Johnson, J., filed a concurring opinion.

I concur in the judgment only. In concluding that applicant's double jeopardy rights have not been violated, the majority paints with too broad a brush, both judicially rewriting part of our penal code and overruling properly decided cases which need not even be considered in the instant case.

We recently noted that "[a] defendant suffers multiple punishments in violation of the Double Jeopardy Clause when he is convicted of more offenses than the legislature intended." Ervin v. State, 991 S.W.2d 804, 807 (Tex. Crim. App. 1999) (citing Ball v. United States, 470 U.S. 856, 105 S. Ct. 1668, 84 L. Ed.2d 740 (1985)). The United States Supreme Court has stated that

[b]ecause it was designed originally to embody the protection of the common-law pleas of former jeopardy, the Fifth Amendment double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial.

Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 2225, 53 L. Ed.2d 187 (1977). The central error the majority makes today is its conclusion that "[r]obbery is a form of assault." Ante, at ___ (slip op. at 12).

Tex. Pen. Code 29.02, titled "Robbery," provides that

(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.

(Emphasis added.) Tex. Pen. Code 22.01, titled "Assault," provides that

(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.

Clearly assault and robbery have elements in common. Indeed, under a Blockburger⁽¹⁾ analysis, assault is considered a lesser-included offense of robbery. However, to say that robbery is "a form of assault" is to go too far.

Assault is contained in Chapter 22 of our penal code, which is titled "Assaultive Offenses." Chapter 22 is part of Title 5 of the penal code, which is titled "Offenses Against the Person." In contrast, robbery is contained in Chapter 29 of the penal code, which is titled "Robbery." Chapter 29 is part of Title 7 of the penal code, which is titled "Offenses Against Property." The robbery statute specifically refers to Chapter 31 of the penal code (Theft), but makes no reference to either Chapter 22 or Title 5. The very structure of the robbery statute indicates that the primary focus is on the theft rather than the assault. Had the legislature meant for robbery and aggravated robbery⁽²⁾ to be categorized as assaultive offenses, it certainly could have, but it chose instead to categorize them as offenses against property.

It is true, as the majority notes, that a number of our cases since 1974 have characterized robbery as being assaultive in nature. However, the underlying rationale of these cases does not withstand scrutiny. All of them cite as authority, either directly or indirectly, our decision in Earl v. State, 514 S.W.2d 273 (Tex. Crim. App. 1974).⁽³⁾ In Earl, the defendant was convicted of aggravated robbery. Earl, 514 S.W.2d at 273. On appeal, he alleged that the indictment against him was defective for failure to allege the elements of the offense of theft. Id. In affirming the conviction, we noted that

the actual commission of the offense of theft is not prerequisite to commission of a robbery...Of course it must be alleged and proven that the alleged offense was committed 'in the course of committing a theft' and 'with intent to obtain or maintain control of the property' involved in the theft. Although the proof will involve proving up a theft or attempted theft, the elements of the particular theft...or attempted theft...need not be alleged in the indictment.

Id. at 274. Nothing in Earl suggests that the gravamen of robbery is assault, rather than theft. Thus, the argument in Chestnut, 567 S.W.2d at 2, that robbery is assaultive in nature because "the taking of property is no longer an essential element of the offense," is wholly undermined by the above quote in Earl, i.e., the fact that two of the essential elements of robbery are the commission of theft, as defined in Chapter 31 of the penal code, and the intent to obtain or maintain control of property. See Tex. Pen. Code 29.02. The focus of the robbery statute remains the offense against property.

Because of the legislature's choice, the cases which the majority today overrules were correctly decided. They are also distinguishable and inapplicable to the instant case. In Ex parte Crosby, 703 S.W.2d 683, 684 (Tex. Crim. App. 1986), the defendants pled guilty to two counts of aggravated robbery. The first indictment alleged that the defendants committed aggravated robbery of W.H. Thurston and caused serious bodily injury to W.H. Thurston. Id. The second indictment alleged that the defendants committed aggravated robbery of W.H. Thurston and caused serious bodily injury to Mary Alice Thurston. Id. As we noted, "each applicant was convicted twice for the aggravated robbery of W.H. Thurston. The only difference in the offenses charged was the person alleged in the indictments to have suffered serious bodily injury." Id. Thus, it is not surprising that we found that the defendants' double-jeopardy rights had been violated. As we stated, "[O]nly one theft of one person occurred. Thus, only one aggravated robbery can have taken place." Id. at 685. Simply alleging that a different person suffered serious bodily injury cannot turn one property offense into two.⁽⁴⁾

Similarly, in Simmons v. State, 745 S.W.2d 348 (Tex. Crim. App. 1987), the defendant was convicted of two counts of aggravated robbery. The first indictment on which the defendant was convicted alleged that he committed theft and threatened and placed Norma Joe Nichols in fear of serious bodily injury and death. Id. at 349-50. The second indictment on which the defendant was convicted alleged that he committed theft and threatened and placed Bruce Nichols in fear of serious bodily injury and death. Id. at 350. Although neither indictment alleged against whom the theft had been committed, we noted that "the State used the theft of money from [Bruce] Nichols as the theft allegation necessary for both of the aggravated robbery charges. Id. at 350. Again, we found that the defendant's double-jeopardy rights had been violated, because both convictions rested on the same theft of Bruce Nichols. Id. at 352.

