COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-06-398-CR
CHRISTOPHER GARFIAS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Christopher Garfias appeals from his convictions for aggravated
robbery with a deadly weapon and aggravated assault with a deadly weapon.
We affirm.
Just after midnight on March 1, 2006, appellant and Robbie Fernandez
entered a 24-hour Conoco gas station store in Hurst. The couple planned to
1
… See T EX. R. A PP. P. 47.4.
burglarize the store, and although they did not ultimately take anything from the
store, appellant shot the clerk four times, critically injuring him.
Following a two-day trial, the jury convicted appellant of aggravated
robbery with a deadly weapon and aggravated assault with a deadly weapon.
After hearing additional evidence and argument, the jury assessed punishment
at sixty years’ confinement for the aggravated robbery, and life and a ten
thousand dollar fine for the aggravated assault.2 The trial court sentenced
appellant in accordance with the jury’s verdict and ordered the sentences to run
concurrently.
In his first and second points, appellant contends that his convictions for
both aggravated robbery and aggravated assault based on the same criminal
transaction violate the Fifth Amendment’s prohibition against double jeopardy.
Appellant did not raise a double jeopardy objection in the trial court.
Appellant has the burden to “preserve, in some fashion,” a double
jeopardy objection at or before the time the charge is submitted to the jury. 3
Because of the fundamental nature of double jeopardy, however, a double
jeopardy claim may be raised for the first time on appeal when “the undisputed
facts show the double jeopardy violation is clearly apparent on the face of the
2
… A prior felony conviction enhanced both of these sentences.
3
… Gonzalez v. State, 8 S.W.3d 640, 642 (Tex. Crim. App. 2000).
2
record and when enforcement of usual rules of procedural default serves no
legitimate state interests.” 4
Appellant’s double jeopardy complaint alleges multiple punishments for
the same offense. 5 A multiple punishment double jeopardy violation is clearly
apparent on the face of the record when the record affirmatively shows multiple
punishments resulting from the commission of a single act that violated two
separate penal statutes, one of which is, on its face, subsumed in the other.6
While double jeopardy precludes a defendant from being punished twice for the
same offense, it does not prevent a second punishment for the same conduct.7
To determine whether two convictions impose multiple punishments
under the Double Jeopardy Clause, we apply the “same elements” test
4
… Id. at 643.
5
… See Langs v. State, 183 S.W.3d 680, 685 (Tex. Crim. App. 2006).
6
… See Stephenson v. State, Nos. 02-07-00034-CR, 02-07-00035-CR,
02-07-00036-CR, 2008 WL 755575, at *2 (Tex. App.—Fort Worth Mar. 20,
2008, no pet. h.) (mem. op.); Perez v. State, No. 02-06-00225-CR, 2007 WL
2744914, at *6 (Tex. App.—Fort Worth Sept. 20, 2007, pet. ref’d) (mem. op.,
not designated for publication).
7
… E.g., Blockburger v. United States, 284 U.S. 299, 303–04, 52 S. Ct.
180, 182 (1932) (holding that two convictions for one sale of narcotics that
violated two statutory provisions did not violate double jeopardy); Ex parte
Smith, 884 S.W.2d 551, 554 (Tex. App.—Austin 1994, no pet.); King v. State,
No. 02-06-00055-CR, 2007 WL 1575068, at *3–4 (Tex. App.—Fort Worth
May 31, 2007, no pet.) (mem. op., not designated for publication).
3
articulated in Blockburger v. United States.8 This test “inquires whether each
offense contains an element not contained in the other; if not, they are the
‘same offen[s]e’ and double jeopardy bars additional punishment and successive
prosecution.” 9 Greater and lesser included offenses are the same offense for
double jeopardy purposes. 10
Under Blockburger, we are to consider both the statutory elements and
any additional nonstatutory allegations found in the charging instruments.11
Thus, we compare the elements of aggravated robbery and aggravated assault
as the State alleged those offenses in the indictment.12
8
… Langs, 183 S.W.3d at 685 (citing Blockburger, 284 U.S. 299, 52 S.
