            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                NOS. AP-76,801 & AP-76,802



                EX PARTE WILLIAM CHARLES DENTON, Applicant



               ON APPLICATIONS FOR WRIT OF HABEAS CORPUS
                        FROM HENDERSON COUNTY

               KELLER , P.J., filed a concurring opinion.

       The present case involves an exceedingly complex double-jeopardy question, with only

limited, neutral briefing from the State. Many of the significant issues and authorities relevant to

the question are not addressed in the Court’s opinion. When complex issues are not subjected to

adversarial testing, and when the relevant issues have not been sufficiently aired out, there is a

danger in granting relief in anything other than a brief, unpublished opinion. I believe that that

danger manifests itself in the Court’s opinion. Under the circumstances, I agree with granting

applicant relief but do not join the Court’s opinion.

                            A. General Double Jeopardy Principles

       To understand the complexity of the issue before us, we must first review some general

double-jeopardy principles. There are two ways in which offenses can be the same or different under
                                                                  DENTON CONCURRENCE — 2

double-jeopardy law when two statutes are involved: (1) by elements, and (2) by units.1 For a

double-jeopardy violation to occur, the offenses at issue must be the “same” in both respects.2

                                             1. Elements

        An elements inquiry is limited to the law and the charging instrument.3 In determining

whether offenses are the same or different under such an inquiry, the Blockburger4 test sets out the

starting presumption, but, at least in the multiple-punishments context, that presumption can be

rebutted by other indicia clearly manifesting a legislative intent to the contrary.5 Under Blockburger,

“where the same act or transaction constitutes a violation of two distinct statutory provisions, the test


        1
         Ex parte Hawkins, 6 S.W.3d 554, 557 n.8 (Tex. Crim. App. 1999) (discussing legal
elements versus units of prosecution).
        2
        Id. (quoting Akhil Reed Amar, Double Jeopardy Law Made Simple, Yale L.J. 1807, 1817-
18 (1997) (“[A]n offense must not only be the same in law—it must also be the same in fact.”)).
        3
         Bigon v. State, 252 S.W.3d 360, 370 (Tex. Crim. App. 2008); Hall v. State, 225 S.W.3d
524, 532-33 (Tex. Crim. App. 2007).
        4
            Blockburger v. United States, 284 U.S. 299 (1932).
        5
            Littrell v. State, 271 S.W.3d 273, 276 (Tex. Crim. App. 2008) (If one offense “is a
lesser-included” of the other under Blockburger, “the judicial presumption is that they are the same
for double-jeopardy purposes” and the “second question, in that event, is whether the Legislature has
clearly expressed a contrary intention that the accused should in fact be punished for both the greater
and the lesser-included offenses.”); id. at 277 n.23 (“Of course, even when two statutorily defined
offenses are clearly not the same under a Blockburger analysis, other considerations might make it
clear that the Legislature nevertheless intended that an accused not be punished under both
provisions.”). See also Bigon, 252 S.W.3d at 370 (“When multiple punishments arise out of one
trial, the Blockburger test is the starting point in analyzing the two offenses.”); Ex parte Ervin, 991
S.W.2d 804, 807 (Tex. Crim. App. 1999) (“[T]he Blockburger test cannot authorize two
punishments where the legislature clearly intended only one.”); Gonzales v. State, 304 S.W.3d 838,
845-46 (Tex. Crim. App. 2010) (“The traditional indicium of . . . legislative intent is the so-called
‘same elements’ test of Blockburger,” but “even if a straightforward application of the Blockburger
test would suggest that two offenses are not the ‘same’ for double jeopardy purposes,” the offenses
are nevertheless considered the same, “if other indicia manifest a legislative intent that an accused
not be punished for both offenses”).
                                                                DENTON CONCURRENCE — 3

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.”6 In the multiple punishments context, if the

offenses have the same elements under Blockburger, then an analysis can occur under Missouri v.

Hunter7 to determine whether the Legislature nevertheless intended to allow multiple punishments.8

Conversely, if the offenses have different elements under Blockburger, then an analysis can occur

under Ex parte Ervin to determine whether the Legislature nevertheless intended the offenses to be

treated as the same.9 The Hunter/Ervin analysis is part of the elements aspect of Double Jeopardy

law.10 The allowable unit of prosecution prescribed for the offenses is a relevant consideration under

an Ervin analysis,11 but only in the abstract, in an effort to determine whether, under the law and the

charging instrument, the offenses are considered to be the same elementally.

