Alfred GONZALEZ, Appellant, v. The STATE of Texas, 8 S.W.3d 640

OPINION McCORMICK, P. J., delivered the opinion of the Court, in which MANSFIELD, KELLER, HOLLAND, WOMACK and KEASLER, JJ., joined. In this case we decide that appellant’s “multiple punishments for the same offense” federal constitutional double jeopardy claim is a forfeitable claim which may not be raised for the first time on appeal. Count I of appellant’s indictment charged aggravated robbery in three separate paragraphs alleging alternative means of committing this offense. These paragraphs were submitted to the jury disjunc-tively.

Count II of appellant’s indictment charged injury to an elderly individual in a single paragraph. In a single proceeding a jury convicted appellant of both offenses by a general verdict. Appellant claimed for the first time on appeal that it was 'possible he was multiply punished for the same offense because the injury to an elderly individual offense is a lesser included offense of the aggravated robbery offense as set out in paragraphs one and three and the jury’s general guilty verdict of aggravated robbery could have rested on one of these paragraphs.

Appellant conceded that if the jury’s general guilty verdict of aggravated robbery rested on paragraph two, then no multiple punishments issue was presented. The Court of Appeals, therefore, rejected appellant’s multiple punishments claim because the jury’s general guilty verdict of aggravated robbery could have rested on paragraph two. See Gonzalez v.

State, 973 S.W.2d 427, 480-31 (Tex.App. — Austin 1998), The Court of Appeals also decided that because of this it was appellant’s “burden to preserve, in some fashion, a double jeopardy objection at or before the time the charge [was] submitted to the jury.” See id. The Court of Appeals did not analyze whether, and effectively decided it did not matter that, the injury to an elderly individual offense is a lesser included offense of the aggravated robbery offense as set out in paragraphs one and three. See id. We granted appellant’s discretionary review petition on two grounds.

Ground one asserts the Court of Appeals erred to reject appellant’s multiple punishments claim because the jury’s general guilty verdict of aggravated robbery could have rested on paragraphs one or three. Appellant argues that if the injury to an elderly individual offense is a lesser included offense of the aggravated robbery offense as set out in paragraphs one and three, then he should be “afforded [double jeopardy] protection.” See Gonzalez, 973 S.W.2d at 431.

Ground two asserts the Court of Appeals erred to decide that it was appellant’s burden to 'preserve “in some fashion” his multiple punishments claim “at or before the time the charge [was] submitted to the jury.” See id. The general substantive constitutional rule implicated by ground one is that “a general verdict [is] valid so long as it [is] legally supportable on one of the submitted grounds — even though that [gives] no assurance that a valid ground, rather than an invalid one, [is] actually the basis for the jury’s action.” See Griffin v. U.S., 502 U.S. 46, 112 S.Ct. 466, 469-74, 116 L.Ed.2d 371 (1991).

The United States Supreme Court carved out an exception to this general rule in Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). The Stromberg exception applies when one of the invalid submitted grounds rests on constitutionally protected speech or conduct. See Griffin, 112 S.Ct. at 471; Street v.

New York, 394 U.S. 576, 89 S.Ct. 1354, 1362-64, 22 L.Ed.2d 572 (1969) (issue was whether defendant’s constitutionally protected speech “could have been an independent cause” of his flag-burning conviction), and at 1370 (Warren, C.J., dissenting) (“teaching of Stromberg ” is “that, if there is any possibility the general verdict below rests on speech or conduct entitled to constitutional protection, then the conviction must be reversed”); see also Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); Cramer v.

United States, 325 U.S. 1, 65 S.Ct. 918, 921, 935-41, 89 L.Ed. 1441 (1945) (treason conviction could have rested on conduct “not clearly within the constitutional definition” of treason under

Article III,

Section 3, of the United States Constitution); Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 210, 87 L.Ed. 279 (1942) (North Carolina conviction could have rested on constitutionally protected conduct by virtue of out-of-state divorce decree that North Carolina was constitutionally compelled to honor under the Full Faith and Credit Clause).

