28 2 Engaging In Organized Criminal Activity

28.2. Engaging in organized criminal activity West's Key Number Digest West's Key Number Digest, Racketeer Influenced and Corrupt Organizations 119 to 124 Legal Encyclopedias C.J.S., RICO (Racketeer Influenced and Corrupt Organizations) § 37

Section 71.02 sets out the elements of an organized crime offense. If a person, with the intent to participate or establish a combination, or obtain the profits of one, commits or conspires to commit any of a list of offenses, an offense is committed. If one of the listed offenses is committed, the punishment range is one degree higher than the range applicable to the committed offense. If the range applicable to the listed offense is that of a Class A misdemeanor, the range for a Section 71.02 offense is that of a state jail felony.[FN1] If the range is that of a first-degree felony, the range remains the same. If the conduct involves a conspiracy to commit an offense and the offense is not committed, the punishment range is the same as that of the most serious offense intended. The list of offenses covered by Chapter 71 includes murder; capital murder; arson; aggravated robbery; robbery; burglary; theft; aggravated kidnapping; kidnapping; aggravated assault; forgery; any felony gambling offense; promotion of prostitution; aggravated promotion of prostitution; compelling prostitution; any unlawful

manufacture, transportation, repair, or sale of firearms or prohibited weapons; the unlawful manufacture, delivery, dispensation, or distribution of a controlled substance or the obtaining of such a substance through forgery, fraud, misrepresentation, or deception; the unlawful promotion or possession with intent to promote obscenity or obscene devices; the unlawful employment of a child younger than seventeen for an obscene performance; and any felony listed in Chapter 32 of the Penal Code (any fraud offense). In short, the section covers virtually every serious offense in the Penal Code.[FN2] The 1993 Amendments added still more offenses, including simple assault and misdemeanor gambling. Certain defenses are excluded. It makes no difference that one or more of the members of the combination are not criminally responsible for the object offense, or have been acquitted, not charged, or are immune from prosecution. These exclusions are virtually identical to the exclusions in Section 15.02 of the Penal Code, with one exception. Under a conspiracy charge, if two or more members of the conspiracy are acquitted, those acquittals may be used as a defense—an exclusion that is not available under Chapter 71.[FN3] In addition, it makes no difference that a member of the combination has been charged with, acquitted of, or convicted of one of the object offenses listed in Section 71.02, or that once the initial combination is formed, there is a change in the number of conspirators or their identity, as long as there are two or more people remaining in the combination and there is a continuing course of conduct constituting an offense under this chapter.[FN4]

A party to a combination may be given testimonial immunity under Section 71.04 if the party is required to either furnish evidence or testify. This immunity differs from that contained in Sections 43.06 and 47.09 in that here the immunity is limited to barring the use of evidence or testimony actually obtained rather than extending to the entire prosecution.[FN5] There is an affirmative defense of renunciation under Section 71.05. This section is virtually identical to the renunciation defense contained in Section 15.04. Case law construing that statute, therefore, is controlling here as well.[FN6] Renunciation must occur before the target or underlying offense of Section 71.02(a)(1) through (a)(7) occurs. To constitute a defense, the defendant's efforts at renunciation must be effective and prevent the commission of the offense. If the defendant does not succeed but exerts substantial effort, that effort may be introduced at the punishment phase as mitigation evidence, which, if believed, will reduce the punishment range one grade.[FN7] The defendant's burden of proof on the issue is by a preponderance of the evidence.[FN8] The elements of a Section 71.02 offense are: (1) a combination exists; (2) the defendant either commits an enumerated offense or (3) agrees with one or more members of the combination to commit an enumerated offense and both the defendant and one other participant perform an overt act in furtherance of that agreement; and (4) the conduct is done with the intent to establish, maintain, or participate in either the combination or its profits.[FN9]