                                               2. Units

       A units (or “allowable unit of prosecution”) inquiry is separate, designed to determine




       6
            284 U.S. at 304.
       7
            459 U.S. 359 (1983).
       8
         See id.; Ervin, 991 S.W.2d at 807. A Missouri v. Hunter inquiry may not be allowed in the
multiple-prosecution context due to finality concerns. See State v. Perez, 947 S.W.2d 268, 270 n.3
(Tex. Crim. App. 1997).
       9
         See Gonzales, 304 S.W.3d at 845-46 (discussing Ervin). This analysis can occur in both
the multiple prosecution and the multiple punishment contexts.
       10
           See Hall, 225 S.W.3d at 533 n.39 (recognizing that Hunter involved a cognate-pleadings
analysis); Bigon, 252 S.W.3d at 372 (under an Ervin analysis, looking at charging instrument
allegations to determine the underlying felony in felony-murder prosecution); Ervin, 991 S.W.2d at
807 (recognizing “the inverse conclusion” from Hunter).
       11
            Bigon, 252 S.W.3d at 371-72.
                                                                DENTON CONCURRENCE — 4

whether a single legally proscribed offense has been committed more than once.12 A units inquiry

can also be divided into two parts: (1) what the unit is,13 and (2) whether the requisite number of

units have been shown.14 This inquiry involves determining such things as whether there were two

murder victims, whether a victim who was assaulted on Monday was assaulted again on Tuesday,

or whether multiple kinds of sex acts were committed against a victim. Evidence at trial can be

considered in determining whether the requisite number of units has been shown.15 A units inquiry

might more commonly arise when a single statute is involved16 and a court is trying to discern how




       12
         See Sanabria v. United States, 437 U.S. 54, 69-70, 69 n.24 (1978); Saenz v. State, 166
S.W.3d 270, 272-74 (Tex. Crim. App. 2005).
       13
           See e.g. Vick v. State, 991 S.W.2d 830, 832-34 (Tex. Crim. App. 1999) (Penetration of
anus and sexual organ are different units in aggravated sexual assault.); Hawkins, 6 S.W.3d at 556
(Different victims are different units in a robbery.); Ex parte Cavazos, 203 S.W.3d 333, 335-37 (Tex.
Crim. App. 2006)(Entry is the unit in a burglary.).
       14
           Blockburger, 284 U.S. at 303 (Second drug sale was a separate offense because it “was
not the result of the original impulse, but of a fresh one.”); Ex parte Goodbread, 967 S.W.2d 859,
860-61 (Tex. Crim. App. 1998) (can have multiple prosecutions for different incidents of the same
type of sexual assault).
       15
           Blockburger, 284 U.S. at 303; Goodbread, 967 S.W.2d at 860 (“For Double Jeopardy
purposes, the same offense means the identical criminal act, not the same offense by name . . . .
[W]hen one cannot determine from the State’s pleadings whether the offenses prosecuted are the
same, the court must look to the proof offered at trial.”) (citing and quoting favorably from Luna v.
State, 493 S.W.2d 854 (Tex. Crim. App. 1973)); id. at 861 (We look to evidence at trial to determine
what instances of conduct conforming to the indictment are jeopardy-barred.); see also Quintano v.
People, 105 P.3d 585, 592, 595 (Colo. 2005) (“[W]hile we do not adopt any specific list of factors
to determine whether the defendant’s acts constitute factually distinct offenses, we look to all the
evidence introduced at trial to determine whether the evidence on which the jury relied for conviction
was sufficient to support distinct and separate offenses.”).
       16
          See Bigon, 252 S.W.3d at 371-72 (“Usually, analysis of an allowable unit of prosecution
involves a situation in which two offenses from the same statutory section are charged.”).
                                                                  DENTON CONCURRENCE — 5

to divide conduct (e.g., a sexual assault with multiple manners and means) into units.17 Parsing a

single statute “is unlike a situation involving different statutes, which, by itself, is some indication

of legislative intent to authorize multiple prosecutions simply because the offenses are separately

defined in different statutes.”18 So, while a determination that the elements are different under the