Most United States Supreme Court cases applying the Stromberg exception are First Amendment cases in which the United States Supreme Court characterized the invalid submitted ground as involving constitutionally protected “speech.” For the Stromberg exception to apply here; we arguably would have to decide that robbing, assaulting and injuring elderly individuals are constitutionally protected conduct.

We, however, find it unnecessary to decide whether the Stromberg exception applies here because we agree with the Court of Appeals that appellant had the burden to “preserve, in some fashion, a double jeopardy objection at or before the time the charge [was] submitted to the jury.” We, therefore, dismiss ground one of appellant’s discretionary review petition, overrule ground two of appellant’s discretionary review petition, and hold appellant forfeited his multiple punishments double jeopardy claim. Our case-law on preservation of double jeopardy claims is not a model of clarity.

The overriding principles expressed by this case-law are that, because of the fundamental nature of double jeopardy protections, 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. Cases such as Shaffer v. State and Ex parte Evans illustrate these principles.

In Shaffer, the defendant raised a successive prosecutions claim in the trial court based only on an unsworn declaration of a prior acquittal. See Shaffer, 477 S.W.2d at 876-77. This Court decided the double jeopardy claim was not properly raised in either the trial court or this Court because any double jeopardy violation was not apparent on the face of the record and enforcement of the usual rules of procedural default served legitimate state interests. See Shaffer, 477 S.W.2d at 876-77. In Evans, the habeas corpus applicant raised a successive prosecutions claim for the first time on habeas corpus.

See Evans, 530 S.W.2d at 591. Relying on Duckett, Evans decided, based on the now discarded “carving” doctrine, that the ha-beas corpus applicant could raise the successive prosecutions claim for the first time on collateral attack essentially because the double jeopardy violation was apparent on the face of the record. See Evans, 530 S.W.2d at 591-92; but see Gardner, 959 S.W.2d at 199. Federal law is more or less consistent with our Shaffer line and Duckett/Evans line of cases. Compare United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989), with, Menna v.

New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975). Consistent with our Shaffer line of cases, Broce decided that a defendant who pled guilty to “two counts with facial allegations of distinct offenses” could not raise a successive prosecutions claim for the first time on collateral attack primarily because this would have required “further proceedings at which to expand the record with new evidence.” See Broce, 109 S.Ct. at 763-66.

Consistent with our Evans/Duckett line of cases, Menna decided that a guilty-pleading defendant could raise a successive prosecutions claim for the first time on appeal because the claim could have been resolved “on the basis of the existing record” which showed an indictment “facially duplicative of the earlier offense of which the defendant had [previously] been convicted.” See Menna, 96 S.Ct. at 242; see also Broce, 109 S.Ct. at 765-66. In Men-na, the Court stated: “We do not hold that a double jeopardy claim may never be waived.

We simply hold that a plea of guilty to a charge does not waive a claim that — judged on its face — the charge is one which the State may not constitutionally prosecute.” Menna, 96 S.Ct. at 242 fn. 2. (Emphasis Supplied). It has, however, been suggested that our decision in Phillips v. State stands as authority that all multiple punishments claims may be raised for the first time on appeal. Relying on the United States Supreme Court’s decision in Jeffers v.

United States, Phillips decided that the defendant’s “waiver” of a successive prosecutions claim with a successful “motion to consolidate” did not “waive” a multiple punishments claim which the defendant raised for the first time on appeal. The suggestion that Phillips and Jeffers stand for the proposition that all multiple punishments claims may be raised for the first time on appeal reads too much into these cases.

Phillips and Jeffers fit within the Evans/Duckett line of cases because their multiple punishments claims were capable of being addressed on the existing record and arguably no legitimate state interests would have been served by applying the usual rules of procedural default. In addition, Jeffers did not decide that all multiple punishments claims may be raised for the first time on appeal.