A combination requires the collaboration of three or more persons to carry on criminal activities. Early decisions held that this collaboration required some sort of agreement; thus, police officers could not be members of the combination because their agreement was only a subterfuge to carry out law enforcement activities.[FN10] Whether this remains a requirement is uncertain.[FN11] Later cases have focused on the nature of the collaborative activity, requiring proof that the participants were actually working together to accomplish a criminal objective. To establish a combination, the acts of codefendants may be utilized. This rule differs substantially from the law of conspiracy where such evidence may not be used to establish the defendant as a coconspirator. Courts are willing to make this distinction because a Section 71.02 violation requires not just the collaboration, but also the commission by the defendant of either a crime or an overt act to further a criminal agreement. The guilt of a particular person depends on that person's intent and overt acts or criminal conduct.[FN12] A combination may also be proven just as any conspiracy; similar methods of operation together with joint activities and relationships will support such a finding.[FN13] Once a combination is established, a defendant must either commit an enumerated offense or agree with one or more members of the combination to do so and perform an overt act to further that agreement. Another participant to the agreement must also

perform an overt act. This rule differs substantially from the law of conspiracy in that defendant can be convicted under Section 15.02 by a showing of only an agreement and an overt act by someone, not necessarily the defendant.[FN14] If the state relies on the actual commission of the enumerated offense, the proof must show that the defendant actually committed that offense. It is not sufficient to show that the defendant participated in the combination but did not commit the alleged underlying crime.[FN15] It is not certain whether a defendant may be convicted of a Section 71.02 offense by merely being a party to the underlying offense. If one is merely a party, by definition, one is a coconspirator; in such a case the state should rely on the conspiracy prong of Section 71.02.[FN16] If the state relies upon the defendant's participation in a conspiracy with one or more of the participants of the combination, the proof must show not only the agreement, but also the defendant's performance of an overt act pursuant to that agreement. One of the other members of the combination also must perform an overt act, although this overt act need not be criminal.[FN17] The agreement may be inferred by the acts of the participants, but the manner and means of reaching the agreement need not be set out in the indictment.[FN18] Unlike an allegation of the actual commission of a target offense, an allegation of a conspiracy does not require that the elements of the target offense be alleged.[FN19] Allegations of the agreement, the participants to the agreement as well as the members of the

combination and the defendant's overt act however, are required.[FN20] The statute does not permit a conviction for the agreement to commit a single crime, even if it is enumerated as one of the object offenses of Section 71.02. The phrase “carrying on criminal activities” does not include the agreement to joint commit a single criminal act. Rather, it includes an element of intended continuity. The state must, therefore, prove that the defendant intended to establish a criminal combination that intended to work together in a continuing course of criminal activities.[FN21] Finally, a Section 71.02 indictment must allege that the combination was with the intent to establish, maintain, or participate in either the combination or its profits. This element requires proof that all of the participants in the combination knew of its illegal nature and goals.[FN22] A Section 71.02 indictment also should allege enough of the facts of the intended offense or committed offense to apprise a defendant of the potential punishment range. Because the punishment to be given a Section 71.02 felon depends on the punishment range of the underlying offense, some allegation of that underlying range is required. This requirement may be accomplished, with a conspiracy allegation, in the allegations of the underlying acts.[FN23] It is not required that all participants in the combination commit either the underlying offense or an overt act in pursuance of the conspiracy, but those who do

not will be acquitted. The acquittal of the inactive members of the combination will not shield those participants who committed either the target offense or an overt act. The statute specifically excludes those who are not criminally responsible.[FN24]

[FNa0] Taos, New Mexico

-------------------------------------------------------------------------------[FN1] V.T.C.A., Penal Code § 71.02(b) (1993). [FN2] V.T.C.A., Penal Code § 71.02. [FN3] See § 9.3, supra. [FN4] V.T.C.A., Penal Code § 71.03. There is a discrepancy in Subsection (4) of this statute. The excluded defense refers to a change in the original combination of five persons, which is undoubtedly derived from the original language of the statute that defined combination in terms of five persons. The chapter was substantially amended in 1989 and the number of persons necessary to establish a combination was reduced from five to three. Apparently the legislature forgot to amend Subsection (4). That oversight was corrected by the 1993 Amendments. The Legislature also added Subsection (8) to the amended statute, thus making all fraud offenses part of the organized crime statute. The statute as originally