Blockburger test sets up a presumption in a multiple-statute elements inquiry, no such presumption

is created in a single-statute units inquiry.19 Nevertheless, if offenses under different statutes are the

“same” elementally, then a units analysis could be appropriate if, for example, the pleadings or the

evidence indicates that there are different victims.20

                           B. Aggravated Robbery and Aggravated Assault

                       1. The State’s Briefing and the Habeas Court’s Findings

        The State did not file a brief after we filed and set the instant habeas applications, but the

State had earlier filed a response to the applications with the trial court. The State’s response was

essentially neutral with respect to whether relief should be granted. The State conceded that the

offenses are the same by their elements: “If the Court were to find that the actions taken by the

defendants constituted a single transaction, then the only conclusion is that a double jeopardy

violation has occurred.” But the State suggested that the offenses might be different by their units.



        17
           See Vick, 991 S.W.2d at 833 n.1 (arriving at the same result under either the Blockburger
test or an inquiry regarding how to divide the offense into separate prosecutable acts).
        18
             Id. at 832.
        19
          See Vineyard v. State, 958 S.W.2d 834, 836 n.5 (Tex. Crim. App. 1998) (“We also note
this Court has stated the Blockburger test is not ‘precisely applicable’ to cases like this where a
defendant’s conduct violates one statutory provision more than once.”).
        20
             See Hawkins, 6 S.W.3d at 557 n.8.
                                                                   DENTON CONCURRENCE — 6

According to the State, applicant’s act of firing into the wall during the process of attempting to take

the victims’ money could be viewed as the aggravated robbery, while a co-defendant’s act of

shooting one of the victims could be viewed as a separate offense of aggravated assault. The State

acknowledged that “the issue is debatable.”

        In its findings of fact and conclusions of law, the habeas court accepted the State’s suggestion

that these were different offenses by their units. According to the habeas court, “The first assault

occurred when William Denton fired a shot into the wall, and the second assault occurred when

Michael Wainionpa shot Nicholas Moore in the leg. Even though the two crimes occurred close in

time, there were two separate incidents, with a break in the action between the two events.” The

habeas court did not say which assault was part of the aggravated robbery and which assault

constituted the separate crime of aggravated assault.

                                               2. Elements

                                       a. Comparing the Statutes

        Aggravated robbery and aggravated assault are defined in different sections—in fact, in

different chapters—of the Penal Code. As explained above, the fact that the offenses involved are

defined in different statutes is some indication that the Legislature intended multiple punishments.

The aggravated-robbery and aggravated-assault statutes do contain a number of parallel elements.

Both allow an underlying lesser offense to be aggravated by the use of a deadly weapon (the

aggravating factor alleged in the indictment in this case) or by the infliction of serious bodily injury.21

The underlying lesser offenses of assault and robbery both contain alternative manners and means




        21
             Compare TEX . PENAL CODE § 22.02(a)(1), (2) with id. § 29.03(a)(1), (2).
                                                                  DENTON CONCURRENCE — 7

involving “bodily injury” and a “threat.”22

        For the purpose of determining a lesser-included offense under § 37.09 of the Code of

Criminal Procedure, we have recognized that assault may or may not be a lesser-included offense

of robbery depending upon which alternative manners and means are alleged:

        For example, robbery may be committed either by causing bodily injury or by
        threatening imminent bodily injury. Each of these forms of robbery includes, as a
        lesser offense, a form of assault that the other does not include. An allegation of
        robbery by threat includes the lesser offense of assault by threat; it does not include
        the offense of assault by causing bodily injury. Conversely, an allegation of robbery
        by causing bodily injury would include the lesser offense of assault by causing bodily
        injury, but it would not include the offense of assault by threats.23

                                     b. The Williams Construction

        There is at least one substantial difference between the underlying assault and robbery

statutes that relates to the case hand. The “threat” portion of the assault statute provides that a person

commits an offense if he “intentionally or knowingly threatens another with imminent bodily

injury.”24 The counterpart provision in the robbery statute provides that a person commits an offense

if he “intentionally or knowingly threatens or places another in fear of imminent bodily injury or

death.”25 As can be seen, the robbery statute contains the phrase “places . . . in fear of” that is not

contained in the assault statute. In Williams v. State, the First Court of Appeals indicated that this



