Opinion issued November 21, 2017




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-16-00982-CR
                           ———————————
               PATRICK HENDERSON COOPER, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 176th District Court
                           Harris County, Texas
                       Trial Court Case No. 1450541


                         MEMORANDUM OPINION

      Appellant, Patrick Henderson Cooper, was indicted for and convicted of two

offenses—possession with intent to deliver a controlled substance1 and engaging in


1
      Trial Court Case No. 1450541, Appeal No. 01-16-00982-CR (“the present
      appeal”).
organized criminal activity.2 Appellant pleaded guilty to both offenses, and the trial

court assessed punishment at 30 years’ confinement on each, to run concurrently.

In his sole issue on appeal, appellant contends that he cannot be punished for

multiple offenses involving the same act, and that his possession conviction should

be reversed on double jeopardy grounds. We affirm.

                                 BACKGROUND

Factual Background

      The closing arguments made at the sentencing hearing indicate that

appellant, Patrick Henderson Cooper, and his co-defendants agreed to participate

in an armed robbery. Specifically, during a meeting at a Chile’s restaurant,

appellant and the co-defendants agreed to steal cocaine from a warehouse so that

they could sell and distribute the drugs themselves. On December 4, 2014,

appellant and co-defendants robbed men at the warehouse, who were actually

undercover police officers, taking a large quantity of cocaine. Appellant was armed

during the robbery. Appellant and his co-defendants were arrested for the stated

offenses that same day.

Procedural Background

      In December 2014, appellant was indicted for possession with intent to

deliver a controlled substance in cause number 1450541. In cause number
2
      Trial Court Case No. 1489378, Appeal No. 01-16-00983-CR (“the related Anders
      appeal”).
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1489378, appellant was indicted for engaging in organized criminal activity. The

indictments included enhancement paragraphs alleging use of a deadly weapon in

the commission of the offense and a prior felony conviction. Appellant pleaded

guilty and confessed that the enhancement paragraphs were true on May 20, 2016.

The punishment range was 25 years to life in prison, and the trial court sentenced

appellant to 30 years’ confinement for each charge. Appellant filed timely notices

of appeal. Appellant’s counsel filed an Anders brief3 in the organized-crime case,

and this Court affirmed appellant’s conviction in that case. See Cooper v. State,

No. 01-16-00783-CR (Tex. App.—Houston [1st Dist.] Sept. 21, 2017, no pet. h.).

In this case—the possession case—appellant contends that his “right to be free

from multiple punishments for the same act was violated.”

                                 DOUBLE JEOPARDY

Standard of Review

      The Fifth Amendment’s Double Jeopardy Clause, enforceable against the

states through the Fourteenth Amendment, provides that no person shall “be

subject for the same offence to be twice put in jeopardy of life or limb.” U.S.

CONST. amend. V. The Double Jeopardy Clause protects an accused against

multiple prosecutions for the same offense and multiple punishments for the same




3
      See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967).
                                           3
offense. Brown v. Ohio, 432 U.S. 161, 165, (1977); Ex parte Chaddock, 369

S.W.3d 880, 882 (Tex. Crim. App. 2012).

       The Blockburger same-elements test provides that “[w]hether there are two

offenses or only one, is whether each provision requires proof of an additional fact

which the other does not.” Blockburger v. United States, 284 U.S. 299, 304,

(1932). “Application of Blockburger does not serve, however, to negate otherwise

clearly expressed legislative intent.” Villanueva v. State, 227 S.W.3d 744, 747

(Tex. Crim. App. 2007). In Missouri v. Hunter, the Supreme Court made clear that

“[w]ith respect to cumulative sentences imposed in a single trial, the Double

Jeopardy Clause does no more than prevent the sentencing court from prescribing

greater punishment than the legislature intended.” 459 U.S. 359, 366 (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 . . . the prosecutor may seek and the trial court or jury may

impose cumulative punishment under such statutes in a single trial.” Id. at 368–

369.

Analysis

       Appellant was convicted of engaging in organized criminal activity with the

underlying charge of aggravated robbery. Appellant was also convicted of

possession with intent to deliver a controlled substance. Appellant’s sole argument


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on appeal is based on the mistaken assumption that that the possession of cocaine

was the underlying act of the engaging-in-organized-criminal-activity charge, and

that, as a result, appellant is being tried and convicted twice for possessing the

same cocaine. Appellant is mistaken; the underlying offense for the engaging-in-

organized-criminal-activity conviction was actually armed robbery, not possession

of cocaine.4

      Here, the engaging-in-organized-criminal-activity charge requires proof of a

robbery; the possession of cocaine charge does not. The possession case requires

an intent to deliver cocaine; the engaging in organized criminal activity does not.

Thus, appellant’s argument fails under Blockburger, which requires us to

determine “whether each [charged offense] requires proof of a fact which the other

does not.” 284 U.S. at 304.

      Accordingly, we overrule appellant’s sole issue.



4
      The indictment for engaging in organized criminal activity alleged that:

      . . . PATRICK HENDERSON COOPER, hereafter styled the Defendant
      heretofore, on or about December 4, 2014, did then and there unlawfully, with
      intent to establish, maintain and participate in a combination and in the profits of a
      combination . . . conspire to commit the offense of aggravated robbery, namely,
      in that he did unlawfully and the defendants did then and there agree with
      members of the aforesaid combination to engage in conduct constituting said
      offense, and pursuant to such agreement the defendants performed the following
      overt acts, to-wit: arrive to 21145 FM 526, Katy, Harris County, Texas with a
      deadly weapon and remove kilograms of cocaine from a building.

      (Emphasis added.)
                                            5
                                 CONCLUSION

      We affirm the trial court’s judgment.



                                               Sherry Radack
                                               Chief Justice

Panel consists of Chief Justice Radack and Justices Keyes and Caughey.

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




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