Charles James Garrett, Jr. v. State
02-16-00121-CR
Tex. App.Aug 3, 2017Background
- Appellant Charles James Garrett, Jr., an admitted member/officer of the Aryan Brotherhood of Texas (ABT), was tried for murder (Count Two) and engaging in organized criminal activity (EOCA) with murder as the underlying offense (Count One) for the April 17, 2014 killing of Bryan Childers.
- Evidence showed ABT is a criminal street gang (three or more persons, identifiable leadership) and that Garrett aided, directed, or encouraged co-defendant Nicholas Acree to stab Childers in an "ABT style" killing.
- A jury convicted Garrett of both EOCA (Tex. Penal Code §71.02(a)(1)) and murder (Tex. Penal Code §19.02(b)).
- Garrett raised five appellate issues: three complaints that the trial court improperly granted the State’s challenges for cause to venire members, a double-jeopardy/multiple-punishments challenge to conviction and punishment for both EOCA and murder, and a charge error claim that including the law-of-parties instruction in the EOCA charge lessened the State’s burden to prove gang membership.
- The court held the three voir dire complaints were not preserved (no contemporaneous objections), rejected the double-jeopardy argument based on controlling precedent construing legislative intent, and rejected the charge error claim, concluding parties liability may be used to prove the underlying offense for EOCA and the evidence supported gang membership and party culpability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1–3: Challenges for cause (voir dire) | State: challenges for cause were proper for three venire members | Garrett: trial court erred in granting State's challenges, depriving him of fair jury selection | Not preserved—no contemporaneous objections; issues overruled |
| 4: Double jeopardy / multiple punishments | Garrett: convicting/punishing him for both murder and EOCA violates Double Jeopardy | State: legislative intent in §71.03(3) permits punishment for both EOCA and underlying offense | Overruled—bound by Court of Criminal Appeals (Garza) that legislature intended cumulative punishments |
| 5: Jury charge – law of parties in EOCA count | Garrett: parties instruction allowed conviction based on only Garrett and Acree, undermining requirement that underlying offense be by three or more persons (criminal street gang) | State: EOCA may be proved by one acting with intent to participate as a gang member; parties liability is an accepted theory to prove underlying offense | Overruled—parties theory proper; evidence established ABT gang membership and Garrett’s party liability |
Key Cases Cited
- Ortiz v. State, 93 S.W.3d 79 (Tex. Crim. App. 2002) (contemporaneous objection required to preserve juror-exclusion complaints)
- Blockburger v. United States, 284 U.S. 299 (U.S. 1932) (same-elements test for separate offenses)
- Garza v. State, 213 S.W.3d 338 (Tex. Crim. App. 2007) (Legislature intended EOCA and underlying offense may both be punished in same proceeding)
- Otto v. State, 95 S.W.3d 282 (Tex. Crim. App. 2003) (parties theory may be used to prove underlying offense for EOCA)
- McIntosh v. State, 52 S.W.3d 196 (Tex. Crim. App. 2001) (recognizing party liability in EOCA prosecutions)
- Curiel v. State, 243 S.W.3d 10 (Tex. App.—Houston [1st Dist.] 2007) (EOCA may be based on committing or conspiring to commit an underlying offense as gang member)