Garfias, Christopher

inadmissible and thus in nature testimonial at trial.5 testified the declarant

unless issue, constitutional important is an

This peti- appellant’s to refuse decision

and our to foreclose consid- be read

tion should in a different issue same

eration of this

case.

COCHRAN, J., filed a statement petition. refusal

concurring in the GARFIAS, Appellant

Christopher

v. of Texas.

The STATE

No. PD-1544-12. Appeals of Texas. of Criminal

Court 26, 2014.

Feb. Cannon, (Tenn.2008); People Bennington, State v. 5. Those decisions include 647, (2011), Cal.App.4th Vargas, 100 Cal. P.3d 440 State v. v. 293 Kan. Romero, (2007); (Cal.Ct.App.2009); Medina v. Rptr.3d 578 141 N.M. 156 P.3d 694 (2006), Mich.App. 122 Nev. 143 P.3d 471 People Spangler, Gardinier, (2009); 65 M.J. 60 v. Common United States N.W.2d 702 Hartsfield wealth, (C.A.A.F.2007). (Ky.2009); 277 S.W.3d 239 State Shahid, who asked him not to shoot. Gar- range. Shahid four times at close fias shot Garfias was indicted for rob- threat, first-degree felony,2 bery by bodily inju- for felony.3 The ry, second-degree a indict- ment read as follows: GARFIAS, ... on or CHRISTOPHER Salvant, Christopher for Garfias. Brian day the 1st of March did about Garfias, se. Christopher pro THEN AND THERE INTENTIONAL- KNOWINGLY, IN LY OR WHILE OPINION THE COURSE OF COMMITTING J., KEASLER, opinion delivered AND OF PROPERTY WITH THEFT KELLER, P.J., Court, in which MAINTAIN INTENT TO OBTAIN OR JJ., PRICE, HERVEY, MEYERS, PROPERTY, OF SAID CONTROL joined. THREATEN OR SHAHID PLACE IN FEAR OF IMMINENT SHAHID was Christopher Garfias DEATH, AND BODILY INJURY OR robbery by threat and DEFENDANT OR EX- THE USED injury causing bodily vated assault WEAPON, HIBITED A DEADLY TO- by jury. On was convicted of both counts FIREARM, WIT: A argued that these appeal, Garfias TWO: AND IT IS FURTHER COUNT right constitutional convictions violate his PRESENTED IN AND TO SAID jeopardy. The to be free from double THAT THE DEFENDANT COURT Appeals agreed, Second and va- Court ... DID INTENTIONALLY OR aggravated rob- his sentence for cated IN- KNOWINGLY CAUSE BODILY agree we do not bery.1 Because SHAHID BY JURY TO SHAHID Jeopardy was violated Double Clause SHOOTING HIM WITH A FIREARM case, we will reverse the court of DID AND THE DEFENDANT USE judgment. appeals’ EXHIBIT A DEADLY OR WEAPON THE OF BACKGROUND DURING COMMISSION ASSAULT, THE A FIRE- TO-WIT: 1, 2006, early morning In the of March ARM[.] Christopher gas Garfias went to station Hurst, con- pleaded guilty Texas. The store attendant that Garfias and was Shahid, jury. After morning was Shahid who admitted victed on both counts later, evidence, jury Sha- as- point hearing Garfias inside. At some additional years’ punishment sixty and the sound of sessed his gunshot hid heard a aggravated robbery breaking glass. He saw Garfias outside confinement for imprisonment hand. Garfias conviction and life for the gun the store with a his conviction.4 The trial pointed gun reentered the store and 22.02(a)(2), (b). § 3. Id. Garfias 2012) (hereinafter App.-Fort Worth II). by pri- sentences were enhanced felony conviction. See Tex Penal Code 29.03(a)(2), (b) (West § 2. Tex Penal Code 12.42(b), (c) (West 2012). § 2012). appeals the sentences run the court of that court to exam- ordered that judge legislative ine other indicia intent.11 concurrently. remand, On exam- either before or argue Garfias did not similarity ined the between as- the Double during trial aggravated robbery sault and under the of- implicated Clause Texas Penal Code.12The court stated that charged. been He fenses for which he had similarity because of the between how the first time on argument raised this have been charged these offenses could punishments had appeal, alleging multiple Legis- under the evidence of this him for the same of- imposed upon been lature could not have intended for the claim, addressing the court fense.5 punished multiply.13 offenses to De- be the “same elements appeals employed of spite finding aggravated robbery by v. United test” established threat and bod- The court determined that be- States.6 ily injury separate are offenses cause and underlying gravamina, different the court assault, indictment, in the each as appeals ultimately concluded that at least one required proof of element could not have al- Legislature intended to not, a viola- double-jeopardy the other did multiple punishments low in this case.14 the face of the apparent tion was not on holding, Based on this the court vacated preserved record and thus Garfias had not Garfias’s conviction for rob- appeal.7 complaint bery and affirmed his conviction for granted petition for This Court granted vated assault.15 This Court re- review, discretionary vacated view to determine whether the court of ap- remanded the appeals’ judgment, and appeals considering erred how the of- peal.8 that while the court of We indicated charged making fenses could have been proper had conducted a Blockbur- determination, jeopardy a double and analysis, question mul- ger whether whether, alternative, in the the facts of tiple punishments jeopardy violated double present this case two discrete events that may there.9 An accused be did not end implicate do not the Double though for two even offenses in the first instance. Clause they regarded would be as the same under ANALYSIS Blockburger analysis Legislature if the

