                                  NUMBER 13-05-658-CR

                                COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


ELIJAH HUFF,                                                                    Appellant,

                                                v.

THE STATE OF TEXAS,                                                             Appellee.


                      On appeal from the 117th District Court
                            of Nueces County, Texas


                             MEMORANDUM OPINION

                    Before Justices Yañez, Rodriguez, and Vela
                      Memorandum Opinion by Justice Vela

          Appellant, Elijah Huff, appeals from the trial court's denial of his petition for pre-

conviction writ of habeas corpus based upon double jeopardy. By a single issue, Huff

argues the Double Jeopardy Clause of the Fifth Amendment to the United States

Constitution bars the State from prosecuting him for three counts of capital murder. We

affirm.
                                             A. Procedural Background

        This case concerns Huff’s prosecution for the murders of Isaac Maldonado and

Jenna Patek, alleged to have occurred on January 13, 2004. Huff was charged in a five-

count indictment with capital murder1 (Counts 1-3) and engaging in organized criminal

activity2 (Counts 4 and 5). On August 23, 2005, Huff went to trial only on Counts 4 and 5

in the 117th District Court of Nueces County, Judge Joaquin Villarreal, III, then presiding.

After a jury was selected, impaneled, and sworn,3 one of Huff’s defense attorneys, Juan

Gonzalez, complained that one of the sworn jurors, Daniel Ray Roberson, used profanity

towards him.

        On August 24, 2005, Judge Villarreal, outside the jury’s presence, held a hearing

on the matter during which the prosecutor, James Sales, called two witnesses, Roberson

and Gonzalez. Sales’s interrogation of Roberson showed, in relevant part:

        Q: Mr. Roberson, it was brought to the attention of the Court that you may
        have addressed profanity towards one of the members of defense counsel
        this morning on your way in. And I need to know if there is anything--that
        you’re feeling anything against either the defense or the state that would
        prevent you from being a fair and impartial juror in this case?

        A: No, I didn’t--I didn’t say anything to the anyone [sic] from the defense
        counsel this morning. I didn’t talk to anyone . . . .

        ***

        I’ll do my best to be fair and impartial.

        After Roberson finished testifying, Sales questioned Gonzalez, who testified, in

relevant part, as follows:


        1
            See T EX . P EN AL C OD E A N N . § 19.03.

        2
            See T EX . P EN AL C OD E A N N . § 71.02.

        3
        In a jury trial, jeopardy attaches when the jury is im paneled and sworn. Crist v. Bretz, 437 U.S. 28,
38 (1978); Alvarez v. State, 864 S.W .2d 64, 65 (Tex. Crim . App. 1993).
                                                         2
       Q: Can you, please, for the record, describe the nature of the involvement
       between Mr. Roberson and yourself prior to coming into court today?

       A: I was standing right behind you--or right by the Bar. He walked in, looked
       at me, and I heard “G[--] damn it.”

       ***

       Q: And when he [Mr. Roberson] took [the] stand and said he didn’t--said,
       under oath, he didn’t say anything towards you, that’s either a mistake or a
       lie.

       A: Mistake or a lie. I made some--eye contact with him and I heard the
       words, “G[--] damn it.”

After questioning Gonzalez, Sales told the trial court:

       I’m not going to move for a motion for mistrial, but, as an officer of the court,
       I’m bringing it to the Court’s attention and asking the Court to consider a
       mistrial, based on the testimony of Mr. Gonzalez of this particular juror who
       just perjured himself in front of the Court; and therefore, I think that would
       prejudice Mr. Huff in going forward in this particular trial . . . . [I]t would seem
       to me that a mistrial would be the appropriate action at this point in time,
       based on the testimony of Mr. Gonzalez and the testimony of the juror. I just
       put that forward to the court.

       Huff’s other attorney, Richard Rogers, objected to the state’s request for mistrial.

In response, Sales told the court: “I think, overall, that mistrial would be appropriate, and

we could redo it in three weeks.” Rogers again objected to the state’s request, but, despite

his objections, Judge Villarreal granted the mistrial.

       On August 31, 2005, Huff filed a special plea of double jeopardy petition for pre-

conviction writ of habeas corpus in which he argued that the Double Jeopardy Clause of

the Fifth Amendment to the United States Constitution prohibited the State from further

prosecuting this cause. On September 16, 2005, Judge Sandra Watts, Presiding Judge

of the 117th District Court, held a hearing on the special plea. After receiving evidence and

hearing argument, Judge Watts signed an order: (1) denying the special plea of double


                                                3
jeopardy concerning Counts 1-3, capital murder; and (2) dismissing, with prejudice, Counts

4 and 5, engaging in organized criminal activity. This appeal followed.4

                                              B. Discussion

        By his sole issue, Huff argues that Counts 1-3, capital murder, are barred from

further prosecution because the allegations of engaging in organized criminal activity,

Counts 4 and 5, resulting in the two victims’ deaths, and the allegations of causing the

deaths by capital murder, involve the same elements. The indictment alleged, in relevant

part, that Huff:

