OPINION

JOHNSON, J., delivered the opinion of the Court in which KELLER, P.J., and MEYERS, COCHRAN, and ALCALÁ, JJ., joined.

Appellant was convicted of five counts of aggravated robbery pursuant to an indictment that named three different complainants, with all counts arising from a single home invasion. Two counts named Andrew Chaney as the complainant, two counts named James Barker as the complainant, and one count named Paul Linden as the complainant. The jury found him guilty of all five counts in the single indictment and assessed appellant's punishment at imprisonment for 60 years on two of the counts, 80 years on two other counts, and 65 years on the remaining count. The trial court sentenced appellant accordingly and ordered all five sentences to be served concurrently. The court of appeals affirmed the judgments. Cooper v. State, 373 S.W.3d 821 (Tex.App.-Austin 2012).

In his petition to this Court, appellant raises two grounds, both of which challenge the court of appeals's holding that the Double Jeopardy Clause of the United States Constitution was not violated when he was convicted of both aggravated robbery by causing bodily injury and aggravated robbery by threat to the same victim during a single robbery. These grounds involve appellant's convictions for two separate counts of aggravated robbery of each of two of the named complainants, Andrew Chaney and James Barker. He does not challenge his conviction for robbing Linden.

We granted review. After reviewing the opinion of the court of appeals, the record, and the briefs of the parties, we conclude that appellant's challenged convictions do violate the double-jeopardy clause. Accordingly, we sustain appellant's grounds for review. We reverse the judgment of the court of appeals and remand this cause to that court for further proceedings and appropriate disposition.

KELLER, P.J., filed a concurring opinion in which JOHNSON, J., joined.

COCHRAN, J., filed a concurring opinion in which ALCALÁ, J., joined.

PRICE, J., filed a dissenting opinion in which KEASLER and HERVEY, JJ., joined. WOMACK, J., did not participate.

KELLER, P.J., filed a concurring opinion in which JOHNSON, J., joined.

This case presents "an exceedingly complex double-jeopardy question"1 regarding whether the State may obtain two aggravated robbery convictions involving the same victim and the same transaction. At issue is whether the State may obtain a conviction for aggravated robbery by "threat" and a conviction for aggravated robbery by causing bodily injury. Had one of those two convictions been for the lesser-included offense of aggravated assault instead (the bodily injury count), this case would have been legally indistinguishable from our recent opinion in Garfias v. State.2 But the State in the present case did not settle for one conviction for aggravated robbery and one conviction for aggravated assault. Instead, the State obtained two convictions for aggravated robbery. I agree with a majority of this Court that the two convictions for aggravated robbery violates double jeopardy. I further agree to remanding this case to the court of appeals to determine the appropriate remedy in the first instance.

A. Error: The Underlying Elements are Alternative Methods of Committing the Same Offense

1. Only One Statute is at Issue

The offense of aggravated robbery incorporates the elements of the lesser offense of robbery, and it is the provisions of the robbery statute, alone, that are at issue here. Parsing the provisions of a single statutory section "is unlike a situation involving different statutes," because the codification of offenses in different statutes is by itself "some indication of legislative intent to authorize multiple prosecutions."3 When a double-jeopardy claim involves the provisions of a single statute, we perform a "units" analysis to determine the allowable unit of prosecution that the statute prescribes and how many units have been shown at trial.4 The allowable unit of prosecution a statute prescribes is purely a matter of statutory construction, but it is a less structured analysis than that required in the two-statute scenario, with all relevant information being reviewed in an attempt to ascertain the legislature's intent.5

In ascertaining the unit of prosecution, a court will face one of two basic fact patterns. Sometimes, the court must address whether the State can punish a defendant multiple times for the same statutorily prohibited conduct.6 This fact pattern is implicated when a court is called upon to determine, for example, whether separate offenses can be prosecuted based upon there being more than one victim, or more than one item taken, or more than one item of contraband possessed.7 The second fact pattern occurs "when the same statutory section lists multiple methods of committing an offense, and this Court is called upon to determine whether these different methods of commission are different offenses or are merely alternate means of committing the same offense."8

In either fact pattern, the best indicator of legislative intent with respect to the unit of prosecution is generally the focus or gravamen of the offense.9 We have also said that the unit of prosecution "tends to be defined by the offense element that requires a completed act."10 And we have also explained that we can use grammar as an aid in determining focus or gravamen.11 But, if after looking at all relevant factors, we find the legislature's intent with respect to the unit of prosecution to be insolubly ambiguous, we should keep in mind that the provisions at issue are in the same statutory section, and we should resolve uncertainty in favor of a conclusion that they are alternative manners and means of committing the same offense.