had otherwise made clear its intention that Garfias failed to raise his double claim to the trial jeopardy he should be.10 We remanded case court. Howev- 2-06-398-CR, State, State, WL *2 304 5. No. 10. Id. at Gonzales Garfias 12, (Tex.App.-Fort 2404268 at *1 Worth June (Tex.Crim.App.2010)). 845-46 2008) (not (herein- designated publication) for I). after Garfias 11. Id. at *2-3. States, (citing Blockburger Id. v. United II, Garfias U.S. 52 S.Ct. L.Ed. 306 (1932)). Id. Id. at *2. Id. at 632-33. PD-1323-08, WL No. Garfias 29, 2011) (Tex.Crim.App. June *3 Id. at 635. (not designated publication). Id. at *1-2. multiple-punishments inquiry in a the first true may be raised for er, claim such a intended (1) whether the case is undisputed when appeal time on punishments.20 authorize the violation is facts show legislative in which ways are two There rec- the face of the from clearly apparent analyzing can be ascertained: intent (2) rules of the usual ord, enforcement question, offenses in elements of the legitimate no default serves procedural “unit of appropriate by identifying first must therefore We interest.16 state offenses.21 This prosecution” undisputed facts whether determine analysis held that an “elements” Court has violation is a double show that in ques- the offenses appropriate is when in this case. clearly apparent statutory sec- from different tion come of double types are three There tions,22 analysis employed while a “units” (1) prosecution a second jeopardy claims: are alternative means when the offenses (2) ¾ acquittal; after offense for the same statutory offense.23 committing the same same offense for the second complains of convic- In this (8) conviction; multiple punish after from different stemming tions multiple- A offense.17 ments for the same sections, on an “ele- so we must embark either in can arise violation punishments whether mul- analysis to determine ments” offenses, of lesser-included the context have been vio- tiple-punishments principles punished is under the same conduct where lated. offense, a greater a lesser-included of an “ele starting point The conduct is when the same analysis multiple-punish in the ments” Leg where the statutes under distinct test, Blockburger ments context is the conduct to be only intended for islature whether each of used to determine asserts that the punished once.18 requires proof of an element offenses case. occurred in this latter has so, doing courts the other does not.24 power has the Legislature alleged The elements in the must focus few, any, if crimes and on the offense charging establish and define instrument —not this power by this in the Penal Code.25Under imposed upon are as defined limitations cognate-pleadings approach, dou- Thus the so-called Jeopardy Clause.19 the Double 814; Ervin, 640, State, (Tex. Bigon at v. E.g., 991 S.W.2d S.W.3d 643 v. 8 Gonzalez 360, State, (Tex.Crim.App. Crim.App.2000). 252 S.W.3d 370 540, Denton, 2008); S.W.3d Ex Parte 399 680, State, (Tex. Langs S.W.3d 685 v. 183 (Tex.Crim.App.2013). 545-46 State, Crim.App.2006); Bigon v. 252 S.W.3d 360, (Tex.Crim.App.2008). 369 ("Usual at 371-72 E.g., Bigon, 252 S.W.3d prosecu ly, allowable unit of analysis of an Langs, in which two offenses tion a situation involves State, 625, (Tex. v. 359 S.W.3d 19. Harris statutory section are from the same Hawkins, parte 629-30; Crim.App.2011); Harris, Ex charged....”); 359 S.W.3d at 554, 1999). (Tex.Crim.App. 642, 555-557 State, (Tex. 647-48 Loving 401 S.W.3d Crim.App.2013). State, 20. Ervin v. 991 S.W.2d 1999). Crim.App. (citing Bigon, at 370 Blockbur 252 S.W.3d 180). S.Ct. ger, 284 U.S. at Hawkins, 6 S.W.3d at 557 n. 8 21. See 180) Blockburger, 52 S.Ct. 284 U.S. 370; State, Bigon, Parrish v. 252 S.W.3d (noting the “units” the distinction between 1994). test). (Tex.Crim.App. test and the "elements” as the same or different for double- can be made even challenges ble-jeopardy purposes.29 statu- that have different offenses elements, required the same facts if tory the “focus” or We have indicated in the indictment.26 alleged to convict are a be “gravamen” penal provision should legisla- as the best indicator of' regarded prior in indicated our But as we whether determining tive intent when a only a test opinion, multiple-punishments violation has oc- is a rule of starting point State, example, Bigon For in curred.30 —it construction, indicator of not the exclusive analyzed we whether convictions for both violation.27 The Block- a felony manslaugh- murder and intoxication punishments cannot allow two burger test ter violated the Double Clause.31 when the single a course conduct both offenses were result- The fact that only intended to authorize Legislature and shared the same focus—the oriented analysis, Ervin one.28 To facilitate key an factor in death of individual—was of non-exclusive we set forth list our decision that the did not ab help courts designed permit multiple punishments factors intend to Legisla from the guidance that case.32 sence clear

