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

In the Court of Criminal
Appeals of Texas
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No. PD-0148-23
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JAMES EARNEST FLOYD, JR., Appellant

v.

THE STATE OF TEXAS

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Discretionary Review on Court’s Own Motion
From the Second Court of Appeals
Tarrant County
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YEARY, J., filed a concurring opinion.

We granted discretionary review in this case, on our own motion,
in order to address whether the two theories of robbery contained
respectively in Sections 29.02(a)(1) and 29.02(a)(2) of the Texas Penal
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Code represent, for purpose of jury unanimity: (a) separate and distinct
elemental ways of committing the offense; or (b) alternative manner or
means by which a single statutory offense may be committed. TEX.
PENAL CODE § 29.02(a). 1 If the former, then to convict, a jury must reach
a unanimous verdict that the defendant committed the offense in at
least one of the separate and distinct elemental ways of committing it
before the jury may convict him. 2 If the latter, then the jury may convict
the defendant of the single statutory offense without necessarily
reaching unanimous agreement about which of the statutory
alternatives he committed.
Today, the Court concludes that robbery by causing bodily injury
(Section 29.02(a)(1)), and robbery by threat or placing another in fear of
imminent bodily injury or death (Section 29.02(a)(2)), are simply
different manner or means of committing the same statutory offense. It
therefore concludes that jury unanimity is not required. Majority

1 Section 29.02(a) reads:

(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. PENAL CODE § 29.02(a).

2 Ramos v. Louisiana, 590 U.S. 83, 90 (2020) (“A jury must reach a

unanimous verdict in order to convict.”).
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Opinion at 11. But the Court does not, to my satisfaction, explain why
this ought to be the proper way to read the statute. Instead, it seems to
base its conclusion about the requirement of unanimity entirely on the
fact that this Court has already announced its conclusion that the same
two statutory alternatives at issue in this case are the same for double
jeopardy purposes. Id. at 7.
The Court has often said that, when we construe a penal statute
in such a way as “to carve out separate offenses for double jeopardy
purposes, we have essentially held that they are separate offenses for
jury unanimity purposes as well.” French v. State, 563 S.W.3d 228, 234
(Tex. Crim. App. 2018). And in the double-jeopardy context, the Court
has indeed already construed Section 29.02, subsections (a)(1) and (a)(2),
to constitute the same offense. Cooper v. State, 430 S.W.3d 426, 427 (Tex.
Crim. App. 2014). I can certainly see, then, how one might conclude that
the Court’s opinion in French ought to dictate the answer to the jury
unanimity question as well. See, e.g., Burton v. State, 510 S.W.3d 232,
237 (Tex. App.—Fort Worth 2017) (relying upon Cooper “to conclude that
it was not error for the charge of aggravated robbery to be submitted in
the disjunctive because causing bodily injury or threatening the victim
are different methods of committing the same offense”). That is certainly
the State’s position in this case. Brief for the State at 9−10.
The problem is with Cooper itself. There, the five-judge majority
opinion did not even attempt to offer a rationale in support of its holding.
Instead, the Cooper majority simply announced in its three-paragraph
opinion that, “[a]fter reviewing the opinion of the court of appeals, the
record, and the briefs of the parties, we conclude that appellant’s
FLOYD – 4

challenged convictions do violate the double jeopardy clause.” Cooper,
430 S.W.3d at 427. It did not explain why it reached that conclusion.
The Cooper case did generate two concurring opinions and one
dissenting opinion. Presiding Judge Keller offered her opinion as to why
she believed a conviction under both subsections would be jeopardy
barred, and she was joined in her concurring opinion by Judge Johnson
(the author of the Court’s majority opinion). Id. at 427−35 (Keller, P.J.,
concurring). Judge Cochran separately wrote to convey her own
concurring rationale, joined only by Judge Alcala. Id. at 435−39
(Cochran, J., concurring). Judge Price, joined by Judges Keasler and
Hervey, dissented, arguing that Sections 29.02(a)(1) and 29.02(a)(2)
should be construed as defining separate offenses. Id. at 440−44 (Price,
J., dissenting). Judge Womack did not participate, and Judge Meyers
joined only the abbreviated majority opinion, while joining neither of the
concurring opinions that offered rationales in support of the majority’s
naked holding.
Meanwhile, the United States Fifth Circuit Court of Appeals has
recently construed Sections 29.02(a)(1) and 29.02(a)(2) differently than
the Cooper majority. More specifically, the Fifth Circuit concluded that
the two statutory alternatives at issue in this case constitute more than
mere manner or means of committing the same offense. See United
States v. Garrett, 24 F.4th 485, 489−90 (5th Cir. 2022) (concluding that
Sections 29.02(a)(1) and 29.02(a)(2) “unambiguous[ly]” constitute
“divisible” offenses, not merely alternative manner or means of
committing the same statutory offense, relying on this Court’s opinion
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in Landrian v. State, 268 S.W.3d 532 (Tex. Crim. App. 2008)). 3
We granted discretionary review in this case to address these
disparities of judicial interpretation—to try to provide not only a
definitive answer to the jury-unanimity question, but also, unlike the
various separate opinions in Cooper, hopefully to present a unified
rationale. A worthy objective, no doubt, but somewhat lacking today in
the Court’s execution. The Court’s opinion today offers little more in the
way of rationale than did the majority opinion in Cooper. And today’s
separate opinions offer no more definitive justification for the Court’s
conclusion than did the separate opinions in Cooper. Presiding Judge
Keller essentially reiterates the rationale she articulated in her
concurrence in Cooper. Judge Walker, like Judge Price in Cooper,
provides a detailed argument why the majority’s conclusion is wrong.
For my part, I agree that jury-unanimity issues, like double
jeopardy issues, are primarily a matter of statutory construction. And I
know that, in struggling to implement the Court’s approach for
construing statutes to determine jury-unanimity issues, I have been far
less inclined than the Court to declare that statutory language describes
mere non-elemental manner and means. E.g., Dunham v. State, 666
S.W.3d 477, 492−98 (Tex. Crim. App. 2023) (Yeary, J., dissenting)
(arguing that subsections of the Deceptive Business Practices statute