2. Structure of the Robbery Statute and the Capital Murder Analogy

The robbery statute provides:

Judge Price's position is, at least implicitly, that the two subsections of the robbery statute cited above set forth two separate underlying offenses of assault: assault by threat and assault by causing bodily injury. He further contends that, because assault by threat is a separate offense from assault by causing bodily injury, a robbery that incorporates an assault by threat would be a separate offense from a robbery that incorporates an assault by causing bodily injury.

It is true that we have characterized bodily-injury assault as "a separate and distinct crime" from assault by threat and, also, that an "aggravated assault under each distinct assaultive crime is a separate crime."13 "[O]nce the underlying type of assault is defined, then either of the aggravating factors set out [in the aggravated-assault statute] may elevate that distinct assaultive crime to a second-degree felony. The aggravating factors or elements are simply the way in which the simple assault becomes a more serious offense."14

But the unit of prosecution for a greater offense is not always wholly defined by the unit of prosecution for an underlying lesser offense. For example, no one would dispute that robbery and aggravated sexual assault are separate offenses, even when those offenses are committed against the same person in the same transaction. But incorporate those lesser offenses into a capital-murder charge15 and they become alternative methods of committing capital murder rather than separate capital-murder offenses.16 The State could not obtain two capital-murder convictions based on the killing of a single person during the course of a robbery and an aggravated sexual assault. But the State could limit its theory of capital murder to murder in the course of a robbery and then pursue the aggravated sexual assault as a separate offense. Analytically, that is exactly what happened in Garfias with respect to the offense of aggravated robbery: the State limited its theory of aggravated robbery to aggravated robbery by threat and pursued aggravated assault by causing bodily injury as a separate offense.

Is robbery more like aggravated assault or more like capital murder? It is true that we emphasized the assaultive aspect of robbery in Hawkins and used that emphasis as part of the reasoning for our later observation in Jones that a gravamen element tends to be one that requires a completed act.17 We explained that the robbery statute does not require that a theft be completed;18 it requires only that the person be "in the course of committing theft."19 And in Hawkins we characterized robbery as "a form of assault."20 Hawkins and Jones both involved the first fact pattern in a units inquiry — whether a person can be punished multiple times for the same statutorily prohibited conduct. In Hawkins, the defendant threatened two people but stole only one item,21 and we held that the unit of prosecution was each victim threatened.22 In Jones, the defendant made three false statements apiece in two loan applications,23 and we held that the unit of prosecution was each false statement.24 The observations made in those cases make sense in the context of the fact pattern that existed in those cases, which required counting multiple instances of the same statutorily proscribed behavior. With respect to robbery, if a theft is not complete, there are no stolen items to count. But in every robbery, the assaultive conduct25 is complete, so there will be a countable number of people who have been subjected to that conduct.

But for reasons discussed below, I think that the theft aspect of robbery seems especially relevant to the second fact pattern as implicated in this case, whether the different underlying assaultive behaviors proscribed are alternative methods of committing the same offense or separate offenses. Although robbery does not require a completed theft, the theft portion of the robbery statute does require activity: the offender must be in the course of committing theft. The requirement that there be theft activity is a common element to the different statutory methods of committing robbery: the "in the course of committing theft" requirement is listed in the body of subsection (a) while the different underlying assaultive behaviors are listed in subdivisions (1) and (2) under subsection (a). This statutory structure of certain activity serving as a common element is the same as found in the capital-murder statute (in which an intentional or knowing murder is the common element)26 and the failure-to-stop-and-render-aid statute (in which an accident is the common element),27 and it is analytically similar to the burglary statute (in which entry is the common element)28 and to how we have analyzed the felony-murder statute (discussing death of an individual as the common element shared by underlying felonies in a felony-murder prosecution).29

