Texas Court of Criminal Appeals
Floyd v. State
No. PD-0148-23 11/13/24
Issue:
Are the two theories of robbery contained in Penal Code §29.02(a)(1) and (a)(2) (robbery by threat and robbery causing bodily injury) distinct elements for committing the offense or alternative manner and means by which a single offense may be committed?
Holding:
Alternative manner and means of committing the single offense of aggravated robbery. The jury was not required to unanimously agree on whether the defendant committed robbery by injury or robbery by threat. “There is no jury unanimity problem in this case. The jury unanimously found Appellant guilty of at least one of the two ways of committing aggravated robbery for which they were disjunctively authorized to find him guilty.” Read opinion.
Concurrence (Keller, P.J.):
“There is a general pattern in the Penal Code for compound offenses: (1) a shared offense that is the same for every version of the compound offense, and (2) an underlying offense that varies, resulting in different methods of committing the compound offense. For capital murder, the shared offense is murder. A number of offenses can serve as the underlying offense for capital murder, including, for instance, kidnapping, burglary, robbery, and a second murder. Burglary is another example of an offense that can be a compound offense. The shared element in a burglary is entry. The underlying offense in a burglary can be a felony, a theft, or an assault. And robbery, too, can be a compound offense, although the list of underlying offenses is much shorter. The shared offense in a robbery is a theft. The possible underlying offenses for robbery are bodily injury assault and threat assault.” Read concurrence.
Concurrence (Yeary, J.):
“I refrain from taking a final position with respect to the §29.02(a) jury unanimity question by joining a majority opinion that, in my view, ill explains its rationale. Instead of resolving the conundrum left by the Court’s opinion in Cooper [v. State, 403 S.W.3d 426 (Tex. Crim. App. 2014)], as was our manifest ambition in granting discretionary review in this case, the Court’s opinion seems merely to have perpetuated it.” Read concurrence.
Dissent (Walker, J.):
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 proved assault by evidence of threat. Because these are two separate offenses, the jury must be unanimous about which one the State proved occurred.” Read dissent.
Commentary:
This opinion operates as the other side of the coin/counterpart to the CCA’s prior decision in Cooper, wherein the CCA held that threat-robbery and injury-robbery of the same victim in the same incident constituted alternative manners and means of the same offense for double-jeopardy purposes—such that the defendant there could not be convicted twice, once for each variety of robbery. As the CCA remarks and this case illustrates, double-jeopardy jurisprudence is closely intertwined with jury-unanimity jurisprudence. So, if you are faced with a novel scenario where you believe that a unanimity jury instruction is unwarranted because the acts that you’ve alleged constitute alternate manners and means of committing the same offense, rather than distinct offenses, but you are unable to find any jury-unanimity caselaw to support your argument, search to see if there is any double-jeopardy jurisprudence that holds that the acts are treated as alternative manners and means of the offense for double-jeopardy purposes. If so, cite those cases and use Floyd to explain why they are strongly compelling, by analogy, for your argument and a unanimity instruction is inapplicable.
State v. Johnson
Nos. PD-0665-23 & -0666-23 11/13/24
Issue:
Does a request for counsel made before police gave the defendant Miranda warnings invoke Miranda protections that prohibit police-initiated interrogation after Miranda warnings were later given?
Holding:
No. The right to counsel under Miranda cannot be invoked anticipatorily. “[T]he Miranda right to counsel—with all of its prophylactic protections—becomes ripe for invocation only after (1) Miranda warnings have been given while the suspect is in custody or (2) if custodial Miranda warnings have not been given, when custodial interrogation begins.” Read opinion.
Commentary:
This should be a useful decision for prosecutors because it means that, at any point prior to a custodial-interrogation setting, the defendant cannot reflexively declare that he wants a lawyer and pre-emptively bar the police from initiating a custodial interrogation at a later time. Instead, as the United States Supreme Court explained in McNeil v. Wisconsin, 501 U.S. 171, 180 (1991), and the CCA reiterates here, “If a suspect does not wish to communicate with the police except through an attorney, he can simply tell them that when they give him the Miranda warnings[,]” or if Miranda warnings are not given, when custodial interrogation begins.
State v. Villa
No. PD-0756-23 11/13/24
Issue:
Can the State appeal an adverse judgment from an intermediate appellate court (namely, county courts, county criminal courts of appeal, or municipal courts of appeal) to a court of appeals (in this case, the Dallas Court of Appeals)?
Holding:
Yes. The Court explained the relationship between ordinary municipal courts, municipal courts of record (MCORs), and Chapter 30 of the Texas Government Code. The Court concluded that the State has a right to appeal under §30.00027(b) of the Texas Government Code, which states that the “provisions of the Code of Criminal Procedure relating to direct appeals from a county or district court to the court of appeals apply” to appeals from §30.00027. “So an intermediate appellate court that reverses a judgment of conviction in an MCOR and grants a new trial issues a judgment that can be appealed by the State under Article 44.01(a)(3).” Read opinion.
Commentary:
This case began with a fight at a youth football game and ended with fight over how to construe the term “appellant,” relative to the sections of the Government Code at issue here. Ultimately, the CCA explained that the terms “appellant” and “appellee” in the Rules of Appellate procedure “are designated for defendants, not the State[,]” as well as that, under TRAP 3.2, the State should always be designated as “The State” in an appeal, regardless of whether the State is bringing the appeal or responding to the defendant’s appeal.
Speaking of the State bringing an appeal, this case also serves as a reminder that the State’s right to appeal is narrower than a defendants’ right to appeal and may proceed only when authorized by statute—namely, CCP Art. 44.01, which other statutes incorporate by reference, as in this case. That being said, it is the effect of an order that determines whether it is appealable under 44.01, not its title. That is why the intermediate court’s judgment reversing a conviction in an MCOR and granting a new trial here was appealable under 44.01(a)(3), which permits the State to appeal “an order of a court in a criminal case if the order…grants a new trial.”