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
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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