        22
             Compare id. § 22.01(a)(1), (2) with id. § 29.02(a)(1), (2).
        23
          Bell v. State, 693 S.W.2d 434, 436 n.3 (Tex. Crim. App. 1985) (citation omitted, citing
Martinez v. State, 599 S.W.2d 622, 624 (Tex. Crim. App. 1980) (in turn, citing Mitchell v. State 543
S.W.2d 637 (Tex. Crim. App. 1976) (holding that aggravated robbery by threat does not include
aggravated assault by causing bodily injury)).
        24
             TEX . PENAL CODE § 22.01(a)(2) (emphasis added).
        25
             Id. § 29.02(a)(2) (emphasis added).
                                                                DENTON CONCURRENCE — 8

difference in language results in a significant difference in the meaning of the two statutes, because

a threat is not actually required to establish robbery:

       We note that an element of the crime of robbery, “places another in fear of imminent
       bodily injury,” TEX . PENAL CODE ANN . § 29.02(a)(2) (Vernon 1989) (emphasis
       added), differs from an often compared, but vastly dissimilar element for the crime
       of assault, “threatens another with imminent bodily Injury,” TEX . PENAL CODE ANN .
       § 22.01(a)(2) (Vernon 1989) (emphasis added). The general, passive requirement that
       another be “placed in fear” cannot be equated with the specific, active requirement
       that the actor “threaten another with imminent bodily injury.” Under the “placed in
       fear” language in section 29.02 of the Texas Penal Code, the factfinder may conclude
       that an individual perceived fear or was “placed in fear,” in circumstances where no
       actual threats were conveyed by the accused.26

       In published opinions, the Third, Sixth, and Fourteenth courts of appeals have followed

Williams.27 In Wilmeth v. State, the Twelfth Court of Appeals indicated that “a menacing glance”

could be sufficient to show that the defendant placed a victim in fear of imminent bodily injury.28

A review of recent unpublished opinions shows other courts of appeals citing Williams or its progeny

for the proposition that the “places in fear” element means that a threat is not required to establish

a robbery.29 If both published and unpublished opinions are considered, the Williams case articulates


       26
            827 S.W.2d 614, 616 (Tex. App.–Houston [1st Dist.] 1992) (emphasis in original).
       27
            Welch v. State, 880 S.W.2d 225, 227 (Tex. App.–Austin 1994); Howard v. State, 306
S.W.3d 407, 410-11 (Tex. App.–Texarkana 2010); Burton v. State, 230 S.W.3d 846, 852 (Tex.
App.–Houston [14th Dist.] 2007). See also Boston v. State, 373 S.W.3d 832, 840 (Tex. App.–Austin
2012) (“Moreover, ‘[b]y defining robbery to be theft plus either threatening or placing another in
fear, [the robbery] statute demonstrates that the term “threaten” means something other than placing
a person “in fear of imminent bodily injury or death.”’”) (quoting from Olivas v. State, 203 S.W.3d
341, 345-46 (Tex. Crim. App. 2006), emphasis in Olivas and Boston, brackets in Boston).
       28
            808 S.W.2d 703, 706 (Tex. App.–Tyler 1991).
       29
            Ross v. State, 2012 Tex. App. LEXIS 7068 (Tex. App.–Fort Worth August 23, 2012) (not
designated for publication) (citing Burton for the proposition that the defendant’s informing teller
that this is a “holdup” and demanding money reasonably placed the teller in fear of bodily injury);
Reed v. State, 2012 Tex. App. LEXIS 1650, *11 (Tex. App.–Waco February 29, 2012) (not
                                                                DENTON CONCURRENCE — 9

the near-unanimous view of the courts of appeals, excepting only (possibly) the court in El Paso.

