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O'Brien v. State

Court of Criminal Appeals of Texas

May 2, 2018

KELVIN LYNN O'BRIEN, Appellant
v.
THE STATE OF TEXAS

          ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE FIRST COURT OF APPEALS HARRIS COUNTY

          NEWELL, J. delivered the opinion of the Court in which Keller, PJ., Hervey, Richardson and Keel, JJ., joined. Alcala, J., filed a concurring opinion. Yeary, J., filed a dissenting opinion. Walker, J., filed a dissenting opinion in which Yeary, J., joined. Keasler, J., dissented.

          NEWELL, J.

         A person engages in "organized criminal activity" if, with the intent to participate in a crime ring, the person commits or conspires to commit one or more of various predicate crimes.[1] But in order to convict someone of "engaging, " does the jury have to unanimously agree on the specific predicate crime committed by the defendant? No. We hold that the commission of each predicate crime constitutes a different manner and means of committing the single offense of engaging in organized criminal activity. We affirm the court of appeals' holding that the trial court did not err in instructing the jury in the disjunctive regarding the predicate offenses in this case.[2]

         I. Background

         A. Facts

         Appellant was tried on one count of engaging in organized criminal activity. That count alleged that Appellant, with the intent to establish, maintain, or participate in a combination[3] or in the profits of a combination, committed second degree theft or second degree money laundering.[4] The theory was that Appellant was part of a criminal ring that committed multiple jewelry store heists. The biggest heist, and the focus of the trial, was that of a Houston store called Karat 22, which was owned by Aku Patel. As the name might imply, Karat 22 specialized in high-quality gold jewelry.

         Appellant, his brother John, and John's wife Derenda owned New York Gold and Silver stores in the Dallas/Fort Worth area.[5] Jason Kennedy, a long-time friend of the brothers, helped John with the stores. Derenda ran the books. The O'Brien stores sold average-quality jewelry, generally made with 14-carat gold. They would also buy gold from walk-in clients. After they had purchased a sufficient amount of gold, they would smelt it and take it to a refinery, which would then wire the payment for the gold. The payments for such gold were typically no more than $10, 000 per week.

         On Saturday, February 5, 2011, John called Kennedy and told him that they had "some work" to do-meaning they were going to break into a jewelry store. Kennedy grabbed some dark clothes and drove his truck to John's. There, they loaded some tools, including grinders, drill bits, and concrete cutters, into the truck, they picked up Appellant, and they drove towards Houston. John told them that they were "going to hit Karat 22."

         Typical of jewelry heists, the men wore dark clothes and ski masks to avoid being identified on camera, gloves to avoid leaving fingerprints, walkie-talkies to communicate, and headlamps so they could see in the dark. They waited for the store and nearby businesses to close. Then, around 6:30 p.m., Appellant went up to the roof, cut a hole in it, and disabled the alarm while Kennedy and John acted as lookouts.

         All three men went to a nearby strip club and waited for about an hour to see whether Appellant had tripped any alarms. After confirming no alarms had been tripped, Appellant and Kennedy climbed on to the roof of the building, into the attic, and on to the top of the vault, where they spent two to three hours cutting through the vault's concrete top. Appellant entered the vault through the hole they had cut and then cut open the vault door.

         The vault was full of jewelry. The men gathered hundreds of pounds of it. They used a large shop vacuum to move it. Kennedy estimated that it took them about three hours to empty the vault and that they took virtually everything. The men loaded the jewelry into Kennedy's truck. According to Patel, the total value of Karat 22's inventory at the time of the heist was around four million dollars.

         Appellant and his crew finished with the store around 4:30 a.m. On the drive back, John called Derenda and asked her to open the Watauga store. Derenda met them at the store, where they unloaded, sorted, and started smelting jewelry to make blocks of gold.

         On February 7, 2011, John arrived at Millennium Precious Metals in Dallas with two buckets full of gold bars. The gold was 84 percent pure, which put it at a little over 20 karats, and it weighed 99 pounds. A couple of days later, John brought Millennium another bucket of gold bars weighing about 85 pounds. That gold was 80 percent pure, or a little over 19 karats. New York Gold and Silver Exchange received two wires from Millennium within days after the heist; the first was $1.6 million, the second was $1.3 million. Bryan Vaclavik, the chief fraud examiner for the Harris County District Attorney's Office, testified that the approximately $3 million inflow from Millennium in February 2011 was inconsistent with activity in the New York Gold and Silver Exchange account both before and after the deposit of that money.