By contrast, activity that serves as a common element is absent from several statutes in which the different methods of committing an offense have been construed as separate offenses. For example, in the indecency-with-a-child statute, the body of subsection (a) simply outlines "with a child" younger than age 17 and then enumerates subdivisions that specify prohibited conduct.30 In the aggravated-sexual-assault statute, the body of subsection (a) simply states that "[a] person commits an offense."31 In fact, one has to drop all the way down to subdivision (i) before the statute outlines any sort of activity, and at that level, the statute outlines a number of alternative acts.32 Likewise, the assault statute simply provides introductory language in the body of subsection (a) and then outlines the relevant threat and bodily-injury elements in subdivisions (1) and (2).33 The only common element provided in the aggravated-assault statute is that an assault must occur, which then takes us back to the absence of a common element in the assault statute.34 Thus, in terms of structure, the robbery statute is more like the capital-murder statute than the aggravated-assault statute.

There are differences. The theft element in the robbery statute is framed in the passive voice, in the same manner, in fact, as the underlying offenses in the capital-murder statute.35 In this sense, the order of the statutes is inverted: the capital-murder statute contains an actively worded common element with passively worded "in the course of" underlying elements while the robbery statute contains a passively worded "in the course of" common element with actively worded underlying elements. This inversion of the passively worded elements helps explain why the assaultive elements in the robbery statute are part of the gravamina of robbery while the underlying offenses in the capital-murder statute are not considered part of the gravamina for capital murder.36 Nevertheless, by making the theft aspect of robbery a common element, the legislature has accorded it more prominence than is the case with the similarly worded underlying elements of capital murder.

3. Absence from Aggravated Assault Statute

Moreover, if the legislature had intended for robbery to be simply an aggravated form of assault, it could have made the fact that the assault was committed in the course of a theft an aggravating circumstance in the aggravated-assault statute.37 And to preserve enhanced punishment for what is now termed aggravated robbery, the legislature could have provided for enhanced punishment within the aggravated-assault statute for the confluence of multiple aggravating circumstances as it has done for other circumstances in the aggravated-assault statute38 and as it has done for the offense of aggravated sexual assault.39 But the legislature has chosen not to treat what is now the offense of robbery as simply an aggravated version of assault. In fact, robbery is not even in the same title, much less the same chapter, as the offense of assault.40 We did not find that fact to be controlling with respect to the issue decided in Hawkins,41 but it is a relevant fact to consider.

4. Completed Assault Not Required

Another factor that mitigates against a lockstep analysis of using the unit of prosecution for assault for all purposes for the offense of robbery is that a completed assault is not always required for a robbery. This conclusion is based upon an important difference between the wording of the "threat" provision in the robbery statute and the "threat" provision in the assault statute. The "threat" provision of the assault statute provides that a person commits an offense if he "intentionally or knowingly threatens another with imminent bodily injury."42 The counterpart provision in the robbery statute provides that a person commits an offense if he "intentionally or knowingly threatens or places another in fear of imminent bodily injury or death."43 As can be seen, the robbery statute contains the phrase "places ... in fear of" that is not contained in the assault statute.

In Williams v. State, the First Court of Appeals construed this difference in language to mean that a threat is not actually required to establish robbery:

In published opinions, the Third, Sixth, and Fourteenth courts of appeals have followed Williams.45 In Wilmeth v. State, the Twelfth Court of Appeals indicated that "a menacing glance" could be sufficient to show that the defendant placed a victim in fear of imminent bodily injury.46 The Williams' construction of the robbery statute appears to be the unanimous view of the courts of appeals that have addressed the issue.47

That view appears to be well-taken. The theft aspect of robbery creates a situation in which fear is more likely to occur, even in the absence of an actual threat. A person who has a gun in a holster, gives the store clerk a menacing glance intended to place the clerk in fear of death, and says, "Give me your money," has committed a robbery even if an actual threat has not been conveyed.48 Likewise, a robber could threaten one individual in a store while knowing that others present will have heard the threat.49 The robber may not have threatened these other individuals, but if he knew the others would be placed in fear, then he has (à la Hawkins) committed a robbery against them.

