                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-09-00232-CR
        ______________________________


        DOYLE LEE MCCRARY, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




   On Appeal from the 349th Judicial District Court
               Houston County, Texas
             Trial Court No. 09CR-046




     Before Morriss, C.J., Carter and Moseley, JJ.
             Opinion by Justice Moseley
                                                  OPINION

           In a single jury trial, Doyle Lee McCrary was tried and convicted, 1 and his punishment

was assessed, for aggravated assault with a deadly weapon, injury to an elderly person, and

aggravated robbery, arising from his role in the botched attempt to steal thousands of dollars from

Hollis Ellis, an elderly person, who was repeatedly struck in the head with a hammer by Rebecca

Cleveland on December 9, 2008.2 We affirm the judgment of the trial court because McCrary‘s

convictions do not violate the Double Jeopardy Clause of the Fifth Amendment to the United

States Constitution3 and because McCrary was not entitled to the inclusion of certain purported

lesser-included offenses in the charge of the court.

I.         FACTS AND PROCEDURAL POSTURE

           In a multi-count indictment, McCrary was charged with aggravated assault with a deadly

weapon, injury to an elderly person, and aggravated robbery, committed against the same victim

on the same date. The jury charge authorized the jury to convict McCrary of all three offenses,

which it did.        The jury assessed punishment at fifteen years‘ imprisonment in the Texas

Department of Corrections–Institutional Division—for the aggravated assault conviction, thirty

1
 Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV‘T CODE ANN. § 73.001 (Vernon 2005). We are
unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.
2
 McCrary was charged under the law of parties; by acting with intent to promote the commission of the listed offenses,
McCrary was found to have solicited, encouraged, directed, aided, or attempted to aid Rebecca Cleveland in
committing these offenses. See TEX. PENAL CODE ANN. § 7.02(a)(2) (Vernon 2003).
3
    U.S. CONST. amend. V.

                                                          2
years‘ imprisonment for the injury to an elderly person conviction, and twenty-five years‘

imprisonment for the aggravated robbery conviction. All sentences are to run concurrently.

McCrary contends on appeal that he could not be punished for all three offenses consistent with the

Fifth Amendment prohibition against double jeopardy. He further contends the trial court erred

in failing to submit certain lesser-included charges to the jury for consideration.

           The evidence at trial showed that during the afternoon hours of December 9, 2008, Eric

Cleveland and his wife, Rebecca, along with McCrary, traveled to Ellis‘ home in Houston County,

Texas, with the intention of robbing Ellis of the thousands of dollars he was known to routinely

carry in his pants pocket. The three planned the robbery the preceding day, and determined that

Rebecca would hit Ellis with a hammer she had hidden in the sleeve of her pullover jacket, take his

money, and leave.4 McCrary was to attack Jimmy Lenox5 if he got in the way and Cleveland was

to act as a lookout and drive the car. As they arrived at Ellis‘ house, McCrary grabbed the

hammer and told Rebecca to hit Ellis with it, but not to kill him. Rebecca told Lenox, who

answered the door, that she was having car trouble and asked him to go out and take a look at it.

           Once outside, Lenox saw Cleveland and McCrary, who was wearing a bandana around his

face. After McCrary (who knew Lenox and Ellis) explained it was a joke, Lenox proceeded to

check the car for problems.                     Meanwhile, inside the house, Rebecca approached

4
 In her initial statement to law enforcement, Rebecca indicated that the plan was to proposition Ellis for sex and take
his money. Rebecca‘s final statement to law enforcement did not involve any sexual favors; it involved taking money
directly from Ellis.
5
    In December 2008, Lenox lived with Ellis.

                                                          3
eighty-one-year-old Ellis and asked for money. When Ellis stated that he did not have any

money, Rebecca retrieved a hammer from under her shirt, fell in Ellis‘ lap, and beat him in the

head with the hammer. Here, the testimony differs. According to Ellis, he caught the hammer

and she ran from the house. According to Cleveland, who entered the house when he heard Ellis

shout for help, he grabbed his wife‘s wrist and pulled her out of the house. When they saw Lenox

approach with a gun, the three ran from the house and sped away in the car in which they

arrived—one that had no problems, according to Lenox. Even though Lenox fired on the car as

the three made their getaway, they were able to escape without injury. Each of the three were

arrested a short time later for the actions committed on that December afternoon. Ellis was

hospitalized in the intensive care unit of the local hospital overnight, but recovered from his

injuries and testified at trial.

II.         ANALYSIS

            A.       Double Jeopardy

            The indictment contained three counts accusing McCrary of aggravated assault with a

deadly weapon6 (count one), injury to an elderly person7 (count two), and aggravated robbery8


6
    Count one of the indictment charges that McCrary did then and there:

            Intentionally, knowingly, or recklessly cause serious bodily injury to Hollis Ellis by hitting him in
            the head, and the defendant did then and there use or exhibit a deadly weapon, to-wit: a hammer,
            during the commission of said assault.
7
    Count two of the indictment charges that McCrary did then and there:

            Intentionally or knowingly cause serious bodily injury to Hollis Ellis, an individual 65 years of age

                                                              4
(count three). McCrary made no objection at trial regarding the submission of each of the three

counts to the jury, and all counts were therefore submitted. The jury convicted McCrary on each

count. On appeal, McCrary claims all three charges are the result of conduct-oriented behavior,

and allege the same act, the same injury, and the same individual, thus violating the protections

afforded by the Double Jeopardy Clause of the Fifth Amendment.