ture: reviewing One other factor courts making should consider when an “ele in the statu-

whether offenses are same analysis ments” is the determination of the section; whether the offenses are tory unit of for the of allowable alternative; whether the phrased in the question. Although fenses in such a de similarly; named whether offenses are necessary step termination is a when a punishment the offenses have common multiple-punishments claim deals with two have a ranges; whether the offenses section, offenses from the same focus; whether the common fo- common that, have even in an we stated “elements” single indicate a instance of cus tends to analysis, such determination can be in conduct; the elements that dif- whether legislative of intent.33 dicative the two can be fer between offenses imputed an considered the same under in prior opinion, As we indicated our theory liability of that would result appeals correctly court of held that the same being the offenses considered test reveals offenses Blockburger; robbery by ag- under and whether of threat and aggravated there legislative history containing an artic- gravated causing bodily injury, is assault as indictment, charged ulation of an intent to treat the offenses Garfias’s each con- results, Bigon, types while the of 252 S.W.3d at 370. of focus "nature-of- separate conduct” crimes create offenses for Id. at 370-71. conduct)). types different of Gonzales, (citing 304 S.W.3d at 845 Ex Bigon, Ervin, (Tex.Crim. parte 991 S.W.2d App.1999)). Id. at 371. Ervin, Bigon, (citing 252 S.W.3d at 370 814). 991 S.W.2d at (a units-of-prosecution Id. at 371-72 deter- necessary mination is not to an "elements” Gonzales, Huff spirit principle analysis, but “the behind the (Tex.Crim. man v. case). fitting” is in such a (the App.2008) focus of "result-of-conduct” create offenses for different crimes underlying offenses of pie robbery, does not.34 that the other element an tain with, can those that Garfias was analysis not end the does as this But by ways: committed in two either intended for Gar- be whether in fear “threatening] placing] or another multiply, we to be fias’s conduct bodily injury or death”39— of imminent question through that now consider by robbery by or threat —or above. assault factors outlined Ervin lens bodily injury to another”40— “causing] AND ASSAULT ROBBERY A robbery bodily injury. causing assault or case, appeals, deciding or exhib- “use[ ] The court multiple- deadly weapon during the violated of a ition]” convictions that Garfias’s “[ajggra- simple held that of the offense elevated principles, commission punishments robbery assault threat robbery robbery vated threat, simple causing bodi- gravamen focus.... [T]he share a common offenses, including ly injury robbery bodily injury.41 con defendant’s assaultive robbery, is the because of the that It concluded duct.” gravamen robbery or Thus while relationship” between “closeness generally be termed “the de- assault can offenses, ... cannot fathom “[w]e conduct each fendant’s assaultive of this circumstances under victim,”42 of as- gravamina the individual con punish intend to one legislature would robbery by threat and assault or sault act under as tinuous assaultive bodily injury signifi- robbery causing differ sault-related offenses.”36 past, have noted in the an cantly. As we by threat is a conduct- appeals’ conclusion was in assaultive offense The court of offense, previously have oriented while an assaultive of- It is true that we error. offense,37 injury causing bodily an assaultive is a result- fense held for assaul- oriented offense.43 This case is illustrative and that the unit of grava- between the two including robbery each of the distinction tive offenses— —is However, overly aggravated robbery by simplistic it is mina—Garfias’s victim.38 threat conviction focused on his threaten- gra- to make a blanket statement conduct, personal which violated the robbery ing all offenses is the “as- vamen of victim.44 On the other Simple security assault and sim- saultive conduct.” I, 29.03(a)(2), 22.02(a)(2). §§ id. 2008 WL 2404268 at *2. See Garfias Denton, (citing at 399 S.W.3d 546 Jones II, 381 S.W.3d at 631. Gaifas State, 885, (Tex.Crim.App. 323 S.W.3d 889 2010)). Id. at State, 268 43. See Landrian v. 540 Denton, 546; Hawkins, 399 S.W.3d 6 Denton, (Tex.Crim.App.2008); see also 399 S.W.3d at 560. ("the gravamen S.W.3d at of the offense aggravated specific type the assault is Denton, (citing Young S.W.3d at 546 Code].”). assault defined in Penal [the State, (Tex.Crim.App. 283 S.W.3d Hawkins, 2009)); Hawkins, 44. See 6 S.W.3d (Tex.Crim. Chestnut ("The 29.02(a)(2) App.1978) primary protected interest (robbery), §§ 39. Tex. Penal Code (West 2012). 22.01(a)(2) (assault) by robbery security offenses is the bodily injury bodily person from or threat of 29.02(a)(1) 22.01(a)(2) (robbery), injury in the com §§ 40. Id. that is committed course of (assault). theft.”)). mitting hand, grappling today— assault issue we are conviction of bodily injury solely focused whether causing multiple-punishments principles gravamen inflicted. Thus the actual harm permit convictions for both an assaultive question in of the two offenses offense threat and an assaultive offense —deemed legislative intent for the “best indicator” causing bodily injury, committed during analysis45 “elements” an continuing the same course of conduct and —indicates multiple Legislature intended allow the same victim. Because this aggravated robbery by punishments double-jeopardy challenge involves two causing bod- threat and statutes, different Hawkins does force ily injury. units-of-prosecution our hand as to a de- in termination this case. support

