Opinion
02-22-00082-CR
02-16-2023
James Earnest Floyd Jr., Appellant v. The State of Texas
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 396th District Court Tarrant County, Texas Trial Court No. 1503320D
Before Kerr, Bassel, and Womack, JJ.
MEMORANDUM OPINION
Dabney Bassel Justice
I. Introduction
A jury convicted Appellant James Earnest Floyd Jr. of aggravated robbery with a deadly weapon and assessed his punishment at confinement for life. In three issues, Floyd argues that the identity evidence is insufficient to support his conviction, that the jury charge failed to require unanimity on the manner of the aggravated robbery, and that the trial court abused its discretion by issuing a cumulation order. After reviewing the record, we conclude that the direct and circumstantial evidence of identity is sufficient to support Floyd's conviction. Additionally, case law demonstrates that the jury charge was not required to include a unanimity instruction on the manner of the aggravated robbery. However, because there is no evidence to support the cumulation order, we modify the judgment by striking that order and affirm the judgment as modified.
We briefly summarize the 1,700 pages of guilt-innocence testimony here and set forth additional testimony in our discussion of Floyd's sufficiency challenge.
Around 11:00 a.m. on March 28, 2017, Diane Porter heard a noise as she was getting ready to go to Walmart with her husband John. The door leading to the garage was open, and she saw John fighting someone. As Diane approached the door, she was shot in the stomach and passed out.
When she came to, she saw the intruder hitting John over the head with the wrought-iron legs of their end table. Diane screamed, "[W]hat do you want?" In response, the intruder told her three or four times that she needed to turn around. The intruder shot John in the back of the head, and John fell face down.
Approximately ten days later, John passed away from his injuries.
The intruder asked Diane where her debit card was, and he retrieved it from John's wallet and asked for the PIN. In response, Diane made up a number. The intruder put the gun next to Diane's head and shot it into the tile floor, saying that if the PIN did not work, he would come back and kill them both. While she was lying on the floor, the intruder went and got an alarm clock and laid the cord over her hands. The intruder took the debit card and left in Diane and John's Kia Sorento.
Diane then crawled to the kitchen and called 911. After emergency personnel arrived but before she was taken to John Peter Smith Hospital, she spoke with the police and told them that she had been shot in the stomach by a young black stocky man with curly hair.
By "young," she meant younger than she; she was sixty-nine years old.
While Fort Worth Police Officer Dempsey Addy was looking for the stolen Kia Sorento, he received word that there was an attempted use of Diane's debit card at 1:36 p.m. at a gas station in Terrell, Texas. Officer Addy also received word that an intruder had attempted to gain entry to other houses near the Porters' house. So Officer Addy decided to look for a broken-down car because he believed that the intruder had stolen the Porters' Kia Sorento as a means to return to Terrell. Officer Addy found a black Ford Focus with a flat tire at a gas station that was approximately a mile from the crime scene. The Ford Focus was registered to Floyd.
An officer from the Terrell Police Department found the Porters' Kia Sorento in Terrell at an apartment complex where several of Floyd's friends lived. The apartment complex was approximately one and a half miles from Floyd's house.
Police found Floyd walking near his home and detained him around 4:20 p.m. on the day of the incident. He had curly hair and was of African-American descent. His driver's license showed that he was five foot, five inches tall and was fifty years old.
At trial, Diane testified that she was able to see the intruder's face clearly because she had stared right at him when he had hit John over the head and because there was sufficient light for her to see. She said that the intruder appeared to be the same height as her husband, who was five feet, three inches tall. During the trial, which took place at the end of March through mid-April 2022, Diane identified Floyd as the intruder; he was the same person whom she had identified in the photo spread that the police had shown her after she was released from the hospital in April 2017 and was the same person whom she had identified at a pretrial hearing in January 2020. She noted that Floyd had changed in appearance by the time of trial; he was thinner and had no hair.
III. Sufficient Evidence of Identity to Support Conviction
In his first issue, Floyd argues that the identity evidence is insufficient to support his conviction. Floyd's attacks on the evidence presented at trial would require us to reweigh the evidence-a task that we decline to undertake because the jury alone was the factfinder.
