Christopher GARFIAS, Appellant, v. The STATE of Texas, State.
No. 02-06-00398-CR.
Court of Appeals of Texas, Fort Worth.
Aug. 9, 2012.
Rehearing Overruled Oct. 4, 2012.
381 S.W.3d 626
Brian Salvant, Fort Worth, TX, for Appellant.
Joe Shannon, Jr., Criminal District Attorney; Charles M. Mallin, Chief of the Appellate Section; Danielle A. Kennedy & Sarah Bruner, Assistant Criminal District Attorney for Tarrant County, Fort Worth, TX, for State.
PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.
TERRIE LIVINGSTON, Chief Justice.
In one issue raised within his supplemental brief on the remand of this appeal from the court of criminal appeals,1 appellant Christopher Garfias contends that his convictions for aggravated robbery with a deadly weapon and aggravated assault with a deadly weapon violate his constitutional right to be free from double jeopardy. We affirm in part and vacate in part.
Background Facts
One early morning in 2006, appellant went to a gas station store in Hurst and shot the clerk, Shahid Shahid, four times, critically injuring him. As a result of that one event, a Tarrant County grand jury returned a two-count indictment charging appellant with aggravated robbery with a deadly weapon and aggravated assault
on or about the 1st day of March 2006, did
THEN AND THERE 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 SHAHID SHAHID IN FEAR OF IMMINENT BODILY INJURY OR DEATH, AND THE DEFENDANT USED OR EXHIBITED A DEADLY WEAPON, TO WIT: A FIREARM,
COUNT TWO: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT THE DEFENDANT IN THE COUNTY OF TARRANT AND STATE AFORESAID ON OR ABOUT THE 1ST DAY OF MARCH, 2006, DID INTENTIONALLY OR KNOWINGLY CAUSE BODILY INJURY TO SHAHID SHAHID BY SHOOTING HIM WITH A FIREARM AND THE DEFENDANT DID USE OR EXHIBIT A DEADLY WEAPON DURING THE COMMISSION OF THE ASSAULT, TO-WIT: A FIREARM[.] [Emphasis added.]
Appellant‘s court-appointed counsel filed several pretrial documents but did not assert at any point in the trial court‘s proceedings that constitutional prohibitions against double jeopardy prevented appellant from being tried for and convicted of both offenses. Appellant pled not guilty to both offenses, but the jury convicted him of both of them. After hearing additional evidence and argument, the jury assessed his punishment at sixty years’ confinement for the aggravated robbery conviction and imprisonment for life for the aggravated assault conviction.3 The trial court sentenced appellant in accordance with the jury‘s verdict and ordered the sentences to run concurrently.
Appellant appealed his convictions to this court, raising five points. In his first two points, he argued that the two convictions violated his federal Fifth Amendment right to be free from double jeopardy. In this court‘s June 2008 prior opinion, the court rejected all of appellant‘s points, including his argument about double jeopardy. See Garfias, 2008 WL 2404268, at *1-4. Concerning double jeopardy, the court held, under the standard articulated by the court of criminal appeals in Gonzalez v. State, 8 S.W.3d 640, 643 (Tex.Crim.App.2000),4 that appellant had not preserved his complaint for our review because a violation of double jeopardy was not clearly apparent on the face of the record. Garfias, 2008 WL 2404268, at *1-2. The court concluded that under Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932),5 because aggravated robbery and aggravated assault, as charged in the indictment, each required proof of at least one element that the other did not, the offenses were not subsumed within each other. Garfias, 2008 WL 2404268, at *1-2. After granting appellant‘s petition for discretionary review, the court of criminal appeals vacated this court‘s prior judgment and remanded the appeal. Garfias, 2011 WL 2674848, at *3. That court explained,
In the course of conducting only a Blockburger analysis, thе court of appeals noted that the aggravating element of robbery that was pled in the indictment was that the appellant threatened or placed his victim in fear of imminent bodily injury or death, while the aggravating element alleged for the assault was that the appellant actually caused bodily injury. ...
