No.

J12F15-107
THE STATE OF TEXAS,
Plaintiff,
v.
BURTON GEORGE BERGMAN,
Defendant.

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JUSTICE OF THE PEACE

COURT
PRECINCT 1, PLACE 2
McLENNAN COUNTY,
TEXAS

BRIEF REGARDING EXAMINING TRIAL

Defendant, Burton George Bergman, hereby submits this brief in support of his
request for a no probable cause finding at the examining trial set in this case for
September 18, 2015.
I. BACKGROUND
A. Mr. Bergman
George Bergman is a hard working truck driver with no criminal record. Mr.
Bergman is also a member of the Desgraciados Motorcycle Club. On May 17, 2015,
Mr. Bergman drove his motorcycle to the Twin Peaks restaurant in Waco, Texas to
attend a Confederation of Clubs (COC) meeting. He had previously attended such
meetings and all previous meetings had been peaceful and he had absolutely no
reason to believe this meeting would be any different.

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Mr. Bergman had just parked his motorcycle and, after noticing the size of the
crowd at Twin Peaks, he decided to go toward the Don Carlos restaurant to use its
bathroom. Just as Mr. Bergman started toward Don Carlos, he heard a gun shot. At
that point, Mr. Bergman started running toward Don Carlos. Mr. Bergman had two
small and legal knives on his person which are knives he regularly carries. The first
was a utility knife with a small blade and the second was a pocket tool used for
cutting seat belts and breaking glass in case of emergencies.1
Mr. Bergman, like most of the other motorcyclists, was detained after the
violence that erupted. He was later transferred to the Waco Convention Center under
the guise that he would be questioned and released. It was only after several hours
with his hands zip cuffed behind his back and being denied food that Mr. Bergman
and others were told they were being arrested. Later, a bond was set in the amount
of $1,000,000.
Mr. Bergman was eventually released after spending twenty days in jail and
after posting a $80,000. Nevertheless, during the interim, Mr. Bergman lost his job
and he continues to suffer from physical injuries arising out of the excessive amount
of time he spent zip cuffed.

Mr. Bergman had a gun which he left in his motorcycle trunk. Of course, under Texas
law, a citizen has a right to carry a firearm in his vehicle. Texas Penal Code 46.02(a)(2).
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B. Criminal Complaint
Mr. Bergman was arrested based upon a fill-in-the-name criminal complaint.
See Attachment A. The complaint affidavit, sworn to under oath by Waco Police
Officer Manuel Chavez, alleged:
The Texas Department of Public Safety maintains a database containing
information identifying the Cossacks [Motorcycle Club] and their
associates as a criminal street gang and the Bandidos [Motorcycle Club]
and their associates as a criminal street gang.
(emphasis added). The affidavit also discussed the violence that took place between
members and associates of the Bandidos and Cossacks in the Twin Peaks parking lot
on May 17, 2015. It finally alleged that the subject was apprehended at the scene,
while wearing common identifying distinctive signs or symbols or had an identifiable
leadership or contiguously or regularly associate [sic.] in the commission of criminal
activities.
The affidavit does not identify of which Motorcycle club Mr. Bergman was a
member. In violation of Franks v. Delaware, 438 U.S. 154 (1978), the affidavit also
did not inform the court that Mr. Bergman did not take place in any violence nor had
he been aware that any violence would take place.
Perhaps most troubling is that the affidavit may be perjurious. Indeed, it
is the responsibility of the Department of Public Safety to maintain a database of

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criminal street gangs in the state. Texas Code Crim. P. Art. 61.11. Nevertheless, the
2014 Texas Gang Threat Assessment report prepared by the Department of Public
Safety only alleges the Bandidos to be a street gang and, contrary to Chavezs
sworn statement, it does not allege the Cossacks nor its associates nor the Bandidos
associates to be street gangs. See Attachment B.2 Interestingly, the 2015 DPS
report (dated three months after the Twin Peaks incident) mentions the Twin Peaks
incident but still does not allege the Cossacks nor its associates nor the Bandidos
associates to be street gangs. 3
II. DISCUSSION
Mr. Bergman is charged with engaging in organized criminal activity for the
purpose of committing murder, capital murder and/or aggravated assault. Mr.
Bergman submits that, even under the reduced probable cause standard used for the
purposes of examining trials, the evidence will reveal itself to be insufficient and will
require the Court to enter a no probable cause finding at the termination of the
examining trial.

