          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

      K EASLER, J., delivered a dissenting opinion, in which H ERVEY, J., joined.

      The Court concludes that engaging in organized criminal activity and the predicate

offense are the “same offense” when each offense is separately prosecuted. And upon

conviction of the former, double jeopardy bars prosecution of the latter. But when the two

offenses are tried together, double jeopardy is not offended. I disagree with the logical

inconsistency that results from defining “same offense” by virtue of the double-jeopardy

claim’s context.

      The Double Jeopardy Clause provides that no “person [shall] be subject for the same

offence to be twice put in jeopardy of life or limb.”1 “This protection applies both to

      1
          U.S. C ONST. amend. IV; accord Missouri v. Hunter, 459 U.S. 359, 362 (1983).
                                                    CHADDOCK DISSENTING OPINION—2

successive punishments and to successive prosecutions for the same criminal offense.” 2

Specifically, the United States Supreme Court outlined—and we have recognized—three

distinct double-jeopardy claims: (1) a second prosecution for the same offense after acquittal;

(2) a second prosecution for the same offense after conviction; and (3) multiple punishments

for the same offense.3 “[A] threshold question in [each] case is whether the defendant is

being punished or prosecuted for the ‘same offense.’” 4

       Determining whether two offenses are the same offense requires examining legislative

intent. The Supreme Court has held that, for all double-jeopardy claims, the test articulated

in Blockburger v. United States is a tool for ascertaining whether a legislature intended two

separately prescribed offenses to be the same offense.5 “The assumption underlying the

Blockburger [test] is that Congress ordinarily does not intend to punish the same offense

under two different statutes.”6 We also have recognized that “the Blockburger test is . . .

useful in determining legislative intent as to the scope of punishment where the intent is not




       2
        United States v. Dixon, 509 U.S. 688, 696 (1993) (citing North Carolina v. Pearce,
395 U.S. 711, 717 (1969)).
       3
           See id.; Weinn v. State, 326 S.W.3d 189, 192 (Tex. Crim. App. 2010).
       4
           State v. Perez, 947 S.W.2d 268, 270 (Tex. Crim. App. 1997).
       5
         284 U.S. 299 (1932); accord Albernaz v. United States, 450 U.S. 333, 337–38,
340–42 (1981) (multiple punishments); Brown v. Ohio, 432 U.S. 161, 166 & n.6 (1977)
(successive prosecutions).
       6
           Ball v. United States, 470 U.S. 856, 861 (1985).
                                                    CHADDOCK DISSENTING OPINION—3

otherwise manifested, and does not operate to trump clearly expressed legislative intent.” 7

       In Garza v. State, a multiple-punishment case, we relied upon these principles in

holding that two offenses—engaging in organized criminal activity and the underlying

offense (capital murder in that case)—were not the same offense for double-jeopardy

purposes.8 While admitting that the two offenses would have been the same under the

Blockburger test, we considered Penal Code Section 71.03(3)’s provision that “[i]t is no

defense to prosecution [for engaging in organized criminal activity] that a person has been

charged with, acquitted, or convicted of any [underlying] offense.”9 We reasoned that “the

Legislature . . . 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 punished for both.” 10

       Chaddock acknowledges—and does not challenge—our holding in Garza; his sole

argument is that engaging in organized criminal activity and the underlying offense are the

same offense in the successive-prosecution context because the underlying offense is a

lesser-included offense. This characterization alone is dispositive in the majority’s view.

I disagree.



       7
            Weinn, 326 S.W.3d at 192 (internal quotes omitted).
       8
            213 S.W.3d 338, 351–52 (Tex. Crim. App. 2007).
       9
            T EX. P ENAL C ODE § 71.03(3); accord Garza, 213 S.W.3d at 352.
       10
            Garza, 213 S.W.3d at 352.
                                                   CHADDOCK DISSENTING OPINION—4

       In United States v. Dixon, the Supreme Court held that the term “same offense” has

the same meaning in both the multiple-punishment and successive-prosecution contexts.11