        [Count 1] did then and there, in the same transaction, intentionally and
        knowingly cause[d] the death of two individuals, namely, ISAAC
        MALDONADO and JENNA PATEK, by shooting each with a FIREARM

        [Count 2] did then and there, intentionally cause[d] the death of an individual,
        ISAAC MALDONADO, by SHOOTING HIM WITH A FIREARM while in the
        course of committing or attempting to commit BURGLARY OF A
        HABITATION

        [Count 3] did then and there, intentionally cause[d] the death of an individual,
        JENNA PATEK, by SHOOTING HER WITH A FIREARM while in the course
        of committing or attempting to commit BURGLARY OF A HABITATION

        [Count 4] did then and there, as a member of a combination, commit[ted] the
        offense of murder by shooting ISAAC MALDONADO with a firearm




        4
         W e note that a pre-trial writ of habeas corpus is usually the procedural vehicle by which a defendant
should raise a “successive prosecutions for the sam e offense” double jeopardy claim . Gonzales v. State, 8
S.W .3d 640, 643 n.9 (Tex. Crim . App. 2000) (citing Ex parte Robinson, 641 S.W .2d 552, 553-56 (Tex. Crim .
App. 1982)). Requiring a defendant to go through trial before appealing a successive prosecutions claim is
inconsistent with the double-jeopardy guarantee against the State consecutively trying him for the sam e
offense. Id. These considerations do not apply to a m ultiple-punishm ents claim because the reviewing court
can fully vindicate the claim on appeal following final judgm ent. Id. The court of crim inal appeals has,
however, addressed double-jeopardy claim s in post-trial applications for writ of habeas corpus. See Ex parte
Herron, 790 S.W .2d 623 (Tex. Crim . App. 1990) (addressing double-jeopardy claim arising from conviction
and punishm ent for both aggravated kidnaping and aggravated robbery in the sam e trial); Ex parte Jefferson,
681 S.W .2d 33 (Tex. Crim . App. 1984) (addressing double-jeopardy claim arising from successive convictions
for unauthorized use of a vehicle and theft of the sam e vehicle).




                                                      4
       [Count 5] did then and there, as a member of a combination, commit[ted] the
       offense of murder by shooting JENNA PATEK, with a firearm . . . .

       The Texas Court of Criminal Appeals has “consistently held . . . that the Texas and

United States Constitutions’ double jeopardy provisions provide substantially identical

protections.” Ex parte Mitchell, 977 S.W.2d 575, 580 (Tex. Crim. App. 1997). The Double

Jeopardy Clause of the Fifth Amendment, applicable to the states through the Fourteenth

Amendment, provides that no person “shall . . . be subject for the same offense to be twice

put in jeopardy of life or limb . . . .” U.S. CONST . amends. V and XIV. The Double

Jeopardy Clause protects against a second prosecution for the same offense after

acquittal, a second prosecution for the same offense after conviction, and multiple

punishments for the same offense. Brown v. Ohio, 431 U.S. 161, 165 (1977); Ex parte

Cavazos, 203 S.W.3d 333, 336 (Tex. Crim. App. 2006).

       The test of whether two offenses constitute the same crime was announced by the

United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 304 (1932).

Ephraim v. State, 237 S.W.3d 438, 440 (Tex. App.–Texarkana 2007, no pet.). Blockburger

provides: “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 an

additional fact which the other does not . . . .” Blockburger, 284 U.S. at 304. In other

words, “[f]or the purpose of determining whether double jeopardy applies, two offenses are

considered the same if one of the offenses contains all the elements of the other; they are

not the same if each offense has a unique element.” Ephraim, 237 S.W.3d at 440; see

also Ortega v. State, 171 S.W.3d 895, 899 (Tex. Crim. App. 2005). The applicable rule is




                                            5
that when “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 an additional fact which the other does not.”

Ephraim, 237 S.W.3d at 440 (citing State v. Remsing, 829 S.W.2d 400 (Tex. App.–Austin

1992, pet. ref'd)).5




                           C. Whether the Offense of Engaging in
                       Organized Criminal Activity is a Separate Offense

        Section 71.02 of the Texas Penal Code, Engaging in Organized Criminal Activity,

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, he commits or conspires to commit one or more of
        the following:

               (1) murder, capital murder, arson, aggravated robbery, robbery,
        burglary, theft, aggravated kidnapping, kidnapping, aggravated assault,
        aggravated sexual assault, sexual assault, forgery, deadly conduct, assault
        punishable as a Class A misdemeanor, burglary of a motor vehicle, or
        unauthorized use of a motor vehicle; . . . .

TEX . PENAL CODE ANN . § 71.02(a)(1) (Vernon Supp. 2007). The general rule “is that greater

inclusive and lesser included offenses are the same for jeopardy purposes.” Parrish v.

State, 869 S.W.2d 352, 354 (Tex. Crim. App. 1994) (citing Brown, 432 U.S. at 169).

However, the Texas Legislature has expressed its intent to authorize conviction and


        5
         Before 1982, Texas was "alone" in its interpretation of the "double" jeopardy prohibition, following
what was called the doctrine of carving. Under it, the State could carve only one prosecution out of one
“transaction” giving rise to the offense. That interpretation was overruled and abandoned in Ex parte
McW illiams, 634 S.W .2d 815 (Tex. Crim . App. 1982), which contains a detailed discussion of the various
elem ents of the doctrine of carving and the rationale for having abandoned it.