            While McCrary did not raise his double jeopardy claim in the trial court, under certain

circumstances, a double jeopardy claim may be raised for the first time on appeal when the

undisputed facts show the double jeopardy violation is clearly apparent on the face of the record

and when enforcement of usual rules of procedural default serve no legitimate state interests.

Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000).

            The Fifth Amendment guarantee against double jeopardy protects against a second

prosecution for the same offense following conviction, a second prosecution for the same offense

following an acquittal, and against multiple punishments for the same offense. Illinois v. Vitale,

447 U.S. 410, 415 (1980); Ex parte Cavazos, 203 S.W.3d 333, 336 (Tex. Crim. App. 2006).

McCrary invokes the third of these protections. For convictions involving multiple punishments

for the same offense, the double jeopardy violation is clearly apparent on the face of the record


            or older, by hitting him in the head with a hammer.
8
    Count three of the indictment charges that McCrary did then and there:

            While in the course of committing theft of property and with intent to obtain or maintain control of
            said property, intentionally, knowingly, or recklessly cause bodily injury to Hollis Ellis, a person 65
            years of age or older, by hitting him with a hammer.

                                                              5
when the record affirmatively shows multiple punishments resulting from the commission of a

single act that violated two separate penal statutes, one of which is subsumed in the other. See

Cervantes v. State, 815 S.W.2d 569, 572 (Tex. Crim. App. 1991). Because it is apparent that

McCrary‘s convictions are based on the same conduct, if there is a double jeopardy violation, it is

apparent on the face of the record. See, e.g., Johnson v. State, 208 S.W.3d 478, 510 (Tex.

App.––Austin 2006, no pet.).               McCrary is therefore entitled to raise his double jeopardy

complaints for the first time on appeal.

         (1)       Conviction for Injury to an Elderly Individual is Not a Double Jeopardy
                   Violation

         We begin our analysis of McCrary‘s double jeopardy claim by looking to the second count

of the indictment, which alleges injury to an elderly person, pursuant to Section 22.04 of the Texas

Penal Code. TEX. PENAL CODE ANN. § 22.04 (Vernon Supp. 2010).9 McCrary was convicted of

―[i]ntentionally or knowingly caus[ing] serious bodily injury to Hollis Ellis, an individual 65 years

of age or older, by hitting him in the head with a hammer.‖ Section 22.04(h) plainly authorizes

multiple punishments when a defendant‘s conduct violates both Section 22.04 and another Penal

Code section:

         A person who is subject to prosecution under both this section and another section
         of this code may be prosecuted under either or both sections. . . .

TEX. PENAL CODE ANN. § 22.04(h).

9
 This Penal Code provision provides that ―[a] person commits an offense if he intentionally, knowingly, recklessly, or
with criminal negligence, . . . causes . . . [an] elderly individual . . . serious bodily injury. . . .‖ TEX. PENAL CODE ANN.
§ 22.04(a)(1).

                                                             6
        The double jeopardy guarantee against multiple punishments for the same offense is

designed to prevent the sentencing court from prescribing greater punishment than the Legislature

intended. Missouri v. Hunter, 459 U.S. 359, 366 (1983); Ex parte Kopecky, 821 S.W.2d 957, 959

(Tex. Crim. App. 1992). When the same conduct violates more than one distinct penal statute and

each statute requires proof of a fact that the other does not, it is presumed that the two offenses are

not the same and that the Legislature intended to authorize multiple punishments. Hunter, 459

U.S. at 366; Blockburger v. United States, 284 U.S. 299, 304 (1932). Conversely, if all the

elements of one statutory offense are contained within the other, it is presumed that the two

offenses are the same and that the Legislature did not intend to authorize punishment for both.

Whalen v. United States, 445 U.S. 684, 693–94 (1980). An accused may be punished for two

offenses that would be regarded as the same offense if the Legislature has manifested its intention

that he should be. Littrell v. State, 271 S.W.3d 273, 276 (Tex. Crim. App. 2008).