The other Ervin factors also First, aggravated robbery this conclusion. end, units-of-prosecution In the de- threat and termination that the Legislature indicates in the bodily injury are not contained same intended to allow multiple pun- Second, the offenses section. express ishments. When no statement de- third, the similarly. are not named And unit fining prosecution allowable punishment have identical offenses do not provided by Legislature none is —and ranges aggravated assault in this case is — provided gravamen in this case—the of an degree felony, a second while offense best describes the unit of allowable robbery degree is a first felony.46 above, As indicated prosecution.48 A of the allowable unit of determination gravamina of Garfias’s two convictions dif- offenses, prosecution for the two which as fer, and therefore the allowable units of legislative noted above can be indicative of prosecution for the two offenses are not analysis, also indi- intent in an “elements” the same.49 to al- cates that the intended case. multiple punishments low this B. THE OF COURT APPEALS’ in Ex argues parte that because ARGUMENTS Hawkins, appropriate we stated that Despite the fact that prosecution unit of each test, factors, the Ervin applicable and the victim, double-jeopardy principles bar his point units of all towards the conviction for assaultive offenses Legislature’s intent to allow pun- However, in this case. Garfias overlooks Hawkins, ishments the fact that we were em- opposite reached the Its de- analysis

ploying “units” to answer the conclusion.50 largely cision was on non-textu- based two question of whether a defendant could be that, view, threat, arguments al in its robbery by convicted twice for demonstrat- ed that could not have during continuing committed the same possibly robbery by of conduct two intended for a threat course different causing bodily injury victims.47 Hawkins did not deal with the and an assault to be 647; Gonzales, Harris, Loving, 45. 304 S.W.3d at 401 848. 48. S.W.3d 359 630; State, S.W.3d at Vickv. 991 S.W.2d (Tex.Crim.App.1999). 22.02(b) (aggravat- §§ 46. See Tex. Penal Code 29.03(b) degree felony), ed assault is a second 649; Vick, Loving, 49. See 401 S.W.3d at (aggravated robbery degree felony). a first S.W.2d at 833. Hawkins, II, 6 S.W.3d at 50. 381 S.W.3d at Garfias argu- pros- We ishments in would multiply. find these this case authorize unpersuasive. single ments ecutors carve a continuing to course of conduct into offenses to avoid First, of noted appeals the court the Double safeguards of State the facts under Clause.54 Because Garfias’s commission of Garfias charged aggravat -with could have to, was by “necessary threat in such ed to, by incident and subsumed appellant’s would a a the assault have been way that Shahid bodily injury by shoot- robbery.51 offense lesser-included him,” ing Leg- the court asserted jeopardy principles that double “The fact islature could not have intended for the precluded multi presumptively have would punished multiply under the of this two ple facts offenses to be when punishments charged in case ... if those offenses were merely along one was a “step way” by the evidence indi ways supported other towards the other.55 to us that double should cates conclusion, In reaching its court of prevent punishments likewise appeals cited two decisions this Court: carefully offenses were though even Lopez v. State56 and Patterson State.57 method through a that avoided charged do agree We not that these cases support Blockburger.”52 Unfortunately, offending the court appeals’ argument. Lopez, hypothetical reasoning this was in type of this Court whether multiple- addressed above, a double-jeop indicated error. As punishments principles by were violated ardy hinges not the stat determination Lopez’s possession conviction of both of a offenses, on the utory elements but substance with intent controlled to deliver alleged the offenses as in the elements of delivery of a controlled substance charging instrument.53 What the State words, safe, respect have other offer with could the same —in hypothetical charging instrument —does quantity of cocaine.58 We held that reviewing not factor into court’s determi two convictions violated the Jeop Double nation, serve as of a and cannot the basis ardy steps because “the Clause double-jeopardy violation. single all drug transaction were ‘the result of the original impulse,’ and therefore each argument The second non-textual relied ”59 step bargain.’ was a ‘new upon The ratio had to do nale was “stop-action prosecution.” underlying The court our decision allowing multiple pun- concerned that gravamen: offenses shared the same State, (Tex.Crim. Lopez 51. Id. at 632. 108 S.W.3d 293 App.2003). 52. Id. Patterson 370; Parrish, Bigon, 252 S.W.3d at Crim.App.2004). S.W.2d at 354. II, Lopez, 294; see also Tex. 481.112(a) (West § Safety Health & Code Naji 55. at 633-34 2- Id. No. 2012). 06-00260-CR, WL *2 26, 2007, ref'd)) App.-Fort April pet. Worth Lopez, 59. (quoting 108 S.W.3d at 301 Block (holding causing that bodi 180). burger, 284 U.S. at 52 S.Ct. ly injury necessary part was a of threat, "step robbery by along way” and a offense). could not constitute another, in our tablish the offenses are consid- dangerous drugs of “the distribution pur- for double-jeopardy -The identical rationale ered the “same” society.”60 underlying unit of multiple punishments meant that the and are poses, offenses n of was the same for both unless the. has clearly barred fenses, would thus a conviction both In specifically authorized them.65 Pat- Double Clause. terson, violate the exposure proof the defendant’s — necessary indecency for the conviction— prop- for the Lopez Thus does not stand necessary within the to proof was included can never be con- osition that a defendant by establish the sexual assault that occur as offenses victed in a course of “points along a continuum” penetration.66 Instead, Lopez a criminal transaction.61 hand, This on the other cannot be that a defendant can never be indicates resolved on that basis. The facts neces- offenses when those convicted of sary prove robbery by threat underlying grava- share the same offenses namely placed that Shahid was conviction— way, supports In our Lopez men.62 death, bodily injury in fear of imminent above, leg- that

