FLOYD, JAMES EARNEST JR. v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0148-23

JAMES EARNEST FLOYD, JR., Appellant

v.

THE STATE OF TEXAS

ON COURT’S OWN MOTION FOR DISCRETIONARY REVIEW
FROM THE SECOND COURT OF APPEALS
TARRANT COUNTY

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

CONCURRING OPINION

The Court gets it exactly right when it concludes that the double-jeopardy holding in Cooper1

means that there is no jury-unanimity violation in the present case. In my concurring opinion in

Cooper, I made the point that the offense of robbery is sufficiently like the offense of capital murder

to be treated the same way in determining whether different statutory methods of commission are

1
Cooper v. State, 430 S.W.3d 426 (Tex. Crim. App. 2014).
FLOYD — 2

merely different manners and means or are separate offenses.2 For both capital murder and robbery,

many of the methods of commission are compound offenses, which suggests that the different

methods of commission are mere manners and means and are not separate offenses.

There is a general pattern in the Penal Code for compound offenses: (1) a shared offense that

is the same for every version of the compound offense, and (2) an underlying offense that varies,

resulting in different methods of committing the compound offense. For capital murder, the shared

offense is murder.3 A number of offenses can serve as the underlying offense for capital murder,

including, for instance, kidnapping, burglary, robbery, and a second murder.4 Burglary is another

example of an offense that can be a compound offense. The shared element in a burglary is entry.5

The underlying offense in a burglary can be a felony, a theft, or an assault.6 And robbery, too, can

be a compound offense, although the list of underlying offenses is much shorter. The shared offense

in a robbery is a theft.7 The possible underlying offenses for robbery are bodily injury assault and

threat assault.8

Not every version of capital murder, burglary, and robbery are compound offenses. There

are a number of ways to commit capital murder without an underlying offense, including murdering

2
Id. at 429-32 (Keller, P.J., concurring) (heading titled “Structure of the Robbery Statute and
the Capital Murder Analogy”).
3
TEX. PENAL CODE § 19.03(a).
4
Id. § 19.03(a)(2), (4), (7).
5
Id. § 30.02(a)(1), (3).
6
Id.
7
Id. § 29.02(a).
8
Id. § 29.02(a)(1), (2).
FLOYD — 3

a peace officer, murdering for hire, and murdering a child under age 10.9 A burglary can be

committed if entry is made with intent to commit certain offenses, even if an actual or attempted

commission of the underlying offense never occurs.10 And a robbery can be committed if a person,

while in the course of committing theft, “intentionally or knowingly . . . places another in fear of

imminent bodily injury or death” even if that conduct does not rise to the level of a “threat” needed

to establish an assault.11

At least ordinarily, and perhaps always, when a statute creates an offense that is a compound

offense in some of its variations, all of the variations of the offense are simply different manners and

means of commission, and they constitute a single offense for both double jeopardy and jury

unanimity purposes. We have held this to be true, in the double-jeopardy and jury-unanimity

context, for both capital murder and burglary.12 In the double-jeopardy context, we held it to be true

of robbery in Cooper.13 The Court’s holding in the present case is simply the natural progression of

those cases.

9
Id. § 19.03(a)(1), (3), (8).
10
Id. § 30.02(a)(1).
11
See id. § 29.02(a)(2) (“intentionally or knowingly threatens or places another in fear of
imminent bodily injury or death”); 22.01(a)(2) (“intentionally or knowingly threatens another with
imminent bodily injury”). See also Cooper, 430 S.W.3d at 432-34 (Keller, P.J., concurring) (arguing
that a completed assault is not always required for a robbery).
12
Gardner v. State, 306 S.W.3d 274, 301-02 (Tex. Crim. App. 2009) (capital murder / jury
unanimity); Kitchens v. State, 823 S.W.2d 256 (Tex. Crim. App. 1991) (capital murder / jury
unanimity); Davis v. State, 313 S.W.3d 317, 342 (Tex. Crim. App. 2010) (capital murder and
burglary / jury unanimity); Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex. Crim. App. 2006)
(burglary / double jeopardy); Ramirez v. State, 621 S.W.3d 711, 713 n.2 (Tex. Crim. App. 2021)
(capital murder / double jeopardy).
13
430 S.W.3d at 427.
FLOYD — 4

The dissent focuses on the offense of assault, which is never a compound offense. Focusing

on the type of gravamen an offense involves—result of conduct, nature of conduct, or circumstances

surrounding the conduct—works well for an offense that is never a compound offense. But a

compound offenses create complications. The two different offenses that make up a compound

offense can have different gravamina. Gravamina can also vary across possible underlying offenses.

In capital murder, for example, the shared murder element is a result offense but underlying

offenses are mainly nature-of-conduct offenses (e.g., kidnapping or aggravated sexual assault),

though a second murder would be a result offense, and burglary and robbery are themselves often

compound offenses. In addition, some methods of committing capital murder that do not involve

an underlying offense involve circumstances surrounding the conduct such as the victim being a

peace officer or a child under age 10.

In a burglary, any felony can be an underlying offense, which would include offenses that fall

in all three categories of gravamina. And both forms of assault—by bodily injury or by

threat—could be alleged as underlying offenses for a burglary, but no one would seriously think that

the inclusion of both methods of assault in a burglary case would result in separate offenses for jury

unanimity purposes. Even setting aside that scenario, there could be a situation in which a defendant

commits a single entry and then commits both a felony and an assault. The gravamen of the felony

at issue (e.g., kidnapping with a nature-of-conduct gravamen) could be of a different type than the

gravamen of the assault (e.g., a bodily injury assault with a result gravamen).

So it should not be a surprise that robbery, as an offense that is often (perhaps usually) a

compound offense, could have alternate manners and means of commission with different types of

gravamina. What complicates the question for the offense of robbery is that this Court has
FLOYD — 5

previously emphasized the “assaultive” nature of the offense in determining that the unit of

prosecution is each victim rather than what is stolen.14 The common “theft” element of robbery does

not have quite the prominence as the “murder” element in capital murder or the “entry” element in

burglary. But the structure of the robbery statute mirrors the structure of the capital murder statute:

a shared element (murder for capital murder, theft for robbery) followed by subsections enumerating

alternative circumstances, many (but not all) of which constitute separate underlying offenses.15 That

is different from the assault statute, in which three methods of committing assault are set forth in

independent subsections.16 So, on balance, the robbery offense appears to be much more like the

offense of capital murder than the offense of assault when it comes to how we view alternative

methods of commission. And we essentially made that determination in Cooper when we found the

different variations of robbery to be the same offense for double-jeopardy purposes. The dissent’s

arguments, if accepted, would also undermine the double-jeopardy holding in Cooper. The Court

is correct not to accept those arguments. As with other offenses that fall within the “compound

offense” category, robbery should be treated as a single offense with multiple manners and means

of commission for both double jeopardy and unanimity purposes.

I join the Court’s opinion.

Filed: November 13, 2024
Publish

14
See id. at 430 (Keller, P.J., concurring) (discussing Ex parte Hawkins, 6 S.W.3d 554 (Tex.
Crim. App. 1999)).
15
Compare TEX. PENAL CODE § 19.03(a) with id. § 29.02(a).
16
See id. § 22.01(a)(1), (2), (3).