After Jeffers decided that the defendant’s successfully opposing the government’s motion to consolidate “deprived him of any right that he might have had against consecutive trials,” Jeffers went on to address sua sponte a multiple punishments claim even though “both parties, throughout the proceedings, appear to have assumed that [the case presented] no [multiple punishments] problem.” See Jeffers, 97 S.Ct. at 2218. This, however, does not amount to a holding that all multiple punishments claims may be raised for the first time on appeal.

Appellate courts, even the Supreme Court, have addressed the merits of arguably unpreserved claims especially when, as in Jeffers, the other party does not object. Compare Ervin, 991 S.W.2d at 806. Nothing in Jeffers precludes this Court from deciding that appellant may not raise his multiple punishments claim for the first time on appeal. Finally, it has been suggested that a defendant’s right to be “free from cumulative punishments” is a category two right under Marin and may be raised for the first time on appeal unless this right is affirmatively “waived” under Johnson v.

Zerbst which means appellant may raise his multiple punishments claim for the first time on appeal since he did not affirmatively “waive” it. Several United States Supreme Court cases have been cited to support this. The argument seems to be that these cases require an affirmative, Johnson v. Zerbst “waiver” of double jeopardy rights for Mann purposes because these cases assessed the effectiveness of a particular “waiver” of double jeopardy rights in a variety of contexts. These cases actually are to the contrary.

See, e.g., Broce, 109 S.Ct. at 764 (“conscious waiver” unnecessary “with respect to [double jeopardy] defense relinquished by a plea of guilty”). These cases very carefully pointed out that they were not applying “traditional waiver concepts” under Johnson v. Zerbst. See, e.g., Broce, 109 S.Ct. at 764; Dinitz, 96 S.Ct. at 1080-81; Menna, 96 S.Ct. at 242; Green, 78 S.Ct. at 226 (“[w]aiver is a vague term used for a great variety of purposes, good and bad, in the law”). These cases, therefore, do not support the proposition that double jeopardy rights require an affirmative, Johnson v.

Zerbst “waiver” for Marin purposes. . In this case, assuming the injury to an elderly individual offense is a lesser included offense of the aggravated robbery offense as set out in paragraphs one and three, the face of the record nevertheless fails to show a multiple punishments violation because the jury’s general guilty verdict of aggravated robbery could have rested on paragraph two. Appellant, therefore, has not sustained his appellate burden of presenting a record showing on its face any multiple punishments violation.

More important, requiring appellant to have timely raised his multiple punishments claim in the trial court serves legitimate state interests and is consistent with the underlying policies of the general rules of procedural default. See Posey v. State, 966 S.W.2d 57, 62 (Tex.Cr.App.1998).

Timely raising the matter in the trial court would have provided the trial court and the prosecution an opportunity to remove the basis of the objection, and it also would have provided the prosecution the opportunity to obtain an aggravated robbery con-vietion based on paragraph two without the risk of an unnecessary retrial in the face of a valid multiple punishments claim. “The State has a valid interest in avoiding problems which would interfere with its lawful prosecution of alleged crimes and in being able to research and prepare responses to claims of double jeopardy.

It also has a valid interest in being able to investigate and present any evidence which might exist that supports or controverts claims of double jeopardy in order that prosecutions continue when it is proper to do so. It has a valid interest in conserving valuable judicial time by not going through unnecessary trials when a double jeopardy claim is valid.” The judgment of the Court of Appeals is affirmed. MEYERS, J., filed a dissenting opinion in which PRICE and JOHNSON, JJ„ joined. . For brevity’s sake, we will refer to this as a "multiple punishments” claim or issue. . See generally Marin v.

State, 851 S.W.2d 275 (Tex.Cr.App.1993); Tex.R.App.Proc. 33.1(a). . See generally Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); Whalen v. United States, 445 U.S. 684, 693-94, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). . We express no opinion on whether the injury to an elderly individual offense is a lesser included offense of, and, therefore, could be considered the “same offense” as, the aggravated robbery offense as set out in any of the three paragraphs as we did not grant discretionary review on this issue.

