Main Menu
Bookmark Page
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 instruction at CPJC 71.16 should be considered for submission only if the defendant was convicted on the basis of an allegation and proof that the defendant committed the organized criminal activity by conspiring to commit a covered offense. If the defendant was convicted on the basis of an allegation and proof that the defendant actually committed a covered offense, obviously the defendant cannot prove he prevented the commission of that offense. See Tex. Penal Code § 71.05(a).
The terminology of the defense presents a conceptual problem. It requires proof of withdrawal “from the combination.” Under Tex. Penal Code § 71.02(a), however, joining the combination is not an element of the offense. The defendant must be proved to have intended to establish, maintain, or participate in a combination or in the profits of a combination. The definition of “conspires to commit” in section 71.01(b) implicitly requires proof that the defendant in effect joined a conspiracy from which he could conceivably withdraw.
Almost certainly, the legislature intended—at least for purposes of the renunciation defense—that the conspiracy and the combination be the same. The defense could be put in terms of withdrawal from the conspiracy without deviating from the apparent legislative intent.
Despite this conceptual problem, the instruction uses the statutory terminology. The Committee believed the conceptual problem would seldom, if ever, create a risk of jury confusion.