In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00214-CR
___________________________
EDWARD LEON CLAYBORN, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 297th District Court
Tarrant County, Texas
Trial Court No. 1546162D
Before Birdwell, Bassel, and Womack, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
In a charge containing sixteen counts, a jury convicted Appellant Edward Leon
Clayborn of four counts of robbery and two counts of engaging in organized criminal
activity with robbery as the predicate offense. See Tex. Penal Code Ann. §§ 29.02(a),
71.02(a)(1). For each of the six convictions, the jury assessed Clayborn’s punishment
at confinement in the penitentiary for eighteen years and a $500 fine. The trial court
sentenced Clayborn in accordance with the jury verdicts, and all six sentences are
running concurrently. See Ex parte Knipp, 236 S.W.3d 214, 215 n.2 (Tex. Crim. App.
2007); Cazarez v. State, 606 S.W.3d 549, 562–63 (Tex. App.—Houston [1st Dist.] 2020,
no pet.).
On appeal, Clayborn raises three points,
[1] The trial court erred in overruling [Clayborn’s] objection to the jury
charge on the grounds that it allowed the jury to convict on both a
greater and lesser included offense in violation of the Double Jeopardy
Clause of the Fifth Amendment.
[2] The trial court reversibly erred by issuing a jury charge on
punishment that is violative of [Clayborn’s] rights to due process and
due course of law.
[3] The judgments entered below in counts 15 and 17 incorrectly state
the offenses for which [Clayborn] was convicted.
Caselaw from the court of criminal appeals has held squarely against Clayborn on his
first two points, so we overrule them. We sustain Clayborn’s third point and modify
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the judgments for Counts Fifteen and Seventeen to correctly reflect the offenses for
which he was convicted.
II. BACKGROUND
Clayborn participated in a series of robberies in Tarrant County that the police
referred to as the Jabbawockeez robberies due to the distinctive masks that the
robbers wore.1 Clayborn’s indictment originally contained thirty-eight counts, but the
State waived twenty counts before jury selection and waived two more counts before
jury deliberations. Of the remaining sixteen counts submitted to the jury, the jury
found Clayborn not guilty on ten counts. On each of the other six counts, the jury
found Clayborn guilty of a lesser-included offense.
III. DISCUSSION
A. Double Jeopardy
Clayborn objected to the charge because it allowed the jury to convict him of
both the greater offenses (engaging in organized criminal activity with robbery as the
predicate offense) and the lesser-included offenses (robbery). Because the elements
of the lesser-included offenses of robbery were wholly subsumed within the elements
of the greater offenses of engaging in organized criminal activity using robbery as the
predicate offense, Clayborn argues that convicting him of both offenses violated
double jeopardy. See Brown v. Ohio, 432 U.S. 161, 168, 97 S. Ct. 2221, 2226–27 (1977).
1
“Jabbawockeez” refers to a dance group that often performs while wearing
similar masks.
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1. The Charge
For an offense committed on or about September 30, 2017, against Alma
Beltran, the jury found Clayborn guilty of engaging in organized criminal activity
when committing the predicate offense of robbery in Count Fifteen. In Count
Sixteen, the jury also found Clayborn guilty of robbery for an offense committed on
or about September 30, 2017, against Alma Beltran. This is the first alleged double-
jeopardy violation about which Clayborn complains.
Next, the jury found Clayborn guilty of Count Seventeen, engaging in
organized criminal activity when committing the predicate offense of robbery on or
about September 30, 2017, against Antonio Ortiz. And the jury also found Clayborn
guilty of Count Eighteen—robbery—for an offense committed on or about
September 30, 2017, against Antonio Ortiz. This is the second alleged double-
jeopardy violation about which Clayborn complains.
2. Discussion
In the context of engaging in organized criminal activity and the lesser-included
offense alleged within the offense of engaging in organized criminal activity, the court
of criminal appeals has already held against Clayborn’s position. See Garza v. State,
213 S.W.3d 338, 351–52 (Tex. Crim. App. 2007); see also Ex parte Chaddock, 369 S.W.3d
880, 883 (Tex. Crim. App. 2012). On this issue, we have previously followed the
court of criminal appeals. See Garrett v. State, No. 02-16-00121-CR, 2017 WL 3298260,
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at *2 (Tex. App.—Fort Worth Aug. 3, 2017, pet. ref’d) (per curiam) (mem. op., not
designated for publication).
Clayborn recognizes that Garza holds against his position but argues that Garza
was poorly analyzed. We are not the court that Clayborn must persuade. As an
intermediate appellate court, we are bound by the decisions of the court of criminal
appeals. See Wiley v. State, 112 S.W.3d 173, 175 (Tex. App.—Fort Worth 2003, pet.
ref’d). We overrule Clayborn’s first point.
B. The Parole Instruction
Turning to Clayborn’s second point, he objected to the punishment charge
because it contained a good-time-parole instruction. A person serving a sentence for
engaging in organized criminal activity is not eligible to accumulate good-conduct
time credits for parole release. See Tex. Gov’t Code Ann. § 508.145(d)(1), (2).
Clayborn concludes that the instruction was thus an incorrect statement of the law
and erroneous.
This is another issue that the court of criminal appeals has already addressed
and ruled against Clayborn’s position. Luquis v. State, 72 S.W.3d 355, 363 (Tex. Crim.
App. 2002). And we have followed the court of criminal appeals on this precise issue.
See Flores v. State, No. 02-17-00114-CR, 2018 WL 1528262, at *2 (Tex. App.—Fort
Worth Mar. 29, 2018, pet. ref’d) (mem. op., not designated for publication). Clayborn
acknowledges that the court of criminal appeals has ruled against his position in
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Luquis and asserts that he has raised this issue to preserve it for further review. We
overrule Clayborn’s second point.
C. Clerical Errors
Finally, in point three, Clayborn contends that the judgments for Counts
Fifteen and Seventeen incorrectly identify the offenses for which he was convicted.
The judgments recite that he was convicted of “engaging in organized criminal
activity, to wit: aggravated robbery,” which is incorrect. The judgments should recite
that he was convicted of engaging in organized criminal activity, to wit: robbery.
Clayborn asks that we modify the judgments to accurately reflect the record. See Tex.
R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993); Asberry v.
State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d) (en banc).
The State agrees with Clayborn. It too asks that we reform the judgments to
reflect that Clayborn was convicted of engaging in organized criminal activity, to wit:
robbery.
We agree that the judgments for Counts Fifteen and Seventeen incorrectly
identify the offenses for which Clayborn was convicted and that they should be
reformed to reflect the correct offenses. See Tex. R. App. P. 43.2(b); Bigley,
865 S.W.2d at 27; Asberry, 813 S.W.2d at 529. We sustain Clayborn’s third point.
IV. CONCLUSION
We overrule Clayborn’s first two points. Having sustained Clayborn’s third
point, we reform the judgments for Counts Fifteen and Seventeen to reflect that he
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was convicted of engaging in organized criminal activity, to wit: robbery. As
modified, we affirm the judgments.
/s/ Dana Womack
Dana Womack
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: July 8, 2021
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