5. Conclusion

The above discussion convinces me that the conduct of being in the course of committing a theft is a gravamen of robbery, though it is not the controlling gravamen in every situation. None of this discussion undermines our prior holding in Hawkins that a robbery occurs with respect to each individual who is subjected to assaultive conduct (in the broad robbery sense). But this discussion leads me to conclude that the "threat" and "bodily" injury elements of robbery are simply alternative methods of committing a robbery. Thus, the unit of prosecution in a robbery case is each individual subjected to assaultive conduct during the course of a theft.

Although some significant factors can be cited to support a conclusion that the different methods of committing robbery are different offenses, these factors, at best, counterbalance other factors that weigh against such a conclusion — muddying the issue of how the unit of prosecution should be resolved. Given that state of affairs, we should accord determinative weight to the legislature's decision to place these different means of committing robbery in the same statutory section and hold that they are alternative methods of committing the offense.

B. Remedy

As has been explained above, the State could have avoided violating double-jeopardy if, for each victim, instead of obtaining two convictions for aggravated robbery, the State had obtained one conviction for aggravated robbery and one conviction for aggravated assault, as occurred in Garfias. In Bowen v. State, we held in the sufficiency-of-the-evidence context that an appellate court has the power to reform a greater offense to a lesser-included offense even if the lesser-included offense had not been requested or submitted to the finder of fact.50 The question arises whether, consistent with Bowen, an appellate court ought to reform a conviction instead of vacating the conviction entirely, if reformation would obviate a double-jeopardy violation. Now that we have found a double-jeopardy violation, the parties will have the opportunity to address the appropriate remedy on remand to the court of appeals. Discussion of the appropriate remedy would include whether reformation is appropriate and, possibly, whether the State wishes to waive any right to reformation.51 With these comments, I join the opinion of the Court.

COCHRAN, J., filed a concurring opinion in which ALCALA, J., joined.

This is not a simple issue. As Judge Moylan has noted, "it is sometimes the simplest of crimes that are the most difficult to master. [Continuing criminal enterprises and conspiracies] are as child's play to the familiar standby of assault and battery."1 Although appellant was charged with various counts of aggravated robbery, the legal issue concerns the distinction between "assault" and "battery."

Remember that old law-school common-law concept of assault and battery? An assault was the attempt to hit or injure someone and battery was the actual hitting or injuring of that person.2 Both were crimes, but a person could not be charged with two distinct offenses for a single attempt to hit and then a successful hitting or injury of one person in one incident.3 Under the old common law, assault was an unconsummated battery, and battery was a consummated assault.4 Every battery included an assault, but an assault did not include a battery.5 Eventually, the common-law concept of the crime of assault expanded from attempted battery (a missed hit) to include the common-law tort concept of a threat to hit or injure (the pointing of a gun or words such as "I will hit you").6

Under more modern statutes, such as the Model Penal Code7 and Texas law, both the common-law crime of assault and that of battery are covered under the single offense of assault. For example, Section 22.01 of the Penal Code defines an assault as an offense if a person

Relevant to our purposes,9 these are two separate ways of committing an assault and they are, in fact, separate offenses — one involving prohibited conduct (a threat) and the other involving a prohibited result (bodily injury).10 One may threaten a bodily injury without actually carrying through on that threat; one may cause bodily injury without making any overt threat; and one may threaten bodily injury and carry through with that threat.11

At bottom, the issue in the present case is whether double jeopardy prevents convictions for both assault by threat and assault by bodily-injury when a person first threatens to injure another person and then carries through on that threat.12 Suppose, for example, that Dangerous Dan holds a bat above his head as he tells Suzie Q., "I'm going to beat you up." She shrieks, and he promptly bangs her with the bat. Is that one crime or two? Common sense says that this is just one crime. And when assault by bodily injury — "battery" — includes an assault by threat — "assault" — double jeopardy would prevent convictions for both when they occur against the same person at the same time.13 The assault is "merged" or "subsumed" into the completed battery.14 Conversely, if Dan threatened Suzie with a bat in the bedroom and, when she shrieked, he put the bat down, but after she walked out of the room, he picked up the bat, followed her, and banged her with the bat in the kitchen, double jeopardy would not prevent two convictions because a jury could find that they were separate incidents.15

