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
Provision is made for a determination of renunciation at the punishment stage in both sections 71.02(d) and 71.05(c) of the Texas Penal Code. The two provisions are not consistent. Section 71.02(d) provides the defendant must prove the matter by a preponderance of the evidence; section 71.05(c) does not address this.
More importantly, section 71.02(d) requires proof that the withdrawal be “in complete and voluntary renunciation of the offense.” Section 71.05(c) imposes no such requirement.
Section 71.05(c) refers to “a finding of renunciation under this subsection,” suggesting this subsection was intended to have some independent substantive effect.
The continued existence of the two provisions appears to be an accidental result of inconsistent actions by the Seventy-third Legislature. In 1977, the original chapter 71 scheme as then enacted provided for a punishment renunciation issue in section 71.05(c). Section 71.02 did not address the matter. Acts 1977, 65th Leg., R.S., ch. 346, § 1. In 1993, the comprehensive revision of the Penal Code deleted section 71.05(c) and created section 71.02(d). Acts 1993, 73d Leg., R.S., ch. 900, § 900. But another section of the 1993 revision, Acts 1993, 73d Leg., R.S., ch. 761, § 4, apparently assumed section 71.05(c) remained effective. It amended section 71.05(c) and simply failed to address section 71.02(d). The effect was to resurrect section 71.05(c) while leaving effective section 71.02(d).
Before 2011, the two provisions possibly could have been reconciled. The more easily-proved issue provided for in section 71.05(c) applied only to a limited subset of situations—those in which the underlying offense was one listed in subdivisions one through seven and ten of section 71.02. The more limited issue proved for in section 71.02(d) apparently applied to prosecutions based on any covered underlying offense. In 2011, however, the legislature removed the limits on the section 71.05(c) issue. Acts 2011, 82d Leg., R.S., ch. 1200, § 6.
The Committee could not agree on how to accommodate the two obviously- overlapping provisions. It decided to provide instructions under both provisions.
Is the mitigation issue available if, at the guilt-innocence phase of the trial, the defendant was convicted on proof that he committed—rather than conspired to commit—the covered offense? The mitigation issue, unlike the defense, does not require proof that commission of the intended offense was prevented. It does, however, require proof that he withdrew from the combination. This suggests the mitigation issue is available only if the defendant was convicted on a theory requiring proof that he joined a combination, which most likely means he conspired to commit a covered offense and thus joined a conspiracy.