             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

                K ELLER, P.J., filed a concurring opinion.


       Appellant was involved in the shooting of a store clerk during a robbery. The State

prosecuted him for aggravated robbery and aggravated assault. The aggravated robbery count in the

indictment alleged, inter alia, that appellant did “threaten or place [the victim] in fear of imminent

bodily injury or death,” while the aggravated assault count alleged, inter alia, that appellant did

“cause bodily injury.” Although these elements result in offenses that differ under the standard

articulated in Blockburger v. United States,1 appellant contends that the offenses were nevertheless



       1
           284 U.S. 299 (1932).
                                                                                     GARFIAS — 2

the “same” for Double Jeopardy purposes. The court of appeals found that appellant failed to

preserve error. Appellant contends that he did not need to preserve error and that a Double Jeopardy

violation occurred.

       The court of appeals correctly observed that, unless a Double Jeopardy violation is apparent

on the face of the record (and enforcement of the usual rules of procedural default serves no

legitimate state interests), a defendant is required to preserve his Double Jeopardy claim in some

fashion.2 In addressing the preservation issue, however, the appellate court assumed that the

Blockburger “same elements” test was the only test for determining whether a Double Jeopardy

violation is apparent on the face of the record.3 That assumption conflicts with our holding in Bigon

v. State,4 which held that a Double Jeopardy violation can be shown on the face of the record through

an Ervin5 analysis of other factors indicating that the Legislature intended that the offenses be

considered the “same.”6 The “face of the record” standard is concerned with facts—such as what

the jury intended when it delivered a general verdict7—not with law, which an appellate court is

ordinarily free to consider without restriction.8 Thus, I join the Court’s opinion to remand this case

       2
         Garfias v. State, No. 2-06-398-CR, slip op. at 2 (Tex. App.–Fort Worth June 12, 2008) (not
designated for publication) (citing Gonzalez v. State, 8 S.W.3d 640, 642 (Tex. Crim. App. 2000)).
       3
           Garfias, slip op. at 2-3, 6.
       4
           252 S.W.3d 360 (Tex. Crim. App. 2008).
       5
           Ex parte Ervin, 991 S.W.2d 804 (Tex. Crim. App. 1999).
       6
           Bigon, 252 S.W.3d at 369.
       7
           See Gonzalez, 8 S.W.3d at 645.
       8
         I do not consider at this time whether this rule encompasses the law of other states, foreign
countries, or Texas municipalities, which are subject to special rules of judicial notice. See TEX . R.
EVID . 202-204.
                                                                                       GARFIAS — 3

to the court of appeals for further consideration.

        Judge Johnson also joins the Court’s opinion, but in her concurring opinion she expresses

the view that appellant is entitled to relief. I believe that expressing such a view is premature, since

the court of appeals has not yet had a chance to address the matter. But since that view has been

expressed, I think it is important to articulate what I believe is the correct analysis.

        Appellant contends that Double Jeopardy prevents prosecutors from “artfully pleading the

manner and means, pleading variations of greater and lesser included offense so that they survive

a Blockburger analysis, or by conceptualizing several offenses in the course of one culpable act.”

He argues that a prosecutor cannot arbitrarily divide a crime into separate units when only a single

crime has actually been committed. He relies upon a number of cases for the proposition that the

offenses at issue here comprised a single criminal act for double jeopardy purposes. He also

contends that robbery and assault share the same method of measuring the allowable unit of

prosecution: the assault of each victim,9 and he argues that only a single unit of prosecution—the

shooting—occurred here.

