            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                      NO. PD-1323-08

                         CHRISTOPHER GARFIAS, Appellant

                                              v.

                                 THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
               FROM THE SECOND COURT OF APPEALS
                         TARRANT COUNTY

       P ER CURIAM. M EYERS, J., not participating.

                                       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
                                                                                   Garfias — 2

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legitimate state interests.”1 In an unpublished opinion, applying the Gonzalez standard, the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


       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).
                                                                                 Garfias — 3

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


       4

       Garfias v. State, supra, at *2.
       5

       Id.
       6

       Id.
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       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.


       7

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


DELIVERED:     June 29, 2011
DO NOT PUBLISH




       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).