We cannot consider the unpublished decisions as authority, but they demonstrate that the Williams

holding is an issue of law circulating in the courts of appeals that we need to address in an

appropriate case.30


designated for publication) (“Under the ‘placed in fear’ language of section 29.02, the fact-finder
may conclude that an individual was ‘placed in fear’ in circumstances where no actual threats are
conveyed.”); Britton v. State, 2011 Tex. App. LEXIS 5421, *3 (Tex. App.–Dallas July 15, 2011)
(not designated for publication) (“If no actual threats were conveyed by the defendant, the factfinder
must conclude the victim ‘perceived fear’ or was ‘placed in fear’ by the circumstances, including the
defendant's words and actions.”); Hines v. State, 2010 Tex. App. LEXIS 6739, 12 (Tex.
App.–Corpus Christi August 19, 2010) (not designated for publication) (“Under the ‘placed in fear’
language contained in penal code section 29.02, the factfinder may conclude that an individual was
‘placed in fear’ in circumstances when no actual threats are conveyed.”); Barrow v. State, 2010 Tex.
App. LEXIS 4128, *7 (Tex. App.–Amarillo May 28, 2010) (not designated for publication) (“Under
the ‘placed in fear’ language in section 29.02 of the Penal Code, the factfinder may conclude that an
individual perceived fear or was ‘placed in fear,’ in circumstances where no actual threats were
conveyed by the accused.”); Mesquiti v. State, 2005 Tex. App. LEXIS 39, *2-3 (Tex. App.–San
Antonio January 5, 2005) (not designated for publication) (“The general, passive requirement that
another be ‘placed in fear’ cannot be equated with the specific, active requirement that the actor
‘threaten another with imminent bodily injury.’ Under the ‘placed in fear’ language, the factfinder
may conclude that an individual perceived fear or was ‘placed in fear,’ in circumstances where no
actual threats were conveyed by the accused.”) (citations omitted); Bradley v. State, 2004 Tex. App.
LEXIS 866. *3 (Tex. App.–Beaumont January 28, 2004) (not designated for publication) (“Under
the ‘placed in fear’ language, the factfinder may find that an individual perceived fear in a situation
where the accused made no actual threats.”); Lavender v. State, 2003 Tex. App. LEXIS 8367, *6
(Tex. App.–Eastland Sept. 25, 2003) (not designated for publication) (“The accused need not
expressly threaten another or display a weapon to commit robbery. It is sufficient to constitute
robbery if the accused places the complainant in fear of bodily injury or death to the degree that
‘reason and common experience’ will likely induce the complainant to part with his property against
his will.”) (citations to Williams and other cases omitted); Adkins v. State, 2003 Tex. App. LEXIS
2644 (Tex. App.–Fort Worth March 24, 2003) (not designated for publication) (Under assault statute,
“there must at least be evidence of some overt conduct by the defendant that suggests he acted with
an intent to threaten”—citing Williams as “comparing robbery statute that requires ‘placing’ another
in fear with the assault statute.”).
       30
           See Alford v. State, 358 S.W.3d 647, 657 & n.21 (Tex. Crim. App. 2012) (Unpublished
opinions cannot be cited as authority but can be cited to demonstrate conflict among the courts of
appeals or to demonstrate how this Court and other courts have interpreted and applied constitutional
law.). See also TEX . R. APP . P. 77.3.
                                                               DENTON CONCURRENCE — 10

                                   c. Application of Blockburger

       If the Williams decision is correct, then “threatens” and “places in fear” are alternative

statutory methods of committing the offense of robbery and the “places in fear” variant of robbery

is different under the Blockburger test than the offense of aggravated assault by threat. The next

question would be whether an aggravating element that raises a robbery to aggravated robbery would

necessarily entail a threat element not otherwise found in the “places in fear” variant of robbery. If

that aggravating element would necessarily entail a threat, by itself or in conjunction with the other

elements of robbery, then aggravated assault by threat could be a lesser-included offense of the

“places in fear” variant of aggravated robbery. The aggravating element for robbery in applicant’s

indictments is “use or exhibit a deadly weapon.” Although the aggravated-assault count alleges how

the deadly weapon was used—“firing a firearm”—the aggravated-robbery count does not.31 Given

the broad meaning assigned to “use” of a deadly weapon in our caselaw, it seems likely that such use

could occur in a robbery offense (assuming Williams is correct) without requiring a threat.32

