Have You Been Accused of Engaging in Organized Criminal Activity?
Looney, Smith & Conrad, P.C., Criminal Defense Law Firm:
Experienced Texas Organized Crime Attorneys
Since 1995 criminal defense trial attorney Paul Looney has litigated
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What is Engaging in Organized Criminal Activity?
The offense of “Engaging in Organized Criminal Activity” does not actually describe a different kind of criminal activity, but instead increases the severity of the penalty for committing or conspiring to commit certain offenses (underlying offense) if committed while a member of a gang or other criminal group known as a “combination.”
Engaging in Organized Criminal Activity is an offense described in the Texas Penal Code Chapter 71.02:
(a) 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:
(1) murder, capital murder, arson, aggravated robbery, robbery, burglary, theft, aggravated kidnapping, kidnapping, aggravated assault, aggravated sexual assault, sexual assault, continuous sexual abuse of young child or children, solicitation of a minor, forgery, deadly conduct, assault punishable as a Class A misdemeanor, burglary of a motor vehicle, or unauthorized use of a motor vehicle;
(2) any gambling offense punishable as a Class A misdemeanor;
(3) promotion of prostitution, aggravated promotion of prostitution, or compelling prostitution;
(4) unlawful manufacture, transportation, repair, or sale of firearms or prohibited weapons;
(5) 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;
(5-a) causing the unlawful delivery, dispensation, or distribution of a controlled substance or dangerous drug in violation of Subtitle B, Title 3, Occupations Code;
(6) any unlawful wholesale promotion or possession of any obscene material or obscene device with the intent to wholesale promote the same;
(7) any offense under Subchapter B, Chapter 43, depicting or involving conduct by or directed toward a child younger than 18 years of age;
(8) any felony offense under Chapter 32;
(9) any offense under Chapter 36;
(10) any offense under Chapter 34, 35, or 35A;
(11) any offense under Section 37.11(a);
(12) any offense under Chapter 20A;
(13) any offense under Section 37.10;
(14) any offense under Section 38.06, 38.07, 38.09, or 38.11;
(15) any offense under Section 42.10;
(16) any offense under Section 46.06(a)(1) or 46.14;
(17) any offense under Section 20.05; or
(18) any offense classified as a felony under the Tax Code.
1 Texas Penal Code Section 71.02(d) –
(d) At the punishment stage of a trial, the defendant may raise the issue as to whether in voluntary and complete renunciation of the offense he withdrew from the combination before commission of an offense listed in Subsection (a) and made substantial effort to prevent the commission of the offense. If the defendant proves the issue in the affirmative by a preponderance of the evidence the offense is the same category of offense as the most serious offense listed in Subsection (a) that is committed, unless the defendant is convicted of conspiring to commit the offense, in which event the offense is one category lower than the most serious offense that the defendant conspired to commit.
2 Texas Penal Code Section 71.02(b) –
(b) Except as provided in Subsections (c) and (d), an offense under this section is one category higher than the most serious offense listed in Subsection (a) that was committed, and if the most serious offense is a Class A misdemeanor, the offense is a state jail felony, except that the offense is a felony of the first degree punishable by imprisonment in the Texas Department of Criminal Justice for:
(1) life without parole, if the most serious offense is an aggravated sexual assault and if at the time of that offense the defendant is 18 years of age or older and:
(A) the victim of the offense is younger than six years of age;
(B) the victim of the offense is younger than 14 years of age and the actor commits the offense in a manner described by Section 22.021(a)(2)(A); or
(C) the victim of the offense is younger than 17 years of age and suffered serious bodily injury as a result of the offense; or
(2) life or for any term of not more than 99 years or less than 15 years if the most serious offense is an offense punishable as a felony of the first degree, other than an offense described by Subdivision (1).
3 Texas Penal Code Section 71.02(c) –
(c) Conspiring to commit an offense under this section is of the same degree as the most serious offense listed in Subsection (a) that the person conspired to commit.
It is important to the charge of Engaging in Organized Criminal Activity to understand what constitutes a criminal organization. There are two types of criminal organizations including a “criminal street gang” and a “combination”.
Criminal Street Gang
Texas Penal Code Section 71.01 defines a criminal street gang as “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.
A “combination” is defined 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.”
A criminal conspiracy exists when two or more people agree to commit almost any unlawful act and then take some action toward completion. The action taken need not itself be a crime, but it must indicate that those involved in the conspiracy knew of the plan and intended to break the law. One person may be charged with and convicted of both conspiracy and the underlying crime based on the same circumstances.
For example, if three people agree to rob a bank tomorrow, they can be convicted of Conspiracy to Commit Robbery even if they never go through with it. A conspiracy, however, does require some type of “overt act” in furtherance of the conspiracy. This overt act does not have to be anything criminal; it has to further some object of the conspiracy. So if the people who agreed to rob a bank tomorrow forget all about doing that, they cannot be convicted of a conspiracy. But, if one of them buys a gun and that was a part of their plan, they can be convicted of conspiracy.
In the Texas crime of Engaging in Organized Criminal Activity, “Conspires to Commit” is defined to mean “a 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.” It also says an agreement constituting conspiring to commit may be inferred from the acts of the parties.
The penalty for Engaging in Organized Criminal Activity depends on the underlying offense, which usually is one degree greater than what the penalty for the underlying offense would be. For example, if the penalty for the underlying offense is a third degree felony, the penalty for a conviction for Engaging in Organized Criminal Activity with the same underlying offense would be a second degree felony.
A conviction for Engaging in Organized Criminal Activity conviction can be as severe as life without parole. Life without parole is only available if the underlying offense is an aggravated sexual assault. If the underlying offense is any other first-degree felony, the punishment is life or a term of 15 to 99 years. Class A misdemeanors are pushed up to state jail felonies. Conspiracy to commit the underlying offense is punishable at the same level as the underlying offense.
Not only do criminal defense attorneys have to fight the charge on the underlying offense, but also the organized crime designation. If the state attorneys can prove the organized crime element, the penalty for the underlying offense is generally one degree greater than it would be without the organized crime designation.
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