The line between "merged" or "subsumed" offenses involving multiple assaults or batteries, is not easy to draw. As one judge has noted,

Dual convictions for making the threat and then the immediate carrying out of that threat to harm an assault victim is not barred by the Blockburger17 "same elements" test because each subsection of the assault statute contains an element not contained by the other subsection ("bodily injury" in subsection (a)(1) and "threatens" in subsection (a)(2)). Nonetheless, I agree with Presiding Judge Keller that "the `threat' and `bodily injury' elements of [assault and] robbery are simply alternative methods of committing [an assault or] a robbery."18 That is because the unit of prosecution for assault is either or both an "assault" (threat) or a "battery" (bodily injury) upon one person at one time and place. Therefore, the unit of prosecution for robbery is either or both an "assault" or a "battery" upon one person at one time and place during the course of a theft.19 And, finally, the unit of prosecution for aggravated robbery is either or both an "assault" with a deadly weapon or a "battery" that causes serious bodily injury upon one person at one time and place during the course of a theft.

In sum, I think that, because the State proved only one unit of assaultive conduct-a threat to harm with a deadly weapon immediately followed by causing serious bodily injury — against each robbery victim at one time and place, double jeopardy principles bar two convictions for robbing Mr. Barker and two convictions for robbing Mr. Chaney. I therefore respectfully join in the majority's resolution of this case.

PRICE, J., filed a dissenting opinion in which KEASLER and HERVEY, JJ., joined.

The appellant was convicted of five counts of aggravated robbery committed against a total of three different victims, all stemming from events that occurred during the course of a single home invasion.1 Two of the convictions, corresponding to Counts I and II of the indictment, involved separate theories of the underlying robbery (robbery by causing bodily injury versus robbery by threatening or placing another in fear of imminent bodily injury or death) perpetrated against one Andrew Chaney.2 Two other convictions, corresponding to Counts III and IV of the indictment, involved the same two theories of the underlying robbery (robbery by causing bodily injury versus robbery by threatening or placing another in fear of bodily injury or death) perpetrated against one James Barker.3

On appeal, the appellant argued that he could not be convicted twice for robbing Chaney; nor could he be convicted twice for robbing Barker. Instead, the appellant maintained, he could only be punished for as many robberies as there were victims.4 In the appellant's view, this Court's opinion in Ex parte Hawkins essentially occupied the field when it comes to determining allowable units of prosecution for robbery offenses when we held that the State may punish for as many victims as were assaulted during an incident.5 From this premise the appellant reasoned that, while he could be convicted separately of robbing both Chaney and Barker, he could only be convicted of robbing each of them once, for a total of two convictions. The Third Court of Appeals rejected this argument.6 The court of appeals held that, consistently with this Court's precedents, the number of victims should not be regarded as the only determinant in a units-of-prosecution analysis.7 Accordingly, the court of appeals affirmed all of the convictions.8 We granted the Appellant's petition for discretionary review to decide whether the court of appeals appropriately interpreted the scope of Hawkins to be so limited.9 I believe the court of appeals correctly resolved this issue and would affirm its judgment.

The court of appeals was correct to hold that Hawkins is not the be-all and end-all of a units-of-prosecution analysis in every conceivable robbery case. The issue we addressed in Hawkins was circumscribed: "[H]ow many robbery prosecutions may be brought when an actor assaults more than one person in the course of stealing one item of property[?]"10 We simply did not address the separate question of how many times an actor may be convicted when, in a single action, he assaults the same person in more than one of the statutorily prescribed ways in which such an assault may constitute a robbery. This latter question is properly analyzed under our cases that describe how to determine legislative intent with respect to allowable units of prosecution when an actor's conduct simultaneously violates more than one subpart of the same penal statute against the same victim.11 Assuming, therefore, that the allegations in Counts I and II of the indictment allege discrete, statutorily alternative ways in which the appellant's act may have constituted an assault against Chaney (and Counts III and IV likewise allege discrete, statutorily alternative ways in which the appellant's act may have constituted an assault against Barker), then the question of how many times the appellant may be punished for robbing Chaney based upon that act (and of how many times he may likewise be punished for robbing Barker based on that act) depends upon how we parse the language of Section 29.02 of the Penal Code in order to gauge the gravamen of the offense. That is the way we have determined legislative intent — the lynchpin of any multiple-punishments double jeopardy inquiry — in this context.12