While we do not disagree with the court of appeals‘s Blockburger analysis, we disagree that such an analysis sufficiently answers whether a double-jeopardy violation is clear from the face of the record for purposes of error preservation under Gonzalez.
In another Gonzales [v. State6] case (different spelling), we recently explained:
The Double Jeopardy Clause of the Fifth Amendment, applicable to the states through the Fourteenth Amendment, protects an accused against a second prosecution for the same offense for which he has been previously acquitted or previously convicted. It also protects him from being punished more than once for the same offense in a single prosecution. Sameness in this latter context is purely a matter of legislative intent. With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.
The traditional indicium of that legislative intent is the so-called same elements test of Blockburger v. United States. According to that test, it should be presumed that the Legislature did not regard two statutorily defined offenses to be the same so long as each provision requires proof of a fact which the other does not. However, for purposes of multiple-punishment analysis, the Blockburger test is only a tool of statutory construction--and not even an exclusive one. An accused may be punished for two offenses even though they would be regarded as the same under a Blockburger analysis if the Legislature has otherwise made manifest its intention that he should be.
In Ex parte Ervin,7 we recognized that [t]he Blockburger test‘s status as a mere rule of statutory construction raises an inverse conclusion as well: the Blockburger test cannot authorize two punishments where the legislature clearly intended only one. Thus, even if a straightforward application of the Blockburger test would suggest that two offenses are not the same for double jeopardy purposes, if other indicia manifest a legislative intent that an accused not be punished for both offenses if they occur in the course of a single transaction, then an accused may not be punished for both offenses even if both convictions result from a single trial....
Whether or not a double-jeopardy violation is clearly apparent on the face of the record is, therefore, not simply a funсtion of a Blockburger analysis. The court of appeals should have examined other indicia of legislative intent as well.
Id. at *1-2 (emphasis added) (footnotes omitted).
Appellant has filed a supplemental brief on remand in which he again argues that his convictions for aggravated robbery and aggravated assault violate the constitutional prohibition of double jeopardy. The State has also filed a brief upon remand, contending that appellant‘s right against double jeopardy has not been violated.
The Preservation and Substance оf Appellant‘s Double Jeopardy Claim
The double jeopardy clause of the Fifth Amendment to the United States Constitution provides that no person shall be subject for the same offense to be twice put in jeopardy of life or limb.
There are three distinct types of double jeopardy claims: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. Langs, 183 S.W.3d at 685; see Bigon v. State, 252 S.W.3d 360, 369 (Tex.Crim.App.2008). A multiple punishments violation of double jeopardy, which appellant asserts in this appeal, may arise in two situations: (1) the lesser-included offense context, in which the same conduct is punished twice (once for the basic conduct, and a second time for that same conduct plus more); аnd (2) punishing the same criminal act twice under two distinct statutes when the legislature intended the conduct to be punished only once. Langs, 183 S.W.3d at 685. The ultimate question is whether the legislature intended to impose multiple punishments. Id. at 688; see Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983) (With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.). In our prior opinion in this appeal, through our analysis and holding under Blockburger, we implied that appellant did not suffer double jeopardy under the lesser-included offense context, but as the court of criminal appeals explained, we did not adequately address whether appellant had been punished for the same criminal act under two distinct statutes when the legislature intended the conduct to be punished only once.
In Gonzales, the court of criminal appeals explained that to determine the legislature‘s intent of whether a defendant may be convicted of two offenses that arise from the same criminal transaction, courts may consider whether the offenses[‘] provisions are contained within the same statutory sec-
In Gonzales and other cases, the court of criminal appeals has indicated that the focus, or gravamen, of the crimes at issue is the best signal to determine whether the legislature intended to punish оne incident through multiple convictions. See Harris v. State, 359 S.W.3d 625, 630 (Tex.Crim.App.2011); Gonzales, 304 S.W.3d at 848. Aggravated robbery and aggravated assault share a common focus. A person commits robbery under section 29.02 of the penal code if, in the course of committing theft and with intent to obtain or maintain control of property, he (1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury.