Finally, in Cook v. State, 840 S.W.2d 384 (Tex. Crim. App. 1992), the defendant was convicted of two counts of aggravated robbery. The first indictment on which the defendant was convicted alleged that she had committed aggravated robbery of Charlotte Mann and caused serious bodily injury to M.L. Pierce. Id. at 388. The second indictment on which the defendant was convicted alleged that she had committed aggravated robbery of Charlotte Mann and caused serious bodily injury to G.C. Sanchez. Id. As we noted, "there was only one theft from one individual." Id. Thus, "[b]ecause there was only one theft in this case, there can be only one conviction for aggravated robbery, regardless of the number of victims of the assaultive conduct." Id. at 389.

The aforementioned cases are wrongly decided only if robbery is a form of assault. But, as noted above, the legislature, the body responsible for creating and defining offenses, made it a property offense. Willis v. State, 790 S.W.2d 307, 314 (Tex. Crim. App. 1990). Thus, contrary to the majority's position, the "allowable unit of prosecution" for robbery is based not on each victim of the assaultive conduct, but on the theft. There was a double-jeopardy violation in these cases because in each there were two indictments against the defendants, each alleging the same property offense against the same person but with a different victim of the alleged assault.

On this basis, the instant case is both factually and legally distinguishable from the above cases and does not involve a double-jeopardy violation. In this case, although the precise facts are not clear,⁽⁵⁾ one of the aggravated-robbery indictments alleged that applicant committed theft of property from Gilberto Trevino III while threatening and placing Trevino in fear of imminent bodily injury and by using a firearm. The second aggravated-robbery indictment alleged that applicant committed theft of property from Chris Shipman while threatening and placing Shipman in fear of imminent bodily injury and by using a firearm. Unlike Crosby, Simmons and Cook, the two indictments here alleged two separate and distinct property offenses.

Because applicant plead guilty to two separate allegations of aggravated robbery of two different persons, there is no double-jeopardy violation.⁽⁶⁾ Based on the foregoing, I concur only in the judgment.

Johnson, J.

Date Delivered: December 8, 1999

Publish

1. See Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).

2. See Tex. Pen. Code 29.03.

3. See, e.g., Crank v. State, 761 S.W.2d 328, 350 (Tex. Crim. App. 1988) (citing, inter alia, Evans v. State, infra), cert. denied, 493 U.S. 874, 110 S. Ct. 209, 107 L. Ed.2d 162 (1989); Hightower v. State, 629 S.W.2d 920, 922 (Tex. Crim. App. 1981) (citing Ex parte Lucas, infra); Smallwood v. State, 607 S.W.2d 911, 912 (Tex. Crim. App. 1979) (citing Ex parte Lucas, infra); Evans v. State, 606 S.W.2d 880, 882 (Tex. Crim. App. 1980) (citing Ex parte Lucas, infra); Ex parte Lucas, 574 S.W.2d 162, 164 (Tex. Crim. App. 1978) (citing, inter alia, Earl v. State); Chestnut v. State, 567 S.W.2d 1,2 (Tex. Crim. App. 1978) (citing Earl v. State).

4. The majority's "paraphrase" of this sentence significantly distorts its meaning. See ante, at ___ (slip op. at 14).

5. The majority suggests that, based on the trial court's findings of fact at the habeas hearing, it is clear that only one theft took place. Ante, at ___ (slip op. at 15). However, those findings are not a model of clarity. According to the findings, "The facts of this case indicate that applicant held a gun to the head of Trevino and led him to the cashier, Chris Shipman and pointed the gun at both of them as the bag was filled." Although the judge found that there were "two separate and distinct complaining witness[es] in these cases," it is unclear whether there were actually two aggravated robberies, or an aggravated robbery and an aggravated assault.

6. In Crosby, we noted that although there was a double jeopardy violation based on two convictions of aggravated robbery of the same person, W.H. Thurston, it may have been possible for the state to have indicted the defendant for aggravated assault with respect to Mary Alice Thurston. Crosby, 703 S.W.2d at 685. There may be a similar issue lurking in the present case. See supra note 5. However, that issue is not before this court. Unlike the indictments in Crosby, the indictments in the instant case do not, on their faces, violate applicant's double-jeopardy rights. Furthermore, as the Court of Appeals found on direct appeal, applicant's written and signed judicial confessions to the two counts of aggravated robbery were sufficient to support his guilty pleas. Hawkins v. State, Nos. 05-95-01510-CR, 05-95-01511-CR, 05-95-01512-CR, slip op. at 3 (Tex. App.--Dallas February 20, 1998, no pet.) (not designated for publication), 1998 WL 70641, at *1.