Ct. 180); see also Garrison v. State, Nos. 02-04-00450-CR, 02-04-00451-CR,
2005 W L 1594258, at *6 (Tex. App.—Fort Worth July 7, 2005, pet. ref’d)
(not designated for publication) (applying Blockburger to determine whether
error was clearly apparent on the face of the record).
9
… United States v. Dixon, 509 U.S. 688, 696, 113 S. Ct. 2849, 2856
(1993).
10
… See Ex parte Goodman, 152 S.W.3d 67, 71 (Tex. Crim. App. 2004),
cert. denied, 545 U.S. 1128 (2005); Parrish v. State, 869 S.W.2d 352, 354
(Tex. Crim. App. 1994); Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim.
App. 1981) (explaining that, depending upon the facts proven, aggravated
assault can be a lesser included offense of aggravated robbery).
11
… See Parrish, 869 S.W.2d at 354.
12
… E.g., Girdy v. State, 213 S.W.3d 315, 318 n.4 (Tex. Crim. App.
2006) (demonstrating that the State needed to prove the elements of
aggravated assault as it alleged that offense in the indictment).
4
Count one of the indictment charged appellant with aggravated robbery
with a deadly weapon under Texas Penal Code section 29.03(a)(2). 13 To prove
this offense as alleged, the State needed to establish the following:
• Appellant
• On or about March 1, 2006
• In Tarrant County, Texas
• Intentionally or knowingly
• While in the course of committing theft of property 14
• With intent to obtain or maintain control of said property
• Threatened or placed
• Shahid Shahid
• In fear of imminent bodily injury or death
• Appellant used or exhibited a deadly weapon (a firearm). 15
The jury charge on aggravated robbery tracked the language of the indictment.
Count two of the indictment charged the offense of aggravated assault
with a deadly weapon as defined in penal code section 22.02(a)(2). 16 To prove
this offense, the State needed to establish the following:
• Appellant
• On or about March 1, 2006
• In Tarrant County, Texas
• Intentionally or knowingly
• Caused bodily injury
13
… T EX. P ENAL C ODE A NN. § 29.03(a)(2) (Vernon 2003).
14
… A person commits theft if he unlawfully appropriates property with
intent to deprive the owner of property. See id. § 31.03(a) (Vernon 2003 &
Supp. 2007).
15
… See id. §§ 29.03(a)(2), 29.02(a)(2), 31.03(a) (Vernon 2003).
16
… See id. § 22.02(a)(2) (Vernon 2003 & Supp. 2007).
5
• To Shahid Shahid
• By shooting him with a firearm
• Appellant used or exhibited a deadly weapon (a firearm). 17
The jury charge on aggravated assault tracked the language of the indictment.
These two offenses, as alleged in the indictment, each required proof of
at least one element that the other did not. Aggravated robbery with a deadly
weapon, as alleged, required the State to prove that appellant, while in the
course of committing theft of property and with the intent to obtain or maintain
control of said property, threatened or placed Shahid in fear of imminent bodily
injury or death. 18 Aggravated assault with a deadly weapon, as alleged,
required the State to prove that appellant caused bodily injury to Shahid by
shooting him with a firearm.19
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. We
overrule appellant’s first and second points.
17
… See id. §§ 22.02(a)(2), 22.01(a)(1) (Vernon 2003 & Supp. 2007).
18
… See id. §§ 29.03(a)(2), 29.02(a)(2), 31.03(a).
19
… See id. §§ 22.02(a)(2), 22.01(a)(1).
6
In his third, fourth, and fifth points, appellant argues that the evidence is
legally and factually insufficient to establish the theft or attempted theft
required to support his aggravated robbery conviction. In the alternative, he
argues that the evidence at most establishes attempted aggravated robbery,
and if so, the trial court instructed the jury on the wrong punishment range.
In reviewing the legal sufficiency of the evidence to support a conviction,
we view all the evidence in the light most favorable to the prosecution in order
to determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.20
When reviewing the factual sufficiency of the evidence to support a
conviction, we view all the evidence in a neutral light, favoring neither party. 21
We then ask whether the evidence supporting the conviction, although legally
sufficient, is nevertheless so weak that the fact-finder’s determination is clearly
wrong and manifestly unjust or whether conflicting evidence so greatly
outweighs the evidence supporting the conviction that the fact-finder’s
determination is manifestly unjust. 22 To reverse under the second ground, we
20
… Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789
(1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
21
… Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006);
Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005).
