Comment

Submission of Committing or Conspiring to Commit. If the state relies on alternative theories—that the defendant either committed or conspired to commit a covered offense—the jury verdict must make clear on which theory the jury convicts because the grade of the offense differs depending on what theory the conviction rests. If the state has proved commission of the covered offense, the organized criminal activity offense is one category higher than that of the committed covered offense. Tex. Penal Code § 71.02(b). If the conviction of organized criminal activity is based on proof of conspiracy to commit a covered offense, the organized criminal activity offense is the same category as that of the committed covered offense the defendant conspired to commit. Tex. Penal Code § 71.02(c). See Garza v. State, 213 S.W.3d 338, 349 (Tex. Crim. App. 2007) (explaining grading scheme of section 71.02).

The instructions at CPJC 71.11 and CPJC 71.14, then, direct the jury to consider both possibilities and indicate in the verdict on which theory it convicts.

Submission of Alternative Predicate Offenses. The court of criminal appeals has held that jurors need not be unanimous concerning the predicate offense. See O’Brien v. State, 544 S.W.3d 376 (Tex. Crim. App. 2018). The commission of each predicate crime constitutes a different manner and means of committing the single offense of engaging in organized criminal activity. O’Brien, 544 S.W.3d at 379. Consequently, when the state alleges multiple predicate offenses and there is evidence supporting their submission to the jury, jurors can be instructed in the disjunctive regarding the predicate offenses. O’Brien, 544 S.W.3d at 379.

In O’Brien, the defendant was tried on one count of engaging in organized criminal activity. It was alleged that the defendant, with the “intent to establish, maintain, or participate in a combination or in the profits of a combination, committed second degree theft or second degree money laundering.” O’Brien, 544 S.W.3d at 379. The application paragraph of the jury charge presented the predicate offenses—theft and money laundering—in the disjunctive. O’Brien, 544 S.W.3d at 381.

On appeal, O’Brien argued that the application paragraph permitted a nonunanimous verdict as it pertained to the predicate offense. O’Brien, 544 S.W.3d at 382. After a lengthy analysis, the court of criminal appeals concluded that the “gravamen of the offense of engaging in organized criminal activity is a circumstance surrounding the conduct, namely the existence or creation of a combination that collaborates in carrying on criminal activities.” O’Brien, 544 S.W.3d at 394. The court went on to say that the legislative intent of the statute was that the underlying predicated offenses be treated as alternative manner and means of committing a single offense. O’Brien, 544 S.W.3d at 394. Alternative manner and means of the same offense may properly be submitted to the jury in the disjunctive. O’Brien, 544 S.W.3d at 394. The jury was not required to agree on which predicate offense was committed as a matter of due process because the two predicate offenses alleged in this case were morally and conceptually equivalent. O’Brien, 544 S.W.3d at 394.