        Addressing appellant’s complaint requires an understanding of the two ways in which

offenses can be the same or different under Double Jeopardy law when two statutes are involved:

(1) by elements, and (2) by units.10 For a Double Jeopardy violation to occur, the offenses at issue

must be the “same” in both respects.11


        9
        See Phillips v. State, 787 S.W.2d 391 (Tex. Crim. App. 1990) (assault); Ex parte Hawkins,
6 S.W.3d 554 (Tex. Crim. App. 1999) (robbery).
        10
             Hawkins, 6 S.W.3d at 557 n.8 (discussing legal elements versus units of prosecution).
        11
         Id. (quoting Akhil Reed Amar, Double Jeopardy Law Made Simple, Yale L.J. 1807, 1817-
18 (1997) (“an offense must not only be the same in law—it must also be the same in fact”)).
                                                                                       GARFIAS — 4

        An elements inquiry is limited to the law and the charging instrument.12 In determining

whether offenses are the same or different under such an inquiry, the Blockburger test sets out the

starting presumption, but that presumption can be rebutted by other indicia clearly manifesting a

legislative intent to the contrary.13 Under Blockburger, “where the same act or transaction

constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether

there are two offenses or only one, is whether each provision requires proof of a fact which the other

does not.”14 In the multiple punishments context, if the offenses have the same elements under

Blockburger, then an analysis can occur under Missouri v. Hunter15 to determine whether the

Legislature nevertheless intended to allow multiple punishments.16 Conversely, if the offenses have


        12
             Bigon, 252 S.W.3d at 370; Hall v. State, 225 S.W.3d 524, 532-33 (Tex. Crim. App. 2007).
        13
           Littrell v. State, 271 S.W.3d 273, 276 (Tex. Crim. App. 2008) (If one offense “is a
lesser-included” of the other under Blockburger, “the judicial presumption is that they are the same
for double-jeopardy purposes” and the “second question, in that event, is whether the Legislature has
clearly expressed a contrary intention that the accused should in fact be punished for both the greater
and the lesser-included offenses.”); id. at 277 n.23 (“Of course, even when two statutorily defined
offenses are clearly not the same under a Blockburger analysis, other considerations might make it
clear that the Legislature nevertheless intended that an accused not be punished under both
provisions.”) (citing Ervin and Bigon). See also Bigon, 252 S.W.3d at 370 (“When multiple
punishments arise out of one trial, the Blockburger test is the starting point in analyzing the two
offenses.”); Ervin, 991 S.W.2d at 804 (“[T]he Blockburger test cannot authorize two punishments
where the legislature clearly intended only one.”); Gonzales v. State, 304 S.W.3d 838, 845-46 (Tex.
Crim. App. 2010) (“The traditional indicium of . . . legislative intent is the so-called ‘same elements’
test of Blockburger,” but “even if a straightforward application of the Blockburger test would
suggest that two offenses are not the ‘same’ for double jeopardy purposes,” the offenses are
nevertheless considered the same, “if other indicia manifest a legislative intent that an accused not
be punished for both offenses”) (citing Ervin).
        14
             284 U.S. at 304.
        15
             459 U.S. 359 (1983).
        16
          See id.; Ervin, 991 S.W.2d at 807. A Missouri v. Hunter inquiry may not be allowed in
the multiple prosecution context due to finality concerns. See State v. Perez, 947 S.W.2d 268, 270
                                                                                   GARFIAS — 5

different elements under Blockburger, then an analysis can occur under Ervin to determine whether

the Legislature nevertheless intended the offenses to be treated as the same.17 The Hunter/Ervin

analysis is part of the elements aspect of Double Jeopardy law.18 The allowable unit of prosecution

prescribed for the offenses is a relevant consideration under an Ervin analysis,19 but only in the

abstract, in an effort to determine whether, under the law and the charging instrument, the offenses

are considered to be the same elementally.

       A units (or “allowable unit of prosecution”) inquiry is separate, designed to determine

whether a single legally-proscribed offense has been committed more than once.20 A units inquiry

can also be divided into two parts: (1) what the unit is,21 and (2) whether the requisite number of

units have been shown.22 This inquiry involves determining such things as whether there were two


n.3 (Tex. Crim. App. 1997).
       17
          See Gonzales, 304 S.W.3d at 845-46 (discussing Ervin). This analysis can occur in both
the multiple prosecution and the multiple punishment contexts.
       18
           See Hall, 225 S.W.3d at 533 n.39 (recognizing that Hunter involved a cognate pleadings
analysis); Bigon, 252 S.W.3d at 372 (under an Ervin analysis, looking at charging instrument
allegations to determine the underlying felony in felony murder prosecution); Ervin, 991 S.W.2d at
807 (recognizing “the inverse conclusion” from Hunter).
       19
            Bigon, 252 S.W.3d at 371-72.
       20
         See Sanabria v. United States, 437 U.S. 54, 69-70, 69 n.24 (1978); Saenz v. State, 166
S.W.3d 270, 272-74 (Tex. Crim. App. 2005).
       21
          See e.g. Vick v. State, 991 S.W.2d 830, 832-34 (Tex. Crim. App. 1999) (penetration of
anus and sexual organ different units in aggravated sexual assault); Ex parte Hawkins, 6 S.W.3d
554, 556 (Tex. Crim. App. 1999) (different victims are different units in a robbery); Ex parte
Cavazos, 203 S.W.3d 333, 335-37 (Tex. Crim. App. 2006)(entry is the unit in a burglary).
       22
           Blockburger, 284 U.S. at 303 (second drug sale was a separate offense because it “was not
the result of the original impulse, but of a fresh one”); Ex parte Goodbread, 967 S.W.2d 859, 860-61
(Tex. Crim. App. 1998) (can have multiple prosecutions for different incidents of the same type of
sexual assault).
                                                                                        GARFIAS — 6

murder victims, whether a victim who was assaulted on Monday was assaulted again on Tuesday,

or whether multiple kinds of sex acts were committed against a victim. Evidence at trial can be

considered in determining whether the requisite number of units has been shown.23 A units inquiry

might more commonly arise when a single statute is involved24 and a court is trying to discern how

to divide conduct (e.g., a sexual assault with multiple manners and means) into units.25 Parsing a

single statute “is unlike a situation involving different statutes, which, by itself, is some indication

of legislative intent to authorize multiple prosecutions simply because the offenses are separately

defined in different statutes.”26 So, while a determination that the elements are different under the

Blockburger test sets up a presumption in a multiple-statute elements inquiry, no such presumption

is created in a single-statute units inquiry.27 Nevertheless, if offenses under different statutes are the


        23
           Blockburger, 284 U.S. at 303; Goodbread, 967 S.W.2d at 860 (“For Double Jeopardy
purposes, the same offense means the identical criminal act, not the same offense by name . . . . when
one cannot determine from the State’s pleadings whether the offenses prosecuted are the same, the
court must look to the proof offered at trial.”) (Citing and quoting favorably from Luna v. State, 493
S.W.2d 854 (Tex. Crim. App. 1973)); id. at 861 (We look to evidence at trial to determine what
instances of conduct conforming to the indictment are jeopardy-barred.); see also Quintano v.
People, 105 P.3d 585, 592, 595 (Colo. 2005) (“[W]hile we do not adopt any specific list of factors
to determine whether the defendant’s acts constitute factually distinct offenses, we look to all the
evidence introduced at trial to determine whether the evidence on which the jury relied for conviction
was sufficient to support distinct and separate offenses.”).
        24
          See Bigon, 252 S.W.3d at 371-72 (“Usually, analysis of an allowable unit of prosecution
involves a situation in which two offenses from the same statutory section are charged.”).
        25
          See Vick, 991 S.W.2d 833, 833 n.1 (arriving at the same result under either the
Blockburger test or an inquiry regarding the how to divide the offense into separate prosecutable
acts).
        26
             Id. at 832.
        27
          See Vineyard v. State, 958 S.W.2d 834, 836 n.5 (Tex. Crim. App. 1998) (“We also note
this Court has stated the Blockburger test is not ‘precisely applicable’ to cases like this where a
defendant’s conduct violates one statutory provision more than once.”).
                                                                                         GARFIAS — 7

“same” elementally, then a units analysis would be appropriate if, for example, the pleadings or the

evidence indicates that there are different victims.28

        If the offenses of aggravated robbery and aggravated assault were defined within the same

statute, then a units analysis might by itself be appropriate to resolve whether the offenses are the

same. But aggravated robbery and aggravated assault are defined in different sections—indeed,

different chapters—of the Penal Code. As explained above, the fact that the offenses involved are

defined in different statutes is some indication that the Legislature intended multiple punishments.

