            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS

                                      NO. AP-76,547



                      EX PARTE JESSE CHADDOCK, Applicant



           ON APPLICATION FOR WRIT OF HABEAS CORPUS
      CAUSE NO. W04-01705-K(A) IN THE CRIMINAL DISTRICT COURT
                     NO. 4 FROM DALLAS COUNTY

       P RICE, J., announced the judgment of the Court and delivered an opinion in
which K ELLER, P.J., and M EYERS and J OHNSON , JJ., joined. K ELLER, P.J., filed a
concurring opinion. C OCHRAN, J., filed a concurring opinion in which A LCALA, J.,
joined. K EASLER, J., filed a dissenting opinion in which H ERVEY, J., joined. W OMACK,
J., concurred in the result.

                                       OPINION

       This is a post-conviction application for writ of habeas corpus brought under Article

11.07 of the Texas Code of Criminal Procedure.1 The applicant challenges his conviction

for aggravated assault on the grounds that it was the product of a successive prosecution

following a judgment of conviction for a greater-inclusive offense, in violation of the Double


       1

       TEX . CODE CRIM . PROC. art. 11.07.
                                                                             Chaddock — 2


Jeopardy Clause of the Fifth Amendment to the United States Constitution.2

       On December 10, 2004, in cause number F-0485746-K, the applicant was indicted for

the offense of engaging in organized criminal activity. The indictment alleged that, on July

26, 2004, as a member of a criminal street gang, he committed aggravated assault “by

intentionally, knowingly, and recklessly causing serious bodily injury to DAVID CUNNIFF

by striking DAVID CUNNIFF to and against the floor . . . and by striking DAVID CUNNIFF

with [his] hand[.]” Also on December 10, 2004, the applicant was indicted for aggravated

assault, in cause number F-0401705-RE. This indictment also alleged that, on July 26, 2004,

the applicant committed aggravated assault by “intentionally, knowingly, and recklessly

causing serious bodily injury to DAVID CUNNIFF by striking DAVID CUNNIFF to and

against the floor . . . and by striking DAVID CUNNIFF with [his] hand[.]” The only

difference in the two indictments is that in cause number F-0485746-K, the applicant is

alleged to have committed the assault “as a member of a criminal street gang.”

       On April 6, 2005, after a jury trial, the applicant was convicted in cause number F-

0485746-K, the engaging-in-organized-criminal-activity offense and sentenced to nineteen

years’ imprisonment and a $10,000 fine. On May 26, 2005, he pled guilty and was convicted

in cause number F-0401705-RE, the aggravated assault offense, and sentenced to ten years’

confinement. The applicant now contends that his conviction for the aggravated assault



       2

       U.S. CONST . amend. V.
                                                                               Chaddock — 3


offense in cause number F-0401705-RE should be set aside because his prosecution for that

offense, after he was convicted of the greater-inclusive offense in cause number F-0485746-

K, violated the Fifth Amendment prohibition against being “subject for the same offence to

be twice put in jeopardy of life or limb[.]”3 We agree.

       The Double Jeopardy Clause, enforceable against the states through the Fourteenth

Amendment,4 protects against repeated prosecutions for the same offense (whether following

conviction or acquittal at the conclusion of the first prosecution) and against multiple

punishments for the same offense stemming from a single prosecution.5 Whether conduct

that is alleged to violate two distinct statutory provisions can be punished or prosecuted more

than once for double jeopardy purposes is ordinarily determined by application of the so-

called Blockburger test: “whether each provision requires proof of a fact which the other

does not.”6 Lesser-included offenses typically do not pass muster under the Blockburger test

because the elements of the lesser offense are wholly subsumed by the elements of the

greater offense; a defendant ordinarily may not be punished or tried twice for a greater-




       3

       Id.
       4

       Benton v. Maryland, 395 U.S. 784, 793 (1969).
       5

       North Carolina v. Pearce, 395 U.S. 711, 717 (1969).
       6

       Blockburger v. United States, 284 U.S. 299, 304 (1932).
                                                                                       Chaddock — 4


inclusive and a lesser-included offense without violating double jeopardy.7

        Nevertheless, in Missouri v. Hunter,8 the Supreme Court made clear that the

protections against multiple punishments and successive prosecutions are not invariably co-

extensive; at least “[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.”9 In Hunter, the Supreme Court tolerated

multiple punishments imposed at the conclusion of a single prosecution for two infractions

that were admittedly the “same offense” under the standard for “sameness” articulated in

Blockburger,10 holding that, “[w]here, 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.” 11 We have often




        7

         See Brown v. Ohio, 432 U.S. 161, 168 (1977) (applying Blockburger to hold that a “greater
offense is . . . by definition the ‘same’ for purposes of double jeopardy as any lesser offense included
in it”).
        8

        459 U.S. 359 (1983).
        9

        Id. at 366.
        10

        284 U.S. at 304.
        11

        Hunter, supra, at 368-69.
                                                                                  Chaddock — 5


recognized this difference in scope.12 Accordingly, in Garza v. State, we held that a

defendant who had been indicted both for engaging in organized criminal activity by

committing capital murder and also for the underlying capital murder itself could be punished

at the conclusion of a single prosecution for both offenses, notwithstanding that they

constituted the “same” offense in contemplation of Blockburger.13             We held that the

Legislature manifested its intention that an accused be punished for both offenses in Section

71.03(3) of the Penal Code.14 But we expressly reserved the question “whether this provision

may operate constitutionally to authorize multiple prosecutions for the same offense as

determined by a Blockburger analysis, since that question is not before us in this particular

case.”15 Today we are squarely presented with the question.