We note, however, that the Legislature apparently has authorized multiple punishments even if these offenses could be considered the "same” under double jeopardy principles. See Tex.Pen. Cd.,

Section 22.04(h) (person "subject to prosecution” for injury to elderly individual and "another

section of this code may be prosecuted under either or both sections”); Hunter, 459 U.S. at 366, 103 S.Ct. 673; Whalen, 445 U.S. at 693-94, 100 S.Ct. 1432. (Emphasis Supplied). . Griffin characterized Stromberg as not standing "for anything more than the principle that, where a provision of the Constitution forbids conviction on a particular ground, the constitutional guarantee is violated by a general verdict that may have rested on that ground.” Griffin, 112 S.Ct. at 471. . Street was a flag-burning case.

The majority opinion and Chief Justice Warren's dissenting opinion agreed on the "teaching of Strom-berg." Compare Street, 89 S.Ct. at 1362-64 (reversal required if defendant’s constitutionally protected "words could have been an independent cause of his conviction”), with, Street, 89 S.Ct. at 1370 (Warren, C.J., dissenting) ("if there is any possibility the general verdict rests on speech or conduct entitled to constitutional protection, then the conviction must be reversed”). They disagreed, however, on whether the defendant’s conviction could have been based on constitutionally protected speech.

Compare Street, 89 S.Ct. at 1364 (defendant’s conviction could have been based on constitutionally protected speech), with, 89 S.Ct. at 1367 (Warren, C.J., dissenting) (defendant's conviction based solely on unconstitutionally protected conduct of burning the American flag). Chief Justice Warren's dissenting opinion in Street, therefore, accurately sets out the current "teaching of Stromberg." . Leary applied the Stromberg exception because the defendant’s conviction could have rested on an unconstitutional presumption that supplied the required mens rea for conviction. See Leary, 89 S.Ct. at 1545-57.

In Leary the defendant was convicted of "transporting” or “concealing” within the United States imported marijuana with the defendant "knowing” the marijuana had been imported into the United States. See id. The statute provided a presumption that the defendant knew the marijuana had been imported into the United States from the defendant’s mere possession of the marijuana. See id. After concluding that most marijuana users do not know where their marijuana comes from, the Supreme Court decided the presumption was unconstitutional. See Leary, 89 S.Ct. at 1545-57, 1557.

Consistent with the "teaching of Stromberg,” the problem in Leary was that the "knowledge” presumption made criminal conduct that did not constitute the crime as defined by the statute. See Leary, 89 S.Ct. at 1557. . See Stromberg, 51 S.Ct. at 533-35; see also Bachellar v. Maryland, 397 U.S. 564, 90 S.Ct. 1312, 1315-16, 25 L.Ed.2d 570 (1970); Street, 89 S.Ct. at 1362-64; Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 896, 93 L.Ed. 1131 (1949); Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 322, 89 L.Ed. 430 (1945). .

We have decided that a pretrial writ of habeas corpus is usually the procedural vehicle by which a defendant should raise a "successive prosecutions for the same offense” double jeopardy claim. See Ex parte Robinson, 641 S.W.2d 552, 553-56 (Tex.Cr.App.1982) (defendant may in pretrial writ of habe-as corpus proceeding raise and appeal a successive prosecutions claim before the trial of the indictment which he attacks); see also Ex parte Apolinar v. State, 820 S.W.2d 792, 793-94 (Tex.Cr.App.1991).

This is because requiring a defendant to go through trial before appealing a successive prosecutions claim is inconsistent with one double jeopardy guarantee against being consecutively tried for the same offense. See Robinson, 641 S.W.2d at 554. These considerations do not apply to a multiple punishments claim because it "can be fully vindicated on an appeal following final judgment.” See id. . Most of the cases discussed here are pre-rules of appellate procedure cases.