In overruling Grady v. Corbin,12 the Dixon majority discarded the same-conduct test because

it necessitated defining “same offense” differently in the multiple-punishment and

successive-prosecution contexts.13 In reaching this conclusion, the Court affirmatively

rejected the notion that the Double Jeopardy Clause’s prevention of successive prosecution

and punishment results in two distinct strands entitled to a different meaning in each

context.14 And it did so unequivocally: “That is perhaps because it is embarrassing to assert

that the single term ‘same offence’ . . . has two different meanings—that what is the same

offense is yet not the same offense.”15 Thus, Dixon demands that the test for what constitutes

the same offense be the same in both contexts.16 As a result, the now-singular analysis that




       11
            Dixon, 509 U.S. at 704.
       12
            495 U.S. 508 (1990).
       13
            Dixon, 509 U.S. at 704.
       14
            Id.
       15
            Id. (emphasis in original).
       16
           Id.; accord United States v. Bennett, 44 F.3d 1364, 1372 n.7 (8th Cir. 1995)
(quoting Brown, 432 U.S. at 165, for the proposition that “if two offenses are the same under
the [Blockburger] test for purposes of barring consecutive sentences at a single trial, they
necessarily will be the same for purposes of barring successive prosecutions,” and citing
Dixon to deduce the converse proposition that “if two offenses are not the same for purposes
of barring multiple punishment, they necessarily will not be the same for purposes of barring
successive prosecutions”).
                                                    CHADDOCK DISSENTING OPINION—5

emerged after Dixon is the same test the Supreme Court used in Missouri v. Hunter 17 in the

multiple-punishment context; specifically, that while courts presume, under Blockburger, that

the legislature did not intend to permit successive prosecution or multiple punishment under

two offenses that lack distinct elements, this rebuttable presumption is overcome by clear

evidence of legislative intent that both offenses apply.18 While it is true, as the majority

notes, that Dixon did not affirmatively adopt the Hunter approach, it is reasonable to assume

that when the Court merged the analyses, the Court was familiar with its own double-

jeopardy jurisprudence in the multiple-punishment context. And Hunter continues to be

good law today.

       Professor LaFave has also recognized Dixon’s adoption of legislative deference in its

determination of whether offenses are the same.19 In his treatise, he addressed the Supreme

Court’s decision in Harris v. Oklahoma,20 a factually similar double-jeopardy case upon

which Chaddock relies, in which the Court held that “[w]hen . . . conviction of a greater

crime . . . cannot be had without conviction of a lesser crime . . . the Double Jeopardy Clause

bars prosecution for the lesser crime after conviction of the greater one.” Like Chaddock,



       17
            459 U.S. at 368–69.
       18
         Bennett, 44 F.3d at 1372 n.7; accord State v. Flenoy, 968 S.W.2d 141, 144–45 (Mo.
1998); State v. Weaver, 648 N.W.2d 355, 358–61(S.D. 2002). See Dixon, 509 U.S. at 704.
       19
         See 5 W AYNE R. L AF AVE, ET AL., C RIMINAL P ROCEDURE § 17.4(b), at 86 (3d ed.
2007); see generally Nancy J. King, Proportioning Punishment: Constitutional Limits on
Successive and Excessive Penalties, 144 U. P A. L. R EV. 101 (1995).
       20
            433 U.S. 682 (1977).
                                                     CHADDOCK DISSENTING OPINION—6

Harris was charged with and convicted of one offense (committing murder in the course of

a robbery with firearms) and then, in a separate proceeding, was charged with and convicted

of the lesser-included offense (robbery with firearms).21       Reading Dixon literally—as I

suggest we must—Professor LaFave opined that “if . . . the Dixon decision really means that

the two strands of the double jeopardy clause must be given precisely the same meaning, then

the actual holding in Harris would likewise be open to circumvention by such legislative

action.” 22

        Ultimately, we held in Garza that, in the multiple-punishment context, engaging in

organized criminal activity and the underlying offense are not the same offense.23 In

accordance with Hunter, we reasoned that Section 71.03(3)’s enactment trumped the

Blockburger test.24 If two offenses are not the same offense in the multiple-punishment

context, then they should not be considered the same offense in the successive-prosecution

context.25

        In her concurring opinion, Presiding Judge Keller takes issue with my reading of

Dixon because, as she asserts, it would allow “the legislature [to] abrogate the double-

jeopardy protection against successive prosecutions” by creating multiple offenses with the