jurisprudence, as set forth and that Garfias committed the offense guiding principle intent is the be- islative committing while in the course of theft— analysis. a multiple-punishments hind proof were not included within the neces- Patterson, In this Court was asked sary by to establish the indecency address whether a conviction injury, which bodily required only proof by exposure by was barred with a child bodily injury that Garfias caused Shahid principles, when the de- by shooting him. fendant had also been convicted neither nor Lopez sup- Thus Patterson by vated sexual assault penetration.63 appeals’ determination ports point is not on this case Patterson the antecedent was “sub- First, two reasons. we declined to resolve sumed” into the assault and barred double-jeopardy grounds, in- Patterson jeopardy. double The court of deciding construing stead it statute freely acknowledged that the Ervin factors addressing concurrent versus consecutive decision, weighed against its but chose to second, if we And even had sentencing.64 ignore opposite them and reach the re- issue, the constitutional it is clear decided so, doing departed long- it from the offenses as the elements of sult.67 standing double-jeopardy jurisprudence’, the defendant were the charged against requires analyze which courts to double- same under the test. Under by determining legislative claims cognate-pleadings approach, when via necessary to one offense are intent established rules prove facts necessary to proof included within the es- construction. Parrish, 354; 60. Id. at 299-300. 65. 869 S.W.2d at see also Patter- son, J., (Hervey, 152 S.W.3d at 94 concur- ring). See id. at Patterson, Id. at 299-300. II, (“We recog- 381 S.W.3d at 635 Patterson, S.W.3d at 89. weigh [Ervin factors] nize that some legislature of a conclusion that the in- favor multiple punishments...."). tended Id. at 91-92. appellant in which shot vated assault