        Because the Legislature has clearly stated that an accused may be punished for two

offenses that could be regarded as the same offense, we find no double jeopardy violation based on

McCrary‘s punishment for injury to an elderly individual in addition to the punishment received

for violation of another section of the Texas Penal Code.10 When the Legislature specifically


10
  In Gonzalez v. State, 973 S.W.2d 427 (Tex. App.––Austin 1998), aff’d, 8 S.W.3d 640 (Tex. Crim. App. 2000), the
court touched on the issue of whether injury to an elderly individual was a lesser-included offense of aggravated
robbery, but stated that:

        We express no opinion on whether the injury to an elderly individual offense is a lesser included
        offense of, and, therefore, could be considered the ―same offense‖ as, the aggravated robbery

                                                       7
authorizes multiple punishments under two statutes, even if those two statutes proscribe the same

conduct, ―a court‘s task of statutory construction is at an end and the prosecutor may seek and the

trial court or jury may impose cumulative punishment under such statutes in a single trial.‖

Hunter, 459 U.S. at 368–69; Johnson, 208 S.W.3d at 511 (conviction for violation of injury to

elderly individual and capital murder did not violate double jeopardy protections; multiple

convictions plainly authorized under statute). Thus, we find no violation of McCrary‘s double

jeopardy protections as a result of his conviction of and punishment for injury to an elderly person

in conjunction with additional punishment resulting from violations of other Penal Code

provisions.

         (2)      Convictions for Aggravated Assault and Aggravated Robbery Do Not Violate
                  Double Jeopardy

         The remaining issue in our double jeopardy analysis is whether McCrary‘s double

jeopardy protections were violated as a result of his conviction and punishment for both

aggravated assault with a deadly weapon and aggravated robbery.                          The principal test for

determining whether two offenses are the same for the purpose of double jeopardy was set out by

the United States Supreme Court in Blockburger:


         offense as set out in any of the three paragraphs as we did not grant discretionary review on this
         issue. We note, however, that the Legislature apparently has authorized multiple punishments even
         if these offenses could be considered the ―same‖ under double jeopardy principles. See TEX.
         PENAL CODE ANN. § 22.04(h) (person ―subject to prosecution‖ for injury to elderly individual and
         ―another section of this code may be prosecuted under either or both sections‖); Hunter, 459 U.S. at
         366; Whalen, 445 U.S. at 693–94.

Id. at 641 n.4.

                                                          8
            The applicable rule is that, where the same act or transaction constitutes a violation
            of two distinct statutory provisions, the test to be applied to determine whether
            there are two offenses or only one, is whether each provision requires proof of a
            fact which the other does not.

284 U.S. at 304. Greater and lesser-included offenses are the ―same‖ offense for double jeopardy

purposes. Parrish v. State, 869 S.W.2d 352, 354 (Tex. Crim. App. 1994). What is considered

the same offense in the multiple-punishments context is a matter of legislative intent. Littrell, 271

S.W.3d at 276; Rogers v. State, 305 S.W.3d 164, 168 (Tex. App.––Houston [1st Dist.] 2009, no

pet.). Although Blockburger provides the definitive test, the test is not exclusive, and an accused

may be punished for two offenses that would be regarded as the same under a Blockburger analysis

if the Legislature has made this intention clear. Littrell, 271 S.W.3d at 276.

            To determine whether an offense is a lesser-included offense of another offense, we begin

by ―comparing the elements of the greater offense, as the State pled it in the indictment, with the

elements in the statute that defines the lesser offense.‖ Hall v. State, 225 S.W.3d 524, 525 (Tex.

Crim. App. 2007). The elements of the offenses, as they are pled in the indictment, also are

compared to decide whether multiple punishments violate the Double Jeopardy Clause. Id. at

532–33. When the greater offense may be committed in more than one manner, the manner

alleged determines whether the other offense alleged is a lesser-included offense.11 Id. at 531.


11
     An offense is a lesser-included offense if:

                    (1)     it is established by proof of the same or less than all the facts required to establish
            the commission of the offense charged;


                                                              9
        Thus, we compare the elements of aggravated assault and aggravated robbery as the State

alleged those offenses in the indictment. McCrary‘s indictment in the aggravated assault case

alleged that on or about the 9th day of December, 2008, McCrary

        Intentionally, knowingly, or recklessly cause[d] serious bodily injury to Hollis Ellis
        by hitting him in the head, and the defendant did then and there use or exhibit a
        deadly weapon, to-wit: a hammer, during the commission of said assault.

See TEX. PENAL CODE ANN. § 22.02 (Vernon Supp. 2010). The indictment in the aggravated

robbery case alleged that on or about the 9th day of December, 2008, McCrary

        While in the course of committing theft of property and with intent to obtain or
        maintain control of said property, intentionally, knowingly, or recklessly cause[d]
        bodily injury to Hollis Ellis, a person 65 years of age or older, by hitting him with a
        hammer.

See TEX. PENAL CODE ANN. § 29.03 (Vernon 2003). The Texas Penal Code states that a person

commits aggravated robbery if he commits robbery as defined in Section 29.03, and he:

                   (1)     causes serious bodily injury to another;

                   (2)     uses or exhibits a deadly weapon; or




                  (2)       it differs from the offense charged only in the respect that a less serious injury or
        risk of injury to the same person, property, or public interest suffices to establish its commission;

                  (3)       it differs from the offense charged only in the respect that a less culpable mental
        state suffices to establish its commission; or

                   (4)     it consists of an attempt to commit the offense charged or an otherwise included
        offense.

TEX. CODE CRIM. PROC. ANN. art. 37.09 (Vernon 2006); Aguilar v. State, 263 S.W.3d 430, 435 (Tex. App.––Houston
[1st Dist.] 2008, pet. ref‘d).