A. Standard of Review
In our evidentiary-sufficiency review, we view all the evidence in the light most favorable to the verdict to determine whether any rational factfinder could have found the crime's essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). This standard gives full play to the factfinder's responsibility to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Harrell v. State, 620 S.W.3d 910, 914 (Tex. Crim. App. 2021).
The factfinder alone judges the evidence's weight and credibility. See Tex. Code Crim. Proc. Ann. art. 38.04; Martin v. State, 635 S.W.3d 672, 679 (Tex. Crim. App. 2021). We may not re-evaluate the evidence's weight and credibility and substitute our judgment for the factfinder's. Queeman, 520 S.W.3d at 622. Instead, we determine whether the necessary inferences are reasonable based on the evidence's cumulative force when viewed in the light most favorable to the verdict. Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim. App. 2018); see Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017) ("The court conducting a sufficiency review must not engage in a 'divide and conquer' strategy but must consider the cumulative force of all the evidence."). We must presume that the factfinder resolved any conflicting inferences in favor of the verdict, and we must defer to that resolution. Braughton, 569 S.W.3d at 608.
The standard of review is the same for direct and circumstantial evidence cases; circumstantial evidence is as probative as direct evidence in establishing guilt. Carter v. State, 620 S.W.3d 147, 149 (Tex. Crim. App. 2021), cert. denied, 142 S.Ct. 859 (2022). Circumstantial evidence alone may be sufficient to uphold a conviction so long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
B. Law on Victim Identification of the Robber
We have set forth in a prior opinion the law on identification as follows:
Positive in-court identification of a defendant by complainants of a robbery is to be given great weight. Jones v. State, 687 S.W.2d 430, 432 (Tex. App.-Houston [14th Dist.] 1985, no pet.) (holding that the in-court identification by four witnesses of appellant as the perpetrator was sufficient to establish that he was the one who [had] committed the acts in question); see also Haywood v. State, 507 S.W.2d 756, 758 (Tex. Crim. App. 1974). The positive identification of a defendant as the perpetrator is sufficient to support a conviction. Cate v. State, 124 S.W.3d 922, 928 (Tex. App.-Amarillo 2004, pet. ref'd)[ (per curiam)]. The identity of a robber may be proven by direct or circumstantial evidence. Ford v. State, 852 S.W.2d 641, 642 (Tex. App.-Houston [14th Dist.] 1993, no pet.).Beck v. State, No. 2-03-167-CR, 2005 WL 1542676, at *2 (Tex. App.-Fort Worth June 30, 2005, pet. ref'd) (mem. op., not designated for publication).
C. What the Record Shows Regarding the Robber's Identity
1. Direct Evidence of Identity
As noted above, prior to the in-court identification at a pretrial hearing and at trial, Diane had identified Floyd from a photo spread approximately two weeks after the incident. The detective who showed Diane the photo spread made an audio recording of the presentation of the photo spread. Diane testified that during the photo spread, the detective did not suggest or tell her whom to pick. He began by reading Diane the standard guidelines, explaining the procedure. After she opened the folder with the photo spread, she mentioned, "He doesn't have the same hairdo"; a few moments later, there is the sound of a pen clicking and then she stated, "I think this one because he has buggy eyes, and I can remember he had more kind of top hair." After making comments about the other photographs and returning to the one with the "buggy eyes," she said, "The others, they don't even come close to the man I saw in my house." The detective stated, "Okay, so you think this is possibly the person? Okay, I'm going to count for you. Okay, I'm starting on the top row starting on the left, . . . and you're selecting number four. Is that correct?" The detective then asked Diane to circle the whole photograph and to put her initials underneath the photo with the date of "4-10-17"; he signed underneath as having witnessed her choice. He asked her to write in the comments section in her own words "the role that individual played in this." Diane stated, "He beat my husband and shot him in the head." She testified at trial that she did not recall ever seeing Floyd's photograph on television.
The detective specifically stated on the audio recording of the photo spread that he had not seen the suspect and did not know what he looked like; the photo spread had been prepared by another officer. The detective told Diane that it was perfectly fine if she did not recognize the suspect and that the investigation would not stop if she could not make a selection from the photo spread.
