Many in law enforcement have started more aggressively using the Engaging in Organized Criminal Activity (“EOCA”) statute to prosecute cases where groups of individuals are alleged to have worked together in some way to commit criminal activity. Under the EOCA statute, people can be prosecuted as being part of a “combination” or as part of a “criminal street gang.” The purpose of this article is to outline and survey the law as it pertains to cases filed where the accused is charged as a member of a “combination.”
The EOCA statute, as codified in Chapter 71 of the Texas Penal Code, was created as Texas’ answer to the Federal Racketeer Influenced and Corrupt Organizations (“RICO”) statute. The legislative history suggests that the bill creating the EOCA statute was intended to make it less difficult for law enforcement officials and criminal justice agencies to obtain convictions for participation in organized crime.1 The EOCA statute allows for joinder of offenses and offenders in a single criminal case. It allows for prosecution in any county in which any activity occurred in furtherance of EOCA activities. Alleging that a person is part of a “combination” works similarly to a criminal conspiracy, except that it involves more people and they need not be as directly involved with one another.
Tex. Pen. Code §71.02(a) says that “[a] person commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, the person commits or conspires to commit” one of the predicate offenses. The laundry list of offenses is too numerous to list here but it can be found in the statute and includes offenses as diverse as murder, aggravated robbery, various sex offenses, various fraud offenses, certain gambling offenses, money laundering, and many others.2 Texas Penal Code § 71.01(a) defines the term “combination” as “three or more persons who collaborate in carrying on criminal activities, although: (1) participants may not know each other’s identity; (2) membership in the combination may change from time to time, and (3) participants may stand in a wholesaler-retailer or other arm’s length relationship in illicit distribution operations.”
It is important to remember that not all offenses are predicate offenses for an EOCA charge. Therefore, a practitioner should start by referring to the statute and ask the most basic question – does the indictment allege that the defendant committed one of the predicate offenses listed in the statute? If the predicate crime is not one that is listed in the EOCA statute, then it is not a proper EOCA charge.
There are two overarching elements that are necessary to establish guilt in an EOCA charge: (1) that the defendant intended to establish, maintain, participate in, or participate in the profits of a combination3; and (2) that the defendant committed or conspired to commit one of the enumerated predicate offenses found in Tex.Pen.Code § 71.02(a), which also needs to be listed in the indictment.4 Simply put, the defendant must both agree to participate in the “combination” and “must himself perform an overt act in pursuance of that agreement.”5 The EOCA statute does not treat each predicate offense as an element for purposes of jury unanimity, regardless of whether the state alleges alternate predicate offenses with different degrees.6
REQUIRED MENTAL STATE
There are two parts to the mental state required for an EOCA charge. First, the defendant must have the mental state that is required for the predicate crime.7 For example, if the defendant is charged with EOCA with theft as the predicate offense, the state must prove that the defendant intended to deprive the complainant of the property. Second, the state must prove that the defendant intended to establish, participate in, or participate in the profits of a combination.8 In other words, the defendant must possess more than just the intent to commit the enumerated predicate offense; he must also intend to commit the predicate offense as part of the combination. Also, the proof must consist of more than evidence that a combination existed and that the defendant committed one of the enumerated offenses.9 Thus, in our theft example, not only does the prosecutor have to prove that the defendant intended to steal, but also that he intended to steal as part of this crime ring, which is known as the “combination.” A jury may infer from any facts which tend to prove the combination’s existence, including the acts, words, conduct of the defendant, method of committing the crime, etc.10
To prove that the defendant intended to participate in the combination, the state must prove that the defendant intended to establish, maintain, or participate in a group of three or more in which the members work together in a continuing course of criminal activities.11 The defendant falls into the category of being part of the combination if the defendant, or one of his or her accomplices, engaged in ongoing criminal activities, and the defendant agrees to join the existing organized crime unit, knowing that it has committed or will commit multiple criminal activities.12