We find it unnecessary to decide what, if any, effect the current rules of appellate procedure have on these pre-rules cases as our holding in this case is consistent with these pre-rules cases and the current rules of appellate procedure. See Rule 33.1(a) (generally requiring issue to be raised in trial court before it may be raised on appeal). We note, however, that we recently addressed the merits of a multiple punishments claim for the first time on collateral attack in Ex parte Ervin v. State, 991 S.W.2d 804, 806 (Tex.Cr.App.1999).

It would be unusual to decide that a defendant like the one in Ervin may not raise a multiple punishments claim for the first time on appeal but he may raise it for the first time on collateral attack. Of course, Ervin addressed no procedural default or preservation issues as none were raised. . In addition to the considerations discussed in the body of this opinion, the State’s legitimate finality interests and recent statutory developments are relevant in determining whether a defendant may raise a double jeopardy claim for the first time on collateral attack.

See Ex parte Gardner, 959 S.W.2d 189, 199 (Tex.Cr.App.1996) (op. on reh’g); Ex parte Drake, 883 S.W.2d 213, 215 (Tex.Cr.App.1994); Ex parte Goodman, 816 S.W.2d 383, 387 (Tex.Cr.App.1991) (Clinton, J., concurring) (“analysis of what is cognizable on collateral attack should be informed first and foremost by the State’s legitimate interest in the integrity and finality of convictions”);

Article 11.07,

Section 4, V.A.C.C.P.;

Article 11.071,

Section 5, V.A.C.C.P. . Shaffer v. State, 477 S.W.2d 873 (Tex.Cr.App.1971). . Ex parte Evans, 530 S.W.2d 589 (Tex.Cr.App.1975). . The Court of Appeals also seems to have recognized these principles. See Gonzalez, 973 S.W.2d at 427 fn. 3. . Shaffer distinguished Duckett v. State, 454 S.W.2d 755 (1970), which declined to enforce the usual rules of procedural default. “In [Duckett ] the two convictions were in the same court, on the same day, before the same judge, and were based on the same evidence.

Clearly, the enforcement of the statutory [procedural default] requirements in [Duckett] would have served no state interest whatsoever. In the case at bar, however, such is not the case. The alleged former acquittal did not occur in the same court, and no evidence concerning the verdict in [the prior] cause was ever offered. The trial court had no way of knowing of the prior proceeding other than by way of evidence offered by appellant.” Shaffer, 477 S.W.2d at 876. . See Footnote 15. . See Phillips v. State, 787 S.W.2d 391, 393 (Tex.Cr.App.1990). . See Jeffers v.

United States, 432 U.S. 137, 97 S.Ct. 2207, 2218-20, 53 L.Ed.2d 168 (1977) . Phillips erroneously relied on Jeffers for this proposition because Jeffers decided the defendant "waived” a successive prosecutions claim when he successfully opposed the government’s motion to consolidate. See Jeffers, 97 S.Ct. at 2212, 2218. When a defendant, like the one in Phillips, successfully urges a motion to consolidate, there can be no successive prosecutions problem since only a single proceeding is involved. .

It is significant that Jeffers did not decide that this constituted a “waiver” of the defendant's successive prosecutions claim. See Jeffers, 97 S.Ct. at 2218. . See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938) ("waiver” is "intentional relinquishment or abandonment of a known right or privilege” and "waiver” of right to counsel cannot be inferred from a silent record); Brewer v.

Williams, 430 U.S. 387, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977) (same rule applies to jury trial right); Marin, 851 S.W.2d at 279 (discussing category two rights of litigants which the system must implement unless affirmatively waived vis-a-vis Johnson v. Zerbst). . See Broce, 109 S.Ct. at 764; Ricketts v. Adamson, 483 U.S. 1, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987); United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978); Jeffers, 97 S.Ct. at 2217-18; United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); Menna, 96 S.Ct. at 242; Schneckloth v.

Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). . See Casey v. State, 828 S.W.2d 214, 218 (Tex.App. — Amarillo 1992, no pet.) (defendant "waived” double jeopardy claim by waiting until closing argument at guilt/innocence to raise it).