Blakely v. State

OPINION ON STATE’S MOTION FOR REHEARING ON PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

Appellant was convicted of robbery and the jury assessed punishment at ninety years imprisonment and a fine of $2,500. The conviction was reversed. Blakely v. State, 814 S.W.2d 433 (Tex.App. — Austin 1991).

The State’s petition was originally refused, but on motion for rehearing was granted to determine whether successive robbery prosecutions are permissible when separate persons are assaulted in the course of committing a single theft. We will affirm the Court of Appeals.

Appellant was originally convicted of the robbery of Dorothy Lindemann [Linde-mann], an employee of the Kid’s Kloset retail clothing store. In this cause Appellant was convicted of the robbery of Linde-mann’s three-year-old son Bret [the child]. Testimony in this cause showed Appellant had entered the store, left, then re-entered and began hitting Lindemann without saying anything. When the child came in the room to see why his mother was screaming, Appellant stopped assaulting Linde-mann, grabbed the child by the arm, and told Lindemann to reveal where she kept her purse or he would hurt the child. Appellant subsequently took Lindemann’s purse and the store’s cash from the locked drawer in which they were kept, grabbed a blanket off a chair, and fled the store. The testimony in the first trial was substantially the same.

The indictments in both causes alleged the assaults were committed on December 27, 1988, and were “in the course of committing theft and with intent to obtain and maintain control of the property.” Both alleged Appellant “threatened and placed [the named victim] in fear of imminent bodily injury and death,” but the indictment naming Lindemann included another paragraph alleging Appellant “caused bodily injury to [her] by hitting her with his hand.”

The Court of Appeals, relying on Simmons v. State, 745 S.W.2d 348 (Tex.Cr.App.1987) and Ex parte Crosby, 703 S.W.2d 683 (Tex.Cr.App.1986), held that since the identical theft was involved in both prosecutions, a second prosecution for the robbery of the child was barred.

Subsequent to granting the State’s petition in this cause we have determined that separate convictions for aggravated robbery involving different assault victims but the same theft may not be obtained even when prosecuted in a single proceeding. Cook v. State, 840 S.W.2d 384 (Tex.Cr.App. 1992, rehearing denied November 4, 1992). The same principle applies in this cause, notwithstanding the convictions were obtained in separate proceedings.

The judgment of the Court of Appeals is affirmed.

McCORMICK, P.J., dissents. CLINTON, J., concurs in the result.