Comment

The law of parties is relevant to at least two aspects of organized criminal liability.

First, in a prosecution relying on the theory that the defendant actually committed the covered offense, the state may rely on, and the jury may be instructed on, the theory that the defendant is liable under the law of parties. McIntosh v. State, 52 S.W.3d 196, 201 (Tex. Crim. App. 2001) (“We hold that party liability can support a conviction for engaging in organized criminal activity when, as in this case, the offense is alleged and proved as commission of the object offense.”); Adi v. State, 94 S.W.3d 124, 130 (Tex. App.—Corpus Christi–Edinburg 2002, pet. ref’d) (“[T]he trial judge erred in denying the State’s requested instruction on the law of parties.”) (citing McIntosh, 52 S.W.3d 196).

Second, in a prosecution relying on the theory that the defendant conspired to commit the covered offense, the state must prove the defendant himself committed an overt act. This act can be one that under the law of parties would create liability for at least the covered offense. Otto v. State, 95 S.W.3d 282 (Tex. Crim. App. 2003). Nothing in the case law suggests this should be addressed in the jury instructions.

If the state’s theory is that the defendant committed the covered offense, the second issue does not arise because there is no overt act requirement.

For further discussion on party liability, see chapter 7.