         On February 18, 2011, $1.2 million was transferred from John's bank to Appellant's bank, and Appellant started making purchases. He bought a $500, 000 house with a pool, a Ferrari, a Range Rover, and a boat. John spent some too. He paid $1.1 million for heavy equipment for his construction crane business.

         During a search of Appellant's home, agents seized several appraisals for loose diamonds that matched the statistics for some of the certified diamonds stolen from Karat 22. Appellant acknowledged the importance of the appraisals when John called him on a recorded jail line. Several cut-off wheels, of the type used to cut through the vault's concrete top, and a hand grinder were also seized.

         B. Trial

         Appellant's defense at trial was that he and John were legitimate businessmen and that their money came from the operation of their jewelry stores and John's crane business. Brian Wallace, the owner of Millennium Precious Metals, testified that he had a business relationship with John and Derenda. Wallace testified that over the course of this business relationship he bought gold from them hundreds of times and millions of dollars changed hands. Wallace testified that he did not have any suspicion that the gold John brought to him in February 2011 was stolen.

         The application portion of the jury charge, to which Appellant did not object, presented the two predicate offenses-theft and money laundering-in the disjunctive.

Now, if you find from the evidence beyond a reasonable doubt that in Harris County, Texas, the defendant, KELVIN LYNN O'BRIEN, heretofore on or about August 13, 2007 and continuing through April 12, 2013, did then and there unlawfully, with intent to establish, maintain or participate in a combination or in the profits of a combination, said combination, consisting of Kelvin O'Brien and at least two of the following: John O'Brien and/or Derenda O'Brien and/or Jason Kennedy, commit the offense of theft in that the defendant on or about February 6, 2011 did unlawfully appropriate by acquiring or otherwise exercising control over property, namely, gold, jewelry, gems and watches owned by C. Patel or Karat 22 Jewelers of the value of over two hundred thousand dollars with the intent to deprive C. Patel or Karat 22 Jewelers of the property then you will find the defendant guilty as charged in the indictment; or
If you find from the evidence beyond a reasonable doubt that in Harris County, Texas, the defendant, KELVIN LYNN O'BRIEN, heretofore on or about August 13, 2007 and continuing through April 12, 2013, did then and there unlawfully, with intent to establish, maintain, or participate in a combination or in the profits of a combination, said combination consisting of Kelvin O'Brien and at least two of the following: John O'Brien and/or Derenda O'Brien and/or Jason Kennedy, commit the offense of money laundering, namely in that he heretofore on or about August 13, 2007 and continuing through April 12, 2013, did then and there unlawfully, knowingly transfer, invest or expend funds which constituted the proceeds of criminal activity, of the value of at least two hundred thousand dollars by purchasing a house, by purchasing a pool, by purchasing motor vehicles, by purchasing a boat, by purchasing a watch, by purchasing heavy equipment, by moving funds from one bank account to another or by paying bondsmen's fees, then you will find the defendant guilty as charged in the indictment.

         The word "unanimously" appeared in the section of the jury charge dealing with selection of the jury foreman:

After you retire to the jury room, you should select one of your members as your Foreman. It is his or her duty to preside at your deliberations, vote with you, and when you have unanimously agreed upon a verdict, to certify to your verdict by using the appropriate form attached hereto and signing the same as Foreman.

         Without objection, the prosecution explained at closing, as it had in voir dire, that the jury did not have to agree on whether Appellant committed the predicate offense of theft, or that of money laundering. Appellant was convicted and punishment was assessed at life in prison.

         C. Appeal

         Though Appellant did not object to the jury charge at trial, he argued on appeal that the jury instructions permitted a non-unanimous verdict. Specifically, he argued the application paragraph did not require the jury to be unanimous regarding which predicate offense had been committed by Appellant and his criminal combination. According to Appellant, the predicate offenses of theft and money laundering were essential elements of the offense of engaging in organized criminal activity rather than alternate manner and means.

         The court of appeals disagreed. The court explained that when an indictment alleges "several different overt acts, " these are alternate manner and means of committing the offense of engaging in organized criminal activity.[6] Because the predicate offenses were the manner and means for committing the same offense, the court held that instructing the jury in the disjunctive regarding the predicate offenses was not error.[7] According to the court of appeals:

If the specific enumerated offense was an essential element of the offense of engaging in organized criminal activity, then the use of the term "one or more" would be meaningless, because the commission of each enumerated offense would constitute a separate instance of the offense of engaging in organized criminal activity.[8]

         Appellant petitioned this Court to determine whether the court of appeals erred in holding that unanimity is not required with respect to the predicate offenses of theft and money laundering. As he points out, his case is unique in that he was charged with committing two different predicate offenses rather than multiple instances of the same predicate offense. We therefore granted review.