                                          d. Ervin Analysis

       If we determine that the offenses of “aggravated robbery by placing in fear” and “aggravated

assault by threat” are different under Blockburger, we must then conduct an Ervin analysis to

determine whether other factors persuade us that the legislature nevertheless intended that the




       31
           Thus, the aggravated-robbery count does not expand the deadly-weapon allegation beyond
the statutory language under the cognate-pleadings test in Hall. See Hall, 225 S.W.3d at 526, 533-
35.
       32
           See Clinton v. State, 354 S.W.3d 795, 802-03 (Tex. Crim. App. 2011); id. at 807 (Price,
J., concurring); Patterson v. State, 769 S.W.2d 938, 940-42 (Tex. Crim. App. 1989).
                                                                  DENTON CONCURRENCE — 11

offenses be treated as the same.33 We have held that “robbery is a form of assault” and that “the

allowable unit of prosecution for robbery should be the same as that for an assault.”34 But, as

explained above, assault is not always a lesser-included offense of robbery,35 and though the

aggravated-robbery and aggravated-assault statutes contain significant parallels, there are some

notable non-parallel elements.36 Recently, the Second Court of Appeals held, under an Ervin

analysis, that aggravated assault and aggravated robbery are the same offense.37

                                 e. Preservation - Face of the Record

        If we determine that “aggravated robbery by placing in fear” and “aggravated assault by

threat” are different offenses under Blockburger and Ervin, then applicant has a preservation-of-error

problem. His indictments pled both the “threat” and “placing in fear” variants of aggravated robbery,

presenting a situation in which one of the variants (threat) is the same offense as aggravated assault

by threat but the other variant (placing in fear) is different. Because the two variants of aggravated

robbery were part of the same general verdict, we do not know which theory the jury relied upon in



        33
           If the offenses are determined to be the same under Blockburger, then a Hunter analysis
would be conducted to determine if the “clearly expressed legislative intent” was to allow
punishment for both offenses. See Hunter, 459 U.S. at 368. I do not contend that there is any
possibility that State would prevail under a Hunter analysis.
        34
             Hawkins, 6 S.W.3d at 560.
        35
             Bell v. State, 693 S.W.2d at 436 n.3.
        36
           In addition to the fact that the robbery statute contains the “places . . . in fear of” language
not present in the assault statute, the robbery statute contains the word “death” not found in the
assault statute, and the assault statute contains the phrase “including the person’s spouse” not
contained in the robbery statute. Compare TEX . PENAL CODE § 22.01(a)(2) with id. § 29.02(a)(2).
Whether the latter two differences have any substantive effect is unclear.
        37
             Garfias v. State, 381 S.W.3d 626, 630-35 (Tex. App.–Fort Worth 2012).
                                                                 DENTON CONCURRENCE — 12

finding applicant guilty. Under those circumstances and assumptions, and assuming that the

evidence is sufficient to support the “placing in fear” variant of aggravated robbery, a double-

jeopardy violation would not be clearly apparent on the face of the record and would thus be

procedurally defaulted.38

        A colorable sufficiency-of-the-evidence claim might perhaps be made in connection with the

aggravated robbery committed against Moore. Moore testified that he did not believe that applicant

or his cohorts would shoot him, even after applicant shot into the wall.39 On the basis of this

testimony, it might be argued that Moore was not, in fact, placed in fear of imminent bodily injury

or death after this first shot. No such argument can be made with respect victim Foster, who testified

that she was in fear after the first shot was fired.40 And although the State in its response posited the


        38
           Langs v. State, 183 S.W.3d 680, 686-87 (Tex. Crim. App. 2006) (“In this case, appellant’s
two convictions may or may not violate the double jeopardy clause. Because of the jury charge and
structure of the verdict form, we cannot be certain whether the jury relied upon the first (entry with
intent to commit a felony) or second (entry and then commission of a felony) burglary theory . . . .
When offenses, one of which could give rise to a multiple-punishment double-jeopardy violation,
are listed disjunctively in a jury charge, the burden is upon the defendant to ‘preserve, in some
fashion a double jeopardy objection at or before the time the charge is submitted to the jury.’ . . . .
[W]hen separate theories for an offense are issued to the jury disjunctively, a double jeopardy
violation is not clearly apparent on the face of the record if one of the theories charged would not
constitute a double jeopardy violation and there is sufficient evidence to support that valid theory.”);
Gonzalez v. State, 8 S.W.3d 640 (Tex. Crim. App. 2000).
        39
          Moore testified that he was uncooperative in the robbery because, “I’ve been around these
guys a long period of time, and I never would have dreamed they’d actually shoot me.” The
prosecutor responded, “Okay. So you still didn’t think so after the first shot was fired?” Moore
answered, “Not a doubt in my mind.” Then the prosecutor asked, “So after you said, You’re going
to have to shoot me, what happened next?” Moore responded, “Michael shot me.”
        40
             At various times Foster testified to her fear, including:

