GARFIAS v. STATE (2011)

OPINION

In a two-count indictment, the appellant was charged with aggravated robbery and aggravated assault, both offenses alleged to have been perpetrated upon one Shahid Shahid on March 1, 2006. After a trial before the jury, the trial court authorized the jury to convict the appellant of both offenses, which it did. The trial court entered judgment accordingly, sentencing the appellant to sixty years in the penitentiary for the aggravated robbery offense and a life term plus a $10,000 fine for the aggravated assault offense. For the first time on appeal, the appellant argued that his conviction and punishment for both offenses violated the constitutional prohibition against being twice placed in jeopardy for the same offense.

An appellant may raise a claim of double jeopardy for the first time on appeal only “when the undisputed facts show that the double-jeopardy violation is clearly apparent on the face of the record and when enforcement of the usual rules of procedural default serves no legitimate state interests.”¹ In an unpublished opinion, applying the Gonzalez standard, the Second Court of Appeals held that the appellant forfeited his double-jeopardy claim by failing to raise it in the trial court.² In doing so, however, the court of appeals conducted its analysis for legislative intent solely under the presumptive test of Blockburger v. United States,³ and held that a double-jeopardy violation was not clearly apparent from the face of the record in this case because each of the offenses that the appellant was indicted for contained an element not contained in the other. We granted the appellant's petition for discretionary review in order to address whether the court of appeals erred when it limited its analysis to the Blockburger test in deciding whether a double-jeopardy violation was clearly apparent for purposes of preserving error under Gonzalez. We will vacate the judgment of the court of appeals and remand the cause for further proceedings.

In the course of conducting only a Blockburger analysis, the 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,”⁴ while the aggravating element alleged for the assault was that the appellant actually “caused bodily injury.”⁵ From this circumstance, the court of appeals reasoned:

Because each offense required proof of an element the other did not, the record does not affirmatively show that either offense is subsumed within the other. Therefore, a double jeopardy violation does not clearly appear on the face of the record, and we cannot address appellant's complaints further.⁶

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 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, 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. Ervin provided a non-exclusive catalog of considerations to help courts determine legislative intent in this context:

whether the offenses['] provisions are contained within the same statutory section, whether the offenses are phrased in the alternative, whether the offenses are named similarly, whether the offenses have common punishment ranges, whether the offenses have a common focus (i.e. whether the “gravamen” of the offense is the same) and whether that common focus tends to indicate a single instance of conduct, ․ and whether there is legislative history containing an articulation of an intent to treat the offenses as the same or different for double jeopardy purposes.7

Whether or not a double-jeopardy violation is clearly apparent on the face of the record is, therefore, not simply a function of a Blockburger analysis. The court of appeals should have examined other indicia of legislative intent as well.

We will not conduct that more thorough analysis of legislative intent for the first time in a petition for discretionary review.⁸ Instead, we vacate the judgment of the court of appeals and remand the cause to that court for further consideration and also for additional briefing from the parties if the court of appeals should find that useful.

CONCURRING OPINION

In Ex parte Ervin, 991 S.W.2d 804, 817 (Tex.Crim.App.1999), this Court held that there was a multiple-punishments violation because the offenses of intoxication manslaughter and manslaughter involved the same complainant and the same incident, and therefore obtaining convictions for both offenses violated the double-jeopardy clause. We then “laid out a non-exclusive list of factors to consider when examining if two offenses are the same in the context of multiple punishment.” Bigon v. State, 252 S.W.3d at 371. These factors included: 1) whether offenses are in the same statutory section; 2) whether the offenses are phrased in the alternative; 3) whether the offenses are named similarly; 4) whether the offenses have common punishment ranges; 5) whether the offenses have a common focus; 6) whether the common focus tends to indicate a single instance of conduct; 7) whether the elements that differ between the two offenses can be considered the same under an imputed theory of liability that would result in the offenses being considered the same under Blockburger; and 8) whether there is legislative history containing an articulation of an intent to treat the offenses as the same or different for double-jeopardy purposes. Id., citing Ervin, 991 S.W.2d at 814. We further explained that the common-focus factor includes whether the gravamens of the offenses are the same. Ervin, 991 S.W.2d at 814.