enacted contained only five sets of enumerated statutes. [FN5] V.T.C.A., Penal Code § 71.04. This section appears to conflict with the immunity statutes of §§ 43.06 and 47.09. If a defendant is entitled to total transactional immunity because he or she provided evidence to establish a violation of the prostitution or gambling statutes, is that immunity abolished because of the number of participants? [FN6] V.T.C.A., Penal Code § 71.05. See § 9.5, supra. The Legislature also forgot to amend this statute when it added fraud offenses as part of the enumerated offenses of § 72.02. Thus, though inadvertent, renunciation is not a defense if the target or underlying criminal conduct involves a Chapter 32 offense. [FN7] V.T.C.A. Penal Code Section 71.02. [FN8] V.T.C.A., Penal Code § 71.02(d) (1993). [FN9] Barber v. State, 764 S.W.2d 232 (Tex.Crim.App.1988), on remand 773 S.W.2d 631 (Tex.App.1989). The Barber court seems to hold that only the defendant needs to commit an overt act if the state relies upon a conspiracy; the statute dictates otherwise. Both a defendant and another must perform an overt act. It is not the combination that must commit the offense; it is only the defendant who must commit the offense with the intent to participate in a combination. Thus, where the defendant kills a prison inmate in order to further, the goals of a prison gang,

the statute was satisfied. Canales v. State, 98 S.W.3d 690 (Tex.Crim.App.2003). [FN10] Humphrey v. State, 626 S.W.2d 816 (Tex.App.—Corpus Christi 1981, no pet.). See also Abbett v. State, 694 S.W.2d 534 (Tex.App.—Corpus Christi 1984, pet. granted) (concurring opinion, J. Benavides). In McGee v. State, 909 S.W.2d 516 (Tex.App.—Tyler 1995, pet. ref'd), the court found the existence of a combination, absent an agreement or conspiracy, where the defendant took advantage of a “market” to illegally sell drugs. The “market” was an area of the city where drug dealers had congregated to sell their wares; the court found that simply taking advantage of the conditions of this area of the city met the definition of combination. [FN11] See Barber v. State, 764 S.W.2d 232 (Tex.Crim.App.—1988), on remand 773 S.W.2d 631 (Tex.App.1989) (dissenting opinion, J. Clinton). [FN12] Barber v. State, 764 S.W.2d 232 (Tex.Crim.App.1988), on remand 773 S.W.2d 631 (Tex.App.1989). [FN13] See Rainey v. State, 877 S.W.2d 48 (Tex.App.—Tyler 1994, no pet.). See Moffett v. State, 949 S.W.2d 778 (Tex.App.—Beaumont, 1997). One court has held that Section 71.01 does not require proof of a continuing series of criminal acts or violations. The only criminal act required is either a conspiracy to commit one of the target offenses or its actual commission. With an

allegation of conspiracy, the state need prove only the existence of the conspiracy and that the defendant committed an overt act in furtherance of it; that overt act need not be criminal in itself. Thus, the identities of the other participants, while relevant, is not essential and the jury need not agree on their identities. Garcia v. State, 46 S.W.3d 323 (Tex.App.—Austin 2001). [FN14] Barber v. State, 764 S.W.2d 232 (Tex.Crim.App.1988), on remand 773 S.W.2d 631 (Tex.App.1989); Reina v. State, 940 S.W.2d 770 (Tex.App.—Austin 1997)(if conspiracy is alleged, indictment must allege and evidence must show that defendant committed overt act). See Underwood v. State, 967 S.W.2d 925 (Tex.App.—Beaumont, 1998). [FN15] Richardson v. State, 763 S.W.2d 594 (Tex.App.—Corpus Christi 1988, no pet.). [FN16] See Pike v. State, 758 S.W.2d 357 (Tex.App.—Waco 1988), vacated 772 S.W.2d 130 (Tex.Crim.App.1989). The court seems to confuse apples with oranges by discussing the issue in terms of conspiracy rather than the actual commission of the target offense. The Court has now decided that a defendant may be convicted as a party to a Sec. 71.02 offense. Otto v. State, 95 S.W.3d 282 (Tex.Crim.App.2003). [FN17] Barber v. State, 764 S.W.2d 232 (Tex.Crim.App.1988), on remand 773 S.W.2d 631 (Tex.App.1989).

