








IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-0823-10, 0824-10, 0825-10


FI'NESS EDWARD STOKES, Appellant

v.


THE STATE OF TEXAS




DISSENT TO REFUSAL TO GRANT 
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FIFTH COURT OF APPEALS

COLLIN COUNTY



 Keller, P.J., filed a dissenting opinion in which Hervey, J., joined.

 Can a person be prosecuted twice for stealing the same gun - once for taking it and once for
possessing it?  Because there seems to be some question about it, I would grant review to consider
appellant's double jeopardy claim.  
	Appellant was convicted of aggravated robbery involving the stealing of a handgun that
occurred on January 21, 2005. (1)  He was also convicted separately for the theft of that same handgun
under the theory that he possessed it on February 19, 2005, knowing it was stolen. (2)  The court of
appeals held that these offenses were different for double jeopardy purposes because (1) the dates
of the offenses were different (January 21st and February 19th), and (2) the charged theft required the
additional element of knowing that the gun was stolen. (3)
	These holdings seem inconsistent with the caselaw that says theft is not a continuing offense. 
In Barnes v. State, the State argued that every day a defendant exercised control over stolen property
represented a separate, completed theft for the purpose of tolling the statute of limitations. (4)  We
rejected  this contention.  We held that, for statute of limitations purposes, the offense of theft was
complete upon the initial unlawful acquisition of the property and did not continue for each day the
thief retained possession. (5)  We explained that the expansive definition of "appropriate" could "be
used to eliminate evidentiary problems surrounding acquisition of stolen articles" but we had "never
construed that section as an invitation to turn theft into a continuing offense." (6)
	Likewise, the language "knowing it was stolen by another" could be used to alleviate
difficulties in proving when a theft occurred, but that language does not permit the State to create
two thefts out of one.  Appellant's knowing possession of the stolen gun on February 19th was not
a separate offense from his initial theft of the gun on January 21st.
	It could be argued that the offenses are different for double jeopardy purposes because the
aggravated robbery offense requires only an attempted theft, (7) while the theft offense requires a
completed theft. (8)  But this kind of reasoning was rejected by this Court in the context of felony
murder and aggravated robbery. (9)  The defendant in Littrell was convicted of felony murder by
committing an act clearly dangerous to human life that caused the victim's death during the
commission or attempted commission of aggravated robbery. (10)  He was also convicted of the self-same predicate aggravated robbery. (11)  This Court found that the defendant's double-jeopardy rights
were violated by conviction for both offenses. (12)  If the reasoning in Littrell does not apply in the
aggravated robbery/theft context, this Court should explain why it does not.
	I respectfully dissent to the Court's refusal to grant appellant's petition.
Filed: March 2, 2011
Publish
1.   See Tex. Penal Code §§ 29.02(a)(2) (a person commits robbery if "in the course of
committing theft as defined in Chapter 31 and with intent to obtain or maintain control of the
property he . . . intentionally or knowingly threatens or places another in fear of imminent bodily
injury or death"), 29.03(a)(2) (a person commits aggravated robbery if he commits robbery and he
"uses or exhibits a deadly weapon").  Appellant was convicted of a separate aggravated robbery for
stealing diamonds from a jewelry store.  The aggravated robbery involving the diamonds is not at
issue here.
2.   See  Tex. Penal Code § 31.03(a) (theft is committed if a person "unlawfully appropriates
property with intent to deprive the owner of property"), (b)(2) (the appropriation of property is
unlawful when "the property is stolen and the actor appropriates the property knowing it was stolen
by another").
3.   Stokes v. State, No. 05-09-00235-CR, slip op. at 12 (Tex. App.-Dallas June 9, 2010) (not
designated for publication).
4.   824 S.W.2d 560, 562 (Tex. Crim. App. 1991).
5.   Id. at 561-62.
6.   Id. at 562.
7.   See Tex. Penal Code § 29.01(1) ("In the course of committing theft" means "conduct that
occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or
commission of theft."). 
8.   See Littrell v. State, 271 S.W.3d 273, 279-81 (Tex. Crim. App. 2008) (Keller, P.J.,
dissenting) (arguing that aggravated robbery was a different offense from felony murder because
felony murder required only an attempt to commit aggravated robbery). 
9.   Id. at 277 n.18 (Court's op.).
10.   Id. at 276.
11.   Id. at 276. 
12.   Id. at 279.