        Q. Did the defendant say anything to . . . Moore about his personal effects?

                                                  ***
                                                                DENTON CONCURRENCE — 13

first shot (into the wall) as the assault part of the aggravated robbery, one could reasonably argue that

the second shot (in which Moore was injured) was part of the aggravated robbery, and the question

would then be whether Moore was placed in fear of imminent bodily injury or death after he was in

fact injured.

                                 f. Absence of Briefing and Analysis

        The Court addresses only some of the issues discussed above and addresses those in only a

cursory manner. This is perhaps understandable, given that the State conceded the elements aspect

of the double-jeopardy claim in its response and did not submit any further briefing when we filed

and set the case. And the State’s actions are also perhaps understandable, given that granting relief

simply sets aside twenty-year concurrent sentences, and that applicant will continue to serve twenty-



        A. I’m not real clear on whether it was him or someone else at this point. I really –
        I don’t remember. I was scared. I still am.

                                                  ***

        Q. [W]ere you in fear of injury during this robbery?

        A. Yes, sir.

                                                  ***

        Q. And describe how this defendant–

        A. He asked him to take the watch off and [Moore] refused. And that’s when him
        and Israel had his gun come out and everybody was pointing guns and he asked if he
        thought they were playing and he pointed–he turned his pistol to the side and shot
        through the wall.

        Q. Were you in fear of injury at that point?

        A. Yes, sir.
                                                                DENTON CONCURRENCE — 14

five-year sentences in two cases. In its pleadings, the State also explicitly relied on its interest in

seeing justice done. Out of deference to a defendant’s right against double jeopardy, we might

perhaps accept a State’s concession with respect to a particular case when the double-jeopardy issue

is inordinately complex. But we should not enshrine such a concession in the law, because in a

future case, the issues might be more thoroughly debated in the crucible of adversarial testing.

                                               3. Units

        As discussed earlier, in a multiple-statutes case, an elements analysis is only half the battle:

Even if the offenses proscribed by multiple statutory provisions are considered to be the “same”

under Blockburger or Ervin, it is possible to have the repeated commission of the same offense.

Murder and manslaughter, though proscribed in different statutes, are the same offense by their

elements under Blockburger. But if the murder is of Mary and the manslaughter is of John, then the

offenses are different by their units.

        The present case contains an obvious and uncontested example of multiple units. The

offenses were separately indicted based upon the separate victims. So there are four indicted

offenses: an aggravated robbery against Moore, an aggravated assault against Moore, an aggravated

robbery against Foster, and an aggravated assault against Foster. No one disputes that the State may

receive at least one separate conviction per victim.41 However, the State suggested in its response,

and the habeas court concluded, that each gunshot could also be the basis for a separate conviction.

        Whether that is so depends upon how the legislature divides units in the aggravated-robbery




        41
         See Jones v. State, 323 S.W.3d 885, 889 (Tex. Crim. App. 2010) (discussing Hawkins);
Hawkins, 6 S.W.3d at 560.
                                                               DENTON CONCURRENCE — 15

and aggravated-assault statutes and it is purely a question of statutory construction.42 Generally, the

best indicator of legislative intent with respect to the unit of prosecution is the focus or gravamen

of the offense.43 We know that, for both aggravated robbery and aggravated assault, the focus or

gravamen of the offense includes the victim. Does it also include the assaultive act? Is each

assaultive act a separate offense? Or is each “transaction” the relevant unit of prosecution? Clearly

if a defendant robs (or assaults) the victim on Monday and then robs (or assaults) the victim again

on Tuesday, separate robberies (or assaults) have occurred. But can separate robberies or assaults

occur against the same victim in the same transaction?