In Hawkins we reasoned that, "[s]ince robbery is a form of assault, the allowable unit of prosecution for robbery should be the same as that for an assault."13 But we have never said that the number of victims is the only indicium of legislative intent with respect to allowable units of prosecution for the offense of assault. And, with respect to the related question of whether a jury must be unanimous with respect to its verdict in an assault prosecution,14 we concluded in Landrian that the Legislature intended that alternative statutory methods of committing assault should be regarded as discrete offenses, requiring jury unanimity with respect to each one separately.15 I see no reason why we would not say the same thing with respect to the assault statute when it comes to a double jeopardy units-of-prosecution analysis — that robbery by causing bodily injury and robbery by threatening or placing the victim in fear of bodily injury or death are discretely actionable offenses. Indeed, for all intents and purposes, we recently did say this.16 Since the allowable units of prosecution for robbery "should be the same as that for an assault,"17 it is more than plausible to conclude, as the court of appeals did in this case, that the appellant may constitutionally be punished for as many statutorily alternative ways that he robbed both Chaney and Barker as the evidence will support.

Section 29.02(a) of the Penal Code defines the offense of simple robbery. It reads:

Aggravated robbery is the commission of such an offense in addition to certain aggravating elements such as the fact that the bodily injury under Section 29.02(a)(1) was serious or that the perpetrator used or exhibited a deadly weapon.19 The gravamen of simple robbery is clearly more than acquisitive conduct/acquisitive intent alone — that is, more than theft or attempted theft.20 There is also an assaultive component. The question presented is how to define the gravamen of the simple robbery statute, and hence identify the legislative intent with respect to allowable units of prosecution for that offense, taking due account of each of these indispensable components.

One aid in identifying the gravamen of an offense for jeopardy purposes, we have confirmed, is the grammatical structure of the penal provision.21 Grammatically, Subsections (a)(1) and (a)(2) of Section 29.02 are elemental in the sense that they alternatively describe the assaultive component of the offense of robbery; they alternatively supply the "main verb" that principally defines the offense ("causes"/"threatens" or "places in fear") and, in the case of Subsection (a)(1), the direct object ("bodily injury").22 Neither subsection takes the form of an adverbial phrase, which "[g]enerally" serves to describe mere manner and means of committing an offense.23 Instead, grammatically, although they are alternatively defined, they are nevertheless essential to the offense.

We have also observed that the gravamen of an offense may be identified by the element of that offense that requires a completed act.24 As presently written, the robbery statute does not require a completed theft.25 By contrast, the assaultive component must be completed, albeit in either one of two ways. That they are alternative ways, however, hardly means they constitute mere manner and means.26 As presently written they are, if anything, more essential to the offense of robbery than the comparatively inchoate element of acquisitive conduct/intent. These considerations convince me that Subsections (a)(1) and (a)(2) of Section 29.02 constitute at least a part of the gravamen of simple robbery and do not merely designate alternative manner and means.

By contrast, I might agree that Subsections (a)(1) and (a)(2) of Section 29.02 constitute mere manner and means of committing the assaultive component of robbery had the Legislature written the statute to read, not as it presently does, but rather, as follows:

The main verb of this hypothetical statute is the non-specific "engages," while the direct object is "assaultive conduct." The act that must be completed is generalized "assaultive conduct," while the specific types of assaultive conduct are introduced only by way of adverbial phrases beginning with the preposition "by." Had the Legislature drafted the statute in this way, it would have signaled to us that the gravamen of the offense of robbery was undifferentiated assaultive conduct committed with an acquisitive intent and, more germanely, that the particular type of assaultive conduct was not meant to be elemental — that proof of either statutory manner and means of committing the assault would serve to establish what would effectively constitute the single element of "engages in assaultive conduct." An accused under this statute could be punished no more than once for a particular act, but the jury would not have to be unanimous with respect to the particular statutory manner and means by which that act accomplished the assaultive component of robbery. However, this is not the way the Legislature chose to draft the robbery statute.

I would affirm the judgment of the court of appeals.