McCrary v. State
327 S.W.3d 165
Tex. App.2010Background
- McCrary was convicted in a single jury trial of aggravated assault with a deadly weapon, injury to an elderly person, and aggravated robbery, all arising from a December 9, 2008 attempt to rob Hollis Ellis; Rebecca Cleveland hammered Ellis during the plan, while McCrary participated in the scheme and was charged as a party under §7.02; sentences run concurrently for the three offenses.
- The State alleged Ellis was 65 or older; McCrary was charged with the three offenses in a multi-count indictment and the jury was instructed on all three counts; McCrary challenges multiple punishments for the same conduct and requests lesser-included offenses.
- On appeal, the court addresses whether the three convictions violate double jeopardy and whether lesser-included offenses should have been submitted; it affirms, rejecting both the double jeopardy challenge and the sufficiency of requested lesser-included-offense instructions.
- The court applies Blockburger, cognate pleading, and Ervin factors to determine whether aggravated assault and aggravated robbery are the same offense for double jeopardy purposes; it concludes the offenses are distinct but that multiple punishments are allowed where the Legislature has authorized them; it also applies the Royster-Rousseau framework to assess entitlement to lesser-included offenses.
- The facts show a conspiracy plan to steal Ellis’s money and a sequence of acts leading to bodily injury; the State proved the elements of each charged offense; the court finds no double jeopardy violation and declines to submit requested lesser-included offenses where the evidence does not support a rational jury verdict for the lesser offenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Double jeopardy for two offenses | McCrary argues same-conduct and same-acts | State argues distinct elements permit multiple punishments | No violation; multiple punishments authorized by statute |
| AGG. ASSAULT vs. AGG. ROBBERY as same offense | Blockburger suggests sameness | Blockburger not controlling; legislative intent supports multiple punishments | Not the same offense; Blockburger not controlling; multiple punishments permitted |
| Lesser-included offenses (assault) | Evidence supports assault lesser-included charge | Evidence insufficient for a rational jury to convict only the lesser offense | No entitlement to lesser-included assault instruction |
| Lesser-included bodily-injury offenses (elderly) | Evidence supports bodily injury as lesser offense | No reversible error if not submitted | Entitlement denied; bodily injury foreseeability does not require submission |
| Lesser-included aggravated robbery/assault | Evidence may permit assault as lesser offense | No sufficient evidence for lesser offense | Denied; not warranted based on foreseeability and evidence |
Key Cases Cited
- Blockburger v. United States, 284 U.S. 299 ((1932)) (test for whether offenses require proof of different elements)
- Missouri v. Hunter, 459 U.S. 359 ((1983)) (double jeopardy multiple punishments governed by legislature's intent)
- Whalen v. United States, 445 U.S. 684 ((1980)) (differences in elements affect double jeopardy analysis)
- Littrell v. State, 271 S.W.3d 273 ((Tex. Crim. App. 2008)) (mult punishment when Legislature intends; helper factors)
- Hall v. State, 225 S.W.3d 524 ((Tex. Crim. App. 2007)) (cognate pleadings approach to lesser-included offenses; elements comparison)
- Ervin v. State, 991 S.W.2d 804 ((Tex. Crim. App. 1999)) (nonexclusive factors for sameness of offenses; imputation of elements possible)
- Hawkins v. State, 6 S.W.3d 560 ((Tex. Crim. App. 1999)) (robbery as assaultive; unit of prosecution per victim)
- Gonzalez v. State, 973 S.W.2d 427 ((Tex. App.—Austin 1998)) (injury to elderly considered alongside multiple punishment authorization)
- Ex parte Cavazos, 203 S.W.3d 333 ((Tex. Crim. App. 2006)) (procedural default and double jeopardy considerations)