       The State concedes that, under our holding in Garza, the lesser-included aggravated

assault offense alleged in cause number F-0401705-RE must be considered the “same

       12

         Ex parte Amador, 326 S.W.3d 202, 205 (Tex. Crim. App. 2010); Gonzales v. State, 304
S.W.3d 838, 845 (Tex. Crim. App. 2010); Littrell v. State, 271 S.W.3d 273, 275-76 & n.10 (Tex.
Crim. App. 2008); Villanueva v. State, 227 S.W.3d 744, 747 (Tex. Crim. App. 2007); Langs v.
State, 183 S.W.3d 680, 685 & n.15 (Tex. Crim. App. 2006); Ervin v. State, 991 S.W.2d 804, 807
(Tex. Crim. App. 1999); Ex parte Kopecky, 821 S.W.2d 957, 959 (Tex. Crim. App. 1992).
       13

        213 S.W.3d 338, 351-52 (Tex. Crim. App. 2007).
       14

        Id. at 352 (citing TEX . PENAL CODE § 71.03(3), which provides that “[i]t is no defense to
prosecution under Section 71.02 [Engaging in Organized Criminal Activity] that . . . a person has
been charged with, acquitted, or convicted of any offense listed in Subsection (a) of Section
71.02[.]”).
       15

        Id.
                                                                               Chaddock — 6


offense” as the greater-inclusive engaging-in-organized-criminal-activity offense for which

the applicant was convicted by the jury in cause number F-0485746-K—at least as

determined by the Blockburger sameness test.16 And indeed, it is obvious that every element

of the aggravated assault allegation in cause number F-0401705-RE is subsumed by the

allegation of aggravated assault while a member of a criminal street gang in cause number

F-0485746-K, just as the capital-murder allegation was subsumed by the organized-criminal-

activity allegation in Garza. Nevertheless, the State argues that we should not conclude that

there is a jeopardy bar to the applicant’s successive prosecution. Instead, as in the multiple

punishment context in Garza, we should go on to determine whether the Legislature intended

to permit a defendant to be prosecuted successively for engaging in organized criminal

activity and one of the predicate offenses to engaging in organized criminal activity. Because

Section 71.03(3) of the Penal Code plainly manifests such an intention, the State concludes,

we should hold that there is no double jeopardy bar, notwithstanding that the greater-

inclusive and lesser-included offenses are the “same” under a Blockburger analysis. In

essence, the State would have us extend Hunter’s legislative-intent approach in the multiple-

punishments context to apply as well in the context of successive prosecutions. As authority

for its position, the State relies upon language in the Supreme Court’s 1993 opinion in United




       16

       State’s Brief at 12.
                                                                               Chaddock — 7


States v. Dixon.17

       In Dixon, the Supreme Court overruled its own opinion of three terms previously in

Grady v. Corbin.18 Grady was a successive-prosecutions case.19 Corbin acknowledged that

he could not satisfy the Blockburger test for sameness of the offenses, and so was not entitled

to jeopardy relief on that account.20 Nevertheless, the Grady Court relied upon what it

perceived to be the long-standing difference between the minimal jeopardy protection in the

multiple-punishments context and the traditionally greater protection afforded by the Double

Jeopardy Clause in the successive-prosecutions context to hold that a standard more

protective than the Blockburger test must apply in the latter—the so-called “same conduct”

standard.21 Three terms later in Dixon, however, the Supreme Court reversed itself, rejecting

Grady’s “same-conduct” standard and re-establishing the less-protective Blockburger test

as the exclusive measure of sameness in the successive-prosecutions context. Along the way

the Court observed:

       We have often noted that the [Double Jeopardy] Clause serves the function of


       17

       509 U.S. 688 (1993).
       18

       495 U.S. 508 (1990).
       19

       Id. at 510.
       20

       Id. at 522.
       21

       Id. at 515-22.
                                                                                Chaddock — 8


       preventing both successive punishment and successive prosecution, but there
       is no authority, except Grady, for the proposition that it has different meanings
       in the two contexts. That is perhaps because it is embarrassing to assert that
       the single term “same offence” (the words of the Fifth Amendment at issue
       here) has two different meanings—that what is the same offense is yet not the
       same offense.22

From this language in Dixon, the State extrapolates the proposition that the double jeopardy

protections are necessarily identical in the multiple-punishments and successive-prosecutions

contexts. And because we have authoritatively held in Garza that multiple punishments were

constitutionally tolerable, the State insists, we are constrained now to hold that successive

prosecutions are also constitutionally allowed.