The closeness of the relationship between aggravated robbery and aggravated assault is illustrated by the fact that under various circumstances, aggravated robbery may contain all of the elements of aggravated assault. A person may commit aggravated assault by (1) intentionally or knowingly causing bodily injury to another and (2) using or exhibiting a deadly weapоn during the commission of the assault. See
It is true that by the way the State charged the offenses in this case, aggravated assault was not a lesser-included offense of aggravated robbery, and as explained in our prior opinion, the offensеs were therefore not the same under Blockburger. But the facts that the State proved to obtain its aggravated assault conviction (that appellant intentionally or knowingly caused bodily injury to Shahid and used or exhibited a deadly weapon) would have been sufficient to also obtain an aggravated robbery conviction by only adding the facts of committing theft and having the intent to obtain or maintain control of the property, which is required for aggravated robbery in any event. The fact that double jeopardy principles would have presumptively precluded multiple punishments under the facts of this case (absent a clear expression of legislative intent otherwise) for aggravated robbery and aggravated assault if those offenses were charged in other ways supported by the evidence indicates to us that double jeopardy should likewise prevent multiple punishments even though the offenses were carefully charged through a method that avoided offending Blockburger. See Littrell v. State, 271 S.W.3d 273, 278 (Tex.Crim.App.2008) (Because aggravated robbеry as pled in Count Two of the appellant‘s indictment is a lesser-included offense of felony murder as pled in Count One, the presumption applies that they constitute the same offense for double-jeopardy purposes.); Quintanilla v. State, 40 S.W.3d 576, 579 (Tex.App.-San Antonio 2001, pet. ref‘d) ([I]f all the elements of one statutory offense are contained within the other, it is presumed that the two offenses are the same and that the Legislature did not intend to authorize punishment for both.). In other words, we conclude that the similarity of how аggravated assault and aggravated robbery could have been charged under the evidence in this case--as both containing the element of bodily injury or both containing the element of the threat of imminent bodily injury--weighs in favor of a conclusion that the legislature did not intend, in such circumstances, for the offenses to be punished multiply.
We understand that the types of assault that respectively underlie counts one and two of the indictment in this case, assault by threat and assault causing bodily injury, are not manners and means of committing assault but are altogether different offenses. See Landrian v. State, 268 S.W.3d 532, 540 (Tex.Crim.App.2008); Dolkart v. State, 197 S.W.3d 887, 893 (Tex.App.-Dallas 2006, pet. ref‘d) (explaining that in part because bodily injury assault is a result of conduct offense and assault by threat is a nature of conduct offense, the jury was required to unanimously agree about whether bodily injury assault or assault by threat supported a single aggravated assault conviction);
We cannot fathom, however, that under the circumstances of this case, the legislature would intend to punish one continuous assaultive act under multiple assault-related offenses. Cf. Bigon, 252 S.W.3d at 372 ([I]t is hard to fathom that the legislature intended for one drunk-driving accident to result in multiple homicide convictions for each victim.). For example, we cannot imagine that if a person committed one uninterrupted act of slowly rearing back with a closed fist and punching someone, the legislature would intend for the person to be convicted of both causing-bodily-injury assault, which is typically a Class A misdemeanor under section 22.01(a)(1) of the penal code, and threatening-another-with-imminent-bodily-injury assault, which is typically a Class C misdemeanor under section 22.01(a)(2). See
The Texas Court of Criminal Appeals has held that [r]obbery is a form of assault. The gravamen of robbery is the assaultive conduct and not the theft. The allowable unit of prosecution is the complainant. Because robbery is an assaultive offense, there is no robbery without an assault. Consequently, the aggrаvated assault in this case was a necessary part of the aggravated robbery.
....
In the case now before this court, aggravated robbery was the goal. When Appellant shot Lusk, he did so in furtherance of that goal. The shooting was just a step along the way. The
State cannot create two separate offenses by pleading use and exhibition of a firearm in the robbery and shooting with a firearm as separate offenses.
