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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
Conviction under Tex. Penal Code § 71.02 requires proof that the defendant committed or conspired to commit one or more crimes from a list of specific Penal Code offenses while (1) having the intent to establish, maintain, or participate in a combination or in the profits of a combination or (2) as a member of a criminal street gang. Tex. Penal Code § 71.02(a).
The court of criminal appeals considered the elements of engaging in organized criminal activity as those elements would appear in a hypothetically correct jury charge for indictments that invoke the “as a member of a criminal street gang” language. Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim. App. 2018).
In Zuniga, the defendant was convicted of two counts of engaging in organized criminal activity and one count of capital murder. The intermediate court of appeals vacated his two convictions for engaging in organized criminal activity because the record “failed to show that he committed the shootings while possessing the intent to establish, maintain, or participate ‘as a member of a criminal street gang.’” Zuniga, 551 S.W.3d at 731.
After granting the state’s petition for discretionary review, the court of criminal appeals examined the language of section 71.02(a). Zuniga argued that the statute required proof of three elements: (1) that he had the intent to establish, maintain, or participate, (2) as a member of a criminal street gang, and (3) that he committed the murders of the two individuals. Zuniga, 551 S.W.3d at 734. The state countered this argument by contending that the hypothetically correct jury charge would only require proof of two elements: (1) while acting as a member of a criminal street gang, (2) Zuniga committed the two murders. Zuniga, 551 S.W.3d at 734.
The court of criminal appeals found that, as a matter of grammar and logic, the statute’s intent clause applies only to the phrase that immediately follows it—“in a combination or in the profits of a combination”—but not to the subsequent phrase “or as a member of a criminal street gang.” Zuniga, 551 S.W.3d at 735. Applying that interpretation of the statute, the court concluded that the hypothetically correct jury charge, when membership in a criminal street gang is alleged, would require proof that the defendant (1) as a member of a criminal street gang, (2) committed one of the offenses listed in Tex. Penal Code § 71.02. Zuniga, 551 S.W.3d at 735.
Consistent with Zuniga, the instructions set out the elements of the criminal street gang manner of committing organized criminal activity as follows: