Opinion issued November 21 , 2017

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 16
- 00982
- C R

——————————— PATRICK HENDERSON CO OPER , Appella nt

V. THE STATE OF TEXAS , Appell e e
On Appeal from the 176 th District Court

Harris Coun ty, Texas Trial Court Ca se No. 1450541

MEMORANDUM OPINION A ppellant , Patrick Henderson Cooper, was indicted for and convicted of two offenses

—

possession with intent to deliver a controlled substance 1 and engaging in

1 Trial Court Case No. 1450541, Appeal No. 01

- 16

- 00982

- CR (“the present appeal”).2

organized criminal activity. 2 A ppellan t plead ed 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 t hat 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 pa rticipate 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.
Proce dural Background In December 2014 , a ppellant was indicted for possession with intent to deliver a controlled substance in cause number 1450541

. In cause number

2 Trial Court Case No. 14 89378 , Appeal No. 01

- 16

- 0098 3

- CR (“the related Anders appeal”).3

1489378, appellant was indicted for engaging in organized criminal activity. The indictments inc luded 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 year s to life in prison , and the trial court sentenced

a ppellant to 30 years’ confinement for each charge. Appellant filed timely notices of appeal. Appellant’s counsel filed an Anders brief 3 in the organized

- crime case, and this Court affirmed appellant’s co nviction 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 viola ted.” DOUBLE JEOPARDY Standard of Review The Fifth Amendme nt’ 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 li mb.” U.S.
C ONST . a mend. 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).4

offense. Brown v. Ohio , 432 U.S. 161, 165, (1977); Ex parte Chaddock , 369 S.W.3d 880 , 882 (Te x. Crim. App. 2012). The Blockburger same - elements test provide s that “[ w ] hether there are two offenses or only one , is whether each provision r equires 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 resp ect 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).

“ W here, as here, a legislature sp ecifically 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 su ch st atutes 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 d eliver a controlled substanc e. A ppellant’s sole argument5

on appeal is based on the mistaken assumption that that the possessio n 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 twic e for possessing the same cocaine

. Appellant is mistaken ; t he underlying offense for the engaging

- in

organized

- criminal

- activity conviction was actually armed robbery , not possession of cocaine

. 4 Here, t he engaging

- in

- organized

- criminal

- activity charge req uires proof of a robbery ; t he possessi on of cocaine charge does not. The possession case requires an intent to deliver cocaine; the engaging in organized criminal activity does not. Thus, a ppellant’s argument fails under Blockburger , which requires us to d etermine “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 heretofor e, 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 unlaw fully 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, Ka ty, Harris County, Texas with a deadly weapon and remove kilograms of cocaine from a building. (Emphasis added.)6 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. T EX
. R. A PP
. P. 47.2(b).