                                                          10
               (3)     causes bodily injury to another person or threatens or places another
       person in fear of imminent bodily injury or death, if the other person is . . . 65 years
       of age or older . . . .

TEX. PENAL CODE ANN. § 29.03. Here, McCrary was indicted under subpart three of the statute,

alleging bodily injury (as opposed to serious bodily injury) and that Ellis was sixty-five years of

age or older at the time of the offense.

       According to the language of the indictment, for aggravated assault, the State had to prove

McCrary caused serious bodily injury and used or exhibited a deadly weapon (―to wit: a

hammer‖). For the aggravated robbery charge, the State had to prove that this same act occurred

in the commission of a theft and that Ellis was age sixty-five or older. The difference, however, in

the aggravated robbery charge is that the State was required to prove ―bodily injury‖ as opposed to

―serious bodily injury‖ as an element of proof in the aggravated assault charge. ―We then ask the

question that Article 37.09(a) poses: are the elements of the lesser offense ‗established by proof

of the same or less than all the facts required to establish[] the commission of the offense

charged?‘‖ Hall, 225 S.W.3d at 536. Under the cognate pleadings approach adopted by the

Texas Court of Criminal Appeals, double jeopardy challenges should be made even to offenses

that have differing elements under Blockburger, if the same ―facts required‖ are alleged in the

indictment. The term ―facts required‖ under Article 37.09 means the evidence legally required to

prove the elements of the offense. Hall, 225 S.W.3d at 536; Miles v. State, 259 S.W.3d 240, 246

(Tex. App.—Texarkana 2008, pet. ref‘d).



                                                 11
       It is clear that when comparing the two charges indicted, and taking into account all of the

elements that the State must prove for each charge, the two offenses are substantially similar.

That is, proof of each of the elements of aggravated robbery, as indicted, would also prove each of

the elements of aggravated assault, as indicted, with the exception of the degree of bodily injury

alleged. Because aggravated assault requires proof of ―serious bodily injury‖ and aggravated

robbery, as indicted, only requires proof of ―bodily injury,‖ the elements of aggravated robbery

(the greater offense) do not prove aggravated assault.

       The manner and means of alleging aggravated robbery is determinative of our double

jeopardy analysis. The manner and means can affect the availability of lesser-included offenses.

See Hall, 225 S.W.3d at 531 (noting ―[a]ssault by committing bodily injury is a lesser-included

offense of aggravated assault by inflicting serious bodily injury, but not of aggravated assault by

threat with a deadly weapon‖). For example, aggravated assault was treated as a lesser-included

offense of aggravated robbery in Jefferson v. State, 144 S.W.3d 612 (Tex. App.––Amarillo 2004,

no pet.). In that case, the elements of aggravated robbery as alleged in the indictment were that

the defendant, at the stated time and place, while in the course of committing theft of property and

with intent to obtain or maintain control of the property, intentionally or knowingly threatened or

placed the victim in fear of imminent bodily injury or death while exhibiting or using a deadly

weapon in the form of a firearm. Id. at 613. The elements of aggravated assault, as alleged in




                                                12
Jefferson, were that the defendant intentionally or knowingly threatened another with imminent

bodily injury, and used or exhibited a deadly weapon. Id.

       Here, aggravated robbery was pled as causing bodily injury to Ellis, a person sixty-five

years of age or older, by hitting him with a hammer. This allegation, pled in accordance with the

statute, does not include the element of serious bodily injury. See TEX. PENAL CODE ANN.

§ 29.03(a)(3). The term ―bodily injury‖ is defined as ―physical pain, illness, or any impairment of

physical condition.‖ TEX. PENAL CODE ANN. § 1.07(a)(8) (Vernon Supp. 2010). The term

―serious bodily injury‖ is defined as ―bodily injury that creates a substantial risk of death or that

causes death, serious permanent disfigurement, or protracted loss or impairment of the function of

any bodily member or organ.‖ TEX. PENAL CODE ANN. § 1.07(a)(46). By definition, these

statutory elements differ by degree of severity. The allegation of ―bodily injury‖ does not include

―serious bodily injury.‖

       The two offenses are distinct under a strict application of the Blockburger test, but the

Blockburger test is a rule of statutory construction and is not the exclusive test for determining if

two offenses are the same. Bigon v. State, 252 S.W.3d 360, 370 (Tex. Crim. App. 2008). That

is, offenses may be the same for double jeopardy principles even when their elements differ under

Blockburger, if there are other indicia of legislative intent to treat the offenses as the same. Ervin

v. State, 991 S.W.2d 804, 810–11 (Tex. Crim. App. 1999).




