IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
v.
THE STATE OF TEXAS
FROM THE THIRD COURT OF APPEALS
TRAVIS COUNTY
O P I N I O N
This is not a simple issue. As Judge Moylan has noted, "it is sometimes the simplest of crimes that are the most difficult to master. [Continuing criminal enterprises and conspiracies] are as child's play to the familiar standby of assault and battery." (1) Although appellant was charged with various counts of aggravated robbery, the legal issue concerns the distinction between "assault" and "battery."
Remember that old law-school common-law concept of assault and battery? An assault was the attempt to hit or injure someone and battery was the actual hitting or injuring of that person. (2) Both were crimes, but a person could not be charged with two distinct offenses for a single attempt to hit and then a successful hitting or injury of one person in one incident. (3) Under the old common law, assault was an unconsummated battery, and battery was a consummated assault. (4) Every battery included an assault, but an assault did not include a battery. (5) Eventually, the common-law concept of the crime of assault expanded from attempted battery (a missed hit) to include the common-law tort concept of a threat to hit or injure (the pointing of a gun or words such as "I will hit you"). (6)
Under more modern statutes, such as the Model Penal Code (7) and Texas law, both the common-law crime of assault and that of battery are covered under the single offense of assault. For example, Section 22.01 of the Penal Code defines an assault as an offense if a person
(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse (common-law battery); or
(2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse (common-law assault). (8)
Relevant to our purposes, (9) these are two separate ways of committing an assault and they are, in fact, separate offenses-one involving prohibited conduct (a threat) and the other involving a prohibited result (bodily injury). (10) One may threaten a bodily injury without actually carrying through on that threat; one may cause bodily injury without making any overt threat; and one may threaten bodily injury and carry through with that threat. (11)
At bottom, the issue in the present case is whether double jeopardy prevents convictions for both assault by threat and assault by bodily-injury when a person first threatens to injure another person and then carries through on that threat. (12) Suppose, for example, that Dangerous Dan holds a bat above his head as he tells Suzie Q., "I'm going to beat you up." She shrieks, and he promptly bangs her with the bat. Is that one crime or two? Common sense says that this is just one crime. And when assault by bodily injury-"battery"-includes an assault by threat-"assault"-double jeopardy would prevent convictions for both when they occur against the same person at the same time. (13) The assault is "merged" or "subsumed" into the completed battery. (14) Conversely, if Dan threatened Suzie with a bat in the bedroom and, when she shrieked, he put the bat down, but after she walked out of the room, he picked up the bat, followed her, and banged her with the bat in the kitchen, double jeopardy would not prevent two convictions because a jury could find that they were separate incidents. (15)
The line between "merged" or "subsumed" offenses involving multiple assaults or batteries, is not easy to draw. As one judge has noted,
Although these [assault and battery] are common law crimes, and do not, therefore, involve legislative intent, it is appropriate in determining the propriety of cumulative punishments to employ the same basic standards of common sense and fairness that largely influence the outcome of legislative intent cases. Certainly, where one person pummels another with his fists for several minutes, the law would not countenance a separate punishment for each time a blow is landed. On the other hand, if one person were to inflict various types of torture upon another during the course of the day, allowing the victim to recover consciousness between each assault, it would seem appropriate to permit separate convictions for the separate insults to the person of the victim. (16)
Dual convictions for making the threat and then the immediate carrying out of that threat to harm an assault victim is not barred by the Blockburger (17) "same elements" test because each subsection of the assault statue contains an element not contained by the other subsection ("bodily injury" in subsection (a)(1) and "threatens" in subsection (a)(2)). Nonetheless, I agree with Presiding Judge Keller that "the 'threat' and 'bodily injury' elements of [assault and] robbery are simply alternative methods of committing [an assault or] a robbery." (18) That is because the unit of prosecution for assault is either or both an "assault" (threat) or a "battery" (bodily injury) upon one person at one time and place. Therefore, the unit of prosecution for robbery is either or both an "assault" or a "battery" upon one person at one time and place during the course of a theft. (19) And, finally, the unit of prosecution for aggravated robbery is either or both an "assault" with a deadly weapon or a "battery" that causes serious bodily injury upon one person at one time and place during the course of a theft.
