Comment

Robbery is prohibited by and defined in Tex. Penal Code § 29.02. The definition of “course of committing theft” is from Tex. Penal Code § 29.01(1). The definition of “bodily injury” is from Tex. Penal Code § 1.07(a)(8). The definition of “theft” is based on Tex. Penal Code § 31.03(a).

Threat and “Placing in Fear.” The above instruction separates as alternatives threatening another and placing another in fear. The case law has recognized these as alternatives. Vaughn v. State, 634 S.W.2d 310, 312 (Tex. Crim. App. 1982) (“The offense may be committed by either threatening or by actually placing the complainant in fear of bodily injury.”). It has not, however, developed the difference between them.

The legislature may have intended robbery by threat to require no actual demonstrated impact on the victim. The second alternative, then, might be different insofar as it places no limits on what the defendant must have done but instead focuses on proof that the defendant’s conduct resulted in putting the victim in fear.

Threat—Objective Standard? One discussion in the case law suggests that the court of criminal appeals has construed the term threat in the current statute as requiring that the defendant’s conduct not only produce fear in the victim but also that it meet a minimal objective standard. Thus the conduct arguably must have been such as would cause the necessary fear in a reasonable person. Devine v. State, 786 S.W.2d 268 (Tex. Crim. App. 1989), appeared to read this objective requirement of prior law into the 1974 Penal Code.

If this is good current law, it is arguable that the jury charge should provide the jury with this standard. This would probably most appropriately be accomplished by a definition of the terms threatens or puts in fear.

The contents of the crime of robbery by threat were addressed at length by Judge Clinton for the court in Devine. Specifically, Devine stated:

Devine, 786 S.W.2d at 270–71. In Devine itself, the court reversed the conviction:

Devine, 786 S.W.2d at 271.

Apparently, Devine held that the evidence did not show a sufficiently explicit threat and the state’s evidence—although it showed that the victim Cox was put in fear—failed to show that Devine’s conduct was sufficient to generate such fear in a reasonable person.

Lower courts, often citing Devine, have reviewed robbery-by-threat convictions to determine if the state’s proof showed threats sufficient to place a reasonable person in fear. E.g., Montez v. State, No. 07-07-0193-CR, 2008 WL 55113, at *1 (Tex. App.—Amarillo Jan. 4, 2008, no pet.) (not designated for publication) (“It is sufficient to constitute robbery if the accused places the complainant in fear of bodily injury to the degree that reason and common experience will induce the complainant to part with his property against his will. . . . Thus, we must determine whether the conduct of appellant was sufficient to place a reasonable person in fear of imminent bodily injury.”); Moralez v. State, No. 04-06-00033-CR, 2006 WL 3085714, at *2 (Tex. App.—San Antonio Nov. 1, 2006, no pet.) (not designated for publication) (“We find that the combination of Moralez’s violent actions and his threatening, abusive language was sufficient to place a reasonable person in fear of imminent bodily injury or death.”); Mason v. State, No. 10-05-00053-CR, 2006 WL 348578, at *2 (Tex. App.—Waco Sept. 20, 2006, pet. ref’d) (not designated for publication) (“[W]e hold that a rational trier of fact could have found that Mason’s ‘words and conduct were sufficient to place a reasonable person in [Mendoza’s] circumstances in fear of imminent bodily injury.’ ”).

Case law addressing the need for a jury charge is limited to two decisions of the Texarkana court of appeals. In Kizzee v. State, No. 06-02-00035-CR, 2003 WL 283831, at *4 (Tex. App.—Texarkana Feb. 11, 2003, no pet.) (not designated for publication), the defendant contended the trial court erred—

Distinguishing Welch and other decisions as involving review for evidence sufficiency, Kizzee found no authority that a jury charge was required. Without discussing whether logic required such a charge, the court found no error.

Kizzee was followed in another appeal involving the same appellant. Kizzee v. State, No. 06-02-00038-CR, 2003 WL 283824, at *2 (Tex. App.—Texarkana Feb. 11, 2003, no pet.) (not designated for publication).

“Conditional” Threats. If a threat is otherwise sufficient to constitute robbery, it is not rendered insufficient because it is conditional. Green v. State, 567 S.W.2d 211 (Tex. Crim. App. [Panel Op.] 1978) (“If you don’t give me the money, I’m going to cave your head in” was a sufficient threat).

The conditional nature of a threat may, however, bear on whether it is a threat of sufficiently imminent harm. In Pitte v. State, 102 S.W.3d 786 (Tex. App.—Texarkana 2003, no pet.), the court explained:

Pitte, 102 S.W.3d at 792 (footnote omitted).

“Imminent” Bodily Injury or Death. Any threat must be of “imminent” bodily injury or death, and the fear instilled must be similar. The statutes provide no definition of “imminent.”

Judge Clinton’s opinion in Devine stated: “[A]n offense involving threats of ‘future’ bodily injury was intended to be theft, not robbery. Ergo, consistently with this apparent intent, we construe ‘imminent’ bodily injury in § 29.02(a)(2), supra, to require a present, not a future threat.” Devine, 786 S.W.2d at 270.

A jury charge could be formulated that would simply inform the jury that a threat of harm to be inflicted in the future (or a fear of harm that would occur only in the future) is not sufficient. Whether such a charge would be helpful and, if so, permissible is not clear. Consequently, the Committee did not recommend that the charge attempt such a definition of “imminent.”

Unanimity. The Committee found no controlling case law on whether a jury must be unanimous about whether the defendant committed the offense by threatening the victim or placing the victim in fear. It concluded that the court of criminal appeals would most likely conclude these are not separate offenses on which unanimity is required but rather alternative ways of committing what is widely regarded as the single offense of robbery by threat.