3 Other federal courts of appeals have come to the same conclusion as

the Fifth Circuit did in Garrett. See Martin v. Kline, No. 19-15605, 2021 WL
6102175 (9th Cir. 2021) (not designated for publication); United States v.
Wilkins, 30 F.4th 1198 (10th Cir. 2022). The majority opinion today reaches
the opposite conclusion without mentioning, much less refuting, any of the
arguments and considerations that led these various federal courts to conclude
that Sections 29.02(a)(1) and 29.02(a)(2) constitute “divisible” offenses. See
note 4, post.
FLOYD – 6

(TEX. PENAL CODE § 32.42, subsections (b)(1)−(b)(12)) set out alternative
elements of the offense rather than mere manner or means of
committing a single offense, for jury-unanimity purposes, for the kinds
of reasons this Court has identified in the past). But I also acknowledge
that, if the Legislature has included language in a penal statute that
does not define an element of an offense, but instead merely consists of
a statutorily defined manner or means for its commission, that is a
matter within the Legislative prerogative alone. Similarly, if the
Legislature has defined what an element of an offense is, it seems to me
that we should acknowledge that definition and afford appropriate
deference to the exercise of the legislative prerogative. Our Legislature
is, after all, the department of government charged with enacting our
laws. TEX. CONST. art. III, § 1 (“The Legislative power of this State shall
be vested in a Senate and House of Representatives[.]”).
And there is a statute in our Penal Code, which does not appear
to have been considered by the Court, that seems at least relevant to the
determination of whether certain statutory words define elements of an
offense or, instead, mere manners or means. Section 1.07(a)(22) of our
Texas Penal Code provides that the phrase “‘[e]lement of offense’
means[,]” among other things, “the forbidden conduct[.]” TEX. PENAL
CODE § 1.07(a)(22) (emphasis added). It seems odd to me, then, that the
Court does not even attempt to offer any explanation for why the
statutory alternatives at issue here—“causes bodily injury[,]” from
Penal Code Section 29.02(a)(1), and “places another in fear of imminent
bodily injury or death[,]” from Penal Code Section 29.02(a)(2)—are not
properly understood to describe “the forbidden conduct[.]”
FLOYD – 7