CONCLUSION case, prose- four times. In this victim were principles double-jeopardy Because jury closing it clear to the cutor made double-jeopar- no in this violated not that the evidence showed argument from the clearly apparent is dy violation supports events. And the record distinct do not We therefore -record. face of the fails the defendant that distinction. When claim that the State’s reach need to jury that convicted and to establish involve two discrete this case facts' of him twice for “the same of- judgment The conduct. events of criminal may the same criminal act-he fense”—here reversed and claim in his prevail not rob- conviction appeal. for the first time on raised weapon is reinstated. deadly with a bery I. J., COCHRAN, concurring a filed (1) aggra- Appellant JOHNSON, WOMACK, in which opinion, robbery by vated threat to Shahid Shahid JJ., ALCALA, joined. and (2) aggravated by causing and bod- COCHRAN, J., concurring filed a ily injury to Shahid Shahid. The evidence WOMACK, JOHNSON, in which opinion trial that Mr. Shahid was a at showed ALCALA, JJ., joined. and immigrant night who worked the Pakistani gas a clerk at a station. shift as Conoco has not estab- appellant that' agree I him to Mr. Shahid’s boss told lock a undisputed facts show lished that “the that hé every night midnight, doors but clearly appar- violation is double regular could let in “a customer” to let record.”1 I do the face of the ent from play game buy them machines or some we or the lower think that either after on March Shortly midnight food. a hard-and-fast courts should establish 1st, he the door and let in Robbie unlocked aggravated robbery rule that threat Fernandez, customer, regular who was causing bodily inju- and accompanied by appellant. Mr. Shahid ap- court ry always (according to the stocking went back to the shelves. majority) (according to peals) or never jeopardy. many As with so Suddenly bang, violates he heard a loud like the double law, depends. shattering in life and it all of a bullet and the things sound Here, glass. it all on the trial record He looked out toward the front depends which, according theory appellant to the State’s door saw and Robbie stand- ing right Appellant shows two outside the door. had appeal, trial and on first, hand, Mr. ran gun a failed rob- so Shahid to call distinct incidents — Robbie, Then bery attempt separate aggra- police.2 crying, and then a who was handgun, he convenience store with a loaded Gonzalez step preparation, Crim.App.2000). took an extra of not mere attempting but now he’s to commit an robbery. vated How do we know that? theory It at trial that was the State’s you From his own mouth. He told in his attempted robbery. marked the end interview.” closing argument, prosecutor ex- the first that, prosecutor plained came back to the that the evidence showed before The second night, subject. explained appellant going gas appellant to the She had station that planned the detectives that he and Robbie needed and Robbie had to rob Mr. Shahid told money drugs why they although planning so that’s went was not an act some amounting "Maybe ‘Hey, I preparation. than there. Robbie was in on it. to more mere somebody. get place I know a we can “But the minute the Defendant walked in that know placing hide Mr. Shahid in fear and the into the store and tried to ran back by causing bodily came in vated assault Appellant injury. Mr. Shahid. behind pointed gun Robbie and his right after that, Suppose after appellant shot the put up who his hands and Mr. Shahid door, glass he ran off while Robbie came no guy, don’t me. This “requested, sho[o]t helped Mr. Shahid call