22
… Watson, 204 S.W.3d at 414–15, 417; Johnson v. State, 23 S.W.3d
1, 11 (Tex. Crim. App. 2000).
7
must determine, with some objective basis in the record, that the great weight
and preponderance of all the evidence, though legally sufficient, contradicts the
verdict.23
A person commits the offense of aggravated robbery if he commits
robbery and uses or exhibits a deadly weapon.24 A person commits robbery if
in the course of committing theft and with intent to obtain or maintain control
of the property he intentionally or knowingly threatens or places another in fear
of imminent bodily injury or death. 25
Proof of a completed theft, however, is not required to establish the
offense of aggravated robbery.26 The penal code defines “in the course of
committing theft” for purposes of Chapter 29 (the chapter defining robbery and
aggravated robbery) as including conduct that occurs in an attempt to commit
theft.27 To show an attempted theft, the State carried the burden of proving
23
… Watson, 204 S.W.3d at 417.
24
… T EX. P ENAL C ODE A NN. § 29.03(a)(2).
25
… Id. § 29.02(a)(2).
26
… See Bustamante v. State, 106 S.W.3d 738, 740 (Tex. Crim. App.
2003); Ex parte Hawkins, 6 S.W.3d 554, 559–60 & n.10 (Tex. Crim. App.
1999); Maldonado v. State, 998 S.W.2d 239, 243 (Tex. Crim. App. 1999).
27
… T EX. P ENAL C ODE A NN. § 29.01(1) (Vernon 2003) (“‘In the course of
committing theft’ means conduct that occurs in an attempt to commit, during
the commission, or in immediate flight after the attempt or commission of
theft.”).
8
beyond a reasonable doubt that appellant had the specific intent to commit
theft and that appellant committed an act amounting to more than mere
preparation.28 The requisite intent may be inferred from circumstantial
evidence. 29
The evidence at trial showed as follows:
Shahid typically locked the gas station at midnight, but he allowed
appellant and Fernandez to enter after midnight on March 1, 2006, because he
knew Fernandez. Fernandez and appellant ate food they had brought with
them, and Shahid worked in another area of the store. At some point, Shahid
heard a gunshot and breaking glass. When he went to investigate, he saw
appellant and Fernandez outside the store and noticed that appellant had a gun.
The pair reentered the store, and Fernandez, who was crying, tried to hide
behind Shahid. Shahid asked appellant not to shoot, but appellant shot Shahid
28
… See id. § 15.01(a) (Vernon 2003).
29
… See Wolfe v. State, 917 S.W.2d 270, 275 (Tex. Crim. App. 1996);
Babineaux v. State, Nos. 01-06-00608-CR, 01-06-00609-CR, 2007 WL
1953693, at *6–7 (Tex. App.—Houston [1st Dist.] July 6, 2007, pet. ref’d)
(mem. op., not designated for publication).
9
four times at close range.30 Shahid failed to identify appellant in the
courtroom,31 and he did not think anything had been stolen from the store.
A forensic video analyst testified that he had analyzed the gas station’s
time lapse surveillance video showing the shooting. The analyst did not
observe the shooter steal anything from the store and could not make a positive
identification of the gunman.
Officer Jacob Eubanks responded to the scene after the shooting and
found Fernandez and Shahid, but not appellant. Officer Eubanks testified that
Fernandez told him her friend had been shot, and that she later gave
“conflicting stories.” The officer also stated that Shahid did not complain about
being robbed and the register was not open, but appellant had taken
Fernandez’s Honda CRV SUV from the parking lot.32
Officer Lawrence Marx, the crime scene officer, photographed the scene
and did not notice money or anything else lying around the store. He found a
fired bullet in the store that appeared to be a smaller caliber than a .45 caliber.
30
… As a result of his injuries, Shahid spent almost two months in the
hospital, including thirty-five days in a coma.
31
… The record reflects that Shahid pointed to the back of the courtroom
when asked to identify the man who shot him.