If the alternative statutory provisions at issue here do describe
“forbidden conduct[,]” then the Court may be mistaken today, in light of
the definition laid out in Penal Code section 1.07(a)(22), to conclude that
the statutory alternatives are not elemental. The existence of a statute
seeming to address the very question the Court struggles with should be
the first place to look for an appropriate answer to a question of
statutory construction like the one the Court faces in this case.
Ultimately, though, I need not struggle with the Court’s methodology
long, because I conclude that any error in this case was clearly harmless.
The State makes a harmlessness argument in its brief on
discretionary review. Brief for the State at 12−17. It is true that the
Court of Appeals did not have to, and did not, address this question, and
that this Court does not ordinarily decide an issue on discretionary
review unless the court of appeals has first resolved it. Gilley v. State,
418 S.W.3d 114, 119 (Tex. Crim. App. 2014). But there are exceptions,
id. at 119 & n.18 (citing Davison v. State, 405 S.W.3d 682, 691−92 (Tex.
Crim. App. 2013)), and one seems to apply here. When an error is
“plainly harmless,” the Court has said, it can say so for the first time on
discretionary review “for the sake of judicial economy.” Johnstone v.
State, 145 S.W.3d 215, 224 (Tex. Crim. App. 2004). I would do so here,
and I would conclude that it is appropriate to uphold the court of
appeals’ unpublished opinion in this case as having, at the very least,
reached the right bottom-line result.
Appellant apparently failed to object to the jury charge based on
his present jury unanimity claim, since he argued on direct appeal that
it caused him “egregious” harm. Appellant’s Brief on Appeal at 16−17;
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see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op.
on reh’g) (construing TEX. CODE CRIM. PROC. art. 36.19 to provide that
unpreserved jury charge error will be reversible only if it causes
“egregious” harm). In assessing the harmfulness of jury charge error,
courts should consider four factors: (1) the entire jury charge; (2) the
state of the evidence; (3) the jury arguments; and (4) any other relevant
information as revealed by the record as a whole. Id. Considering these
factors, it is clear enough to me that Appellant suffered no egregious
harm, even assuming that the jury charge should have required
unanimity with respect to whether he committed robbery-by-bodily-
injury or robbery-by-threat.
Nothing in the balance of the jury charge either exacerbated or
ameliorated the error (if any) in failing to require the jury to be
unanimous with respect to the State’s theories for how robbery was
committed. Nothing in the final arguments of the parties even broached
the subject of unanimity. And nothing else in the record served
particularly to encourage the jury to reach a non-unanimous verdict
with respect to the State’s theories of robbery.
Regarding the state of the evidence, suffice it to say that, on the
present record, there is no reason to doubt that the jury would have been
unanimous with respect to both theories of robbery. See Majority
Opinion at 2 (describing the offense). The contested issue in the case was
not how the robbery was perpetrated. It was, instead, whether Appellant
was the perpetrator at all. Floyd v. State, No. 02-22-00082-CR, 2023 WL
2033831, at *2−6 (Tex. App.—Fort Worth Feb. 16, 2023) (mem. op., not
designated for publication).
FLOYD – 9

This Court has said that “where a record reveals a risk of harm
that is so small that it may properly be characterized as not ‘remotely
significant,’ or where the risk of harm is ‘almost infinitesimal,’ any harm
resulting from the error is only theoretical harm.” French, 563 S.W.3d
at 239 (internal footnotes omitted). We have also explained that mere
theoretical harm will not even support a conclusion of “some” harm,
much less “egregious” harm. Id. at 237 (citing Arline v. State, 721 S.W.2d
348, 351 (Tex. Crim. App. 1986)). Considering the factors identified in
Almanza, and indeed the record of this case as a whole, it is apparent to
me that Appellant did not suffer egregious harm from the trial court’s
failure to sua sponte instruct the jury that it had to be unanimous about
which statutory alternative was sufficiently supported by the evidence
to justify Appellant’s conviction.
For that reason alone, I concur in the result. But for now, I refrain
from taking a final position with respect to the Section 29.02(a) jury-
unanimity question by joining a majority opinion that, in my view, ill-
explains its rationale. 4 Instead of resolving the conundrum left by the

4 The closest to a suggested rationale I can find in the Court’s opinion

appears on page 10: that, unlike in Garfias v. State, 424 S.W.3d 54 (Tex. Crim.
App. 2014), which involved provisions from separately enumerated statutes,
the instant case involves separate subsections of the same statute. Majority
Opinion at 9−10. But that circumstance is far from determinative. In Garrett,
to take but one example, the Fifth circuit observed:

The Texas simple robbery statute creates two distinct crimes,
robbery-by-injury and robbery-by-threat. The pertinent portion
of the statute is divided into two separate, numbered
subdivisions separated by a semicolon. Moreover, the
significance of this structural feature is confirmed by the
conceptually distinct nature of each alternative; causing bodily
injury is behavior meaningfully different from threatening or
FLOYD – 10

Court’s opinion in Cooper, as was our manifest ambition in granting
discretionary review in this case, the Court’s opinion seems merely to
have perpetuated it.
I therefore concur only in the result.

FILED: November 13, 2024
PUBLISH

placing another in fear. And the different nature of these two
crimes is further made apparent by their different culpable
mental state requirements; robbery-by-injury can be committed
“intentionally, knowingly, or recklessly,” while robbery-by-
threat can only be committed “intentionally or knowingly.”

Garrett, 24 F.4th at 489; see also id. at 489−90 (pointing out that Section
29.02(a) is structured much the same way as Texas’s simple assault statute
(TEX. PENAL CODE § 22.01(a)(1), (2)), which this Court has construed to contain
“divisible” offenses, in Landrian v. State, 268 S.W.3d 532, 540 (Tex. Crim. App.
2008)). I simply cannot tell how the majority opinion arrives at its contrary,
mere-manner-or-means conclusion today, and my suspicion is that it may, in
fact, be wrong to draw that conclusion.