During Floyd's case in chief, he presented expert testimony from a psychology professor whose specialty is the study of eyewitness memory and eyewitness identification. Floyd's expert was asked whether a witness's seeing "a person on TV before [she was] given the [photo] spread" could possibly impact her memory, and the expert said that it could. The expert listed factors that might influence the reliability of the eyewitness identification in this case: the duration of the exposure; the effective duration of the exposure; the latency between the events and when the identification took place; the stress and the trauma that the identifying witness underwent; the presence of a weapon, which creates the possibility of weapon focus; and the fact that this is a cross-racial identification. The expert then explained several of these factors:
• "Duration is simply how long this event took. . . . [T]he longer the duration, the more likely [the victim] can make a correct identification; the shorter the duration, the less likely that [the victim will] be able to make a correct identification."
• Effective duration is "how much time during this encounter . . . the witness [could] have spent looking at the [intruder's] face."
• "Latency is the amount of time that passes between the event occurring and the time when the identification is made."
• "Stress is very disruptive to memory formation, especially the stress that a witness like this one would have undergone."
• "Weapon focus is . . . a tendency when a weapon is being used during a crime to have your attention drawn away from the [intruder's] face to the weapon [he] might be holding."
• "Cross-racial identification bias can occur when a member of one race is identifying a member of another race."
The expert discussed these factors as they relate to this case and then was asked to summarize his thoughts:
So I would just again say you've got very -- a very traumatic event for the witness. She's injured very early into the exposure. The suspect was asking her to look away. She said she was looking away. So you've got questions about effective duration, how well could she have seen this.
She has to wait two weeks before making an identification. She was obviously incredibly stressed and traumatized by the event.
There was a weapon in play that suggests the possibility of weapon focus.
It is a cross-racial identification. As we've discussed, she never actually said it was number four. The officer said that[,] and she agreed
with him. The suspect was the only one with a distinctive feature in the lineup based on the witness's own description.
And then as we just mentioned, she had seen a picture of the suspect on TV labeled as the suspect prior to viewing the array. All of these things coming together, I think all of the things we mentioned provide considerable threats to the reliability of the identification.
On cross-examination, Floyd's expert identified some positive factors that would help an eyewitness with making a correct identification:
• The eyewitness was in a well-lit room;
• The eyewitness was a fairly short distance away from the intruder;
• The eyewitness had an unobstructed view of the intruder;
• The eyewitness had a reason to closely focus her attention on the intruder; and
• The eyewitness had the ability to see the intruder from various distances and angles.
Floyd's expert admitted that he did not know what Diane had seen on television and had never asked her about what she had seen. He agreed that it is possible for a witness to make an accurate identification even under stressful circumstances. With regard to the two-week delay in presenting the photo spread to Diane, the expert agreed that it would not have been appropriate for the photo spread to have taken place earlier while Diane was in the hospital and on pain medication. The expert admitted that due to the recording of the photo spread being only an audio recording and because he had not heard Diane's testimony, he was not aware of any gestures that she might have used to indicate that she was making a selection prior to the detective's statement that she appeared to be choosing one of the photographs. With regard to any alleged "weapon focus," the expert agreed that Diane was more descriptive of the person than the weapon. He further agreed that someone who actually knew Floyd, who was of the same race as Floyd, who saw Floyd in the neighborhood the morning right before the incident occurred, and who had identified Floyd would tend to corroborate Diane's identification.
2. Circumstantial Evidence of Identity
In addition to the victim's identification of Floyd, the record also contained circumstantial evidence linking Floyd to the aggravated robbery. At the Porters' house, the police found a fired casing from a Winchester .380 automatic in the hallway tile. Additionally, the bullets retrieved from Diane's body and John's body were .38-caliber bullets that were originally loaded in a .380 automatic cartridge. The record also showed that police found a live .380-caliber round at Floyd's house under his bed.
Sean Walker identified Floyd in the courtroom as the person who had discharged a gun in his house in DeSoto on March 25, 2017-three days prior to the incident at the Porters' house. The bullet retrieved from Walker's home came from a .380 automatic. The search of Floyd's cell phone revealed five searches on March 25 for discharge-of-a-firearm incidents in DeSoto.
