                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-16-00121-CR


CHARLES JAMES GARRETT, JR.                                          APPELLANT

                                         V.

THE STATE OF TEXAS                                                        STATE


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           FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
                       TRIAL COURT NO. 1410502R

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                           MEMORANDUM OPINION1

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      Charles James Garrett, Jr. raises five issues in this appeal from his

convictions for engaging in organized criminal activity (EOCA) and murder.

Because the voir dire complaints in his first three issues were not preserved, and

because the arguments in his other issues have been considered and overruled

by the court of criminal appeals, we affirm.


      1
          See Tex. R. App. P. 47.4.
      The evidence showed that appellant is a member of the Aryan

Brotherhood of Texas (ABT) and that he and other members of the gang,

including Nicholas Acree, participated in the murder of a rival gang member,

Bryan Childers, while at a party.    A jury convicted appellant of two different

offenses as a result: EOCA in Count One and murder in Count Two. See Tex.

Penal Code Ann. § 19.02(b) (West 2011), § 71.02(a)(1) (West Supp. 2016).

Juror Challenges Not Preserved

      In appellant’s first three issues, he complains that the trial court

erroneously granted the State’s challenges for cause to three separate members

of the venire panel. Complaints about the erroneous exclusion of a prospective

juror must be preserved by a contemporaneous trial objection.        See Ortiz v.

State, 93 S.W.3d 79, 88 (Tex. Crim. App. 2002), cert. denied, 538 U.S. 998

(2003); Tucker v. State, 183 S.W.3d 501, 512 (Tex. App.––Fort Worth 2005, no

pet.). Because the record contains no objections to the granting of the State’s

challenges for cause, we overrule appellant’s first three issues. See Tex. R. App.

P. 33.1(a)(1).

Multiple Convictions and Punishments In Same Prosecution Permissible

      Appellant argues in his fourth issue that convicting and punishing him for

both murder and EOCA arising from his participation in that same murder

violates principles of double jeopardy. See U.S. Const. amend. V; North Carolina

v. Pearce, 395 U.S. 711, 717 (1969), overruled on other grounds by Alabama v.

Smith, 490 U.S. 794 (1989); Ex parte Cavazos, 203 S.W.3d 333, 336 (Tex. Crim.


                                        2
App. 2006). The Double Jeopardy Clause of the Fifth Amendment, applicable to

the states through the Fourteenth Amendment, protects an accused against a

second prosecution for the same offense for which he has been previously

acquitted or previously convicted and also protects an accused from being

punished more than once for the same offense. Littrell v. State, 271 S.W.3d 273,

275 (Tex. Crim. App. 2008). In the multiple-punishments context, two offenses

may be the same if one offense stands in relation to the other as a lesser-

included offense, or if the two offenses are defined under distinct statutory

provisions but the Legislature has made it clear that only one punishment is

intended. Id. at 275–76. Sameness in this context is a matter of legislative

intent. Id. at 276.

      Here, the murder offense and EOCA offense are the “same” under the

traditional Blockburger analysis. See Garza v. State, 213 S.W.3d 338, 351 (Tex.

Crim. App. 2007) (“The first count of the indictment alleged the same theory of

capital murder of the same victims on the same day and place, and by the same

manner and means, as the capital murder alleged in the fourth count. The only

additional element added to the fourth count was that the appellant committed

that same capital murder ‘as a member of a criminal street gang.’ Thus, the two

offenses are clearly the ‘same’ under any reading of Blockburger.”); see also

Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932) (“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


                                         3
are two offenses or only one, is whether each provision requires proof of a fact

which the other does not.”). But the Blockburger test is not dispositive when the

legislature clearly intended that a defendant be susceptible to multiple

punishments in a particular context. Garza, 213 S.W.3d at 352 & n.44; Ex parte

Kopecky, 821 S.W.2d 957, 959 (Tex. Crim. App. 1992) (citing Missouri v. Hunter,

459 U.S. 359, 366, 368, 103 S. Ct. 673, 678–79 (1983)).

      The court of criminal appeals has held that the Texas legislature clearly

expressed its intent in penal code section 71.03(3) that “in the context of multiple

punishments deriving from a single prosecution, . . . a defendant charged with

[EOCA] may also be charged (at least in the same proceeding) with the

underlying offense and punished for both.”          Garza, 213 S.W.3d at 352

(construing Tex. Penal Code Ann. § 71.03(3) (West 2011)). Appellant’s brief

characterizes the analysis in Garza as “wholly flawed” and invites us to overrule

its holding. But this court is bound by the precedent of the court of criminal

appeals and has no authority to overrule its holdings. See Cook v. State, 361

S.W.3d 235, 241–42 (Tex. App.––Fort Worth 2012), aff’d as modified on other

grounds, 390 S.W.3d 363 (Tex. Crim. App. 2013); Wiley v. State, 112 S.W.3d

173, 175 (Tex. App.––Fort Worth 2003, pet. ref’d). Therefore, even if we were to

find appellant’s argument persuasive, we would be compelled to overrule

appellant’s fourth issue.