         II. Analysis

         A. The Right to a Unanimous Verdict

         Under the Texas Constitution and Code of Criminal Procedure, a Texas jury must reach a unanimous verdict.[9] The jury must agree that the defendant committed one specific crime, but this does not mean that the jury must unanimously find that the defendant committed that crime in one specific way or even with one specific act.[10] A jury must unanimously agree on each essential element of the crime in order to convict.[11] But the requirement of jury unanimity is not violated by a jury charge that presents the jury with the option of choosing among various alternative manner and means of committing the same statutorily defined offense.[12]

         We have previously explained that deciding a jury unanimity challenge can require us to answer two interrelated questions.[13] First, we examine the language defining the penal offense to determine whether the Legislature has created a single offense with multiple or alternate modes of commission.[14] We determine what the jury must be unanimous about by conducting a statutory analysis that seeks to ascertain the focus or gravamen of the offense.[15] If the gravamen of the crime is the "result of the conduct, " the jury must be unanimous about the specific result required by the statute but not the specific conduct.[16] If the gravamen of the crime is the "nature of the conduct, " the jury must be unanimous about the specific criminal act committed.[17] And if the gravamen of the crime is a "circumstances surrounding the conduct, " unanimity is required about the existence of the particular circumstance of the offense.[18]

         Second, we ask whether jury unanimity on the alternate means or modes of commission-the brute facts of the offense-is nevertheless required as a matter of due process because the alternate means are so disparate as to become two separate offenses.[19] The Constitution itself limits a State's power to define crimes in ways that would permit juries to convict while disagreeing about means, at least where that definition risks serious unfairness and lacks support in history or tradition.[20] But as a plurality of the United States Supreme Court noted in Schad v. Arizona, it is "impossible to lay down any single analytical model for determining when two means are so disparate as to exemplify two separate offenses."[21] In Jefferson v. State, we explained that we answer this due process question by determining whether the acts or omissions that combine to establish an offense are "basically morally and conceptually equivalent."[22]

         As we explain more fully below, engaging in organized criminal activity is a "circumstances of the conduct, " offense, the circumstance being the existence or creation of a combination that collaborates in carrying out criminal activities.[23] Consequently, the jury was not required to be unanimous regarding the individual predicate offenses because they are a different manner and means of committing the same offense. Moreover, treating the predicate offenses as manner and means in this case does not run afoul of due process because the offenses at issue are morally and conceptually equivalent. Consequently, the trial court properly instructed the jury in the disjunctive with regard to the predicate offenses of theft and money laundering.

         B. The Gravamen of "Engaging"

         As discussed above, jury unanimity is required on the essential elements of the offense, but it is generally not required on the alternate manner or means of commission.[24] Therefore, it is necessary to identify the focus or gravamen of an offense and the alternate modes of commission, if any.[25] As the court of appeals recognized, this inquiry is primarily a question of legislative intent.[26] To determine the collective intent of the Legislature, we look to the statutory text because it provides the best means to determine that intent.[27] If the plain language is clear and unambiguous, our analysis ends because "'the Legislature must be understood to mean what it has expressed, and it is not for the courts to add or subtract from such a statute.'"[28] We presume that every word has been used for a purpose and that each word, phrase, clause, and sentence should be given effect if reasonably possible.[29] Only where a statute is ambiguous or would lead to an absurd result do we consider extra-textual sources.[30] Ambiguity exists when reasonably well-informed persons may understand the statutory language in two or more different senses.[31]

         Section 71.02(a) of the Texas Penal Code provides that

(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, the person 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, continuous sexual abuse of young child or children, solicitation of a minor, forgery, deadly conduct, assault punishable as a Class A misdemeanor, burglary of a motor vehicle, or unauthorized use of a motor vehicle;
(2) any gambling offense punishable as a Class A misdemeanor;
(3) promotion of prostitution, aggravated promotion of prostitution, or compelling prostitution;
(4) unlawful manufacture, transportation, repair, or sale of firearms or prohibited weapons;
(5) unlawful manufacture, delivery, dispensation, or distribution of a controlled substance or dangerous drug, or unlawful possession of a controlled substance or dangerous drug through forgery, fraud, misrepresentation, or deception;
(5-a) causing the unlawful delivery, dispensation, or distribution of a controlled substance or dangerous drug in violation of Subtitle B, Title 3, Occupations Code;
(6) any unlawful wholesale promotion or possession of any obscene material or obscene device with the intent to wholesale promote the same;
(7) any offense under Subchapter B, Chapter 43, 1 depicting or involving conduct by or directed toward a child younger than 18 years of age;
(8) any felony offense under Chapter 32;
(9) any offense under Chapter 36;
(10) any offense under Chapter 34, 35, or 35A;
(11) any offense under Section 37.11(a);
(12) any offense under Chapter 20A;
(13) any offense under Section 37.10;
(14) any offense under Section 38.06, 38.07, 38.09, or 38.11;
(15) any offense under Section 42.10;
(16) any offense under Section 46.06(a)(1) or 46.14;
(17) any offense under Section 20.05 or 20.06; or
(18) any offense classified as a felony under the Tax Code.[32]

