, the two different kinds of offenses are not

interchangeable, and the jury must come to a unanimous decision about which one, if any, the State

proved beyond a reasonable doubt in order to convict the defendant.

(2) Cooper Does Not Support the Majority’s Opinion.

But the majority, heavily relying on Cooper, holds that aggravated robbery by threat and

bodily-injury aggravated robbery are the same offense because a conviction of both violates the

double jeopardy clause. Cooper v. State, 430 S.W.3d 426 (Tex. Crim. App. 2014). However,

Cooper does not support this conclusion because, as the majority emphasizes, the Cooper Court

provided no discussion or analysis for its conclusion. Majority op. at 6. Cooper simply stated that

two separate convictions of aggravated robbery violated double jeopardy, but this Court did not

address jury unanimity. Cooper, 430 S.W.3d at 427. An answer to a double jeopardy question is

not a conclusive answer to a jury unanimity question.

(3) Bodily-Injury Robbery and Threat-Robbery have Different Gravamina.

As the majority notes, the first step to answering a jury unanimity question is determining

whether the Legislature intended to create multiple offenses or a single offense with alternate

modes of commission. Majority op. at 8 (citing Jefferson v. State, 189 S.W.3d 305, 312 (Tex. Crim.

App. 2006)). Further, the majority acknowledges that “[t]his Court has held that the focus or

‘gravamen’ of a penal provision should be regarded as the ‘best indicator’ when it comes to

determining whether the Legislature intended to define more than one offense.” Majority op. at 8
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(citing Huffman v. State, 267 S.W.3d 902, 907 (Tex. Crim App. 2008) and Jourdan v. State, 428

S.W.3d 86, 95–96 (Tex. Crim. App. 2014)).

But while the majority recites those basic principles, it nevertheless veers away from the

“best indicator” and instead focuses on the non-conclusive connections between jury unanimity

and double jeopardy questions. I am more persuaded to stick with whether the Legislature intended

to create multiple offenses based on the gravamina of the statute. Because the gravamen of the

offense is the “best indicator” of Legislative intent, this Court should find that the Legislature

intended to create two separate offenses under § 29.02: (1) robbery by causing bodily injury, and

(2) robbery by threat. Tex. Pen. Code Ann. § 29.02(a).

(4) Bodily-Injury Offenses v. Threat-Based Offenses

Offenses based on bodily-injury are distinct from threat-based offenses. In Landrian, this

Court decided a jury unanimity question regarding only bodily-injury offenses. Landrian, 268

S.W.3d 532. Even though, here, this Court is tasked with analyzing a bodily-injury offense and a

threat-based offense, this Court’s analysis in Landrian is important to this case because it illustrates

why the distinguishable offenses warrant a different conclusion.

In Landrian, the defendant threw a glass bottle at the victim, causing the victim to lose his

left eye. Id. at 533. The defendant was charged with aggravated assault by either “(1) intentionally

or knowingly causing bodily injury by using a deadly weapon, a bottle, or (2) recklessly causing

serious bodily injury by throwing a bottle in his direction.” Id. The jury charge was disjunctive and

did not require the jury to “reach a unanimous verdict on whether [Landrian] intentionally or

knowingly caused bodily injury by using the bottle as a deadly weapon or whether he recklessly

caused serious bodily injury by throwing the bottle in [the victim’s] direction.” Id. (emphasis

added).
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There, the Court held that a jury did not have to be unanimous when deciding if the

defendant committed aggravated assault by either (1) serious bodily injury or (2) causing a bodily

injury using a deadly weapon. Id. at 541–42. To be clear, there was not a question of aggravated

assault by threat with a deadly weapon. The Court’s reasoning was that “[t]he gravamen of this

result-oriented offense is ‘causing bodily injury.’ Id. at 533. In other words, bodily-injury

aggravated assault is proven by the same facts whether the injury was serious or caused by a deadly

weapon. “Thus, both statutory aggravators of simple assault involve the use of a deadly weapon,

either because a serious bodily injury is necessarily caused by a deadly weapon or because a deadly

weapon is explicitly pled in the indictment.” Id. at 538. Consequently, the jury did not have to

agree whether the bodily injury was (1) serious or (2) caused by a deadly weapon, because both

answers would result in the jury agreeing that there was bodily injury caused by a deadly weapon.

In contrast, here, Floyd was charged under § 29.03 with aggravated robbery by

either (1) threatening or placing the complainant in fear of imminent bodily injury or death

(robbery by threat) and using or exhibiting a deadly weapon (aggravating factor), or (2) causing

bodily injury to the complainant (injury robbery) and using or exhibiting a deadly weapon

(aggravating factor). The only overlap between the first two offenses is that a deadly weapon was

used. However, the offenses, either (1) threatening the complainant or (2) injuring the complainant,

are completely different because they have different gravamina. As a result, unlike Landrian, the

jury does have to be unanimous when deciding if the defendant committed aggravated robbery by

either threating the complainant or injuring the complainant.
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(5) This Court has Held that the Assault Statute Describes Three Separate and Distinct
Criminal Offenses, and the Offense of Robbery is Defined as an Assault that Took Place
During a Theft.

