## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

__ _________________________ No

. 02

- 19

- 00214

- CR

________ ________ ___________

On Appeal from the 297th District Court Tarrant County, Texas Trial Court No. 154616 2D
Before Birdwell, Bassel, and Womack, JJ. M emorandum Opinion by Justice Womack 

### E DWARD 

### L EON 

### C LAYBORN 

### , Appellant

V


### . T HE 

### S TATE OF 

### T EXAS2 MEM ORANDUM OPINION
I. I NTRODUCTION In a cha rge contain ing s i xteen co unts, a jury convicted Appellant Edward Leon
C layborn of four counts of robbery and two counts of engagi ng in organized criminal activity with robbery as the predicate offense

. See Tex. Penal C ode Ann. §§ 29.02( a), 71.02(a) (1). F or each of the six convictions, the jury asses sed Clayb orn ’ s pu ni shment

at conf i nement i n the penitentiary for eighteen years and a $500 fine. The trial court sentenced Clayborn in accordance with the jury ver d i cts , and a ll six s entences are

run ning c oncurrently

. See Ex parte Knipp , 236 S.W. 3d 214, 215 n.2 ( Tex. Crim. App. 2007); C azarez v. State , 606 S.W.3d 549, 562

– 63 (Tex. App.

— Houston [1 st Dist.] 2 020, no pet.). On appeal, Clayborn raises three poi nts , [1] The trial court erred in overruling [Clayborn ’ s] obj ection to the jury charge on th e ground s that it allowed th e jur y to convict on both a greater and lesser included offen se in violation of the Double Jeopardy Clause of the Fifth Amendment

. [2] The trial court reversibly err ed by issuing a jury charge o n punishme nt that is violat ive 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 f ro m the c ourt of c riminal a ppeals has held squarely against Clayborn on his first two poi nts, so we overrule them. We sustain Clayborn ’ s th ird point and modify3

the judg ments for Cou nt s Fifteen and S eventeen to correctly r ef lect the offenses for
whic h h e was con vict ed.
II. B ACKGROUND Clayborn participated in a series of robberies in Tarrant County that t he police
referred to as the Jabbawoc keez robber ies due to the distinctive masks that the
robbers wore. 1 Cl ayborn ’ s indictment originally conta ined thirty

- eight counts, but the
State waived tw enty counts b efore j ury s election and waived two more count s before jury deliberation s. Of the remaining sixte en counts submitted to the jury, the jury found Clayborn not guilty on ten counts. On each of the other six counts, the jury
foun d Claybo rn guilty of a les ser

- incl u ded offen se. III. D ISCUSSION
A. D ou ble Jeopar dy Clayborn objected to the charge because it allowed the jury to convict him of both the greater offen se s ( engaging in organized cri mina l ac tivity with robbery as the predicate offense ) an d the le ss er

- included offense s ( robbery)

. B ecaus e the elements
of the le sser

- included offense s of robbery we re wholly subsumed within the elements of the greater offense s of engaging in organized criminal activity us ing robbery as the predicate offens e , Clay born arg ues that convicti n g him of both offenses violate d
double jeop ardy

. See Brown v. Ohio , 432 U .S. 16 1, 168, 97 S. Ct. 22 2 1 , 2226

– 27 (1977 ).

1 “ Jabb awoc keez ” refer s to a da nce gro u p that often perform s while wearing similar mas ks

.4

1. The C harge
F or an off

ense committed o n or about September 30, 2017, against Al ma Be ltran , t he jury fo und Clay born guilty of engag ing in organized criminal activity
when committing th e predi cate offense of robbery in Count Fi fteen

. In Co unt Sixteen, t he jury also found Clayborn guilty of robbery for an o ffe nse committed on or about Septem ber 30, 2017, ag ainst Al ma Be ltran

. This is the first alleged do u ble

jeopardy violation about which Clay born complain s. Next, t he jury found Clayborn guilty of Count Seven teen, engaging in organized criminal activity wh en commi tting the predicate o ffense of r obbery on or about Sept ember 30 , 2017, agai nst An tonio Or tiz. And t he jury also fou nd Clayborn guilty of Count Eighteen

— rob bery

— for an offense committed on or abou t September 30, 2017, ag ainst Antonio Ortiz