        21
              Id.
        22
              5 C RIMINAL P ROCEDURE § 17.4(b), at 86.
        23
              Garza, 213 S.W.3d at 351–52.
        24
              Id.
        25
              Dixon, 509 U.S. at 704; Bennett, 44 F.3d at 1372 n.7.
                                                       CHADDOCK DISSENTING OPINION—7

same elements and could render acquittals meaningless, undermining the concepts of claim

and issue preclusion.26 Presiding Judge Keller’s claims mirror those made by Justice Souter

in his dissent in Dixon (joined only by Justice Stevens), which were rejected by the majority.

Justice Souter argued that

       by defining its offenses with care, the government could not merely add
       punishment to punishment (within Eighth and Fourteenth Amendment limits),
       but could bring a person to trial again and again for that same conduct, . . . .
       The protection of the Double Jeopardy Clause against successive prosecutions
       is not so fragile that it can be avoided by finely drafted statutes and carefully
       planned prosecutions.27

The collateral estoppel doctrine defined in Ashe v. Swenson 28 would still bar relitigating the

same factual allegations when previously rejected by a fact-finder.29

       Presiding Judge Keller’s opinion also seems to suggest Dixon’s language should be

viewed skeptically in light of Justice Scalia’s subsequent thoughts on the Double Jeopardy

Clause. Her opinion notes Justice Scalia’s dissent in Dep’t of Revenue v. Kurth Ranch 30

where he adopts the position that, in multiple-punishment cases, double-jeopardy claims are

more appropriately addressed under the Due Process Clause. However meritorious his

personal view may be, it has never been adopted by the Supreme Court and should have no




       26
            Ante, at 1–2 (Keller, P.J., concurring).
       27
            Dixon, 509 U.S. at 760–61 (Souter, J., dissenting).
       28
            397 U.S. 436 (1970).
       29
            See Dixon, 509 U.S. at 710 n.15.
       30
            511 U.S. 767, 802–803 (Scalia, J., dissenting).
                                                    CHADDOCK DISSENTING OPINION—8

bearing on our interpretation of Dixon.

       Judge Cochran, in her concurrence, also suggests that labeling the aggravated assault

as a lesser-included offense of engaging in organized criminal activity should end the

double-jeopardy analysis. She takes issue with my reading of Dixon in light of the Supreme

Court’s holding in Rutledge v. United States, in which the Court held that the offense of

participating in a conspiracy to distribute controlled substances was a lesser-included offense

of conducting a continuing criminal enterprise; therefore the convictions for both offenses

violated double jeopardy.31 Rutledge is inapplicable to the present case. First, Rutledge

presented the Court with a multiple-punishment double-jeopardy question because Rutledge

was tried and convicted for both offenses in a single proceeding.32 So Rutledge’s conclusion

neither confirms nor disproves my reading of Dixon.           Second, even if Rutledge had

instructive value here, its message is consistent with the conclusion that a court should

consider legislative intent once it finds the offenses appear to be the same based on their

elements.33

       Finally, the Court has, as a practical result, created a de facto mandatory-joinder rule.

The Legislature intended that a defendant may be punished for both engaging in organized




       31
            Rutledge v. United States, 517 U.S. 292, 300, 307 (1996).
       32
            Id. at 295.
       33
         See id. at 303–304 & n.14 (rejecting the government’s argument that Congress
intended multiple punishment for both offenses).
                                                  CHADDOCK DISSENTING OPINION—9

criminal activity and the underlying predicate offense.34 And to give effect to the full

punishment envisioned by the Legislature for both engaging in organized criminal activity

and the predicate offense, the State is now forced to prosecute both offenses in a single

proceeding. There is no constitutional support for such a forced-joinder rule.

       I cannot join the Court’s opinion because it results in logical inconsistency in the

meaning of the Double Jeopardy’s “same offense” language: “that what is the same offense

is yet not the same offense.” 35




DATE DELIVERED: June 27, 2012

PUBLISH




       34
            Garza, 213 S.W.3d at 351–52.
       35
            Dixon, 509 U.S. at 704.