po- inside and fire, me, no argument, no argument testimony lice. Given Robbie’s four shots at guy.” Appellant fired planned get two had to rob Mr. Shahid to just away. three feet Shahid from Mr. drug money, could the State have success- arrived, they found Mr. Sha- police When fully prosecuted appellant for ground. They on the didn’t bleeding hid robbery? jury I think so. A reason- could Robbie was think that he would survive. (1) ably appellant placed believe that Mr. Shahid, had appellant there with Mr. but Shahid in fear when he shot the glass out fled Robbie’s car. (2) door, glass and shot out that door with was, Thus, money. an intent to obtain he II. moment, acting at that “in the course of theory along The State’s all has been committing property” though theft of even that there were two distinct incidents: actually any money, he never took either Brief, present argues, its the State “[TJhis before or Mr. shooting after Shahid. stop-motion prosecu- was not a so-called shooting appears The of Mr. sta- Shahid to tion_Appellant shot at the service separate, arguably gratuitous, be a act of entry, planned tion in order to obtain had co-defendant, Appellant with a and assault.4 made no effort to take to rob store any money any the victim 4 nor showed intent to upon entering, shot times steal range.”3 anything close The trial record is not when he came back inside the crystal clear on the issue of whether store. From the surveillance appel- video and gun glass testimony, jury lant fired the to break the and the a reasonable could con- door, just as a clude that reopen appellant plain the locked inci- was furious shooting to the of Mr. Shahid. But it at both and Mr. Shahid and dent Robbie came appellant’s was burden to show that back inside to shoot them both. Robbie only protected by record is clear that there was one was Mr. Shahid who took all body. criminal act four pointing Appellant act—the then bullets his imme- shooting gun diately ran establishes both back outside and made his —that attempted robbery by threatening getaway in Robbie’s car. they go' robbery,” quick cash.' So there. And as victim offered no resistance some attempt that’s where the comes in. He’s car- gave going he and no indication that was not rying gun, through he Prater, a loaded walks those give money); over State v. attempt. There is the Whether he doors. (1981) Wash.App. P.2d in, part back all of the walks out or comes it’s (convictions aggravated robbery ag- course, part attempt.” all gravated "merge” did when evi- not shooting dence showed that the of one victim 3. State’s Brief at 11. and, gratuitous, part robbery, See, Freeman, e.g., Wash.App. State v. victim, by disabling the hindered rather than (2003) (convictions 76 P.3d 737-39 however, robbery; beating assisted the aggravated robbery as- attempt wife victim’s was done in an to make "merge” sault did not and violate double money, object robbery, her find the that, when evidence showed aggravated-assault and thus that conviction victim, shooting something did "far defendant merged robbery). into beyond necessary merely what was further ports did that We need not jury position. the not believe that either Perhaps pleading. condemn artful separate nor condone wrongful there were acts; they could have believed criminal judg- I therefore concur the Court’s robbery and the aggravated the that both holding appellant ment and its has single with act were committed assault double-jeopardy failed establish a viola- gun at Mr. Shahid pointing of appellant tion. four But it was shooting times. then to either raise his dou- burden appellant’s in the trial court and issue