Roy Griffin, who lived on the same street as the Porters, testified that he had met Floyd on a dating website. Griffin said that Floyd drove a black Ford Focus and that he had seen him on the day before the incident. On March 27, Floyd came to Griffin's house around 5:00 or 6:00 p.m. Griffin testified that Floyd had repeatedly asked him if the Porters, who were outside smoking, were nosy; Griffin told him that they minded their own business. Griffin said that on the morning of March 28, Floyd came to his house around 8:00 or 9:00 a.m. and asked to use his phone; Griffin told him that he could not and shut the door. When police showed Griffin a photo spread, he made a "pretty instantaneous" selection of Floyd.
The police took photos of the inside of the Porters' Kia Sorento and found three hairs; no hair was recovered from Floyd's Ford Focus. The hairs were removed from the Kia Sorento and sent for DNA testing. The testing showed that Floyd or any of his matrilineal relatives could not be excluded as the contributor of the mitochondrial DNA obtained from the three hairs. DNA testing was also performed on the jeans that John was wearing when he was shot; Floyd could not be excluded as a contributor of the minor types of DNA in the mixture found on the back left pocket of John's jeans.
The search of Floyd's cell phone revealed that at around 4:13 p.m. on the day of the offense, there were multiple internet searches for people who had been shot during a robbery. These internet searches on his phone occurred minutes before his arrest.
3. Floyd's Defense
Floyd testified in his own defense and said that he was at his home in Terrell during the time that the offense occurred. He explained that he had asked a friend named Red to take his car to Fort Worth and give Griffin some money that he owed him. Floyd said that Red lives in Terrell but does not look like him. Floyd disagreed that Diane had identified him in a photo spread and in court.
Floyd opined that someone had moved the hairs from his Ford Focus to the Porters' Kia Sorento because there was a gap between the time that the two cars were photographed and because one of the forensic scientist's emails had noted that the hairs that were tested for DNA had come from his Ford Focus. Floyd testified that Griffin had lied about seeing him on the morning of March 28. Floyd also said that everyone-from the lead detective, to the DNA analysts, to the officer who processed the evidence from the cars, to the attorneys, to Walker-had lied. But Floyd admitted that he had searched the internet on his phone for murders or shootings right before he was arrested.
The officer who photographed the Ford Focus and the Kia Sorento testified that he had processed the evidence from the Ford Focus first and then the Kia Sorento. When Floyd asked the officer about the twenty-nine-minute gap between certain photos, the officer explained that he was writing down information about the swabs that he had taken but that he was right beside the Kia Sorento; the officer said that the detectives did not enter the Kia Sorento until he had completed the swabs. Moreover, the officer testified that he did not recover any hairs from the interior of the Ford Focus but that he had recovered three hairs from the interior of the Kia Sorento.
During the State's cross-examination of the forensic scientist, she acknowledged that the officer who had recovered the hairs had noted in his supplement that the hairs had come from the Kia Sorento. The forensic scientist admitted that it was possible that she had made an error in her email.
D. Analysis
On appeal, Floyd points to the following from his expert's testimony to argue that Diane's identification of Floyd was "problematic": (1) Diane was shot early in the encounter; (2) she had been required to look away from the incident for a significant portion of the event; (3) she was under high stress; (4) the perpetrator had a gun; (5) she was making a cross-racial identification; (6) her identification was not made until nearly two weeks after the incident; (7) at the time that she saw Floyd's photo in the photo spread, she had already seen a picture of him on television; (8) the detective suggested Floyd's photo before Diane had actually made an identification; and (9) Floyd was the only individual in the photo spread who had "buggy eyes." But as set forth above, the State's cross-examination of Floyd's expert refuted or undercut most of the items on this list. Moreover, discrepancies or conflicts in the evidence about Floyd's identity (i.e., descriptions of his height, age, and hair) do not render the evidence insufficient, as Diane's in-court identification of Floyd as her assailant was, by itself, sufficient to establish his guilt. See Soria v. State, No. 08-20-00074-CR, 2022 WL 2965979, at *5 (Tex. App.-El Paso July 27, 2022, no pet.) (not designated for publication); Becerra v. State, No. 01-13-00807-CR, 2014 WL 2582901, at *3 (Tex. App.-Houston [1st Dist.] June 10, 2014, pet. ref'd) (mem. op., not designated for publication) (stating that the testimony of one eyewitness is sufficient to uphold a conviction and that a positive, in-court identification of a defendant is likewise sufficient to support a conviction).