In O’Brien v. State, the Texas Court of Criminal Appeals explained that for an adequate showing of “intent to establish, maintain, or participate in a combination or the profits of a combination,” the “State must show that the predicate offense was committed as part of a collaboration of three or more people working together in a continuing course of criminal activities.13
CONSPIRACY TO COMMIT EOCA VS. CONSPIRACY UNDER TPC § 15.02
“Conspiracy” as used in the EOCA statute differs from criminal conspiracy under Tex. Pen. Code § 15.02. A person “conspires to commit” for purposes of the EOCA statute when that “person agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense and that person and one or more of them perform an overt act in pursuance of the agreement.”14 Criminal conspiracy, on the other hand, requires the prosecutor to prove that the defendant intended to commit a felony, agreed with one or more people to commit that felony, and that one of the people who formed this agreement committed an overt act in furtherance of that agreement. Criminal conspiracy does not require the defendant to have committed the overt act himself.15 EOCA “conspiracy” requires that the actor himself must commit an overt act in furtherance of the combination.16
A person may be guilty of criminal conspiracy by doing nothing more than agreeing to participate in the conspiracy, as long as another conspirator commits some overt act in furtherance of the conspiracy.17 For criminal conspiracy, if two people are charged and one is acquitted, the other must also be acquitted.18
EOCA conspiracy operates differently. To be guilty of conspiring to commit an offense as a member of a combination, a defendant (1) must agree to participate in the combination, and (2) must himself perform some overt act in furtherance of that agreement.19 That “overt act” need not in itself be criminal.20 A key difference between EOCA conspiracy and traditional criminal conspiracy is that when multiple people are charged in the combination, the acquittal of one of those people does not mean that a conviction on other defendants cannot stand.21
COMMISSION V. CONSPIRACY
EOCA by “commission requires a showing of a collaboration in carrying on criminal activities in addition to the commission of one or more predicate offenses. [EOCA] by commission simply punishes a conspiracy involving three or more people that results in the completion of at least one of the conspired crimes.”22 EOCA by conspiracy does not require the state to show a completed offense.23 “When the state charges a defendant with [EOCA] by commission, it must show at least one completed offense. But in both types of offenses, the state still must prove the existence of a criminal combination.”24
CONTINUOUS ACTIVITY REQUIREMENT
One of the most often misunderstood requirements of the EOCA statute is the requirement that the state prove the intention of the members of the combination to carry out multiple criminal acts. Police officers and prosecutors often believe that a defendant may be charged with EOCA if that defendant were part of a group of three or more people who commit one of the crimes enumerated in the EOCA laundry list. While multiple people working together to commit a single crime may be guilty of that crime under a “law of parties” theory, those people cannot be found guilty of EOCA.
The Texas Court of Criminal Appeals has held that the phrase “collaborate in carrying on criminal activities” does not mean an agreement to jointly commit a single crime.25 The state must prove more than the defendant and some combination of his accomplices intended to act together toward a criminal objective of committing one of the enumerated crimes.26 The prosecutor must prove beyond a reasonable doubt that a defendant’s accomplices had engaged in ongoing multiple criminal activities, and a defendant agreed to join the existing organized crime unit, knowing that it has committed or will commit multiple criminal activities, and that defendant committed an overt act, even if only one, in furtherance of that crime.27
The EOCA statute expressly excludes certain defenses. For example, it is not a defense that “one or more members of the combination are not criminally responsible for the object offense.”28 Remember, in EOCA cases your client is being prosecuted for belonging to this group that does bad things. He does not have to do the actual bad thing, so long as he does some “overt act” to help others do the bad thing. Also, as stated earlier, the fact that one member of the combination was acquitted does not mean that the other members of the combination are immune from prosecution.29 Finally, the fact that members of the combination change, and that the total number of people in the combination change is not a defense so long as the defendant and at least two other individuals remain in the combination.
