Engaging in Organized Criminal Activity is a unique criminal charge. The reason this criminal charge is different from other crimes is because Engaging in Organized Criminal Activity is not a crime in its own right. Rather, this offense enhances or increases the penalties of other charges. This allegation piggybacks on other criminal charges to make them more severe. If it is alleged in either a criminal indictment or a criminal information, the potential range of punishment will increase by one level.
For example: this means that if a person is charged with assault on a family member, which is a Class A misdemeanor, an allegation of Engaging in Organized Crime will bump it up to a state jail felony charge. Usually, the underlying offense is a serious felony. For instance, if the underlying charge is an aggravated assault, which is a second degree felony, an allegation of Engaging in Organized Crime will make it a first degree felony. This article discusses many aspects of the charge in depth. If you or a loved one are facing this criminal accusation, call my office today. I am happy to discuss the specifics of your case with you and help you strategize and develop a strong defense.
What is Organized Crime?
The state of Texas has to prove that you and somebody else conspired to commit a criminal offense; or, that you and two others are part of either a “criminal street gang;” or, that you and two others constitute what’s called a “combination.” These terms are defined and explored below in greater detail. A conspiracy requires only two people, but the important number for the other is three. Engaging in Organized Crime is probably not what you think. You may conjure up images of the mafia members in double-breasted suits or drug cartel members. It’s not as elaborate as that, but it can still be difficult to prove. In essence, it means three of more people who engage in or conspire to commit criminal activity together. Or it means a group of three or more people who have an identifying symbol or identifiable group leadership. Depending on the facts of your case, it can be difficult for the State to prove that you are part of a criminal organization. If you are facing this allegation, it is important to consult with and retain a criminal defense lawyer who can combat both the underlying charge as well as the Organized Crime designation.
What is the Law in Texas on Organized Crime?
The criminal statute on Engaging in Organized Criminal Activity is outlined in Section 71.02 of the Texas Penal Code. Here is the language of the statute:
Section 71.02. Engaging in Organized Criminal Activity.
- 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 or more of the following:
- murder, capital murder, arson, aggravated robbery, robbery, burglary, theft, aggravated kidnapping, kidnapping, aggravated assault, aggravated sexual assault, sexual assault, forgery, deadly conduct, assault punishable as a Class A misdemeanor, burglary of a motor vehicle, or unauthorized use of a motor vehicle;
- any gambling offense punishable as a Class A misdemeanor;
- promotion of prostitution, aggravated promotion of prostitution, or compelling prostitution;
- unlawful manufacture, transportation, repair, or sale of firearms or prohibited weapons;
- unlawful manufacture, delivery, dispensation, or distribution of a controlled substance or dangerous drug, or unlawful possession of a controlled substance or dangerous drug through forgery, fraud, misrepresentation, or deception;
- any unlawful wholesale promotion or possession of any obscene material or obscene device with the intent to wholesale promote the same;
- any offense under Subchapter B, Chapter 43, depicting or involving conduct by or directed toward a child younger than 18 years of age
- any felony offense under Chapter 32;
- any offense under Chapter 36;
- any offense under Chapter 34 or 35;
- any offense under Section 37.11(a);
- any offense under Chapter 20A;
- any offense under Section 37.10;
- any offense under Section 38.06, 38.07, 38.09, or 38.11;
- any offense under Section 42.10;
- any offense under Section 46.06(a)(1) or 46.14; or
- any offense classified as a felony under the Tax Code.
What are the Penalties?
The penalties are going to be pretty serious in most every case that organized crime is alleged. An allegation of Organized Criminal Activity increases the underlying crime one degree, and almost all of these are serious crimes to begin with. The lightest underlying charge listed in the statute is Class A misdemeanor assault or a Class A gambling charge. Therefore, at minimum, you are going to be defending a state jail felony charge.
- A state jail felony carries a potential range of between 180 days and two years in a state jail facility and up to a $10,000 fine.
- A third degree felony carries a range of punishment between two and ten years in prison, and up to a $10,000 fine.
- A second degree felony carries a range of punishment between two and twenty years in prison, and up to a $10,000 fine.
- A first degree felony carries a range of punishment of either life or between five and ninety-nine years in prison, and up to a $10,000 fine.
What is a Conspiracy?
The statute mentions “commit or conspires to commit.” So, what is conspire to commit? A criminal conspiracy is simply an agreement or meeting of the minds between at least two people about engaging in some kind of crime. For instance, if two guys decide one night to go burglarize a beach condo, they can be convicted of a conspiracy to commit burglary regardless of whether or not the burglary ever gets carried out. Conspiracy requires something more than words, however. There is an overt act requirement to conspiracy. This means that one of the people involved in the conspiracy has to do something about it. Conspiracy is a crime on its own, but it is also included in the Engaging in Organized Crime statute. Both crimes require some group participation to trigger a criminal charge. Most of the time, there is not much direct evidence of people to commit a crime. So, the statute allows for agreement to be inferred from the circumstances.
What is a Criminal Street Gang?
A criminal street gang is defined in Section 71.01 of the Texas Penal Code. This will encompass gang colors and any other sort of coordinated apparel. Here is the legal definition: criminal street gang means three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities.
What does Combination Mean?
Combination is also in Section 71.01 of the Texas Penal Code. The Texas Legislature is casting a big net here. Criminal street gang connotes some kind of brotherhood or common identity, and suggests that individual members know each other. This definition was enacted in order to snare complex organizations that operate in secrecy, such as large drug distribution outfits that operate more like a business. Here is the definition:
“Combination” means three or more persons who collaborate in carrying on criminal activities, although:
- Participants many not know each other’s identity;
- Membership in the combination may change from time to time; and
- Participants may stand in a wholesaler-retailer or other arm’s-length relationship in illicit distribution operations.
Here is a case that helps to illustrate what combination means. In Nyugen v. State[i], Mr. Nyugen and some of his friends attended a party put on by the Asian Cultural Committee at the University of Texas, and afterward they went to a restaurant. At the restaurant, they ran into another group who had come from a party put on by a Latin American Students Group. There was then a fight that broke out in the restaurant. There was testimony at trial that the fight started because of comments that Morena, one of the Latin American students, made to a female in Nyugen’s party. Because of the incident, Nyugen and his friends were told to leave, but they unwisely waited for Morena in the parking lot. Nyugen had a gun, and fired it twice, striking Morena twice and killing him. At trial, Nyugen stated he fired the weapon, that one of his friends drove the car, and another friend handed him the gun. Nyugen was convicted of both murder and engaging in organized crime. On appeal, his conviction for engaging in organized crime was reversed. To prove combination, a group of three or more have intent to operate together in a continuing course of criminal activities. Proving intent can be challenging for the prosecution. If you or a loved one are facing an allegation of engaging in organized crime, call me today to discuss your charge.
[i] Nyugen v. State, 1 S.W.3d 694 (Tex. Crim. App. 1999)