Opinion
NO. 01-16-00979-CR
11-29-2018
STANLEY CRAIG WHITE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court Harris County, Texas
Trial Court Case No. 1450535
MEMORANDUM OPINION
Appellant, Stanley Craig White, pleaded guilty to (1) possession with intent to deliver at least 400 grams of cocaine, enhanced by a prior felony drug conviction, and (2) engaging in organized criminal activity ("EOCA"), enhanced by a prior felony drug conviction. After a presentence investigation, the trial court found appellant guilty of both offenses and assessed punishment at 40 years' confinement in each case, to run concurrently. In this appeal from the possession-of-cocaine case, appellant contends that punishing him for both the drug possession and the EOCA offenses violates his right to be free from double jeopardy. We affirm.
DOUBLE JEOPARDY
In his sole issue on appeal, appellant contends that
[t]he State violated Appellant's right to be free from multiple punishments for the same act because the Texas Legislature did not authorize punishment for possession with intent to deliver a controlled substance by theft, in addition to a punishment for engaging in organized criminal activity, under Texas Penal Code, Section 71.03(3).
Essentially, appellant argues that his convictions for EOCA and possession with intent to deliver a controlled substance were for the same conduct, thus prohibited by the Double Jeopardy Clause.
The Double Jeopardy Clause bars, among other things, multiple criminal punishments for the same offense. See U.S. CONST. AMEND. V; Hudson v. United States, 522 U.S. 93, 99, 118 S. Ct. 488, 493 (1997). But, the Double Jeopardy Clause does not prohibit multiple punishments for the same conduct under two statutory provisions if this is what the legislature intended. See Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S. Ct. 673, 679 (1983) ("Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the 'same' conduct under Blockburger, a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.").
Appellant's position is that the Legislature did not authorize multiple punishments for EOCA and felony possession with intent to deliver. In support, he points to the EOCA statute, which provides in relevant part:
(a) A person commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, the person commits one or more of the following [predicate acts]:
TEX. PENAL CODE ANN. § 71.02(a)(1), (5).(1) Murder, capital murder, arson, aggravated robbery . . . .
* * * *
(5) . . . unlawful possession of a controlled substance or dangerous drug through forgery, fraud, misrepresentation or deception.
It is no defense to prosecution under the EOCA statute that a person has been charged with, acquitted, or convicted of any offense listed as a predicate act under that statute. See id.
Appellant contends that "[b]ecause possession of a controlled substance is not a predicate offense listed in [the EOCA statute], unless the controlled substance was acquired through forgery, fraud, misrepresentation, or deception, the legislature has not authorized multiple convictions/punishments for the single act on December 4, 2014, that is, engaging in organized criminal activity and possessing cocaine." In support, appellant relies on Garza v. State, 213 S.W.3d 338, 352 (Tex. Crim. App. 2007), in which the court held that "in the context of multiple punishment deriving from a single prosecution, . . . the Legislature has indicated with sufficient clarity its intention that a defendant charged with engaging in organized criminal activity may also be charged (at least in the same proceeding) with the underlying offense and punish for both." Appellant contends that, because, under Garza, he could be charged and punished for EOCA and one of the enumerated predicate acts of aggravated robbery or possession of a controlled substance through fraud, he cannot be charged and punished for anything else.
However, appellant misunderstands the Garza holding. Garza simply makes clear that a defendant can be charged and punished under both the EOCA statute and for a predicate act because that was clearly the Legislature's intent. Id.
Although appellant could have been separately charged and punished for EOCA and the predicate act alleged in this case, i.e., aggravated assault, he was not. Instead, the State charged him with EOCA and a separate offense, possession with intent to deliver at least 400 grams of cocaine. Because possession with intent to deliver at least 400 grams of cocaine is not one of the predicate acts set forth in the EOCA statute, section 71.03 and the holding in Garza are not applicable.
Instead, we apply the usual test for determining whether the legislature intended multiple punishments for the same offense. See Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180 (1932). Under Blockburger, two offenses are not the same if "each provision requires proof of a fact which the other does not." Id., 284 U.S. at 304, 52 S. Ct. at 182. In Texas, we look to the pleadings to inform the Blockburger test. Bien v. State, 550 S.W.3d 180, 184 (Tex. Crim. App. 2018). If the two offenses have the same elements under the cognate-pleadings approach, then a judicial presumption arises that the offenses are the same for purposes of double jeopardy and the defendant may not be convicted of both offenses. Id. That presumption can be rebutted by a clearly expressed legislative intent to create two separate offenses. Id. Conversely, if the two offenses, as pleaded, have different elements under the Blockburger test, the judicial presumption is that the offenses are different for double-jeopardy purposes and multiple punishments may be imposed. Id. at 185.
Such a clearly expressed legislative intent permits punishments for both an EOCA charge and its predicate offenses, without regard to the Blockburger test. See Garza, 213 S.W.3d at 251-52.
Here, the EOCA charge required proof of a conspiracy to commit aggravated robbery; the possession with intent to deliver more than 400 grams of cocaine did not. Compare TEX. PENAL CODE ANN. §§ 29.02(a)(2), 29.03(a)(2), 71.02, with TEX. HEALTH & SAFETY CODE ANN. § 481.112 (a), (f). The possession with intent to deliver at least 400 grams of cocaine charge required proof that appellant "knowingly manufacture[d], deliver[ed], or possess[ed] with intent to deliver a controlled substance . . ."; the EOCA charge did not. Id.
Other (nonexclusive) considerations relevant to determining whether the legislature intended multiple punishments are: 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, whether the elements that differ between the offenses can be considered the "same" under an imputed theory of liability which would result in the offenses being considered the same under Blockburger (i.e. a liberalized Blockburger standard utilizing imputed elements), 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. Ervin v. State, 991 S.W.2d 804, 814 (Tex. Crim. App. 1999).
None of these other factors lead us to conclude that the charged offenses are the same under the multiple-punishments aspect of the Double Jeopardy Clause. The offenses are not in the same statutory section; they are not phrased in the alternative; the offenses are not similarly named. Most importantly, the gravamen of the offenses is different. See Garfias v. State, 424 S.W.3d 54, 59 (Tex. Crim. App. 2014) (noting that "focus" or "gravamen" of penal provision should be regarded as best indicator of legislative intent when determining whether multiple-punishments violation has occurred).
"The gravamen of [an EOCA] offense is 'working together with a specified number of others in specified criminal activities' to accomplish the crime." Rainey v. State, 877 S.W.2d 48, 51 (Tex. App.—Tyler 1994, no pet.) (quoting Barber v. State, 764 S.W.2d 232, 236 (Tex. Crim. App. 1988)). In contrast, the gravamen of the drug offense is the conduct of possessing a controlled substance, here, cocaine, with the intent to deliver it. See Gallow v. State, 56 S.W.3d 117, 119 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (holding gravamen of possession offense is the act of possession). Here, appellant's EOCA offense focused on the conspiracy to rob someone, while the possession of cocaine with intent to deliver focused on the possession of the controlled substance with the intent to deliver it. The fact that the same cocaine that was the object of conspiracy to commit robbery was then possessed with the intent to deliver it does not make both crimes "the same offense."
As such, appellant's double-jeopardy claim fails, and we overrule his sole point of error.
CONCLUSION
We affirm the trial court's judgment.
Sherry Radack
Chief Justice Panel consists of Chief Justice Radack and Justices Jennings and Bland. Do not publish. TEX. R. APP. P. 47.2(b).