Even if we accept as true that appellant’s units analysis is correct, it must first be established that the

offenses are the same under an elements analysis. Because an elements analysis revolves solely

around the charging instrument and the law, it is irrelevant that evidence at trial may show that the

offenses involve the same act or very closely related acts. That the two statutes divide units in the

same way (if they do) has some bearing on the elements analysis under Ervin but is not dispositive.

        Appellant initially relies upon Patterson v. State, which held that, under the facts of the case,

the offense of indecency with a child by exposure was incident to and subsumed by the immediately

subsequent offense of sexual assault by penetration.29 He argues that the “fear induced by [the

victim’s] perception of the gun is necessarily a part of the shooting in the same way that exposure

is necessarily a part of penetration.” But Patterson is distinguishable from this case for two reasons:

First, Patterson was not decided on Double Jeopardy grounds.30 And second, the offenses at issue


        28
             See Hawkins, 6 S.W.3d at 557 n.8.
        29
         152 S.W.3d 88, 92 (Tex. Crim. App. 2004)(discussing interplay between TEX . PENAL
CODE §§ 21.11(a)(2)(A) and 22.021(a)(1)(B)(i)).
        30
          Id. at 90 (deciding the issue under a statute addressing the concurrent versus consecutive
sentencing).
                                                                                     GARFIAS — 8

in Patterson were clearly the same elementally under the Blockburger test.31

       Appellant also relies upon Littrell v. State, which held that the offenses of felony murder and

aggravated robbery were the same when the aggravated robbery in question was the underlying

felony for the felony murder.32 Appellant contends that Littrell is similar to the present case because

the indictment in Littrell also alleged two unique elements: (1) an “act clearly dangerous to human

life” in connection with the murder, and (2) that “the victim was placed in fear of imminent bodily

injury and death aggravated by the use and exhibition of a deadly weapon” in connection with the

aggravated robbery. Appellant is mistaken. Aggravated robbery was wholly incorporated into the

felony murder charge—resulting in the offenses being the same under the Blockburger test.33

         Appellant further contends that Hawkins and Cavazos “underscore the importance of

determining the allowable unit of prosecution as a key to resolving Double Jeopardy questions.”

Those cases both involved prosecutions under a single section of the Penal Code (robbery in

Hawkins and burglary in Cavazos)34 while the present case involves prosecution under two different

sections. As discussed above, when a single statute is at issue, courts conduct only a units inquiry,

but when two statutes are at issue, a units inquiry is only half the battle—the offenses must be the

same by both elements and units for a Double Jeopardy violation to arise.

       Finally, appellant relies upon Bigon, a case that held, under an Ervin analysis, that the



       31
           See id. at 94, 94 n.3 (Hervey, J., concurring) (observing that indecency by exposure was
a lesser included offense of aggravated sexual assault under Blockburger).
       32
            271 S.W.3d 276-79 (Tex. Crim. App. 2008).
       33
            Id. at 276-77.
       34
            See Hawkins and Cavazos, supra.
                                                                                    GARFIAS — 9

offenses of felony murder, intoxication manslaughter, and manslaughter (involving the same victim)

were the “same” for Double Jeopardy purposes.35 We observed in Bigon that intoxication

manslaughter used to be contained in the same chapter as all of the homicide offenses and was

framed as an alternative way to commit manslaughter.36 We explained that we had previously