The report can be found at:

https://www.dps.texas.gov/director_staff/media_and_communications/2014/txGangThreatAssess
ment.pdf
3

The 2015 report can be found at:

https://www.dps.texas.gov/director_staff/media_and_communications/2015/txGangThreatAssess
ment.pdf
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A. Law
The law regarding allegations of engaging in organized criminal activity is well
settled. The Court of Criminal Appeals made clear that, in order to commit the
offense of engaging in organized criminal activity, the actor must not only agree to
participate but must himself perform some overt act in pursuance of that agreement.
Barber v. State, 764 S.W.2d 232, 235 (Tex. Crim. App. 1988). Indeed, the defendant
must have the intent to form a group to carry on criminal activities, Nguyen v.
State, 1 S.W.3d 694. 697 (Tex. Crim. App. 1999).
These principles were summarized by the Court of Criminal Appeals in Hart
v. State, 89 S.W.3d 61, 63-64 (Tex. Crim. App. 2002) (emphasis added):
There are two parts to the mental state requirement in engaging in
organized criminal activity. One mental state requirement is included
in the commission of one of the enumerated offenses. Tex. Penal Code
71.02(a). For example, if the enumerated offense is theft, the State
must prove that the appellant intended to deprive the owner of property
as part of proving the underlying enumerated offense. Tex. Penal Code
31.03(a).
The other mental state requirement in section 71.02(a) is that the
defendant intend to establish, maintain, participate in, or participate in
the profits of a combination. This second requirement must be more
than the intent to commit the enumerated offense because otherwise the
statutory element would be superfluous. The proof must consist of more
than evidence that a combination existed and that the defendant
committed one of the enumerated offenses; the evidence must support
a finding that the defendant intended to establish, maintain, participate
in, or participate in the profits of a combination. Otherwise, the express
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requisite intent in the statute would be meaningless.

In short the mens rea and the actus reus of this crime must coincide before a
person can be prosecuted under Section 71.02. Lucario v. State, 698 S.W.2d 835,
840 (Tex. App.Houst. [1st Dist.] 1983). In other words, the engaging in organized
criminal activity statute requires that the actor know of the criminal activity of the
group. Id.
An excellent example of these important principles can been seen in Munoz v.
State, 29 S.W.3d 205 (Tex. App.Amarillo 2000). There, Munoz was part of a drug
transaction. Id. at 207-08. Nevertheless, in holding that Munoz was not part of a
group for the purpose of the engaging in organized criminal activity statute, the
Court of Appeals wrote:
Nor are we able to conclude that evidence of record supports a
reasonable inference that appellant agreed to combine with his wife,
children or the two unknown Hispanics for the purpose of engaging in
continuing activities. Admittedly, all were present when the sale to
Arredondo was occurring and most likely knew what was transpiring.
And, while it could be said that Carlos Munoz (one of appellant's
children) assisted in the transaction by trying to dispose of the drug
during the raid, no evidence begins to suggest that he played any role in
any other transactions of his father or that he so desired or intended.
The same can be said of Viola Munoz, the minor son, and the two
unknown Hispanics. They were present and undoubtedly knew what
was happening, but we are unable to say that a fact-finder could
reasonably infer from mere presence and knowledge of the
circumstances any agreement to jointly engage in illegality over the
course of time. Moreover, it is these indicia, or lack thereof, that
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distinguish our situation from that in Mast.

