United States District Court, N.D. Texas, Fort Worth Division
OPINION AND ORDER
O'CONNOR, UNITED STATES DISTRICT JUDGE.
the Court is a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 filed by Petitioner, Chris Garfias,
a state prisoner confined in the Correctional Institutions
Division of the Texas Department of Criminal Justice (TDCJ),
against Lorie Davis, director of TDCJ, Respondent. After
considering the pleadings and relief sought by Petitioner,
the Court has concluded that the petition should be denied.
2006 Petitioner was indicted in Tarrant County, Texas, No.
1014128D, on charges of aggravated robbery with a deadly
weapon (count one) and aggravated assault with a deadly
weapon (count two). State Writ 97-98, ECF No. 15-79. Both
offenses were alleged to have been perpetrated upon Shahid
Shahid on May 1, 2006. The indictment also contained a
repeat-offender notice alleging a prior 1999 felony
conviction for retaliation in Dallas County. The Second
District Court of Appeals of Texas summarized the factual
background of the case as follows:
Just after midnight on March 1, 2006, [Petitioner] and Robbie
Fernandez entered a 24-hour Conoco gas station store in
Hurst. The couple planned to burglarize the store, and
although they did not ultimately take anything from the
store, [Petitioner] shot the clerk, [Shahid], four times,
critically injuring him.
. . .
Shahid typically locked the gas station at midnight, but he
allowed [Petitioner] and Fernandez to enter after midnight on
March 1, 2006, because he knew Fernandez. Fernandez and
[Petitioner] 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 [Petitioner] and Fernandez outside the
store and noticed that [Petitioner] had a gun. The pair
reentered the store, and Fernandez, who was crying, tried to
hide behind Shahid. Shahid asked [Petitioner] not to shoot,
but [Petitioner] shot Shahid four times at close range.
Shahid failed to identify [Petitioner] in the courtroom, 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
[Petitioner]. 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 [Petitioner] had taken
Fernandez's Honda CRV SUV from the parking lot.
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.
Detective Jeffrey Caudle testified that he interviewed
Fernandez, and she implicated [Petitioner]. He agreed with
Officer Eubanks that Fernandez gave conflicting stories,
saying at first that she did not know [Petitioner], 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
[Petitioner]'s photo, and Fernandez identified
[Petitioner] as the man who shot Shahid. Fernandez also
identified [Petitioner] on a still photo from the
surveillance video. Detective Caudle also showed a photo
spread to Shahid, and Shahid identified [Petitioner] as the
man who shot him, although [Petitioner] challenged
Shahid's identification. 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 [Petitioner] 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 Honda CRV. Detective Woodside also noted some
discrepancies in Fernandez's story. Despite
Fernandez's and [Petitioner]'s conflicting stories
implicating each other, Detective Woodside pursued
[Petitioner] because he was clearly the shooter.
Further, [Petitioner] gave a videotaped statement confessing
to the shooting. In the statement, [Petitioner] admitted that
he went to the store with Fernandez to “rob” it,
although he claimed that the crime was all Fernandez's
idea. [Petitioner] also asserted that at one point he wanted
to leave the store and not complete the robbery, but
Fernandez refused to leave. [Petitioner]'s counsel
admitted in opening statement that [Petitioner] “had a
weapon, he used it, and that there were shots fired.”
Finally, [Petitioner]'s mother testified that Fernandez
was [Petitioner]'s girlfriend and had picked [Petitioner]
up on the night of the offenses. [Petitioner]'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, [Petitioner] argued that Fernandez's
conflicting stories and Shahid's condition during the
hospital identification and failure to identify [Petitioner]
in the courtroom created reasonable doubt.
. . .
Following a two-day trial, the jury convicted [Petitioner] 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.
The trial court sentenced [Petitioner] in accordance with the
jury's verdict and ordered the sentences to run
Id. at 113-14, 121-24 (footnotes omitted).
court of appeals affirmed the trial court's judgment, but
the Texas Court of Criminal Appeals vacated the appellate
court's judgment and remanded the case for further
consideration of Petitioner's double-jeopardy claim.