                                                 13
       In Ervin, the Texas Court of Criminal Appeals set forth a nonexclusive list of factors to

consider when examining the issue of whether two offenses are the same in the context of multiple

punishment. These factors include: (1) whether the offenses provisions are contained within the

same statutory section; (2) whether the offenses are phrased in the alternative; (3) whether the

offenses are named similarly; (4) whether the offenses have common punishment ranges;

(5) whether the offenses have a common focus (i.e., whether the ―gravamen‖ of the offense is the

same); (6) whether that common focus tends to indicate a single instance of conduct; (7) whether

the elements that differ between the offenses can be considered the ―same‖ under an imputed

theory of liability which would result in the offenses being considered the same under Blockburger

(i.e., a liberalized Blockburger standard utilizing imputed elements); and (8) whether there is

legislative history containing an articulation of an intent to treat the offenses as the same or

different for double jeopardy purposes. Bigon, 252 S.W.3d at 371.

       Aggravated assault and aggravated robbery are not in the same statutory section, as

aggravated assault is listed as an offense against the person under Title 5 of the Texas Penal Code

and aggravated robbery is listed as an offense against property under Title 7 of the Texas Penal

Code. See TEX. PENAL CODE ANN. §§ 22.02, 29.03. Because these offenses are not in the same

statutory section, they are not named in the alternative.       Because aggravated assault is a

second-degree felony and aggravated robbery is a first-degree felony, they do not have common

punishment ranges. With the exception of the aggravated nature of these crimes, the factors



                                                14
mentioned above indicate the Legislature intended to impose multiple punishments for the

violation of each statute.

       Both aggravated assault and aggravated robbery have a common focus as pled: bodily

injury to Ellis. Both crimes are result-oriented crimes with injury being the result. Given that

the result is the focus of these offenses, the sameness of the result is some indication that the

Legislature did not intend to impose multiple punishments. In this regard, we recognize the

changes in the law of robbery that were made in the Penal Code of 1974. Prior to those changes,

theft was an integral part of robbery. However, the Penal Code of 1974 required that theft only

has to be attempted. Ex parte Hawkins, 6 S.W.3d 554, 560 (Tex. Crim. App. 1999). Under the

current Penal Code, robbery is a form of assault:

       The common law analysis of the nature of a robbery offense was correct under Art.
       1408, supra, as the offense required a completed theft as an element of the crime.
       Under Sec. 29.03, however, no completed theft is required. Under the new Penal
       Code, the offense is no longer an aggravated form of theft. . . .

       A description of the property involved in the robbery was required under Art. 1408
       because the offense was characterized as a theft. The change in the focus of the
       statute, coupled with this Court‘s decision [that no description of the property was
       required] in Reese, [531 S.W.2d 638] compels the conclusion that the present
       robbery offense is assaultive in nature.

Hawkins, 6 S.W.3d at 559–60 (Tex. Crim. App. 1999) (citing Ex parte Lucas, 574 S.W.2d 162,

163–64 (Tex. Crim. App. 1978)); accord Hightower v. State, 629 S.W.2d 920, 922 (Tex. Crim.

App. [Panel Op.] 1981) (robbery is form of assault); Rohlfing v. State, 612 S.W.2d 598, 602 (Tex.




                                               15
Crim. App. [Panel Op.] 1981) (―The current penal code robbery offenses are assaultive in nature

and are not aggravated forms of theft.‖).

       In Hawkins, the Texas Court of Criminal Appeals recognized that even though aggravated

robbery is recognized as an offense against property due to its placement in Title 7 of the Texas

Penal Code, the primary interest protected by this offense is ―the security of the person from bodily

injury or threat of bodily injury that is committed in the course of committing theft.‖ Hawkins,

6 S.W.3d at 560 (citing Chestnut v. State, 567 S.W.2d 1, 2 (Tex. Crim. App. [Panel Op.] 1978)).

       Moreover, the placement of aggravated robbery in Title 7 of the Texas Penal Code,

although a form of assault, ―allowed the joinder of repeated robberies under the original statutes

for the joinder of offenses which allowed the joinder of only Title 7 offenses.‖ Hawkins,

6 S.W.3d at 560. Thus, the legislative decision to place robbery in Title 7 of the Code is not

necessarily indicative of the Legislature‘s intent to impose multiple punishments for aggravated

robbery and aggravated assault.

       Next, we address whether the common focus tends to indicate a single instance of conduct.

In this regard, we examine the ―allowable unit of prosecution,‖ which is defined by the Legislature

and determines if one course of conduct results in more than one offense. Ex parte Cavazos, 203

S.W.3d 333 (Tex. Crim. App. 2006). As recognized in Bigon, ―[u]sually analysis of an allowable

unit of prosecution involves a situation in which two offenses from the same statutory section are

charged, but the spirit behind the principle is fitting here.‖ Bigon, 252 S.W.3d at 371–72 (double



                                                 16
jeopardy analysis regarding convictions for felony murder, intoxication manslaughter, and

manslaughter).

       The allowable unit of prosecution for an assaultive offense is each victim. Hawkins,

6 S.W.3d at 560. Because robbery is a form of assault, the allowable unit of prosecution for

robbery likewise is each victim. Id. (holding that defendant‘s prosecution for robbery twice when

two victims were assaulted in course of committing theft did not violate Double Jeopardy Clause).

Because aggravated robbery is an assaultive offense, with the unit of prosecution being one victim

(as is the case for aggravated assault), the common focus of each offense in conjunction with the

fact that the common focus tends to indicate a single instance of conduct, are indicia of legislative

intent not to permit multiple punishments in this circumstance.