32
… Fernandez did not report her vehicle stolen, and the indictment
alleged that Shahid was the victim of both offenses.
10
Detective Jeffrey Caudle testified that he interviewed Fernandez, and she
implicated appellant. He agreed with Officer Eubanks that Fernandez gave
conflicting stories, saying at first that she did not know appellant, and later
admitting that she knew him, that they had had a relationship, and that she
came to the store with him. Detective Caudle created a photo spread with
appellant’s photo, and Fernandez identified appellant as the man who shot
Shahid. Fernandez also identified appellant on a still photo from the surveillance
video. Detective Caudle also showed a photo spread to Shahid, and Shahid
identified appellant as the man who shot him, although appellant challenged
Shahid’s identification.33 Detective Caudle also testified that to his knowledge
nothing had been taken from the store.
Detective Chad Woodside testified to physical evidence that was found
on or with appellant at the time of his arrest. Specifically, Detective Woodside
obtained clothing that, based on the surveillance video, appeared to be the
clothing worn by the shooter, a handgun case and magazine, .38 and .45
caliber ammunition (some spent and some unspent), and keys to Fernandez’s
33
… Concerned that Shahid might not survive his injuries, Detective
Caudle showed the photo spread to Shahid while he was in the hospital, had
just come out of surgery, and was “still a little groggy” and mumbling. Shahid
identified appellant by pointing to his photograph, and he made the same
identification three times with a five minute break in between each showing.
At one point, Shahid asked the detective, “[I]f I show you who shot me, will
you get m[e] some pain medicine.”
11
Honda CRV. Detective Woodside also noted some discrepancies in Fernandez’s
story. Despite Fernandez’s and appellant’s conflicting stories implicating each
other, Detective Woodside pursued appellant because he was clearly the
shooter.34
Further, appellant gave a videotaped statement confessing to the
shooting.35 In the statement, appellant admitted that he went to the store with
Fernandez to “rob” it, although he claimed that the crime was all Fernandez’s
idea. Appellant also asserted that at one point he wanted to leave the store
and not complete the robbery, but Fernandez refused to leave. Appellant’s
counsel admitted in opening statement that appellant “had a weapon, he used
it, and that there were shots fired.”
Finally, appellant’s mother testified that Fernandez was appellant’s
girlfriend and had picked appellant up on the night of the offenses. Appellant’s
defense at trial was, first, that although he fired shots, he did not commit
aggravated robbery because he did not take anything from the store. Further,
with regard to the aggravated assault charge, appellant argued that Fernandez’s
34
… Fernandez did not testify.
35
… The jury watched this video and also listened to the tape of the 911
call.
12
conflicting stories and Shahid’s condition during the hospital identification and
failure to identify appellant in the courtroom created reasonable doubt.
Appellant’s statement, however, established that he and Fernandez went
to the store intending to commit a robbery, and appellant’s acts of entering the
store with a loaded firearm and shooting the clerk four times amounted to more
than mere preparation.36 Thus, the evidence is sufficient to prove an attempted
theft, which in turn is sufficient to prove the theft component of aggravated
robbery.37 Applying the appropriate standards of review, we hold that the
evidence is legally and factually sufficient to support the jury’s verdict. We
overrule appellant’s third, fourth, and fifth points.
Having overruled all of appellant’s points, we affirm the trial court’s
judgment.
JOHN CAYCE
CHIEF JUSTICE
PANEL A: CAYCE, C.J.; HOLMAN and WALKER, JJ.
36
… See, e.g., Hart v. State, 581 S.W.2d 675, 678 (Tex. Crim. App.
[Panel Op.] 1979) (holding that “putting [a] weapon to use to inflict injuries
clearly goes beyond preparation”); Henderson v. State, No. 03-96-00446-CR,
1998 WL 53967, at *7–8 (Tex. App.—Austin Feb. 12, 1998, no pet.) (not
designated for publication) (holding that evidence was sufficient to establish
attempted aggravated robbery when appellant’s statement showed the requisite
intent and his actions included bringing a loaded gun).
37
… See T EX. P ENAL C ODE A NN. § 29.01(1).
13
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
DELIVERED: June 12, 2008
14