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My AccountChapter 71
- 71.1 General Comments on Engaging in Organized Criminal Activity
- 71.2 Elements of Offense Committed “as a Member of a Criminal Street Gang”
- 71.3 Submission on Alternative Theories
- 71.4 Relationship of the Conspiracy and the “Combination”
- 71.5 Defining “Collaborate in Carrying on Criminal Activities”
- 71.6 “Parties” Law
- 71.7 Affirmative Defense of Renunciation under Texas Penal Code Section 71.05
- 71.8 Quasi-Renunciation Defense and Punishment
- 71.9 Instruction—Engaging in Organized Criminal Activity—Committing Covered Offense as Member of Criminal Street Gang
- 71.10 Instruction—Engaging in Organized Criminal Activity—Conspiring to Commit Covered Offense as Member of Criminal Street Gang
- 71.11 Instruction—Engaging in Organized Criminal Activity—Either Committing or Conspiring to Commit Covered Offense as Member of Criminal Street Gang and Verdict Form
- 71.12 Instruction—Engaging in Organized Criminal Activity—Committing Covered Offense to Participate in Combination
- 71.13 Instruction—Engaging in Organized Criminal Activity—Conspiring to Commit Covered Offense to Participate in Combination
- 71.14 Instruction—Engaging in Organized Criminal Activity—Committing or Conspiring to Commit Covered Offense to Participate in Combination and Verdict Form
- 71.15 Affirmative Defense of Renunciation under Texas Penal Code Section 71.05(a)
- 71.16 Instruction—Engaging in Organized Criminal Activity—Guilt-Innocence Renunciation Affirmative Defense
- 71.17 Punishment Mitigation—Quasi-Renunciation Issue under Texas Penal Code Sections 71.02(d) and 71.05(c)
- 71.18 Instruction—Engaging in Organized Criminal Activity—Quasi-Renunciation Punishment Issue (Texas Penal Code Section 71.02(d) Formulation)
- 71.19 Instruction—Engaging in Organized Criminal Activity—Quasi-Renunciation Punishment Issue (Texas Penal Code Section 71.05(c) Formulation)
- 71.20 Statutory History of Penal Code Section 71.023
- 71.21 Definition of “Conspires to Commit”
- 71.22 Instruction—Directing Activities of Criminal Street Gang
Comment
The offense of engaging in organized criminal activity as set out in Tex. Penal Code § 71.02(a) is quite complex. Under this definition, there are multiple ways of committing the offense, presenting different questions concerning jury submission. Matters are complicated by other sections of chapter 71 of the Penal Code, as well.
Under Tex. Penal Code § 71.02, guilt can be shown by proof that the defendant either committed a listed—or “covered”—offense or conspired to commit such an offense. In either case, the state must prove the defendant acted (in committing the offense or conspiring to commit it) “with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang.” Tex. Penal Code § 71.02(a).
The complexity of the offense of organized criminal activity as defined under chapter 71 argues strongly in favor of minimizing the risk of jury confusion by submitting only the law applicable to the case in light of the charging instrument and the proof produced at trial. To encourage this, the Committee wrote six instructions. The first three assume the state has relied on the defendant having acted “as a member of a criminal street gang.” CPJC 71.9 assumes the jury could convict only on proof the defendant committed a covered offense, CPJC 71.10 assumes the jury could convict only on proof the defendant conspired to commit a covered offense, and CPJC 71.11 assumes a considerably more complicated situation in which the jury could convict on proof the defendant either committed or conspired to commit a covered offense.
The final three instructions, CPJC 71.12 through CPJC 71.14, draw the same distinctions but assume the state has relied on the defendant having acted “with the intent to establish, maintain, or participate in a combination or in the profits of a combination.”
The covered offense used as the example in the instructions in this chapter is aggravated assault under Tex. Penal Code § 22.02. Guidance for drafting instructions on assaultive offenses may be found in chapter 22.