Id. at 125, 130. Upon its second review, the court
of appeals affirmed Petitioner's conviction for
aggravated assault with a deadly weapon but vacated his
conviction for aggravated robbery with a deadly weapon as
violative of double jeopardy. Id. at 165. The Texas
Court of Criminal Appeals disagreed and reversed the
appellate court's judgment and reinstated
Petitioner's conviction for aggravated robbery with a
deadly weapon. Id. at 183. The United States Supreme
Court subsequently denied Petitioner's petition for writ
of certiorari. Garfias v. State, 135 S.Ct. 359
(2014). Petitioner also filed a state habeas-corpus
application challenging his convictions, which was denied by
the Texas Court of Criminal Appeals without written order on
the findings of the trial court. Id. at 2-19; Action
Taken, ECF No. 15-78. This federal petition for habeas-corpus
relief challenging his convictions followed.
raises five grounds for relief:
(1) He was subjected to double jeopardy;
(2) The cumulative and individual effect of the
prosecutor's misconduct violated his right to due
(3) The cumulative and individual effect of trial
counsel's deficient performance prejudiced him;
(4) He was denied effective assistance of appellate counsel;
(5) Appellate counsel failed to appeal the denial of the
defense's requests for accomplice-witness and
Pet. 6-7a, ECF No. 1.
RULE 5 STATEMENT
believes that Petitioner has sufficiently exhausted his
state-court remedies as required by § 2254(b) and (c)
and that the petition is neither barred by the statute of
limitations nor successive. Resp't's Ans. 7, ECF No.
Legal Standard for Granting Habeas-Corpus Relief
§ 2254 habeas petition is governed by the heightened
standard of review provided for in the Anti-Terrorism and
Effective Death Penalty Act (AEDPA). 28 U.S.C. § 2254.
Under the Act, a writ of habeas corpus should be granted only
if a state court arrives at a decision that is contrary to or
an unreasonable application of clearly established federal
law as established by the United States Supreme Court or that
is based on an unreasonable determination of the facts in
light of the record before the state court. 28 U.S.C. §
2254(d)(1)-(2); Harrington v. Richter, 562 U.S. 86,
100 (2011). This standard is difficult to meet and
“stops short of imposing a complete bar on federal
court relitigation of claims already rejected in state
proceedings.” Richter, 562 U.S. at 102.
statute further requires that federal courts give great
deference to a state court's factual findings. Hill
v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). Section
2254(e)(1) provides that a determination of a factual issue
made by a state court shall be presumed to be correct. A
petitioner has the burden of rebutting the presumption of
correctness by clear-and-convincing evidence. 28 U.S.C.
§ 2254(e)(1); Miller-El v. Cockrell, 537 U.S.
322, 340 (2003); Williams v. Taylor, 529 U.S. 362,
when the Texas Court of Criminal Appeals denies relief in a
state habeas-corpus application without written order, as in
this case, it is an adjudication on the merits, which is also
entitled to the presumption of correctness. Singleton v.
Johnson, 178 F.3d 381, 384 (5th Cir. 1999); Ex parte
Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997).
Under these circumstances, a federal court may assume the
state court applied correct standards of federal law to the
facts, unless there is evidence that an incorrect standard
was applied. Townsend v. Sain, 372 U.S. 293, 314
(1963); Catalan v. Cockrell, 315 F.3d
491, 493 n.3 (5th Cir. 2002); Valdez v. Cockrell,
274 F.3d 941, 948 n.11 (5th Cir. 2001); Goodwin v.
Johnson, 132 F.3d 162, 183 (5th Cir. 1997).
his first ground, Petitioner claims that his convictions for
aggravated assault and aggravated robbery stemming from the
same transaction constitutes double jeopardy and that he was
twice convicted for the same or lesser-included offense. Pet.
6, ECF No. 1. The Double Jeopardy Clause of the Fifth
Amendment protects against: (1) a second prosecution for the
same offense after acquittal; (2) a second prosecution for
the same offense after conviction; and (3) multiple
punishments for the same offense. Brown v. Ohio, 432
U.S. 161, 165 (1977). This case involves a
multiple-punishments issue. Generally, the test to be applied
to determine whether there are two offenses or only one was
set forth by the United States Supreme Court as follows:
The applicable rule is that, 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.... A
single act may be an offense against two statutes; and if
each statute requires proof of an additional fact which the
other does not, an acquittal or conviction under either
statute does not exempt the defendant from prosecution and
punishment under the other.