In sum, I think that, because the State proved only one unit of assaultive conduct-a threat to harm with a deadly weapon immediately followed by causing serious bodily injury-against each robbery victim at one time and place, double jeopardy principles bar two convictions for robbing Mr. Barker and two convictions for robbing Mr. Chaney. I therefore respectfully join in the majority's resolution of this case.
Filed: May 14, 2014
Publish
1. Lamb v. State, 613 A.2d 402, 404 (Md. Ct. Spec. App. 1991). In Lamb, Judge Moylan
examined exhaustively the common-law development of "assault" and "battery" in explaining why
the particular "assault" in this domestic violence case (in which the defendant repeatedly pointed a
gun at the victim's head and threatened to kill her) did not merge with the various "battery" incidents
(in which he hit or held her against her will). Id. at 404-20. The several times that he threatened the
victim with a gun and the three times that he used physical force against her during the three-and-a-half-hour ordeal were separated in time, place, and manner. Id. at 420-25. However, Judge Moylan
noted that
a more difficult question would be posed if the threatened shooting (assault) were followed by an actual shooting (battery). There, a merger of the threatening conduct into the physical consummation of the threat would not, under federal constitutional law, be mandated by Blockburger. Under Maryland law, on the other hand, it might well be required under the extended "rule of lenity" recently promulgated by the Court of Appeals. . . .
Analytically, the situation would be further muddied by the fact that where an apprehended threat is then successfully carried out, the antecedent assault is present in both of its manifestations. It is, at the same time, both an attempted battery and a threatened battery. The first would merge under the Federal Constitution. The second would merge only under Maryland's extended "Rule of Lenity." It is not a simple subject.
Id. at n.6.
2. See Olivas v. State, 203 S.W.3d 341, 344 (Tex. Crim. App. 2006) (discussing common-law
doctrines of assault and battery). Under the early common law, the crime of "assault" and the tort
of "assault" were entirely distinct. Criminal assault was an attempted battery-a missed hit or injury.
The civil tort of assault was an intentional act of placing another in fear of receiving an immediate
battery-a threat to hit or injure. Rollin M. Perkins & Ronald N. Boyce, Criminal Law 159 (3d
ed. 1982). For example, 3. Perkins & Boyce, supra note 2, at 160 (noting that "one who has committed a battery is
frequently prosecuted for assault and battery. This does not mean that two offenses are charged in
separate counts of the accusatory pleading, but that one offense is charged in one count under the
name of 'assault and battery'").
4. See, e.g., Anderson v. Crawford, 265 F. 504, 507 (8th Cir. 1920) ("While a battery always
included an assault, assaults often fall short of a battery. An assault is an attempt, which, if
consummated, would result in a battery.").
5. See Hall v. State, 309 P.2d 1096, 1100 (Okla. Crim. App. 1957) ("
[a]ssault covered every "attempt or offer with force and violence, to do a corporal hurt to another," 1 Hawkins, Pleas of the Crown, 113. Blackstone defines it as "an attempt or offer to beat another, without touching him," 3 Commentaries 120, while according to Wharton it is "an apparent attempt by violence to do corporal hurt to another," 1 Criminal Law (10th ed.), sec. 603. On the other hand a battery is a "consummated or completed assault," 2 Burdick, The Law of Crime, sec. 350. It necessarily includes an assault. The offense is usually referred to as an assault and battery and at common law meant any unlawful bodily harm done to another person. "It seems that any injury whatsoever, be it never so small, being actually done to the person of a man, in an angry, or revengeful, or rude, or insolent manner, as by spitting in his face, or any way touching him in anger, or violently justling him out of the way, are batteries in the eye of the law." 1 Hawkins, Pleas of the Crown, 134. "The law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man's person being sacred, and no other having right to meddle with it, in even the slightest manner." 3 Blackstone's Commentaries 120. Assault and battery at common law ranged from these minor offenses, which nevertheless the law cannot afford to overlook, to violence falling just short of manslaughter or murder.
State v. Maier, 99 A.2d 21, 24 (N.J. 1953).
