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.