Additionally, Landrian controls this case because the definition of assault (the offense at

issue in Landrian) is relevant to the definition of robbery (the offense at issue here). In Landrian

this Court explained that the assault statute defines three separate and distinct offenses.

“[Landrian] begins by correctly noting that the statutory definition of simple assault
sets out three distinct criminal offenses under Section 22.01(a)(1)–(3). These are
“bodily injury” assault, assault by threat, and “offensive contact” assault. So far, so
good. But he then contends that “adding the aggravating elements to the simple
assault statute” creates “several different combinations” and “a variety of different
ways of having an aggravated assault.” That is true only if the underlying simple
assault is pled as both “bodily injury” assault and assault by threat. In Marinos v.
State, 1 Dolkart v. State, 2 and Gonzales v. State,3 three different courts of appeals
properly held that simple “bodily injury” assault is a separate and distinct crime
from simple assault by threat. Thus, aggravated assault under each distinct
assaultive crime is a separate crime: aggravated assault with the underlying crime
of assault by causing bodily injury and aggravated assault with the underlying crime
of assault by threat. The first is a result-oriented offense and the second is a conduct-
oriented offense.

But once the underlying type of assault is defined, then either of the aggravating
factors set out under Section 22.02(a) may elevate that distinct assaultive crime to
a second-degree felony. The aggravating factors or elements are simply the way in
which the simple assault becomes a more serious offense.”

Landrian, 268 S.W.3d at 540 (emphasis added). Landrian illustrates that this Court has previously

confirmed that bodily injury assault “is a separate and distinct crime from simple assault by threat.”

Id. This distinction is vital to our analysis because the offense of robbery is essentially composed

of an individual who commits an assault in the course of a theft. In other words, robbery = theft +

assault.

1
Marinos v. State, 186 S.W.3d 167, 174–75 (Tex. App.—Austin 2006, pet. ref’d).
2
Dolkart v. State, 197 S.W.3d 887, 893 (Tex. App.—Dallas 2006, pet. ref’d).
3
Gonzales v. State 191 S.W.3d 741, 748–49 (Tex. App.—Waco 2006, pet. ref’d).
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Section 22.01(a) defines assault as:

(a) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly causes bodily injury to another,
including the person's spouse;
(2) intentionally or knowingly threatens another with imminent bodily
injury, including the person's spouse; or
(3) intentionally or knowingly causes physical contact with another when
the person knows or should reasonably believe that the other will regard the
contact as offensive or provocative.

Tex. Pen. Code Ann. § 22.01(a). Turning again to the robbery statute, § 29.02(a) says:

(a) A person commits an offense if, in the course of committing theft as defined in
Chapter 31 and with intent to obtain or maintain control of the property, he:
(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.

Tex. Pen. Code Ann. § 29.02(a). Subsections one and two of the assault statute, which create two

separate offenses, are nearly identical to subsections one and two of the robbery statute. In order

for this Court to follow its own precedent, the Court must hold that the robbery statute also defines

two separate and distinct offenses. The significance of the statute creating multiple offenses is that

a jury must be unanimous in deciding what specific criminal offense occurred, but that unanimity

was not present here.

(6) The Implication of the Majority’s Decision Results in Permitting Jurors to Violate §
36.29, Which Requires Jury Unanimity.

Section 36.29(a) of the Texas Code of Criminal Procedure requires that every juror concurs

in the verdict. Tex. Code Crim. Proc. Ann. art. 36.29(a). Nevertheless, the implication of the

majority’s decision would be to allow the jury to disagree about which offense they believe

occurred, either (1) injury-robbery or (2) threat-robbery. Essentially, the jury would be allowed to

disagree on whether the State proved assault through evidence of bodily injury or whether the State
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proved assault by evidence of threat. Because these are two separate offenses, the jury must be

unanimous about which one the State proved occurred.

II. CONCLUSION

Under § 29.02(a), threat-robbery and bodily-injury robbery are separate offenses. As a

result, the jury charge should have required the jury to be unanimous as to whether appellant was

guilty of aggravated threat-robbery or aggravated bodily-injury robbery. The charge was

erroneous, and for that reason I would reverse and remand to the court appeals to consider whether

the harm was sufficient to warrant reversal of Appellant’s conviction. 4

Filed: November 13, 2024

Publish

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The Court “review[s] alleged charge error by considering two questions: (1) whether error existed in the charge;
and (2) whether sufficient harm resulted from the error to compel reversal.” Ngo v. State, 175 S.W.3d 738, 744 (Tex.
Crim. App. 2005).