suggested in Ervin that the move to Chapter 49 was largely for housekeeping purposes.37 We also

observed that intoxication manslaughter retained “manslaughter” in its title and was still considered

a homicide offense.38 We further explained that intoxication manslaughter and murder both had the

same focus on the death of an individual, the offenses were both result-oriented, the allowable unit

of prosecution—one offense per victim—was the same, and that where the underlying felony for

felony murder was a DWI, “it is hard to fathom that the legislature intended for one drunk-driving

accident to result in multiple homicide convictions for each victim.”39

       Homicide offenses have always been considered to be especially closely related. The Penal

Code introduces the homicide chapter with a section that lists the types of homicides: “Criminal

homicide is murder, capital murder, manslaughter, or criminally negligent homicide.”40 Before the

1994 amendments, this provision referred to “murder, capital murder, voluntary manslaughter,




       35
            252 S.W.3d at 368-72.
       36
            Id. at 371.
       37
            Id.; see also Ervin, 991 S.W.2d. at 816.
       38
            Bigon, 252 S.W.3d at 371.
       39
            Id. at 371-72.
       40
            TEX . PENAL CODE § 19.01(b).
                                                                                   GARFIAS — 10

involuntary manslaughter, or criminally negligent homicide”41 and what is now intoxication

manslaughter was one means of committing involuntary manslaughter.42

       The offenses at issue in the present case are not as closely related. Aggravated assault and

aggravated robbery have always been contained in separate chapters—not just separate sections—of

the Penal Code. No statute asserts any relationship between the aggravated assault and aggravated

robbery offenses or between their underlying offenses of assault and robbery.43

       In his pro se petition for discretionary review, appellant claimed that “bodily injury” is an

element of aggravated robbery, and that the jury charge “added to the confusion” when it failed to

contain that element. Appellant’s claim is not entirely correct because “bodily injury” is an

alternative element rather than a necessary element,44 but I will address the implication of his claim

that the existence of common elements makes the offenses sufficiently closely related to be

considered the same under Ervin.

       The aggravated robbery and aggravated assault statutes contain a number of parallel

elements. Both allow an underlying lesser offense to be aggravated by the use of a deadly weapon

(the aggravating factor alleged in the indictment in this case) or by the infliction of serious bodily

injury.45 The underlying lesser offenses of assault and robbery both contain alternative manners and




       41
            TEX . PENAL CODE § 19.01(b) (West 1992).
       42
            Id., § 19.05 (West 1992).
       43
            See TEX . PENAL CODE , Chs. 22 & 29, passim.
       44
            See id., § 29.02.
       45
            Compare id. § 22.02(a)(1), (2) with id., § 29.03(a)(1), (2).
                                                                                     GARFIAS — 11

means involving “bodily injury” and a “threat.”46 For the purpose of determining a lesser-included

offense under § 37.09 of the Code of Criminal Procedure, we have recognized that assault may or

may not be a lesser-included offense of robbery depending on which alternative manners and means

are alleged:

        For example, robbery may be committed either by causing bodily injury or by
        threatening imminent bodily injury. Each of these forms of robbery includes, as a
        lesser offense, a form of assault that the other does not include. An allegation of
        robbery by threat includes the lesser offense of assault by threat; it does not include
        the offense of assault by causing bodily injury. Conversely, an allegation of robbery
        by causing bodily injury would include the lesser offense of assault by causing bodily
        injury, but it would not include the offense of assault by threats.47

Given Ervin, the law with respect to lesser-included offenses does not necessarily control the Double

Jeopardy question. But the presence of parallel provisions in the two statutes is not enough to

convince me that the Legislature clearly intended to prohibit punishment for both aggravated assault

and aggravated robbery offenses when those offenses have different elements under Blockburger.