       We disagree. Like Grady, Dixon is a successive-prosecutions case. While the

Supreme Court in Dixon scaled back from the more protective “same conduct” approach to

sameness for double jeopardy purposes in the successive-prosecutions context, it did not

affirmatively adopt the Hunter primacy-of-legislative-intent approach. The various opinions

in Dixon applied only the Blockburger standard, and did not go on to examine any

independent indicia of legislative intent for purposes of determining “sameness.” Indeed,

based solely upon its Blockburger analysis, a plurality of the Court in Dixon concluded that

there existed at least a partial jeopardy bar to successive prosecution, without pausing to

inquire whether a legislative intent to permit successive prosecutions might independently

be found elsewhere that would trump a Blockburger statutory construction presumption, as


       22

       Dixon, supra, at 704 (citation omitted).
                                                                                     Chaddock — 9


would have been the Court’s modus operandi in the multiple-punishments context under

Hunter.23    Disagreement among the various justices in Dixon centered on the proper

understanding of the Blockburger standard itself, never touching on whether Blockburger

serves only as a rule of statutory construction in the successive-prosecutions context, as

Hunter held that it does in the multiple-punishments context.24 Notwithstanding the language

quoted from Dixon above, we do not read the case as adopting a constitutional test for

“sameness” in the successive-prosecutions context that is any less protective than

Blockburger.

       Nor do we read the language of Dixon quoted above as any indication that we reached

the wrong result in Garza. Since Dixon was decided, the Supreme Court has unanimously

recognized that, in the multiple-punishments context, Hunter abides.25 This is not to deny

that Blockburger comprises the substantive constitutional test for “sameness” in both the

multiple-punishments and the successive-prosecutions contexts—consistent with Dixon, we

hold that it does. But the Double Jeopardy Clause provides that no person shall “be twice



       23

        Id. at 700 (plurality opinion) (“Because Dixon’s drug offense did not include any element
not contained in his previous contempt offense, his subsequent prosecution violates the Double
Jeopardy Clause.”).
       24

        See id. at 735 (White, J., concurring) (“[A]dherence to legislative will has very little to do
with the important interests advanced by double jeopardy safeguards against successive
prosecutions.”).
       25

        Rutledge v. United States, 517 U.S. 292, 303 (1996).
                                                                                   Chaddock — 10


put in jeopardy” for the same offense, not “twice punished or prosecuted.” The concept of

“jeopardy” is sufficiently flexible to accommodate a prohibition against multiple

punishments as well as successive prosecutions for the same offense.26 But it is also flexible

enough to accommodate Hunter’s holding that what constitutes impermissible multiple

punishments deriving from a single prosecution is strictly a function of the legislative will.27

After all, the prohibition against multiple punishments for the “same offence” does not lie

at what the Supreme Court has characterized as the “core of the Clause’s protections[.]” 28

Multiple punishments that result from a single prosecution do not subject a defendant to the

evils attendant upon successive prosecutions, namely the “embarrassment, expense and

ordeal” of repetitive trials, “compelling [the accused] to live in a continuing state of anxiety

and insecurity,”29 and creating “a risk of conviction through sheer governmental

perseverance.” 30


       26

        Pearce, supra.
       27

        Hunter, supra, at 366-67.
       28

        Tibbs v. Florida, 457 U.S. 31, 41 (1982).
       29

        Green v. United States, 355 U.S. 184, 187-88
       30

        Tibbs, supra. Indeed, at least one legal scholar has plausibly argued that any constitutional
protection against multiple punishments in a single prosecution ought to be recognized as rooted,
not in the Fifth Amendment’s Double Jeopardy Clause at all, but in ordinary principles of due
process—an accused should never be punished for a single instance of conduct under a greater
number of penal provisions than the appropriate legislative body intended to authorize. See Anne
                                                                              Chaddock — 11


       Elsewhere in Dixon, writing for a majority of the members of the Court, Justice Scalia

held that, “[i]n both the multiple punishment and multiple prosecution contexts, this Court

has concluded that where the two offenses for which the defendant is punished or tried

cannot survive the [Blockburger] ‘same-elements’ test, the double jeopardy bar applies.” 31

Even if this language may be construed as implicitly overruling Hunter—which we very

much doubt the Supreme Court intended and which is, in any event, belied by its later

opinion in Rutledge32 —it hardly supports the proposition that legislative intent is the be-all

and end-all of double jeopardy analysis, Blockburger notwithstanding, even for purposes of

successive prosecutions. To the extent that Section 71.03(3) purports to authorize successive

prosecutions for engaging in organized criminal activity and for the commission of one of

the lesser-included predicate offenses listed in 71.02(a), we hold that it does indeed operate

unconstitutionally.

       The applicant is entitled to relief. The judgment in cause number F-0401705-RE is

vacated and the indictment in that cause is dismissed with prejudice.

DELIVERED:            June 27, 2012
PUBLISH




Bowen Poulin, Double Jeopardy and Multiple Punishment: Cutting the Gordian Knot, 77 U. COLO .
L. REV . 595 (Summer 2006).
       31

       Dixon, supra, at 696.
       32

       See note 25, ante.