INDICTMENT AND JURY CHARGE ISSUES
Unfortunately, the law allows prosecutors wide latitude in creating complicated indictments with nightmare jury charges in EOCA cases. The Texas Court of Criminal Appeals has said that “[t]he jury must be unanimous that a defendant committed at least one of the enumerated offenses as a part of a collaboration to carry on criminal activities.”30 The court has made it clear, however, that the “jury does not have to agree on which specific offense was committed in an engaging case so long as everyone agrees that at least one of the listed offenses was committed as part of a collaboration in carrying out criminal activities.”31
For EOCA cases, the commission of each predicate crime constitutes a different manner and means of committing the single offense of EOCA.32 “An indictment may allege different methods of committing the same offense.”33 Therefore, a single EOCA indictment may list completely different predicate crimes as a “manner and means” of committing EOCA. For example, an indictment may charge an individual with committing EOCA by being part of a combination and then allege criminal activities as diverse as theft, money laundering, fraudulent use of identifying information, and murder. Although a single count can’t charge people with multiple crimes,34 courts have held that EOCA is one charge and can be pleaded with different predicate crimes as different “manner and means,” and each “manner and means” may be submitted to the jury.35 Further, verdict forms must be general so a properly written jury charge will not require the jury to make any determination as to which specific individuals in the combination committed which predicate crimes.36
Generally, the punishment range for EOCA is one degree higher than the most serious offense that was committed.37 If the predicate offense is first degree offense, then the minimum sentence is 15 years in the Texas Department of Corrections.38 There are provisions that make the range more aggressive when certain sex offenses are the predicate charge.39 Conspiring to commit an offense under the EOCA statute is the same degree as the most serious offense “that the person conspired to commit.” 40
At the punishment state of a trial, the defendant may raise the issue as to whether he completely withdrew from the combination before the commission of the offense, and “made substantial effort to prevent the commission of the offense.”41 If the defendant proves this by a preponderance of the evidence then the punishment range becomes the same as the most serious offense listed in the indictment, or a degree lower if the defendant is convicted of conspiring to commit the offense.42
Importantly, a defendant convicted of EOCA is “not eligible for release on parole until [the defendant’s] actual calendar time served, without consideration for good conduct time, equals one-half of the sentence or 30 calendar years, whichever is less, but in no event is [the defendant] eligible for release on parole in less than two calendar years.”43
The EOCA statute can be tricky and confusing to the untrained eye. Many police officers and prosecutors wrongly believe that if a person commits a crime with at least two other people, then that person is guilty of EOCA. As shown above, this is not the case. When attacking the State’s case pay close attention to the pleadings. Consider filing motions to quash when the state’s indictment does not identify an “overt act” and have the statute and supporting case law ready to cite when it comes time to move for a directed verdict when the state fails to present evidence of the defendant’s intent to be part of a collaboration of three or more people working together in a continuing course of criminal activities. While the complexities of the EOCA statute aid the state in some respects, those same complexities create many opportunities for the state to make mistakes. This, in turn, creates opportunities to “recover a fumble” when the defense lawyer pays close attention to the statute’s details.
- Act of June 10, 1977, 65th Leg., R.S., ch. 346, § 1, 1977 Tex.Gen.Laws 922, amended by Act of June 15, 1989, 71st Leg., R.S., ch. 782, § 1, 1989 Tex.Gen.Laws 3468, amended by Act of June 16, 1991, 72nd Leg., R.S., ch. 555, § 1, 1991 Tex.Gen.Laws 1968.
- See Tex.Pen.Code § 71.02(a)(1)-(18).
- Tex.Pen.Code § 71.02(a); Hart v. State, 89 S.W.3d 61, 63 (Tex.Crim.App. 2002).
- See Renfro v. State, 827 S.W.2d 532 (Tex.App. – Houston [1st] 1992, pet. ref’d).
- O’Brien v. State, 544 S.W.3d 376, 389 (Tex.Crim.App. 2018).
- State v. Hart, 89 S.W.3d 61, 63-64 (Tex.Crim.App. 2002).
- Id. at 64.
- State v. Van Phi Nguyen, 21 S.W.3d 609 (Tex.App. – Houston [1st] 2000, pet. ref’d).
- O’Brien v. State, 544 S.W.3d 376, 391 (Tex.Crim.App. 2018).
- Tex. Pen. Code § 71.01(3)(b).
- Tex. Pen. Code § 15.02(a).
- Ex Parte Starnes, 993 S.W.2d 685, 689 n.10 (Tex.App. – Houston [14th] 1999 pet. ref’).
- Barber v. State, 764 S.W.2d 232, 235 (Tex.Crim.App. 1988).
- Id. at 234.
- Id. at 235.
- O’Brien v. State, 544 S.W.3d 376, 393 (Tex.Crim.App. 2018).
- State v. Viet Huu Nguyen 1 S.W.3d 694, 697 (Tex.Crim.App. 1999).
- Van Phi Nguyen v. State, 21 S.W.3d 609, 614 (Tex.App. – Houston [1st] 2000, pet. ref’d).
- Tex. Pen. Code § 71.03(1).
- Tex. Pen. Code § 71.03(2).
- O’Brien v. State, 544 S.W.3d 376, 391 (Tex.Crim.App. 2018).
- Renfro v. State, 827 S.W.2d 532, 534 (Tex.App. – Houston [1st] 1992, pet. ref’d).
- Tex. Code Crim. P. Art. 21.24(b).
- Renfro, 827 S.W. id at 534.
- Tex. Pen. Code § 71.02(b).
- Tex. Pen. Code § 71.02(c).
- Tex. Pen. Code § 71.02(d).
- Tex. Gov’t. Code § 508.145(d).