ble-jeopardy spe- with a formally litigate issue

thus or else establish that the jury

cial issue jury clearly shows could

record single criminal found a act.

only have “[mjore that a notes trou- The State MAXWELL, Ex parte Terrell is that court of bling” issue Applicant. it artful pleading accuse de- seemed to No. AP-76964. double-jeopardy avoid a issue. signed to of appeals justified It that the court says Appeals Court of of Texas. Criminal appellant’s conviction because reversal March charge ‘could have’ chosen to “the State differently, which case dou- the offense certainly would be violated.”5 ble Indeed, statutory pleading one version aggravated-assault pur- statute for poses robbery count and the other version of assault for count does raise a whiff of clever half’ in being avoiding “too But, violation.6 double-jeopardy from stoutly main- very beginning, the State has that there were two crimes separate tained sup- committed here. And evidence State's Brief at tute threats that can be (Tex.App.-Fort 381 S.W.3d 2012)). Worth any published separately? I am unaware of cases have from this Court that addressed the question. holding involving In its a case Denton, parte 6. See 546- Ex of both an rob- (aggravated (Tex.Crim.App.2013) assault, bery and an the Second offense was a lesser-included Appeals suggested Court of that multiple has thus, and, robbery, convictions for both assaults the same victim in the same regard with to the same victim in the crimes only transaction can constitute one offense. incident were in violation same of defendant’s Although necessarily agree I do not with all of protections, when assault reasoning opinion, in the Second Court's I by proof of was established the same or less agree implication legislature with the required than all the facts to establish the contemplate separately punishing did not (Keller, robbery); concurring) id. at 556 P.J. against the same ("So, assaults victim in gunshots occurring can two in the same transaction.”) (footnote omitted). the same transaction constitute assaults respect they victim? to the same Do consti-

Case Details

Case Name: Garfias, Christopher

Court Name: Court of Criminal Appeals of Texas

Date Published: Feb 26, 2014

Citation: 424 S.W.3d 54

Docket Number: PD-1544-12

Court Abbreviation: Tex. Crim. App.