Floyd further argues that without Diane's allegedly "problematic identification," the evidence against him is purely circumstantial. Floyd fails to acknowledge that circumstantial evidence alone can support a conviction. See Ramsey, 473 S.W.3d at 809; Hooper, 214 S.W.3d at 13. As detailed above, the record was replete with evidence connecting Floyd to the aggravated robbery as shown by the fact that he could not be excluded as a contributor to the hairs found in the Porters' Kia Sorento, that his DNA was found on John's left pocket, that the bullet found under Floyd's bed was the same type of bullet as that used in the incident, and that there were internet searches pertaining to the incident that were conducted on his phone right before he was apprehended. To the extent that Floyd attacks Griffin's testimony about the exact time that he saw Floyd on the morning of March 28, the lack of video surveillance showing Floyd at the location in Fort Worth where his car was found or at the location in Terrell where Diane's debit card was used, the State's use of "a less precise form of DNA testing" for the hairs, and the lack of cell-phone evidence showing that he was in Fort Worth on the day of the incident, we note that the jury alone was the factfinder and was entitled to judge the evidence's weight and credibility. See Tex. Code Crim. Proc. Ann. art. 38.04; Martin, 635 S.W.3d at 679. We are not in a position to reweigh the evidence or to substitute our judgment for the factfinder's. See Queeman, 520 S.W.3d at 622. Instead, we must view the evidence in the light most favorable to the verdict. See Braughton, 569 S.W.3d at 608. Using that required lens, we conclude that the combined and cumulative force of both the direct and circumstantial evidence presented at trial is sufficient to support the jury's verdict that Floyd is guilty of aggravated robbery as charged in the indictment. See Soria, 2022 WL 2965979, at *6.
A senior forensic analyst explained that "in general, hairs without roots are tested for mitochondrial DNA because we do not generally expect to get good results from nuclear DNA testing." Floyd preferred that nuclear DNA testing had been performed.
We overrule Floyd's first issue.
IV. Jury Unanimity Instruction Not Required as to the Method of Committing the Offense
In his second issue, Floyd argues that the trial court failed to adequately instruct the jury that it was required to be unanimous as to whether he was guilty of aggravated robbery by threat or bodily-injury aggravated robbery. The State responds that a special unanimity instruction was not required because this case does not involve any of the situations that the Court of Criminal Appeals has identified as requiring a special unanimity instruction. We agree that a special unanimity instruction was not required.
A. Standard of Review
We must review "all alleged jury-charge error . . . regardless of preservation in the trial court." Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). In reviewing a jury charge, we first determine whether error occurred; if not, our analysis ends. Id.
Floyd does not dispute that he did not object to the charge on the ground that he raises on appeal.
B. The Law on Jury Unanimity and How that Applies to the Methods of Committing Aggravated Robbery
The Court of Criminal Appeals has explained the three scenarios when a trial court must properly instruct the jury on unanimity:
Texas law requires that a jury reach a unanimous verdict about the specific crime that the defendant committed. This means that the jury must "agree upon a single and discrete incident that would constitute the commission of the offense alleged." There are several ways in which non-unanimity issues arise, and in this context, based on our precedent, we have recognized three variations that may result in non-unanimous verdicts as to a particular incident of criminal conduct that comprises the charged offense. Non-unanimity may result in each of these situations when the jury charge fails to properly instruct the jury, based on the indicted offense(s) and specific evidence in the case, that its verdict must be unanimous.
First, non-unanimity may occur when the State presents evidence demonstrating the repetition of the same criminal conduct, but the actual results of the conduct differed. . . .
Second, non-unanimity may occur when the State charges one offense and presents evidence that the defendant committed the charged offense on multiple but separate occasions. . . .
And third and finally, non-unanimity may occur when the State charges one offense and presents evidence of an offense, committed at a different time, that violated a different provision of the same criminal statute.Cosio v. State, 353 S.W.3d 766, 771-72 (Tex. Crim. App. 2011) (footnotes omitted).
Additionally, we have previously explained that
while the jury must agree that the defendant committed one specific crime, this does not mean that the jury must unanimously find that the defendant committed that crime in one specific way or even with one specific act. Landrian[ v. State], 268 S.W.3d [532,] 535 [(Tex. Crim. App. 2008)].. . . .
