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”).
2
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
4
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).
6