                                         4
Parties Instruction Did Not Lessen Burden of Proof on EOCA Offense

       In his fifth issue, appellant contends that the trial court erred by including

an instruction on the law of parties in the part of the jury charge applicable to the

EOCA offense. We understand appellant’s complaint to be that the wording of

the charge lessened the State’s burden of proof so that the jury could have found

that appellant participated with only one other person––the primary actor

Nicholas Acree––as part of a “criminal street gang” rather than three or more

persons. See Tex. Penal Code Ann. § 71.01(d) (West 2011) (defining “criminal

street gang” as “three or more persons having a common identifying sign or

symbol or an identifiable leadership who continuously or regularly associate in

the commission of criminal activities”). In other words, appellant contends that

adding the law of parties instruction to the charge negated the State’s burden to

prove that appellant’s participation in the murder was intended to be as part of a

criminal street gang because the jury could have found that only appellant and

Acree were participants in the murder. Appellant objected to the inclusion of the

law of parties instruction at trial.

       The EOCA statute provides that “[a] person commits an offense if, with the

intent to . . . participate in a combination or in the profits of a combination or as a

member of a criminal street gang, the person commits or conspires to

commit[, among other offenses,] . . . murder.” Id. § 71.02(a)(1). Thus, for the

State to obtain a conviction for EOCA in this case with murder as the underlying

offense, it had to prove that appellant either committed, or conspired to commit,


                                          5
murder and that in doing so, he intended to participate as a member of a criminal

street gang. Id. §§ 19.02(b), 71.02(a)(1); see Curiel v. State, 243 S.W.3d 10, 14–

15 (Tex. App.––Houston [1st Dist.] 2007, pet. ref’d). Committing an underlying

offense and conspiring to commit an underlying offense are different manners

and means of committing EOCA. See Barrera v. State, 321 S.W.3d 137, 154–55

(Tex. App.––San Antonio 2010, pet. ref’d).

      The offense of murder can be shown in several ways:

            (b) A person commits an offense if he:

             (1) intentionally or knowingly causes the death of an
      individual;

             (2) intends to cause serious bodily injury and commits an act
      clearly dangerous to human life that causes the death of an
      individual; or

            (3) commits or attempts to commit a felony, other than
      manslaughter, and in the course of and in furtherance of the
      commission or attempt, or in immediate flight from the commission
      or attempt, he commits or attempts to commit an act clearly
      dangerous to human life that causes the death of an individual.

Id. § 19.02(b). Under the law of parties,

      [a] person is criminally responsible for an offense committed by the
      conduct of another if:

            (1) acting with the kind of culpability required for the offense,
      he causes or aids an innocent or nonresponsible person to engage
      in conduct prohibited by the definition of the offense;

             (2) acting with intent to promote or assist the commission of
      the offense, he solicits, encourages, directs, aids, or attempts to aid
      the other person to commit the offense; or




                                            6
           (3) having a legal duty to prevent commission of the offense
      and acting with intent to promote or assist its commission, he fails to
      make a reasonable effort to prevent commission of the offense.

Id. § 7.02(a) (West 2011).

      The court of criminal appeals has held on more than one occasion that the

State can charge and prove that a person committed an underlying EOCA

offense under a parties theory of liability. See Otto v. State, 95 S.W.3d 282,

284–85 (Tex. Crim. App. 2003); McIntosh v. State, 52 S.W.3d 196, 199–201

(Tex. Crim. App. 2001). Thus, the State is not limited to charging and proving

that a defendant either (a) committed the underlying offense as the primary actor

only or (b) conspired to commit the underlying offense. See also In re L.A.S.,

135 S.W.3d 909, 919 (Tex. App.––Fort Worth 2004, no pet.) (holding that in

EOCA prosecution for committing assault with the intent to participate as a

member of a criminal street gang, State had to prove that “M.K.L. was a criminal

street gang, that L.A.S. was a member of M.K.L., and that he committed the overt

act of assault by hitting J.A. with his hand or that he encouraged, solicited,

directed, aided, or attempt to aid another in the commission of the assault”).

Here, the applicable parts of the charge show that the State tried appellant on the

theory that he committed the underlying offense as a party, not that he conspired

to commit the underlying offense:

            A person commits the offense of engaging in organized
      criminal activity if, as a member of a criminal street gang, the person
      commits the offense of murder.