       We must decide whether the applicable unit is act or transaction because the present case

involves multiple acts in a single transaction. Although the habeas judge found a “break in the

action between the two events,” he acknowledged that the incidents occurred close in time, so I do

not think he was saying that the incidents occurred in separate transactions. In any event, the record

does not support the notion that there were multiple transactions. The evidence shows that applicant

and his cohorts demanded money and property, that Moore refused to cooperate, that applicant shot

into the wall to procure Moore’s cooperation, that Moore continued to refuse to cooperate and told

the robbers that they would have to shoot him, and that one of applicant’s cohorts then shot Moore

in the leg. Nothing in the record suggests anything but an unbroken chain of events between the first

and second shots fired.

       So, can two gunshots occurring in the same transaction constitute separate assaults with

respect to the same victim? Do they constitute multiple threats that can be punished separately? I


       42
            See Jones, 323 S.W.3d at 888.
       43
            Id. at 889.
                                                               DENTON CONCURRENCE — 16

am unaware of any published cases from this Court that have addressed the question. In its holding

in a case involving the prosecution of both an aggravated robbery and an aggravated assault, the

Second Court of Appeals has suggested that multiple assaults against the same victim in the same

transaction can constitute only one offense.44 Although I do not necessarily agree with all of the

reasoning in the Second Court’s opinion, I agree with the implication that the legislature did not

contemplate separately punishing multiple assaults against the same victim in the same transaction.

                          4. Preservation - Legitimate State Interests

       Even if, after addressing all of the prior issues, we concluded that a double-jeopardy violation

is apparent on the face of the record, there would remain the second prong of the preservation

analysis: whether the enforcement of the usual rules of procedural default serves no legitimate state

interests.45 The Court writes this second “no legitimate state interest” prong out of the law when it

says that it perceives no legitimate state interest in maintaining convictions where it is clearly

apparent from the face of the record that they are in contravention of double-jeopardy protections.

This is directly contrary to our decision in Gonzalez, which espoused the above two-part test after

noting that our caselaw on preservation of double-jeopardy claims was “not a model of clarity.”46


       44
           Garfias, 381 S.W.3d at 633 (In a case where the defendant shot a store clerk four times
in a single transaction: “We cannot fathom, however, that under the circumstances of this case, the
legislature would intend to punish one continuous assaultive act under multiple assault-related
offenses. For example, we cannot imagine that if a person committed one uninterrupted act of
slowly rearing back with a closed fist and punching someone, the legislature would intend for the
person to be convicted of both causing-bodily-injury assault, which is typically a Class A
misdemeanor under section 22.01(a)(1) of the penal code, and threatening-another-with-
-imminent-bodily-injury assault, which is typically a Class C misdemeanor under section
22.01(a)(2).”).
       45
            See Langs, 183 S.W.3d at 687.
       46
            Gonzalez, 8 S.W.3d at 642-43.
                                                                DENTON CONCURRENCE — 17

We reaffirmed the two-part test in Langs, where we said that requiring a defendant to raise his

double-jeopardy claims in the trial court does serve legitimate state interests.47 What the “serves no

legitimate state interests” prong really means is that granting the defendant double-jeopardy relief

places the State in no worse a position than it would have been in had a timely objection been made.

The issue in the present case would be the possibility that the State might have pursued multiple

prosecutions for lesser-included offenses that might have survived a double-jeopardy analysis. I will

not, at this time, attempt to determine whether the State could or should have been allowed to pursue

such a strategy. In its neutral response to the habeas application, the State addresses the second

prong of the preservation test by saying, “[T]he State does not have any overriding interests at stake.

The State was not required to go through additional trials, as both cases were tried as one.

Additionally, the State certainly has an interest in seeing that justice is done, and in this case, if a

double jeopardy violation is deemed valid, the State has an interest in seeing that relief is granted.”

Given that response, I conclude that the State does not believe that applicant’s tardiness in raising

a double-jeopardy claim has prejudiced its interests.

        I respectfully concur in the Court’s judgment.

Filed: May 22, 2013
Publish




        47
             See Langs, 183 S.W.3d at 686 n. 22.
