O'Brien v. State
544 S.W.3d 376
| Tex. Crim. App. | 2018Background
- Appellant Kelvin O'Brien was convicted under Tex. Penal Code §71.02 for "engaging in organized criminal activity" based on alleged participation in a ring that stole jewelry from Karat 22 and laundered proceeds. He was charged with two predicate offenses: theft and money laundering.
- Factual proof included the Karat 22 vault burglary, millions wired from a refinery, subsequent large transfers to defendants and purchases (house, cars), smelting of jewelry, and seized tools and diamond appraisals.
- The application paragraph of the jury charge listed the two predicate offenses in the disjunctive; defense did not object at trial. Prosecutor told jurors they need not agree on which predicate (theft vs. money laundering) was proven.
- O'Brien was convicted and sentenced to life. On appeal he argued the jury must be unanimous as to which predicate offense was committed because each predicate is an element of the §71.02 offense.
- The court of appeals upheld the conviction; the Texas Court of Criminal Appeals granted review to decide whether jury unanimity is required as to predicate offenses listed in §71.02.
Issues
| Issue | Plaintiff's Argument (O'Brien) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether jury unanimity is required as to which predicate offense under §71.02 was committed | Predicate offenses (theft, money laundering) are elements of the charged offense; jury must unanimously agree on which was committed | Predicate offenses are alternative manner/means — statute criminalizes participating in a combination that commits one or more listed offenses; unanimity on a specific predicate is not required | Jury unanimity as to the specific predicate offense is not required; predicate offenses are alternate manner and means of a single §71.02 offense; conviction affirmed |
| Whether treating alternate predicates as manner/means violates due process when predicates are disparate | Combining distinct offenses as alternate theories could violate due process (Schad-type concern) | Due process is satisfied where predicates are morally and conceptually equivalent or tied by nexus | No due process violation here: theft and laundering in this case are morally/conceptually equivalent (laundering was temporally/nexally tied to theft and both were same felony grade) |
| What is the gravamen (focus) of §71.02 — result, nature, or circumstance? | Gravamen is the nature of conduct (the particular predicate offense); statute elevates predicate to §71.02 offense, so predicates are elements | Gravamen is the circumstance surrounding conduct: existence/creation of a ‘‘combination’’ collaborating in criminal activities | Gravamen is a circumstance surrounding the conduct (the combination/collaboration); predicate offenses are means of proving that circumstance |
| Whether the trial court erred in instructing the jury in the disjunctive | Disjunctive instruction allowed non‑unanimous verdict on predicates and was thus erroneous | Disjunctive instruction was appropriate because unanimity on the specific predicate was not required | No error in giving the disjunctive instruction; jury need only unanimously agree that at least one listed offense was committed as part of the combination |
Key Cases Cited
- Schad v. Arizona, 501 U.S. 624 (1991) (due-process limits on permitting nonunanimous jury verdicts for novel "umbrella" crimes)
- Jefferson v. State, 189 S.W.3d 305 (Tex. Crim. App. 2006) (framework for unanimity analysis; application of grammar test to statutory text)
- White v. State, 208 S.W.3d 467 (Tex. Crim. App. 2006) (under felony-murder statute, underlying felonies are alternate manner/means and need not be unanimously agreed)
- Contreras v. State, 312 S.W.3d 566 (Tex. Crim. App. 2010) (consideration of moral/conceptual equivalence for due-process analysis)
- Nguyen v. State, 1 S.W.3d 694 (Tex. Crim. App. 1999) (definition of "combination" and requirement that combination do more than a single act)
- Kent v. State, 483 S.W.3d 557 (Tex. Crim. App. 2016) (analogous construing of aggregated-course-of-conduct statutes and unanimity)
- Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) (jury must be unanimous as to one of multiple distinct statutory acts when statute supplies separate modes)
- Stuhler v. State, 218 S.W.3d 706 (Tex. Crim. App. 2007) (use of grammar-based test to identify elements)
- Pizzo v. State, 235 S.W.3d 711 (Tex. Crim. App. 2007) (distinguishing result-oriented vs. conduct‑oriented offenses for unanimity analysis)