       We must also determine whether the elements that differ between the offenses can be

considered the ―same‖ under an imputed theory of liability which would result in the offenses

being considered the same under Blockburger. In this case, those differing elements are ―bodily

injury‖ and ―serious bodily injury.‖ Aggravated robbery was pled as causing bodily injury to

Ellis, a person sixty-five years of age or older, by hitting him with a hammer. This allegation,

pled in accordance with the statute, does not include the element of serious bodily injury. See

TEX. PENAL CODE ANN. § 29.03(3).

       The concept of imputing elements into an offense in order to determine if the offenses are

the ―same offenses‖ for purposes of double jeopardy has not been widely explored in caselaw. In



                                                 17
fact, Ervin is the only reported case that has positively determined this factor. In that case, the

court concluded that manslaughter and intoxication manslaughter are the same offense for double

jeopardy purposes when they involve the same victim, and imposing convictions for both violates

the Double Jeopardy Clause. Ervin, 991 S.W.2d at 817.

           In arriving at this conclusion, the court recognized that the statute defining intoxication

manslaughter does not include a mental state,12 while the statute defining manslaughter requires a

mental state of ―recklessly.‖13 In finding the two offenses were nevertheless the ―same offense‖

for double jeopardy purposes, the Ervin court found that intoxication manslaughter can be viewed

as having the element of recklessness by imputation, thus making the offenses the same under the

liberalized, ―imputation‖ version of the Blockburger test (finding that intoxication was an imputed

form of recklessness). Id. at 816.

           Ervin involved the imputation of a culpable mental state. Here, the differing element is

the degree of bodily injury. While imputation of a culpable mental state in Ervin made logical

sense, we see no logic in imputing the element of ―serious bodily injury‖ in the charge of

aggravated robbery when that charge already includes the element of ―bodily injury.‖




12
     TEX. PENAL CODE ANN. § 49.08 (Vernon Supp. 2010).
13
     TEX. PENAL CODE ANN. § 19.04 (Vernon 2003).

                                                         18
         Logic would seem to dictate, however, that because the proof at trial established that Ellis

suffered serious bodily injury,14 such proof should be sufficient to answer the issue at hand. To

take into account such proof, however, would require the application of the ―cognate evidence‖

analysis, an approach in which the court includes the facts adduced at trial in its lesser-included

offense analysis. Hall, 225 S.W.3d at 526. 15 Because we are bound to apply the cognate

pleadings approach to lesser-included offenses, we find that aggravated assault in this case is not a


14
 Ellis suffered blunt trauma injuries to the head, of such severity as to reach the skull. This level of trauma has been
known to cause death.
15
  Under this approach, a lesser-included offense instruction may be given even though all of the statutory elements of
the lesser offense are not contained in the greater offense, if the ―overlapping elements relate to the common purpose
of the statutes‖ and the specific evidence adduced would support an instruction on the cognate offense. Hall, 225
S.W.3d at 526 n.8.

We also note that to the extent McCrary‘s double jeopardy claim is based on the same conduct, i.e., hitting Ellis in the
head with a hammer, such contention is without merit. As the Texas Court of Criminal Appeals explained in Ortega
v. State, 171 S.W.3d 895, 901 (Tex. Crim. App. 2005), the ―same conduct‖ rule announced in Grady v. Corbin, 495
U.S. 508 (1990), was overruled by the Supreme Court in United States v. Dixon, 509 U.S. 688, 704 (1993). In
Corbin, the defendant drove a vehicle that crossed the center line of a highway and struck another vehicle, killing the
driver and injuring her passenger. He was convicted of driving while intoxicated and failing to keep right of the
median. Then he was indicted for homicide and assault offenses. He moved to dismiss the indictment on double
jeopardy grounds. Corbin, 495 U.S. at 511–14. The Corbin Court stated that ―[t]he critical inquiry is what conduct
the State will prove, not the evidence the State will use to prove that conduct.‖ Id. at 521. The Court said that ―the
State has admitted that it will prove the entirety of the conduct for which Corbin was committed–driving while
intoxicated and failing to keep right of the median–to establish essential elements of the homicide and assault offenses.
Therefore, the Double Jeopardy Clause bars this successive prosecution . . . .‖ Id. at 523. In rejecting this reasoning,
the Dixon Court stated:

         We have concluded, however, that Grady [v. Corbin] must be overruled. Unlike Blockburger
         analysis, whose definition of what prevents two crimes from being the ―same offence,‖ U.S. Const.,
         Amdt. 5, has deep historical roots and has been accepted in numerous precedents of this Court,
         Grady lacks constitutional roots. The ―same-conduct‖ rule it announced is wholly inconsistent
         with earlier Supreme Court precedent and with the clear common-law understanding of double
         jeopardy.

Ortega, 171 S.W.3d at 899 (citing Dixon, 509 U.S. at 704).