            A person commits the offense of murder if he:


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       (1) intentionally or knowingly causes the death of an
individual; OR

       (2) intends to cause serious bodily injury and commits an act
clearly dangerous to human life that causes the death of an
individual.

       ....

        “Criminal street gang” means three or more persons having a
common identifying sign or symbol or an identifiable leadership who
continuously or regularly associate in the commission of criminal
activities.

       ....

       “Another” means a person other than the actor.

       “Actor” means a person whose criminal responsibility is in
issue in a criminal action.

....

      A person is criminally responsible as a party to an offense if the
offense is committed by his own conduct, by the conduct of another for
which he is criminally responsible, or by both.

      Each party to an offense may be charged with commission of the
offense.

      A person is criminally responsible for an offense committed by the
conduct of another if acting with intent to promote or assist the commission
of the offense he encourages, directs, aids, or attempts to aid the other
person to commit the offense.

       Mere presence alone will not constitute one a party to an offense.

       ....




                                  8
                                  COUNT ONE

             Now, if you find from the evidence beyond a reasonable doubt that
      the Defendant, Charles James Garrett, Jr., in Tarrant County, Texas, on or
      about the 17th day of April 2014, with the intent to participate as a member
      of a criminal street gang, commit[ted] murder by Nicholas Acree
      intentionally or knowingly causing the death of an individual, Bryan
      Childers, by stabbing him with a deadly weapon, to-wit: a knife, that in the
      manner of its use or intended use was capable of causing death or serious
      bodily injury and that the Defendant, Charles James Garrett, Jr., acting
      with intent to promote or assist the commission of the offense of murder
      did encourage, direct, aid, or attempt to aid Nicholas Acree to commit the
      offense; OR

             If you find from the evidence beyond a reasonable doubt that the
      Defendant, Charles James Garrett, Jr., in Tarrant County, Texas, on or
      about the 17th day of April 2014, did then and there, with the intent to
      participate as a member of a criminal street gang, commit murder by
      Nicholas Acree intentionally, with the intent to cause serious bodily injury
      to Bryan Childers, commit an act clearly dangerous to human life, namely,
      stabbing him with a deadly weapon, to-wit: a knife, that in the manner of its
      use or intended use was capable of causing death or serious bodily injury,
      which caused the death of Bryan Childers, and that the Defendant, Charles
      James Garrett, Jr., acting with intent to promote or assist the commission
      of the offense of murder did encourage, direct, aid, or attempt to aid
      Nicholas Acree to commit the offense, then you will find the Defendant
      guilty of the offense of engaging in organized criminal activity, as charged
      in Count One of the indictment.

             Unless you so find from the evidence beyond a reasonable doubt, or
      if you have a reasonable doubt thereof, then you will acquit the Defendant
      and say by your verdict “Not Guilty” as to Count One of the indictment.

      We understand appellant’s argument to be that under the EOCA statute,

the State was required to prove that three or more persons––not just Acree and

appellant––committed the underlying offense of murder and that by including the

law of parties in the charge, the trial court allowed the jury to convict based on

only Acree’s and appellant’s participation in the murder. But even one person



                                        9
acting alone in the commission of an underlying offense can be convicted of

EOCA if that person acted with the requisite intent to “establish, maintain, or

participate . . . as a member of a criminal street gang.” See Tex. Penal Code

Ann. § 71.02; Curiel, 243 S.W.3d at 15.

      Here, the evidence showed that ABT is a group of three or more persons

with identifiable leadership and that its members participate in “the drug

trafficking of illegal narcotics, aggravated assaults, kidnappings, murders, auto

thefts, [and] burglaries.” Appellant had typical ABT tattoos on his body and is

known to both state and federal law enforcement as a member and officer of the

gang. The evidence also showed that appellant, “acting with intent to promote or

assist” Acree in murdering Childers, “direct[ed], aid[ed], or attempt[ed] to aid”

Acree in murdering Childers, “ABT style.” Accordingly, we conclude and hold

that the trial court did not err by including the law of parties in the EOCA part of

the jury charge. See Otto, 93 S.W.3d at 284–85; McIntosh, 52 S.W.3d at 199–

201; L.A.S., 135 S.W.3d at 919; see also Curiel, 243 S.W.3d at 15 (holding that

(a) acting with the intent to establish, maintain, or participate as part of a criminal

street gang, (b) acting with the intent to establish, maintain, or participate as part

of a combination, and (c) acting with the intent to establish, maintain, or

participate in the profits of a combination constitute alternative ways of

committing EOCA). We overrule appellant’s fifth issue.




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      Because we have overruled all five of appellant’s issues, we affirm the trial

court’s judgment.

                                                  PER CURIAM

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 3, 2017




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