"A trial court may submit a disjunctive jury charge and obtain a general verdict where the alternate theories involve the commission of the 'same offense.'" Rangel v. State, 199 S.W.3d 523, 540 (Tex App- Fort Worth 2006)[ (op on reh'g)] (quoting Finster v State, 152 S.W.3d 215, 218 (Tex App-Dallas 2004, no pet))[, pet dism'd, improvidently granted, 250 S.W.3d 96 (Tex Crim App 2008)]; see also Kitchens v State, 823 S.W.2d 256, 258 (Tex Crim App 1991) (holding [that] it was proper for jury to be charged in disjunctive as to different methods of committing capital murder) In Cooper v State, 430 S.W.3d 426 (Tex Crim App 2014), the [C]ourt of [C]riminal [A]ppeals held that separate convictions for aggravated robbery based on the two underlying methods of robbery-causing bodily injury to or threatening the same victim during a home invasion-violated double jeopardy Id. at 427 The two concurring opinions issued by the court agreed that aggravated robbery causing bodily injury and aggravated robbery by threat are alternative methods of committing the offense of aggravated robbery Id. at 434 (Keller, PJ, concurring), 439 (Cochran, J, concurring). We are bound by the [C]ourt of [C]riminal [A]ppeals'[s] holding in Cooper. Crenshaw v. State, 424 S.W.3d 753, 755 (Tex. App.-Fort Worth 2014, no pet.). Reading Rangel and Cooper together leads us to conclude that it was not error for the charge of aggravated robbery to be submitted in the disjunctive because causing bodily injury or threatening the victim are different methods of committing the same offense.Burton v. State, 510 S.W.3d 232, 236-37 (Tex. App.-Fort Worth 2017, no pet.) (footnotes omitted).
And after our opinion in Burton, the Court of Criminal Appeals discussed how its double-jeopardy jurisprudence is "closely intertwined" with its jury-unanimity jurisprudence. French v. State, 563 S.W.3d 228, 233 (Tex. Crim. App. 2018). The Court of Criminal Appeals stated that "when we have construed these different provisions to carve out separate offenses for double[-]jeopardy purposes, we have essentially held that they are separate offenses for jury[-]unanimity purposes as well." Id. at 234. Reading Cooper and French together, when the Court of Criminal Appeals has determined that different provisions of a statute constitute the same crime for double-jeopardy purposes (as it did with aggravated robbery in Coooper), the Court has essentially held that they are the same offense for purposes of jury unanimity as well. See id. at 233-34; Cooper, 430 S.W.3d at 427; cf. Dunham v. State, No. PD-0831-18, 2023 WL 151346, at *6-7 (Tex. Crim. App. Jan. 11, 2023) (holding that jury unanimity is not required on the manners and means listed in subsections (1)-(12) of the deceptive business practices statute because "based on the statutory language, [the legislature] intended to punish the act of deceptive business practices in general-not establish separate units of prosecution for each subsection within the same overall act").
C. The Jury Charge
The jury charge read as follows:
Now, if you find from the evidence beyond a reasonable doubt that on or about the 6th day of April, 2017, in Tarrant County, Texas, the Defendant, James Earnest Floyd[] Jr., did intentionally or knowingly, while in the course of committing theft of property and with intent to obtain or maintain control of said property, threaten or place Diane Porter in fear of imminent bodily injury or death, and the Defendant used or exhibited a deadly weapon, namely a firearm; or if you find from the evidence beyond a reasonable doubt that on or about the 6th day of April, 2017, in Tarrant County, Texas, the Defendant, James Earnest Floyd[] Jr., did intentionally or knowingly, while in the course of committing theft of property and with intent to obtain or maintain control of said property, cause bodily injury to another, Diane Porter, by shooting her with a firearm and the defendant used or exhibited a deadly weapon, namely a firearm, then you will find the Defendant guilty of the offense of aggravated robbery.
Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the Defendant, say by your verdict "Not Guilty."
The jury charge also stated, "Any verdict you render must be unanimous."
D. Analysis
Here, we are not presented with one of the three variations set out in Cosio that require a special unanimity instruction. 353 S.W.3d at 772. Instead, we have a scenario just like the one in Burton, which Floyd acknowledges is contrary to his position. The jury charge instructed the jury in the disjunctive, advising that if the jury found from the evidence beyond a reasonable doubt that Floyd had threatened or had placed the complainant in fear of imminent bodily injury or death or had caused bodily injury to her, then the jury was to find Floyd guilty of aggravated robbery.