Blockburger v. United States, 284 U.S. 299, 304
(1932); United States v. Marden, 872 F.2d 123, 126
(5th Cir. 1989).
lengthy discussion, the Texas Court of Criminal Appeals
addressed the issue in its February 26, 2014, opinion as
was indicted for aggravated robbery by threat, a first-degree
felony, and for aggravated assault causing bodily injury, a
second-degree felony. The indictment read as follows:
CHRISTOPHER GARFIAS, . . . on or about the 1st day of March
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 . . . 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[.]
. . .
Garfias did not argue either before or during trial that the
Double Jeopardy Clause was implicated by the multiple
offenses for which he had been charged. He raised this
argument for the first time on appeal, alleging multiple
punishments had been imposed upon him for the same offense.
In addressing this claim, the court of appeals employed the
“same elements test” established in
Blockburger v. United States. The court determined
that because aggravated robbery and aggravated assault, as
charged in the indictment, each required proof of at least
one element that the other did not, a double-jeopardy
violation was not apparent on the face of the record and thus
Garfias had not preserved his complaint on appeal.
This Court granted Garfias's petition for discretionary
review, vacated the court of appeals' judgment, and
remanded the appeal. We indicated that while the court of
appeals had conducted a proper Blockburger analysis,
the question of whether multiple punishments violated double
jeopardy did not end there. An accused may be punished for
two offenses even though they would be regarded as the same
under a Blockburger analysis if the Legislature had
otherwise made clear its intention that he should be. We
remanded the case to the court of appeals for that court to
examine other indicia of legislative intent.
On remand, the court of appeals examined the similarity
between aggravated assault and aggravated robbery under the
Texas Penal Code. The court stated that because of the
similarity between how these offenses could have been charged
under the evidence of this case, the Legislature could not
have intended for the offenses to be punished multiply.
Despite finding that aggravated robbery by threat and
aggravated assault causing bodily injury are two separate
offenses with different underlying gravamina, the court of
appeals ultimately concluded that the Legislature could not
have intended to allow multiple punishments in this case.
Based on this holding, the court vacated Garfias's
conviction for aggravated robbery and affirmed his conviction
for aggravated assault. This Court granted review to
determine whether the court of appeals erred in considering
how the offenses could have been charged in making a double
jeopardy determination, and whether, in the alternative, the
facts of this case present two discrete events that do not
implicate the Double Jeopardy Clause in the first instance.
Garfias failed to raise his double jeopardy claim to the
trial court. However, such a claim may be raised for the
first time on appeal when (1) the undisputed facts show the
double-jeopardy violation is clearly apparent from the face
of the record, and (2) enforcement of the usual rules of
procedural default serves no legitimate state interest. We
must therefore first determine whether the undisputed facts
show that a double jeopardy violation is clearly apparent in
There are three types of double jeopardy claims: (1) a second
prosecution for the same offense after acquittal; (2) a
second prosecution for the same offense after conviction; and
(3) multiple punishments for the same offense. A
multiple-punishments violation can arise either in the
context of lesser-included offenses, where the same conduct
is punished under a greater and a lesser-included offense,
and when the same conduct is punished under two distinct
statutes where the Legislature only intended for the conduct
to be punished once. Garfias asserts that the latter has
occurred in this case.
The Legislature has the power to establish and define crimes
and few, if any, limitations are imposed upon this power by
the Double Jeopardy Clause. Thus the true inquiry in a
multiple-punishments case is whether the Legislature intended
to authorize the separate punishments. There are two ways in
which legislative intent can be ascertained: by analyzing the
elements of the offenses in question, or by identifying the
appropriate “unit of prosecution” for the
offenses. This Court has held that an “elements”
analysis is appropriate when the offenses in question come
from different statutory sections, while a
“units” analysis is employed when the offenses
are alternative means of committing the same statutory
offense. In this case, Garfias complains of convictions
stemming from different statutory sections, so we must embark
on an “elements” analysis to determine whether
multiple-punishments principles have been violated.
The starting point of an “elements” analysis in
the multiple-punishments context is the Blockburger
test, used to determine whether each of the offenses requires
proof of an element that the other does not. In doing so,
courts must focus on the elements alleged in the charging
instrument-not on the offense as defined in the Penal Code.
Under this so-called cognate-pleadings approach,
double-jeopardy challenges can be made even against ...