Id. at *2-3 (footnotes omitted).
We are not compelled to depart from our holding in Naji, in part because our reasoning in that case has support frоm the rationale of holdings of the court of criminal appeals related to other crimes. For instance, in Lopez, a case in which the defendant had been convicted of delivering (by offering to sell) and possessing while intending to deliver the same cocaine, that court held that a defendant could not be convicted of several ‘delivery’ convictions where there is only one single sale of one drug. 108 S.W.3d at 300. The court reasoned that the two convictions violated double jeopardy because the steps in this single drug transaction were all ‘the result of the original impulse,’ and therefore each step was not a ‘new bargain.’ Id. at 301 (quoting Blockburger, 284 U.S. at 303, 52 S.Ct. at 181). The court also opined that the State‘s position--that a defendant could be convicted for each act of negotiating to sell drugs, possessing the drugs with intent to deliver them, and delivering them--did not comport with common sense. Id. at 297.
Similarly, in Patterson v. State, 152 S.W.3d 88, 89 (Tex.Crim.App.2004),8 the defendant had been convicted of aggravated sexual assault, indecency with a child by contact, and indecency with a child by exposure. Although the court of criminal appeals did not decide the case on the basis of double jeopardy, it held that the defendant‘s conviction for indecency with a child by exposure could not stand, reasoning,
While it is clear from the plain language of the various statutes that the legislature intended harsh penalties for sexual abuse of children, there is nothing in the language to suggest that it intended to authorize stop-action prosecution....
In this case, there were two essentially identicаl assaults, separated by a short period of time. On both occasions, appellant exposed his genitals and penetrated the complainant‘s anus.... The record in this case does not show an occasion during the assaults when the exposure was a separate offense. Under the facts of these incidents, exposure was incident to and subsumed by the aggravated sexual assault.
Id. at 92. Similarly to the facts in Patterson, we conclude that the threat of appellant‘s pointing the gun at Shahid was necessary to, incident tо, and subsumed by appellant‘s causing bodily injury to Shahid by shooting him.9 See id.; see also Meine v. State, 356 S.W.3d 605, 610 (Tex.App.-Corpus Christi 2011, pet. ref‘d) (mem. op.) (The act of pointing the gun with intent to kill, without facts negating appellant‘s intent to threaten the complainants with imminent bodily injury, leads us to conclude that the element of threat--an intention to
We recognize that some of the factors discussed in Gonzales weigh in favor of a conclusion that the legislature intended multiple punishments for aggravated robbery and aggravated assault, at least under some circumstances. Aggravated assault and aggravated robbery are not contained in the same statutory section, are not phrased in the alternative, are not named similarly (aside from both being aggravated offenses), and have overlapping, but not identical punishment ranges. See Gonzales, 304 S.W.3d at 846; see also
We hold that the undisputed facts show a double jeopardy violation that is clearly apparent on the face of the record, and we also hold that the enforcement of usual rules of procedural default serves no legitimate state intеrests in this case. See Gonzalez, 8 S.W.3d at 643. We sustain the issue raised within appellant‘s supplemental brief on remand.
When a defendant is subjected to two punishments for the same conduct, the remedy is to affirm the conviction for the most serious offense and vacate the other conviction. Bigon, 252 S.W.3d at 372. The most serious offense is the offense in which the greatest sentence was assessed. Id. at 373; Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex.Crim.App.2006). Therefore, we must affirm appellant‘s conviction for aggravated assault with a deadly weapon, for which he received a life sentеnce, and vacate his conviction for aggravated robbery with a deadly weapon, for which he received a sentence of sixty years’ confinement. See Cavazos, 203 S.W.3d at 338.
Conclusion
Having sustained appellant‘s issue in his supplemental brief, we affirm his conviction for aggravated assault with a deadly weapon and vacate his conviction for aggravated robbery with a deadly weapon.
TERRIE LIVINGSTON
CHIEF JUSTICE