                                                          19
lesser-included offense of aggravated robbery. See id. at 535. To conclude otherwise would

require a finding of legislative intent not to permit multiple punishments for each offense alleged,

when we remain unconvinced of such intent. While double jeopardy precludes a defendant from

being punished twice for the same offense, it does not prevent a second punishment for the same

conduct.    E.g., Blockburger, 284 U.S. at 303–04 (holding two convictions for one sale of

narcotics that violated two statutory provisions did not violate double jeopardy). Accordingly, we

conclude that McCrary‘s double jeopardy protections were not violated.

       B.      Lesser-Included Offenses

       In his next three points of error, McCrary complains that the trial court erred in failing to

instruct the jury on certain purported lesser-included offenses.           Under certain, limited

circumstances, a criminal defendant in Texas will be entitled to a jury charge on a lesser-included

offense of the offense charged. See, e.g., Mathis v. State, 67 S.W.3d 918, 925 (Tex. Crim. App.

2002). The first step in determining whether an offense is a lesser-included offense of the alleged

offense is a question of law. It must ―be, capable of being performed before trial by comparing

the elements of the offense as they are alleged in the indictment or information with the elements

of the potential lesser-included offense.‖ Hall, 225 S.W.3d at 535–36. The second step in this

analysis asks whether there is evidence that supports giving the instruction to the jury. Id. at 536.

That is, there must be evidence in the record that would permit a jury to rationally find that the

defendant is guilty only of the lesser offense. Rousseau v. State, 855 S.W.2d 666, 672 (Tex.



                                                 20
Crim. App. 1993). Appellate courts should review all the evidence presented in trial in making

this determination. Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994).

           (1)     Aggravated Assault /Assault

           McCrary first contends that he was entitled to a lesser-included offense instruction on

assault on the indicted charge of aggravated assault.16 The State concedes that because assault is

a lesser-included offense of aggravated assault, McCrary has met the first prong of the

Royster-Rousseau test. The State nevertheless disputes entitlement to the lesser-included offense

charge because it maintains there is either no evidence or no more than a scintilla of evidence that

would permit a jury to rationally find that if McCrary is guilty, he is guilty of only the lesser

charge.

           Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser

charge. Bignall, 887 S.W.2d at 23. However, it is not sufficient that the jury might have

disbelieved evidence pertaining to the greater offense. Hampton v. State, 109 S.W.3d 437, 441

(Tex. Crim. App. 2003). There must be some evidence directly germane to a lesser-included

offense for the fact-finder to consider before an instruction on a lesser-included offense is

warranted. Id. McCrary points to certain evidence at trial that he maintains is sufficient to

entitle him to a lesser charge. Because McCrary was charged with a conspiracy theory of liability

for aggravated assault, the second prong is met only if there is evidence in the record showing

either (1) there was no aggravated assault; (2) the aggravated assault was not committed in
16
     TEX. PENAL CODE ANN. § 22.02.

                                                   21
furtherance of a conspiracy; or (3) the aggravated assault should not have been anticipated.

McCrary contends that the aggravated assault should not have been anticipated. We disagree.

         The testimony at trial indicated the initial plan for stealing Ellis‘ money was to have Ellis

pay to have sex with Rebecca. The plan changed to one in which Rebecca would offer to have sex

with Ellis for money and then, at the opportune time, hit Ellis in the head to knock him out and take

his money. It is unclear whether this plan included the use of a hammer. Finally, the last plan,

and the one implemented, was for Rebecca to hit Ellis in the head with a hammer and take the

money away from him while Cleveland and McCrary dealt with Lenox. The evidence further

indicates that as McCrary, Cleveland, and Rebecca arrived at Ellis‘ house on December 9,

McCrary handed the hammer to Rebecca and instructed her to hit Ellis with it, but not to kill him.

         McCrary himself, in statements to law enforcement officers, indicated the plan was to sell

sexual favors for money.17 McCrary contends that the jury could have believed this was the only

plan and could therefore have found him guilty only of assault.                       In conjunction with this

contention, McCrary maintains that the jury could have believed that he could not have anticipated

that in carrying out the plan to obtain Ellis‘ money, Rebecca would have hit Ellis in the head with

a hammer.




17
  McCrary also contends that the jury could have believed, given the evidence of changing plans, that he intended for
Rebecca to knock the money out of Ellis‘ hand and/or use some type of force to steal it, and that he had no knowledge
that Rebecca would use a hammer hit Ellis.

                                                         22
           We do not find the evidence here to be directly germane to the lesser-included offense of

assault. Criminal responsibility for the conduct of another is set forth in Section 7.02 of the Texas

Penal Code. It requires, in pertinent part, that:

           If, in the attempt to carry out a conspiracy to commit one felony, another felony is
           committed by one of the conspirators, all conspirators are guilty of the felony
           actually committed, though having no intent to commit it, if the offense was
           committed in furtherance of the unlawful purpose and was one that should have
           been anticipated as a result of carrying out the conspiracy.