        And, though the aggravated assault and aggravated robbery statutes contain parallel elements,

there is at least one substantial difference in the underlying assault and robbery statutes that relates

to the case hand. The “threat” portion of the assault statute provides that a person commits an

offense if he “intentionally or knowingly threatens another with imminent bodily injury, including

the person’s spouse.”48 The counterpart provision in the robbery statute provides that a person



       46
            Compare id. § 22.01(a)(1), (2) with id., § 29.02(a)(1), (2).
       47
          Bell v. State, 693 S.W.2d 434, 436 n.3 (Tex. Crim. App. 1985) (citation omitted, citing
Martinez v. State, 599 S.W.2d 622, 624 (Tex. Crim. App. 1980) (in turn, citing Mitchell v. State 543
S.W.2d 637 (Tex. Crim. App. 1976) (holding that aggravated robbery by threat does not include
aggravated assault by causing bodily injury)).
       48
            TEX . PENAL CODE § 22.01(a)(2) (emphasis added).
                                                                                     GARFIAS — 12

commits an offense if he “intentionally or knowingly threatens or places another in fear of imminent

bodily injury or death.”49 As can be seen, the robbery statute contains the phrase “places . . . in fear

of” that is not contained in the assault statute. In Williams v. State, the First Court of Appeals

indicated that this difference in language results in a significant difference in the meaning of the two

statutes, because a threat is not actually required to establish robbery:

        We note that an element of the crime of robbery, “places another in fear of imminent
        bodily injury,” TEX. PENAL CODE ANN. § 29.02(a)(2) (Vernon 1989) (emphasis
        added), differs from an often compared, but vastly dissimilar element for the crime
        of assault, “threatens another with imminent bodily injury,” TEX. PENAL CODE
        ANN. § 22.01(a)(2) (Vernon 1989) (emphasis added). The general, passive
        requirement that another be “placed in fear” cannot be equated with the specific,
        active requirement that the actor “threaten another with imminent bodily injury.”
        Under the “placed in fear” language in section 29.02 of the Texas Penal Code, the
        factfinder may conclude that an individual fear or was “placed in fear,” in
        circumstances where no actual threats were conveyed by the accused.50

In published opinions, the Third, Sixth, and Fourteenth courts of appeals have followed Williams.51

In Wilmeth v. State, the Twelfth Court of Appeals indicated that “a menacing glance” could be

sufficient to show that the defendant placed a victim in fear of imminent bodily injury.52

        It is also true that the robbery statute does not contain the phrase “including the person’s

spouse” and the assault statute does not include the word “death,” though it is unclear whether these

differences in language create a substantive difference in the offenses. Nevertheless, they are



       49
             Id., § 29,02(a)(2) (emphasis added).
        50
             827 S.W.2d 614, 616 (Tex. App.–Houston [1st Dist.] 1992) (emphasis in original).
       51
         Welch v. State, 880 S.W.2d 225, 227 (Tex. App.–Austin 1994); Howard v. State, 306
S.W.3d 407, 410-11 (Tex. App.–Texarkana 2010); Burton v. State, 230 S.W.3d 846, 852 (Tex.
App.–Houston [14th Dist. 2007).
        52
             808 S.W.2d 703, 706 (Tex. App.–Tyler 1991).
                                                                                  GARFIAS — 13

differences that undermine the notion that the Legislature indicated an intent that the offenses be

treated the same by setting them up with parallel provisions.53

       With these comments, I join the Court’s opinion.



Filed: June 29, 2011
Do not publish




       53
           Even if one viewed the phrase “threatens or places another in fear of imminent bodily
injury or death” as involving alternate manners and means (“threatens” vs. “places”), and one viewed
the parallel nature of the “threatens” manner and means as sufficient to create a double jeopardy
problem, then one would have to conclude that appellant forfeited error under Gonzalez, 8 S.W.3d
640, because the jury charge included both the “threatens” and “places” manner and means, appellant
failed to object, and we do not know which manner and means the jury rested its verdict upon.
Given my resolution of the question, however, I need not address appellant’s claim that Gonzalez
should be overruled.
