Comment

Conspiracy is defined in Tex. Penal Code § 15.02(a). The Penal Code requires that for a person to be guilty of criminal conspiracy, the person must act with intent that a felony be committed. There is no such thing as a conspiracy to commit a misdemeanor. Tex. Penal Code § 15.02. Further, inchoate offenses under title 4, including attempt and conspiracy, do not apply to offenses defined outside of the Penal Code unless the outside offenses specifically so provide. State v. Colyandro, 233 S.W.3d 870 (Tex. Crim. App. 2007).

The felony used as the example in the following conspiracy instructions is murder under Tex. Penal Code § 19.02(b)(1). Guidance for drafting instructions on murder may be found earlier in this chapter.

The State Bar has published instructions for party liability under Tex. Penal Code § 7.02(b). These instructions make all conspirators liable for any felony committed by a party in furtherance of the unlawful conspiracy, so long as it should have been anticipated as a result of the carrying out of the conspiracy. See also Ex parte Thompson, 179 S.W.3d 549 (Tex. Crim. App. 2005).

The state may not obtain a conviction on the uncorroborated testimony of a coconspirator, pursuant to the accomplice witness rule. See Rice v. State, 605 S.W.2d 895 (Tex. Crim. App. 1980).

Texas is a bilateral jurisdiction, similar to the federal system, so the state must prove an actual agreement between at least two persons who share the intent to commit the felony. Thus, a defendant cannot be convicted of conspiracy if the only coconspirator is a government agent. Williams v. State, 646 S.W.2d 221 (Tex. Crim. App. 1983) (evidence insufficient to prove conspiracy when only coconspirator worked for police and had no real intention that aggravated kidnapping be committed).

The primary purpose of the overt act requirement is to manifest that the conspiracy is at work. Yates v. United States, 354 U.S. 298, 334 (1957), overruled on other grounds by Burks v. United States, 437 U.S. 1 (1978). While no Texas court delineates the outer limits of what constitutes an overt act, the court of criminal appeals has held that the overt act “need not itself be a criminal act” but must “take the conspiracy beyond a mere meeting of the minds.” McCann v. State, 606 S.W.2d 897, 900 (Tex. Crim. App. 1980).

The Committee could find no Texas case resolving the issue of whether the state can rely on an overt act not alleged in the charging instrument. The Fifth Circuit allows this. See United States v. Carlock, 806 F.2d 535, 550 (5th Cir. 1986), cert. denied, 480 U.S. 949–50 (1987).

Whether one or multiple overt acts should be included in the jury instruction may depend on how the conspiracy is pled in the charging instrument. For example, in Nunez v. State, 215 S.W.3d 537, 541–42 (Tex. App.—Waco 2007, pet. ref’d), the aggravated robbery indictment alleged that the defendant “hid in the bushes, at night, while armed with a deadly weapon, to wit a firearm, near the entrance of a business named Cafe Adobe.” However, the jury was charged with three separate overt acts: (1) “hid in some bushes at night”; (2) “hid in some bushes while armed with a deadly weapon, to wit: a firearm”; or (3) “hid near the entrance of a business named Cafe Adobe.” This charge authorized a conviction if the jury found any one of the three to be true. The court held that the charge was erroneous (though ultimately harmless) because it authorized a conviction on a theory different from that alleged in the indictment. Nunez, 215 S.W.3d at 542. The indictment alleged one overt act with multiple actions, and these could not be submitted as separate overt acts.

A number of intermediate appellate courts have held in cases involving Texas Penal Code section 71.02 (conspiracy to engage in organized criminal activity) that the jury must all agree that at least one alleged overt act was committed by each conspirator during the course of the conspiracy, but they need not all agree on which specific overt act or acts listed in the jury charge were committed. Cf. O’Brien v. State, 544 S.W.3d 376, 392–93 (Tex. Crim. App. 2018) (“When the State charges a defendant with engaging by conspiracy—as with any conspiracy—jury unanimity is not required regarding the particular overt acts alleged because the gravamen of the offense is the agreement.”); See, e.g., Bogany v. State, 54 S.W.3d 461, 462–63 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d) (no jury unanimity is required on issue of which overt act was committed); Daniel v. State, 704 S.W.2d 952, 954 (Tex. App.—Fort Worth 1986, no pet.) (holding that when more than one overt act is alleged in charging instrument, all overt acts raised by evidence should be submitted to jury).

The affirmative defense of renunciation and punishment mitigation by quasi-renunciation are discussed in depth at CPJC 15.6 and CPJC 15.7 in this chapter.