TEX. PENAL CODE ANN. § 7.02(b). Accordingly, McCrary could not have been found guilty as a

party to the offense of aggravated assault with a deadly weapon unless he intended to commit a

felony offense. McCrary‘s statement to law enforcement—that Rebecca intended to sell sexual

favors for money—indicates McCrary only intended to commit the misdemeanor offense of

prostitution.18 Under this scenario, Section 7.02(b) of the Penal Code would not apply, as by

definition, it applies only to felony offenses. Said another way, if McCrary‘s statement that he

only intended for Rebecca to commit prostitution was believed by the jury, he would then not be

guilty of any offense under Section 7.02(b), nor would he be guilty of assault, the very offense he

urges should have been included in the jury charge. McCrary could not be found guilty of any

greater offense he did not intend to commit, and would not be entitled to a lesser-included charge

on assault.




18
     TEX. PENAL CODE ANN. § 43.02 (Vernon Supp. 2010).


                                                         23
        According to the second plan, Rebecca would offer sex for money and then use some force

to take the money at an opportune time. In this case, because McCrary would have intended to

commit the felony offense of theft from the elderly,19 Section 7.02 applies. Both assault and

aggravated assault are foreseeable consequences of the outcome of this plan. Moreover, the

charge instructed the jury on the law of parties, and it is uncontroverted that Rebecca used a

hammer during the robbery.

        The question concerning entitlement to the lesser-included offense of assault is whether the

evidence would permit a rational jury to make a contrary finding. That is, could a rational jury

determine, based on the evidence of this plan, that McCrary did not intend or anticipate serious

bodily injury to Ellis? Such evidence must be only more than a scintilla, and may be impeached

or contradicted, but it must be sufficient, if believed, to at least permit a rational jury to return a

verdict on the lesser-included offense. Ex parte Thompson, 179 S.W.3d 549, 560 (Tex. Crim.

App. 2005). On these facts, no evidence exists that McCrary is guilty only of assault.

      (2)      Bodily Injury to an Elderly Individual/Serious Bodily Injury to an Elderly
               Individual

        McCrary contends the trial court erred in failing to instruct the jury on the offense of

causing bodily injury to an elderly individual as a lesser-included offense of the indicted charge of

causing serious bodily injury to an elderly individual.20 The State concedes that McCrary has met


19
   TEX. PENAL CODE ANN. § 31.03(f)(3) (Vernon Supp. 2010). The evidence at trial indicated that McCrary intended
to steal as much as $25,000.00 from Ellis.
20
   TEX. PENAL CODE ANN. § 22.04.

                                                      24
the first prong of the Royster-Rousseau test. The State nevertheless disputes entitlement to the

lesser-included offense charge of bodily injury to an elderly individual because it maintains there

is either no evidence or no more than a scintilla of evidence that would permit a jury to rationally

find that if McCrary is guilty, he is guilty of only the lesser charge. McCrary points to the

changing plans of his co-conspirators, Cleveland and Rebecca, referenced in the preceding section,

as sufficient evidence to entitle him to the lesser charge of bodily injury to an elderly individual.

Based on the foregoing analysis, we overrule this point of error. Both bodily injury and serious

bodily injury to an elderly individual are foreseeable consequences of the aforementioned plan to

steal money from Ellis.

           (3)     Aggravated Robbery/Assault

           In his final point of error, McCrary complains of the trial court‘s refusal to instruct the jury

on the offense of assault as a lesser-included offense of the indicted charge of aggravated

robbery.21 The State concedes that McCrary has met the first prong of the Royster-Rousseau test.

The State nevertheless disputes entitlement to the lesser-included offense charge of assault

because it maintains there is either no evidence or no more than a scintilla of evidence that would

permit a jury to rationally find that if McCrary is guilty, he is guilty of only the lesser charge.

Here again, McCrary points to the changing plans of his co-conspirators, Cleveland and Rebecca,

referenced in the preceding section, as sufficient evidence to entitle him to the lesser charge of

bodily injury to an elderly individual.
21
     TEX. PENAL CODE ANN. § 29.03.

                                                     25
        Contrary to McCrary‘s contention, it matters not that the offense he may have originally

intended—theft from the elderly—subsequently escalated into aggravated robbery.                 Where

several people act together in pursuit of an unlawful act, each one is liable for collateral crimes,

even though they may have been unplanned and unintended, if those crimes are foreseeable,

ordinary, and probable consequences of the execution of the unlawful act. Curtis v. State, 573

S.W.2d 219 (Tex. Crim. App. [Panel Op.] 1978); Gutierrez v. State, 681 S.W.2d 698, 702 (Tex.

App.––Houston [14th Dist.] 1984, pet. ref‘d). Here, aggravated robbery was alleged in the

indictment as ―caus[ing] serious bodily injury to another . . . or threaten[ing] or plac[ing] another

person in fear of imminent bodily injury or death, if the other person is . . . 65 years of age or older

. . . .‖ TEX. PENAL CODE ANN. § 29.03. Aggravated robbery is a foreseeable consequence of the

plan to steal money from Ellis, an elderly individual. Based on the foregoing analysis, we

overrule this point of error.

        We affirm the judgment of the trial court.




                                               Bailey C. Moseley
                                               Justice

Date Submitted:         September 16, 2010
Date Decided:           November 2, 2010

Publish



                                                  26
