PD-0148-23 08/23/2023
ON COURT’S OWN MOTION
“Did the court of appeals err in holding that the charge did not have to include a special jury unanimity instruction requiring that the jury be unanimous as to whether appellant was guilty of aggravated robbery by threat or aggravated robbery by bodily injury?”
Floyd was charged with a single count of aggravated robbery by threat and bodily injury. He requested a unanimity instruction between threat and bodily injury. The trial court denied the request. The jury returned a general verdict.
On appeal, the Fort Worth Court of Appeals held that a special unanimity instruction is not required. Aggravated robbery by threat and bodily injury are different methods of committing a single offense. And reading Cooper v. State, 430 S.W.3d 426 (Tex. Crim. App. 2014), and French v. State, 563 S.W.3d 228 (Tex. Crim. App. 2018), the court observed: “[W]hen the Court of Criminal Appeals has determined that different provisions of a statute constitute the same crime for double-jeopardy purposes (as it did in Cooper), the Court has essentially held that they are the same offense for purposes of jury unanimity as well.” The court also declined to rely on other courts’ decisions reaching the opposite conclusion because they are not binding and are distinguishable. See Loville v. State, No. 14-12-00297-CR (Tex. App.—Houston [14th Dist.] May 2, 2013, pet. ref’d) (not designated for publication); Woodard v. State, 294 S.W.3d 605, 608 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d).
