Is Assault During Robbery the Same Offence or Separate Violations ?
In Ex parte Hawkins, (Tex. Crim. App. 1999) the court observed, "The Double Jeopardy Clause is offended if a defendant is successively prosecuted for the same offense.
The legislature defines whether offenses are the same. It does so by prescribing the 'allowable unit of prosecution,' which is 'a distinguishable discrete act that is a separate violation of the statute.'
The court then turned to case law construing the robbery provisions in the Penal Code. Hawkins, 6 S.W.3d at 559-560, 1999 Tex. Crim. App (citing Crank v. State, 761 S.W.2d 328, 350 (Tex. Crim. App. 1988)); Hightower v. State, 629 S.W.2d 920, 922 (Tex. Crim. App. 1981); Linville v. State, 620 S.W.2d 130, 131 (Tex. Crim. App. 1981); Rohlfing v. State, 612 S.W.2d 598, 602 (Tex. Crim. App. 1981); Ex parte Lucas, 574 S.W.2d 162, 163-64 (Tex. Crim. App. 1978)).
Those cases indicate that the gravamen of robbery was the assaultive conduct, not the theft. See Hawkins, 6 S.W.3d at 559-560, 1999 Tex. Crim. App.
The court concluded, "Since robbery is a form of assault, the allowable unit of prosecution for robbery should be the same as that for an assault.
And in Texas the allowable unit of prosecution for an assaultive offense is each victim."