                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-06-00398-CR


CHRISTOPHER GARFIAS                                                 APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


                                     ----------

          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

                                     ----------

                          OPINION ON REMAND

                                     ----------

      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

      1
       See Garfias v. State, No. PD-1323-08, 2011 WL 2674848, at *3 (Tex.
Crim. App. June 29, 2011) (not designated for publication) (reversing Garfias v.
State, No. 02-06-00398-CR, 2008 WL 2404268, at *1 (Tex. App.—Fort Worth
June 12, 2008) (mem. op., not designated for publication)). Two justices from
the panel of our prior opinion in this appeal, including that opinion’s author, no
longer serve on this court as elected justices.
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 with a deadly weapon.2           The indictment alleged that

appellant,

      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

      2
       See Tex. Penal Code Ann. §§ 22.02(a)(2), 29.03(a)(2) (West 2011).


                                        2
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,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,5 because aggravated robbery and


      3
       A prior felony conviction, which had been described by a repeat offender
notice that appellant pled true to, enhanced both of these sentences. See Tex.
Penal Code Ann. § 12.42(b), (c) (West Supp. 2012).
      4
       8 S.W.3d 640, 643 (Tex. Crim. App. 2000).
      5
       284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932).


                                         3
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, 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,” 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

      6
       304 S.W.3d 838, 845–46 (Tex. Crim. App. 2010).


                                        4
            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 function of a
      Blockburger analysis. The court of appeals should have examined
      other indicia of legislative intent as well.


      7
        991 S.W.2d 804, 807 (Tex. Crim. App. 1999). The issue in Ervin was
whether a defendant could be convicted for intoxication manslaughter and
manslaughter when only one person had died. Id. at 805–06. Although the
relevant statutes were not the “same” under Blockburger, the court of criminal
appeals nonetheless held that the defendant’s two convictions under the statutes
violated double jeopardy. Id. at 806, 814, 817. The court reasoned, in part, that
“manslaughter and intoxication manslaughter have a common focus: the death
of an individual. Both crimes are result of conduct crimes with death being the
result.” Id. at 816.


                                       5
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 of 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.” U.S. Const. amend. V; see also Tex. Const.

art. I, § 14 (“No person, for the same offense, shall be twice put in jeopardy of life

or liberty, nor shall a person be again put upon trial for the same offense, after a

verdict of not guilty in a court of competent jurisdiction.”). A potential double

jeopardy violation may be forfeited by the defendant’s failure to assert it in the

trial court. Langs v. State, 183 S.W.3d 680, 686–87 (Tex. Crim. App. 2006). But

a double jeopardy claim “may be raised for the first time on appeal or even for

the first time on collateral attack when the undisputed facts show the double

jeopardy violation is clearly apparent on the face of the record and when

enforcement of usual rules of procedural default serves no legitimate state

interests.” Gonzalez, 8 S.W.3d at 643 (footnotes omitted).

      “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

                                          6
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); and

(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 (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

                                         7
      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.

304 S.W.3d at 846 (quoting Ervin, 991 S.W.2d at 814); see also Bigon, 252

S.W.3d at 371 (discussing the Ervin factors in determining that convictions for

felony murder and intoxication manslaughter for the death of one individual in

one incident violated double jeopardy).

      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 one 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. Tex. Penal Code Ann. § 29.02(a) (West

2011). Robbery may become aggravated robbery by adding the fact that the

person used or exhibited a deadly weapon.        Id. § 29.03(a)(2). The court of

criminal appeals has concluded that the gravamen of robbery offenses, including


                                          8
aggravated robbery, is the defendant’s assaultive conduct. See Jones v. State,

323 S.W.3d 885, 889 (Tex. Crim. App. 2010); Ex parte Hawkins, 6 S.W.3d 554,

560 (Tex. Crim. App. 1999); Rohlfing v. State, 612 S.W.2d 598, 602 (Tex. Crim.

App. [Panel Op.] 1981) (explaining that the “current penal code robbery offenses

are assaultive in nature”).   This makes sense because the types of conduct

described in section 29.02 match, nearly word for word, two of the three ways

that a person may commit assault under section 22.01. See Tex. Penal Code

Ann. § 22.01(a)(1)–(2) (West 2011).     Like robbery’s elevation to aggravated

robbery, assault under section 22.01(a) may become aggravated assault by

adding that the defendant used or exhibited a deadly weapon. Id. § 22.02(a)(2).

      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 weapon

during the commission of the assault.        See id. §§ 22.01(a)(1), .02(a)(2).

A person may commit aggravated robbery by engaging in those same two acts

while committing theft and having the intent to obtain or maintain control of the

property.   Id. §§ 29.02(a)(1), .03(a)(2).   Similarly, a person may commit

aggravated assault by (1) intentionally or knowingly threatening another with

imminent bodily injury and (2) using or exhibiting a deadly weapon during the

commission of the assault. See Tex. Penal Code Ann. §§ 22.01(a)(2), .02(a)(2).

                                       9
A person may commit aggravated robbery by engaging in those same two acts

while committing theft and having the intent to obtain or maintain control of the

property. Id. §§ 29.02(a)(2), .03(a)(2). For these reasons, aggravated assault

may be, under proper circumstances, a lesser-included offense of aggravated

robbery.   See Girdy v. State, 213 S.W.3d 315, 319 (Tex. Crim. App. 2006)

(concluding that if “the prosecution, in proving the elements of one charged

offense, also necessarily proves another charged offense, then that other offense

is a lesser-included offense”); Smith v. State, 131 S.W.3d 502, 503 (Tex. Crim.