In Mast, four people lived in the house wherein the homeowner hid
stolen tools and all four knew that the tools were stolen. Mast v. State,
8 S.W.3d at 369. All knew where they were concealed and that the
plan was to sell them. Id. Moreover, three of the four performed acts
which manifested their involvement, including hiding the tools and
personally negotiating their sale to others. None of that appears here.
Other than the attempt by Carlos to dispose of the drugs, the evidence
does not show that Carlos, Viola, the minor child, or the two unknown
Hispanics negotiated the sale, hid the drugs, delivered the drugs, acted
as security, or the like. Again, aside from Carlos, the most that can be
gleaned from the record is that they were just present and knew what
was occurring. Moreover, as for Carlos, nothing indicates that he did or
intended to do anything other than dispose of the marijuana in this one
transaction. At this juncture, we hesitate to conclude that mere presence
at the scene and knowledge of what is occurring evinces an agreement
to assist in the past or at the moment or in the future.
Id. at 210 (emphasis added).
B. Application-One Never Brings a Knife to a Gun Fight
Mr. Bergman concedes that he was a member of the Desgraciados Motorcycle
Club and that he was in the vicinity of the Twin Peaks violence, however, those facts
alone hardly establish probable cause to believe he engaged in organized criminal
activity.
First, there is no indication that the Desgraciados, the group of which Mr.
Bergman was a member, took place in any of the violence. Second, there is no
evidence that Mr. Bergman [knew] of any criminal activity of the group. Lucario,

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698 S.W.2d at 840. Finally, even if the Desgraciados did participate in the violence
and Mr. Bergman knew that the Desgraciados participated in that type of violent
criminal activity, there is absolutely no evidence supporting a claim that Mr. Bergman
took any act in pursuance of participating in the violence as required by the Court of
Criminal Appeals. Barber, 764 S.W.2d at 235.
In sum, one can return to the example used by the Court of Criminal Appeals
in Hart and the discussion by the Amarillo Court of Appeals in Munoz.
Again, the Court of Criminal Appeals in Hart gave the following example: if
the enumerated offense is theft, the State must prove that the appellant intended to
deprive the owner of property as part of proving the underlying enumerated offense.
Hart, 89 S.W.3d at 63 (emphasis added). From this it follows that, if the enumerated
offense is murder, capital murder or aggravated assault, the State must prove Mr.
Bergman intended that a person was murdered or assaulted by the group of which he
joined.
Also, similar to Munoz, the fact that Mr. Bergman was present at the incident
does not evince an agreement to assist any group in committing murder, capital
murder or aggravated assault in the past or at the moment or in the future. Munoz,

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29 S.W.3d at 210.4
III. CONCLUSION
Mr. Bergman submits that the State will be unable to establish probable cause
that he knew of any criminal activity by the Desgraciados. Indeed, he had attended
previous COC meetings involving the Desgraciados without incident. He likewise
submits that there is not even a scintilla of evidence that he joined any agreement to
assist any group in committing murder, capital murder or aggravated assaul. Merely
being a member of a group present at the scene of a crime does not turn a law abiding
citizen with no criminal record into a criminal.
"Guilt by mere association" is still unlawful in this country, and it should
remain so.

Mr. Bergman pauses to note that an intent to enter into an agreement to engage in
organized criminal activity may be inferred from the acts of the parties. (Tex. Penal Code
71.01) so it stands to reason that a lack of intent to engage in organized criminal activity can also
be inferred from the acts of the parties. Here, Mr. Bergman left a firearm with his motorcycle. If
his intent was to join a group with the intent that the group commit murder, capital murder or
aggravated assault, why leave the firearm with his motorcycle? One does not bring a knife to a
gun fight!
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Respectfully submitted,

F. Clinton Broden
TX Bar 24001495
Broden & Mickelsen
2600 State Street
Dallas, Texas 75204
214-720-9552
214-720-9594 (facsimile)
Attorney for Defendant
Burton George Bergman

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CERTIFICATE OF SERVICE
I, F. Clinton Broden, do hereby certify that, on this 17th day of September,
2015, I caused a copy of the foregoing document to be served on McLennan County
District Attorney 219 N 6th St Waco, TX 76701 by hand delivery.

F. Clinton Broden

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