. Thi s is the second alleged do u ble

jeopardy violation ab out which Clayborn complai n s. 2. Discussion
In the context of engaging in organized criminal activity and the less er

- included
offense alle ged within the offense o f engaging in orga nized criminal activity, the c ourt of c r i minal a ppeals has alr eady held against Clayb orn ’s po sition. See Garza v. State , 2 13 S.W.3d 338, 3 51

– 52 (Tex. Crim. App. 2007); see also Ex parte Cha ddock , 369 S.W.3d 880, 883 (Tex. Crim. App. 2012 ). On this issue, we have previously followed the

c ourt of c r

iminal a ppeals. See Garrett v. State , No. 02

- 16

- 0012 1

- CR, 2017 WL 3298 260,5

at *2 (Tex. App.

— Fo rt Worth Aug. 3, 2017, pet. ref’d) (per cu riam) (me m. op., not designated for publication)

. Clayb orn recognizes tha t Garza holds against his position but ar gues that Garza was poorly analy zed

. We ar e not th e court that Cl ayborn must persuade. As an
intermediate appellate court, we ar e bound by the deci sions of the c our t of c riminal

a ppea ls. See Wiley v. State , 112 S.W.3 d 1 73, 175 (Tex. App.

— Fort Worth 2003, pet.
ref ’ d). W e over rule Clayborn ’ s fi rst poin t. B. The P arole I nstruction
Tu rning to Clayborn ’ s second point, he objected to the punishment cha r ge bec ause it c on tained a good

- time

- parole instruc tion. A person serving a sentence for engaging in o rga nized criminal activ ity is not eligible t o accumu late good

- conduct time credits for parole release. See Tex. Gov ’ t Code Ann. § 508.145(d )(1), (2).
Cl ayborn conclude s that the instruction was thus an incorre ct statement o f the law

an d erro neous. This is ano ther issue that t he c ourt of c riminal a ppeals has a lready addressed and ruled against Clay

born ’ s position

. Lu quis v. State , 72 S.W.3d 355, 36 3 (Te x. Crim. App. 2002). And we have foll owed t he c ourt of c r iminal a ppeals o n this p recise is sue. See Flores v. State , No. 02

- 17

- 00114

- CR, 2018 WL 1528262, at *2 (Tex. App.

— Fort Worth Mar. 29, 2018, p et. ref’d) (mem. op., not designated for publication). C la yborn acknowledge s that the c ourt of c ri minal a p peals has ruled ag ainst hi s position in6

Luq uis and asserts that he has raised this issue to preserve i t for further review. We

overr ule Clayborn ’ s second point.
C. Clerical Errors Finally, i n po int three, Cla yborn contends that the judgment s for Co unts Fifteen and Seventeen incorrec t ly identify the offenses for which h e was co nvicted. The judgme nt s recite that he was convicted of “ engaging in organized crimina l activity, to wit: aggravat ed robbery , ” which is inco rrect. The judgments should recite
that he was convicted of engaging in organized criminal activity, t o wit: robbery.
Cla yborn asks that we modify the j udgments to ac curate ly refle ct the record. Se e T ex . R . A pp . 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 (Te x. App.

— Dallas 1991, pet. ref’d) (en banc)

. T he Stat e agrees with Clayborn. It too asks tha t we refo rm the ju dgments to reflect that Clayborn was convicted of engaging in organ ized criminal activity, to wit: robbery

. We agree that the j udg ments for Counts Fifteen and Seventeen incorrec t ly identify the offenses for which C layborn was c o nvicted and that they shou ld be
refo rmed to reflect the correct offenses. See T ex . R . A pp . P . 43.2(b); Bigley , 865 S.W.2d at 27 ; A sberry , 813 S.W.2d at 529

. We sus t ain Clayborn ’ s t hird point.
IV. C ONCLUSION We overrule Claybo rn ’ s fir st two points. Ha ving sus tained Claybor n ’ s t hird point, we reform the judgments for Counts F ifteen and Sevent een to reflect that he7

was convicted of e ngaging in organized criminal activity, to wit: ro bbery

. As modified, we affirm the judgme nts
.
/s/ Dana Womack
Dana Womack Justice

Do N o t Pub lish Tex. R. A pp. P. 47.2(b)
Delivered : J u ly 8, 2021