In this case, the indictment alleged that appellant committed both the aggravated robbery with a deadly weapon and aggravated assault with a deadly weapon in a single incident on the same day and involving the same named complainant and the same named deadly weapon, “to-wit: a firearm.” The most important factors here are that the offenses have a common focus-a shared gravamen-and that the common focus “tends to indicate a single instance of conduct.” Id. The reviewing court examines the offenses, not as they were charged, but as they appear in their full statutory forms. Aggravated robbery includes the elements of robbery (Section 29.02), plus the additional elements of aggravated robbery (Section 29.03). Tex. Penal Code §§ 29.02 and 29.03. Aggravated assault includes the elements of assault (Section 22.01), plus the additional elements of aggravated assault (Section 22.02). Tex. Penal Code §§ 22.01 and 22.02. Our case law has established that aggravated assault and aggravated robbery share a common gravamen because “the gravamen of robbery is the assaultive conduct and not the theft.” Ex parte Hawkins, 6 S.W.3d 554, 560 (Tex.Crim.App.1999), quoting Crank v. State, 761 S.W.2d 328, 350 (Tex.Crim.App.1988). Further evidence of their common focus is that aggravated assault may be a lesser-included offense of aggravated robbery, depending upon the facts proven. See Smith, 17 S.W.3d at 661; Royster, 622 S.W.2d at 446. When aggravated assault is subsumed within aggravated robbery, a double-jeopardy issue arises because greater and lesser-included offenses are “by definition the ‘same’ for purposes of double jeopardy.” Brown, 32 U.S. at 168. A lesser-included offense “requires no proof beyond that which is required for conviction of the greater.” Id.

By looking at Section 29.02 (robbery), I conclude that appellant's conduct could have been addressed solely by a count of aggravated robbery, reducing the aggravated assault to a lesser-included offense. Converting the two counts into one would necessitate the deletion of only the “threat” allegation from the robbery elements. Labeling appellant's aggravated assault as a lesser-included offense creates a double-jeopardy issue because, in that case, appellant received multiple punishments for the “same” (a greater and a lesser-included) offense.

In a double-jeopardy analysis, the reviewing court applies the Blockburger same-elements test to the offenses as they appear in the record and also reviews the offenses in their statutory forms in order to consider whether the legislature intended to impose multiple punishments. Because aggravated assault and aggravated robbery have a common focus-a shared gravamen (assaultive conduct)-and because that common focus in this case indicates a single instance of conduct, I conclude that, for double-jeopardy purposes, we must treat these offenses as being the same offense. I do not think that the legislature intended for appellant's single act to be punished under both statutory offenses. Treating appellant's aggravated assault and aggravated robbery as the same offense creates a double-jeopardy violation, as appellant has received multiple punishments for a “single instance of conduct.”

As the Supreme Court has stated, “If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offence.” Ex parte Lange, 85 U.S. 163, 168 (1874). The remedy for a defendant who is subjected to multiple punishments for the same conduct is to affirm the conviction for the most serious offense and vacate the other convictions. Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex.Crim.App.2006). The “most serious” offense “is the offense of conviction for which the greatest sentence was assessed.” Id. at 338.

The common focus indicates one assaultive act, shooting the complainant. The greater sentence assessed was for aggravated assault: confinement for life and a fine of $10,000. Therefore, I would retain the conviction for aggravated assault and set aside the conviction for aggravated robbery.

With these comments, I join the opinion of the court.

FOOTNOTES

1.  Gonzalez v. State, 8 S.W.3d 640, 643 (Tex.Crim.App.2000).

2.  Garfias v. State, No. 2–06–398–CR, 2008 WL 2404268 (Tex.App.-Fort Worth, delivered June 12, 2008) (not designated for publication).

3.  284 U.S. 299 (1932).

4.  Garfias v. State, supra, at *2.

5.  Id.

6.  Id.

7.  Gonzales v. State, 304 S.W.3d 838, 845–46 (Tex.Crim.App.2010) (internal quotations, citations and footnotes omitted).

8.  See, e.g., Benavidez v. State, 323 S.W.3d 179, 183 & n. 20 (Tex.Crim.App.2010) (in its discretionary review capacity, this Court reviews “decisions” of the courts of appeals, and an issue that lower court did not pass upon is not ordinarily ripe for our review); Ex parte Brooks, 312 S.W.3d 30, 33 (Tex.Crim.App.2010) (same); Smith v. State, 309 S.W.3d 10, 19 (Tex.Crim.App.2010) (same); Stringer v. State, 241 S.W.3d 52, 59 (Tex.Crim.App.2007) (same); Lee v. State, 791 S.W.2d 141, 142 (Tex.Crim.App.1990) (same).

PER CURIAM.

MEYERS, J., not participating.