App. 2004) (“The appellant was charged with aggravated robbery. In October

1996, he pleaded guilty to the lesser-included offense, aggravated assault.”); see

also Tex. Code Crim. Proc. Ann. art. 37.09 (West 2006) (stating that an offense

is a lesser-included offense if it is “established by proof of the same or less than

all the facts required to establish the commission of the offense charged”). Two

offenses are the same for double jeopardy purposes if one offense contains all of

the elements of the other. Zuliani v. State, 353 S.W.3d 872, 872 (Tex. Crim.

App. 2011).

      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 offenses 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

                                        10
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 robbery 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 aggravated 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.

                                        11
      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); Marinos v. State,

186 S.W.3d 167, 174 (Tex. App.—Austin 2006, pet. ref’d) (holding similarly); see

also Woodard v. State, 294 S.W.3d 605, 608 (Tex. App.—Houston [1st Dist.]

2009, pet. ref’d) (“Like the assault statute, the robbery statute provides two

separate, underlying robbery offenses—robbery causing bodily injury and

robbery by threat.”).    We recognize that courts of appeals have used this

rationale to hold that when the types of assault occur through separate acts, two

convictions for assault-related offenses (included aggravated robbery) may be

obtained. See, e.g., Marcotte v. State, No. 07-01-00418-CR, 2003 WL 103139,

at *1–2 (Tex. App.—Amarillo Jan. 10, 2003, no pet.) (not designated for

publication) (holding that the defendant was properly convicted of two counts of

aggravated assault when he pointed a gun at a woman, drove away, and later

came back and shot it at her); Renteria v. State, Nos. 11-02-00062-CR, 11-02-

00063-CR, 2002 WL 32344565, at *1–2 (Tex. App.—Eastland Aug. 15, 2002, no

                                         12
pet.) (not designated for publication) (holding that the defendant was properly

convicted for two counts of aggravated assault when he threatened his girlfriend

by shoving the muzzle of a shotgun into her mouth and later caused bodily injury

by striking her in the face with the butt of the shotgun).

      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 Tex. Penal Code Ann. §

22.01(a)(1)–(2), (b), (c). In such a case, the act of slowly rearing back, although

possibly threatening, is a “step[] along the way” of committing causing-bodily-

injury assault. See Lopez v. State, 108 S.W.3d 293, 300 n.28 (Tex. Crim. App.

2003). And we have held as much in a case in which the facts and legal issues

were similar to those in this case. See Naji v. State, No. 02-06-00260-CR, 2007

WL 1266872, at *1–3 (Tex. App.—Fort Worth Apr. 26, 2007, pet. ref’d) (mem.

op., not designated for publication). Naji had pointed a gun at the victim, Lusk,

                                          13
before (and apparently after) shooting it at him. Id. at *1–2. The grand jury

indicted him for aggravated robbery by threat and aggravated assault by causing

bodily injury, and a jury convicted him for those offenses. Id. On appeal, he

argued that punishment for the same conduct of using the gun to threaten bodily

injury and to cause bodily injury violated double jeopardy. Id. at *2. We agreed,

stating,

             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 aggravated 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 from 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


                                       14
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).8   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, the defendant had been convicted of

aggravated sexual assault, indecency with a child by contact, and indecency with

a child by exposure. 152 S.W.3d 88, 89 (Tex. Crim. App. 2004). 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 identical 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

      8
       The court in Lopez compared the facts in that case with facts of an
aggravated sexual assault case in which the court had held that different sexual
acts that occurred in the same transaction could support multiple convictions.
See id. at 300 n.28 (citing Vick v. State, 991 S.W.2d 830, 833 (Tex. Crim. App.
1999)).


                                       15
      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 to, 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

cause apprehension of imminent bodily injury—is subsumed by pointing the gun

at them.”); Barnes v. State, 165 S.W.3d 75, 88 (Tex. App.—Austin 2005, no pet.)

(holding that the defendant had been subjected to double jeopardy for multiple

aggravated sexual assault convictions because genital-to-genital contact in the

course of penile penetration was subsumed in the act of penetration).

      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.


      9
       We may look to the evidence at trial to determine what instances of
conduct are jeopardy-barred. See Ex parte Goodbread, 967 S.W.2d 859, 861
(Tex. Crim. App. 1998). The State does not argue that the evidence establishes
any threat made by appellant apart from his pointing the gun at Shahid during the
shooting. Shahid testified that he and appellant were “face to face,” that Shahid
asked appellant not to shoot him, and that appellant did not listen and shot four
times. Shahid indicated that he did not have an argument with appellant before
appellant shot him.


                                          16
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 Tex.

Penal Code Ann. §§ 22.02(b), 29.03(b). But for the reasons expressed above,

we conclude that the legislature could not have intended multiple punishments

for aggravated robbery and aggravated assault under the indictment and

evidence in this case.

        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 interests 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 sentence, 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.

                                        17
                                  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

PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.

PUBLISH

DELIVERED: August 9, 2012




                                       18