         Additionally, Section 71.01(a) defines the term "combination" as follows

         (a) "Combination" means three or more persons who collaborate in carrying on criminal activities, although:

(1) participants may not know each other's identity;
(2) membership in the combination may change from time to time; and
(3) participants may stand in a wholesaler-retailer or other arm's-length relationship in illicit distribution operations.[33]

         The State argues that the "intent to participate in a combination" is the gravamen of "engaging." But a culpable mental state is not a conduct element; the conduct element is what the culpable mental state applies to.[34] We must therefore look to the text of the statute to discern what the conduct elements are to determine the focus or gravamen of the offense.

         1. The Eighth-Grade-Grammar Test

         One analytical model this Court has employed in determining whether different methods of committing a single offense are at issue or whether different offenses are alleged is to focus on the statutory verb and its direct object defining the criminal act.[35] Appellant argues that the use of this eighth-grade-grammar test leads to the conclusion that each predicate offense is a separate element of engaging in organized criminal activity that requires jury unanimity. In a concurring opinion in Jefferson v. State, Judge Cochran articulated how this test should generally operate.

In sum, we must return to eighth-grade grammar to determine what elements the jury must unanimously find beyond a reasonable doubt. At a minimum, these are: the subject (the defendant); the main verb; and the direct object if the main verb requires a direct object (i.e. the offense is a result-oriented crime); and the specific occasion (the date phrase within the indictment, but narrowed down to one specific intent regardless of the date alleged). Generally, adverbial phrases, introduced by the preposition "by, " describe the manner and means of committing the offense. They are not the gravamen of the offense, nor elements on which the jury must be unanimous.[36]

         In this case, the indictment and the jury charge used the preposition "by" to describe the manner in which the predicate offenses were alleged to have been committed rather than as a way to differentiate between the two predicate offenses of theft and money laundering.[37] According to Appellant, this indicates that predicate offenses are elements rather than manner and means.

         But Appellant's argument overlooks that the eighth-grade-grammar test is a method of analyzing the statutory text to determine the elements of an offense. It is not keyed to the indictment or the jury charge. Judge Cochran said as much when she first proposed the test in Jefferson. According to her concurring opinion, "To determine the forbidden conduct, we look to the statute defining the penal offense."[38]And when a majority of the Court first applied the test in Stuhler v. State, the Court looked to the text of Section 22.04 of the Penal Code itself to determine the elements of injury to a child without reference to the indictment or the jury charge.[39] How the trial court phrases the application paragraph in the jury charge for a particular case does not provide us with any insight into the legislative intent behind the drafting of a particular offense. Accordingly, we apply the rules of grammar to the text of the statute describing the offense in the context of the entire statutory scheme to attempt to discern the Legislature's intent in passing the statute.

         2. Result of Conduct vs. Nature of Conduct

         Application of grammar rules to the text of the statute reveals similarities between section 71.02 and result-oriented crimes. Like "result of conduct" crimes, it features a verb ("commits or conspires to commit") that requires a direct object ("one or more of the following") upon which the verb acts.[40] Further, the descriptions of the predicate offenses that would take the place of "one or more of the following" do not limit the statute to particular conduct.[41] That is, the Legislature did not appear concerned with how a particular predicate offense is committed. Instead, it appeared concerned that the predicate offense resulted from a criminal combination's collaboration in carrying on criminal activities.

         This structure appears similar to the felony murder statute we analyzed in White v. State.[42] In White, we noted that Section 19.02(b)(3) of the Penal Code uses the transitive verb "commits" followed by the term "felony" and this bolstered our conclusion that the identity of the underlying felony in a felony murder case was simply a different manner and means of committing the "felony" element of the statute.[43] So the argument goes that the predicate felony offenses in Section 71.02 are also merely manner-and-means because the "one or more of the following" element of the ...


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