Based on the case law set forth above, we hold, as we did in Burton, that it was not error for the charge of aggravated robbery to be submitted in the disjunctive because causing bodily injury or threatening the victim are different methods of committing the same offense. See 510 S.W.3d at 237.
Floyd relies on cases from our sister courts to argue that aggravated robbery by causing bodily injury is a separate statutory offense from aggravated robbery by threat. See Loville v. State, No. 14-12-00297-CR, 2013 WL 1867077, at *8 (Tex. App.- Houston [14th Dist.] May 2, 2013, pet. ref'd) (mem. op., not designated for publication) (stating that all the jury needed to find unanimously was that appellant had committed the criminal offense of robbery by threat and that it did not need to agree as to whether appellant had accomplished that offense by (1) "threatening to shock" with an electroshock weapon, (2) "attempting to shock" with an electroshock weapon, (3) "threatening to shock" with a stun gun, or (4) "attempting to shock" with a stun gun; thus, charging the jury in the disjunctive as to alternative methods of how appellant committed robbery by threat and submitting a general verdict form were proper); Woodard v. State, 294 S.W.3d 605, 608 (Tex. App.-Houston [1st Dist.] 2009, pet. ref'd) (holding that because the underlying robbery offense was robbery by causing bodily injury, unanimity as to the aggravating factors was not required). First, we note that we are not bound by decisions from our sister courts. And second, as noted in the preceding parentheticals, the two cases are distinguishable from the jury charge before us.
We therefore overrule Floyd's second issue.
V. No Evidence to Support Stacking Order
In his third issue, Floyd argues that the trial court unlawfully ordered the sentence to run consecutively to two sentences for which he was on parole, even though there was no evidence presented that his parole had been revoked. The State concedes error.
The Court of Criminal Appeals's decision in Byrd v. State governs the scenario here:
Article 42.08 of the Code of Criminal Procedure governs the manner in which trial courts are to order consecutive sentences[:]
(a)When the same defendant has been convicted in two or more cases, judgment and sentence shall be pronounced in each case in the same manner as if there had been but one conviction. Except as provided by Sections (b) and (c) of this article, in the discretion of the court, the judgment in the second and subsequent convictions may either be that the sentence imposed or suspended shall begin when the judgment and the sentence imposed or suspended in the preceding conviction has ceased to operate, or that the sentence imposed or suspended shall run concurrently with the other case or cases . . . .
(b) If a defendant is sentenced for an offense committed while the defendant was an inmate in the Texas Department of Criminal Justice and serving a sentence for an offense other than a state jail felony and the defendant has not completed the sentence he was serving at the time of the offense, the judge shall order the sentence for the subsequent offense to commence immediately on completion of the sentence for the original offense.
(c) If a defendant has been convicted in two or more cases and the court suspends the imposition of the sentence in one of the cases, the court may not order a sentence of confinement to commence on the completion of a suspended sentence for an offense.
We review a trial court's decision under Article 42.08(a) for an abuse of discretion. "Normally, the trial judge has absolute discretion to cumulate sentences," so long as the law authorizes the imposition of cumulative sentences. A trial court abuses its discretion if it imposes consecutive sentences where the law requires concurrent sentences.. . . .
We hold that, for purposes of Article 42.08, the timing of a defendant's parole revocation for the original offense matters. If parole is revoked on a defendant's first offense before that defendant is sentenced on the second offense, then[] . . . the second sentence may be stacked on top of the first sentence. However, if parole is not revoked on a defendant's first offense before that defendant is sentenced for the second offense, then the second sentence may not be stacked on top of that first sentence.499 S.W.3d 443, 446-47, 451 (Tex. Crim. App. 2016) (footnotes omitted).
Here, the State admits that it "cannot locate any record evidence establishing that [Floyd's] parole has been revoked before he was sentenced in this case." The State joins Floyd in asking us to strike the stacking order from the judgment. We agree and do so. Accordingly, we sustain Floyd's third issue.
VI. Conclusion
Having overruled Floyd's first and second issues, but having sustained his third issue, we modify the judgment to strike the stacking order, and we affirm the judgment as modified. See Tex. R. App. P. 43.2(b).