                                                     6
punishment for both engaging in organized criminal activity and any of the underlying

offenses listed in section 71.02. See TEX . PENAL CODE ANN . § 71.03(3) (Vernon 2003) (“It

is no defense to prosecution under Section 71.02 that: . . . (3) a person has been charged

with, acquitted, or convicted of any offense listed in Subsection (a) of Section 71.02 . . . .”).

        In Garrett v. United States, the United States Supreme Court stated that “[I]t does

not violate the Double Jeopardy Clause . . . to prosecute [a continuing criminal enterprise]

offense after a prior conviction for one of the predicate offenses.” 471 U.S. 773, 793

(1985).     In United States v. Felix, the United States Supreme Court stated that

“[C]onspiracy to commit an offense and the offense itself . . . are separate offenses for

double jeopardy purposes.” 503 U.S. 378, 390-91 (1992).6

        The Tyler Court of Appeals has similarly concluded that:

        [E]ngaging in organized criminal activity is to be treated like conspiracy for
        double jeopardy purposes, and the Double Jeopardy Clause does not bar
        successive prosecutions for a substantive offense and for conspiracy to
        commit that offense, even where the State proves the same conduct in both
        prosecutions, and even where the previously prosecuted conduct constitutes
        an overt act in the conspiracy prosecution.

McGee v. State, 909 S.W.2d 516, 519 (Tex. App.–Tyler 1995, pet. ref'd) (citing Lindley v.

State, 855 S.W.2d 729, 730 (Tex. App.–Tyler 1993, no pet.) and Felix, 503 U.S. at 390-

91).

        At least three other Texas appellate courts have held that a prosecution for a crime

does not prohibit a contemporaneous or subsequent prosecution for committing that crime

as part of a criminal combination under section 71.02(a) of the Texas Penal Code. In


        6
          In United States v. Felix, 503 U.S. 378 (1992), the Court was faced with a prosecution for crim inal
conspiracy after the defendant had already been convicted in a previous trial for som e of the sam e predicate
acts. The Court stated that “the rule” is “that a substantive crim e and a conspiracy to com m it that crim e are
not the ‘sam e offence’ [sic] for double jeopardy purposes.” Id. at 389.



                                                       7
Reina v. State, 940 S.W.2d 770 (Tex. App.–Austin 1997, pet. ref'd), the defendant

appealed his simultaneous convictions for both attempted murder and a criminal

combination (of which the predicate activity was attempted murder), two separate offenses

charged in the same indictment. Id. at 771-72. Based upon section 71.03(3), the Reina

court held “the simultaneous prosecution of Reina for attempted murder and engaging in

organized criminal activity did not violate the double jeopardy provisions of either the

federal or state constitution.” Id. at 776.

       In an attack on the facial validity of section 71.02 under constitutional law, the Fort

Worth Court of Appeals also determined that the Texas Legislature, in enacting section

71.03 of the Texas Penal Code, intended “to impose cumulative sentences for the same

conduct whether the same are merged offenses or prosecuted separately.” Crumpton v.

State, 977 S.W.2d 763, 770 (Tex. App.–Fort Worth 1998, no pet.). Though Crumpton

involved only a prosecution under section 71.02 and not for the predicate offense, the

appellate court noted that “even if the theft allegation [forming the predicate criminal activity

under section 71.02(a)] in the organized criminal activity indictment was the same offense

for double jeopardy purposes, nothing would preclude the State from prosecuting both the

organized criminal activity offense and the theft offense as separate offenses and seeking

separate punishments . . . .” Id.

       Lastly, in Lam v. State, 17 S.W.3d 381 (Tex. App.–Houston [1st Dist.] 2000, pet.

ref’d), the issue was whether an organized criminal activity charge was separate from the

underlying offense for purposes of double jeopardy. The Lam court stated:

       Assuming arguendo that appellant's Harris County indictment for organized
       criminal activity had been based on a predicate offense that was
       substantially the same as one or more of the offenses for which he was



                                               8
       charged in Fort Bend County, we hold that his subsequent Fort Bend County
       indictment was not barred by double jeopardy. An organized criminal activity
       is a separate offense, for double jeopardy purposes, from any of the
       predicate acts listed under sections 71.02(a)(1)-(11) of the Texas Penal
       Code.

Id. at 385 (emphasis added), see also Queen v. State, 940 S.W.2d 781, 787 (Tex.

App.–Austin 1997, pet. ref’d) (concluding that offenses of capital murder and engaging in

organized criminal activity were not the same for double-jeopardy purposes).

       Accordingly, we hold the trial court did not err in denying Huff’s special plea of

double jeopardy petition for pre-conviction writ of habeas corpus as it related to Counts 1-3

(the capital murder counts) of the indictment. We overrule the issue.

       We affirm the trial court’s judgment.




                                                   ROSE VELA
                                                   Justice

Do not publish.
TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and
filed this 13th day of March, 2008.




                                               9