6. See Perkins & Boyce, supra note 2, at 161-62 (noting that, "[w]hile few jurisdictions have
abandoned the original basis for establishing a criminal assault in the absence of statute, there has
been a tendency in many to add the tort theory as an additional ground."); Wayne R. LaFave &
Austin W. Scott, Criminal Law 693 (2d ed. 1986) (" 7. Model Penal Code § 211.1 ("Assault"). That statute reads as follows:
(1) Simple Assault. A person is guilty of assault if he:
(a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or
(b) negligently causes bodily injury to another with a deadly weapon; or
(c) attempts by physical menace to put another in fear of imminent serious bodily injury.
Simple assault is a misdemeanor unless committed in a fight or scuffle entered
into by mutual consent, in which case it is a petty misdemeanor.
(2) Aggravated Assault. A person is guilty of aggravated assault if he:
(a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or
(b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon.
Aggravated assault under paragraph (a) is a felony of the second degree;
aggravated assault under paragraph (b) is a felony of the third degree.
8. Tex. Penal Code § 22.01(a)(1), (2).
9. Section 22.01 contains a third method of assaultive conduct-"offensive touching"-which
was a misdemeanor battery at common-law and is a Class C misdemeanor in Texas. Tex. Penal
Code § 22.01(a)(3). That provision is not pertinent here, except, of course, that every assault
involving bodily injury includes an "offensive" touching, but an offensive touching does not
necessarily include a bodily-injury assault.
10. See Landrian v. State, 268 S.W.3d 532, 536 (Tex. Crim. App. 2008) (stating that, in
Section 22.01, the Texas Legislature enacted "three separate and distinctive assaultive crimes").
11. See generally, Lamb v. State, 613 A.2d 402, 404-20 (Md. Ct. Spec. App. 1991).
12. Although appellant was convicted of two counts of aggravated robbery committed against
Andrew Chaney and two counts of aggravated robbery committed against James Barker, the legal
issue is whether double jeopardy bars dual convictions for aggravated robbery of X by threat (with
a deadly weapon) and aggravated robbery of X by causing (serious) bodily injury when they are
committed as part of the same criminal act (first a threat, then carrying through with that threat). The
double-jeopardy issue, then, depends not upon the robbery statute or the aggravated robbery statute,
but upon the simple assault statute, Section 22.01(a)(1), (2). See Snowden v. State, 583 A.2d 1056,
1059 (Md. 1991) ("Robbery is a compound larceny. It is a larceny from the person accomplished
by either an assault (putting in fear) or a battery (violence). Therefore, either combination produces
a robbery."). Although the robbery provision contains an additional method of "assault" by
"plac[ing] another in fear of imminent bodily injury or death" as well as by threatening a person,
(Section 29.02(a)(2)), that distinction does not make a difference in the present analysis.
13. See, e.g., State v. Bolarinho, 850 A.2d 907, 909-11 (R.I. 2004) (double jeopardy barred
convictions for both assault with a deadly weapon and assault resulting in serious bodily injury when
both offenses arose from a single fight in which the victim was repeatedly kicked).
14. See, e.g., McGhee v. State, ___ So.3d ___, 2014 WL 560857, *1 (Fla. Dist. Ct. App. 2014)
("McGhee contends that because the burglary of a dwelling with 15. See, e.g., State v. Fischer, 82 A.3d 891, 900 (N.H. 2013) (defendant's rights against double
jeopardy were not violated when he was convicted of two separate incidents of assault, the first
occurring in the living room and the second in the kitchen); State v. Leavitt, 66 A.3d 1218, 1219
(N.H. 2013) (no double jeopardy violation when evidence showed that defendant kicked police
officer once when he came to defendant's home and then again at hospital); People v. Lugo, 542
N.W.2d 921, 926 (Mich. Ct. App. 1995) (defendant's convictions for assault by pointing a gun at
police officer and assault by hitting police officer with a broom did not violate double jeopardy
principles because defendant first assaulted officer with the broom, then put it down, took officer's
gun and pointed it at him; assault with the broom was completed before assault with gun began).
16. Snowden v. State, 583 A.2d 1056, 1061 (Md. 1991) (McAuliffe, J., concurring).
17. Blockburger v. United States, 284 U.S. 299, 304 (1932).
18. Supra, Concurring Op. at *13 (Keller, P.J., concurring).
19. Snowden v. State, 583 A.2d 1056, 1059 (Md. 1991) (robbery is theft from a person
accompanied by either a threat to harm or actual force).