[FN18] Kennard v. State, 649 S.W.2d 752 (Tex.App.—Fort Worth 1983, pet. ref'd). [FN19] Nickerson v. State, 686 S.W.2d 294 (Tex.App.—Houston [14th Dist.] 1985, pet. ref'd). [FN20] Abbett v. State, 694 S.W.2d 534 (Tex.App.—Corpus Christi 1984, pet. granted). There is another distinction to be drawn between an organized crime allegation involving conspiracy and one involving a completed criminal offense. A conspiracy, for double jeopardy purposes, contemplates a single continuing agreement and a single offense whether the agreement is to commit one crime or many. If the organized crime allegation is the commission of an offense, the statute permits an allowable unit of prosecution with each committed offense. Ex parte Starnes, 993 S.W.2d 685 (Tex.App.—Houston [14th Dist.] 1999). Most of the Texas appellate courts do not recognize a double jeopardy bar between the organized crime allegation and the predicate offense. See McGee v. State, 909 S.W.2d 516 (Tex.App.— Tyler 1995, pdr ref'd); Reina v. State, 940 S.W.2d 770 (Tex.App.—Austin 1997, pdr ref'd); Crumpton v. State, 977 S.W.2d 763 (Tex.App.—Fort Worth, 1998); Lam v. State, 17 S.W.3d 381 (Tex.App.—Houston [1st Dist.] 2000). [FN21] Nguyen v. State, 1 S.W.3d 694 (Tex.Crim.App.1999) (the conviction could not stand where the proof showed only an agreement to commit one crime of murder); Ross

v. State, 9 S.W.3d 878 (Tex.App.—Austin, 2000)(conviction cannot stand where agreement is to commit one criminal episode, involving a series of assaults, almost all spontaneous, against one individual over a very short period of time). Carlson v. State, 71 S.W.3d 524 (Tex.App.—Austin 2002). But see Mast v. State, 8 S.W.3d 366 (Tex.App.—El Paso 1999), where the Court held that Section 71.02 was satisfied where the evidence showed that the defendant and his coconspirators agreed to commit only one burglary but then to sell all of the stolen proceeds. It was the latter component of the agreement that satisfied 71.02. See also Canales v. State, 98 S.W.3d 690 (Tex.Crim.App.2003) (statute satisfied where the defendant, a member of a prison gang, murders another inmate to advance the goals of his gang). It is clear that the state must prove that the defendant is a member of the combination; it is not sufficient to show that he committed a constituent offense even if the evidence establishes the combination's existence. Thus, where the defendant engages in the planning and execution of a theft of an expensive car on behalf of a combination but there is no evidence to suggest that he was to participate in any other criminal activities, the evidence was deemed insufficient. Hart v. State, 89 S.W.3d 61 (Tex.Crim.App.2002). See also Ledet v. State, S.W.3d , 2005 WL 327140 (Tex.App.—Houston [1st Dist.] 2005). [FN22] Richardson v. State, 763 S.W.2d 594 (Tex.App.—Corpus Christi 1988, no pet.); Nickerson v. State, 686 S.W.2d 294 (Tex.App.—Houston [14th Dist.] 1985, pet. ref'd); Cosper v. State, 657 S.W.2d 166 (Tex.App.—San Antonio 1983, no pet.); Abbett v.

State, 694 S.W.2d 534 (Tex.App.—Corpus Christi 1984, pet. granted). [FN23] Rojas v. State, 693 S.W.2d 605 (Tex.App.—San Antonio 1985, pet. ref'd). [FN24] Barber v. State, 764 S.W.2d 232 (Tex.Crim.App.1988), on remand 773 S.W.2d 631 (Tex.App.1989); Nickerson v. State, 686 S.W.2d 294 (Tex.App.—Houston [14th Dist.] 1985, pet. ref'd). This exclusion also extends to those who would not be criminally responsible for other reasons, such as youth.