Patterson, Anthony Jordan

Patterson and fellow gang members were accused of multiple counts each of engaging in organized criminal activity (EOCA) for committing, as members of a criminal street gang, the murder of one victim and assault of the victim’s friend—both of which occurred in the same bar-parking-lot brawl. Patterson filed a motion to quash, arguing that EOCA’s unit of prosecution was the criminal episode, and thus (under multiple-punishment Double Jeopardy) he could only be convicted of a single count. The trial court denied the motion, and Patterson was ultimately convicted of two counts of EOCA.

On appeal, Patterson re-urged his claim, pointing to EOCA’s statutory language, which criminalizes the commission of “one or more of the following” predicate offenses. He also relied on the holding in O’Brien v. State, 544 S.W.3d 376 (Tex. Crim. App. 2018), that the allegation of multiple predicate offenses are mere manners and means of committing a single instance of EOCA with respect to the non-gang-member version of EOCA for those “with intent to establish, maintain, or participate in a combination.” The court of appeals rejected the analogy, noting that O’Brien had “specifically declined to address” the gang-member version of the offense. Instead, it cited an earlier dissenting opinion by Judge Keasler in Bailey v. State, 87 S.W.3d 122, 130 (Tex. Crim. App. 2002), proposing that the allowable unit of prosecution for EOCA by committing theft should be each victim.

Patterson argues that since both O’Brien and Bailey involved the combination version of EOCA, there was no legitimate reason to favor a dissenting judge’s dicta. He further contends that O’Brien’s holding—that the gravamen of combination-EOCA is the circumstance of the existence or creation of a combination—applies equally to gang-member-EOCA, which involves a similar circumstance of gang membership.