Organized Criminal Activity Charges Under Texas Penal Code §71.02
Posted on by Michael Lowe.
Organized crime for many is a term that deals with movie characters like the Corleone Family in the Godfather Saga or infamous criminals like Al Capone.
Even the Encyclopedia Britannica, referencing names like John Gotti and Bugsy Siegel, defines “organized crime” as a “…complex of highly centralized enterprises set up for the purpose of engaging in illegal activities. Such organizations engage in offenses such as cargo theft, fraud, robbery, kidnapping for ransom, and the demanding of “protection” payments. The principal source of income for these criminal syndicates is the supply of goods and services that are illegal but for which there is continued public demand, such as drugs, prostitution, loan-sharking (i.e., usury), and gambling.”
However, in the State of Texas, the term “organized crime” paints with a much broader brush, and can be used by prosecutors to enhance a case against a single defendant. If successfully proven by the District Attorney’s Office, it allows for the imposition of a more severe penalty if Texas Penal Code §71.02 can be applied to the other criminal charges.
Texas Penal Code §71.02: EOCA Charges
The Texas Legislature has passed, and expanded several times over the years, a specific criminal statute entitled “Engaging in Organized Criminal Activity” in Texas Penal Code §71.02(a). Engaging in Organized Crime in Texas is defined as occurring when, with the intent to establish, maintain, or participate (a) in a combination or (b) in the profits of a combination or (c) as a member of a criminal street gang, the person commits or conspires to commit one or more of the crimes as listed in the statute itself.
Under this Texas law, it is illegal for someone to conspire to engage in, or actually take part in, certain crimes in combination with other people or as a member of a “criminal street gang.”
- What is a criminal street gang? Texas Penal Code 71.01(d) 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.”
The statute has a long list of crimes that correlate to an EOCA charge. Currently, the list of crimes that can form the basis of “organized criminal activity” involves charges of both misdemeanors and felonies such as:
- Capital murder
- Aggravated Robbery
- Aggravated Kidnapping
- Sexual Assault
- Continuous Sexual Abuse of Young Child or Children
- Solicitation of a Minor
- Promoting Prostitution
- Unlawful Sale of Firearms.
It is a long list. Specifically, the statute currently states the following can result in enhanced punishment under a charge of engaging in organized crime:
(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;
(11) any offense under Section 37.11(a);
(12) any offense under Chapter 20A;
(13) any offense under Section 37.10;
(15) any offense under Section 42.10;
(18) any offense under Section 16.02; or
(19) any offense classified as a felony under the Tax Code.
Texas Penal Code: Combination in Organized Crime Case
Not everyone arrested for any of the crimes listed above will face corresponding EOCA charges. Before the prosecutor can add on an allegation of violating Texas’ Organized Crime law, the state has to establish there was an “organization” in the specific organized crime matter. Under Texas law, this means proving up a “combination.”
In Texas, anyone who can be shown to meet one of the following criteria is statutorily involved in a “combination” when there are three (3) 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.
There is no requirement that all these participants have to be arrested or charged before a single individual can be accused of violating the EOCA statute.
Enhancement Under the Texas Organized Criminal Activity Law
The key to facing charges of engaging in organized criminal activity in Texas is that the accused, upon conviction, will face sentencing that is boosted to one category higher than the most serious underlying charge for which he or she has been convicted.
If, for example, someone is arrested, charged, and convicted of burglary as a Class A Misdemeanor charge, the addition of the EOCA conviction allows that misdemeanor sentence to be upped, or “enhanced,” to a State Jail Felony as a general rule.
Exceptions are found in the statute, however. Texas Penal Code 71.01(b). They make things even harsher. For instance, if certain crimes are involved, then the enhancement is to a felony of the first degree with life without parole if 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.
Another exception: the sentence becomes either (1) life or (2) for any term of (a) not more than 99 years or (b) less than 30 years if the most serious offense is an offense under Section 20.06 that is punishable under Subsection (g) of that section. Texas Penal Code 71.01(b).
Defending Against Charges of Organized Criminal Activity
For those facing criminal charges in Texas that include an EOCA allegation, having an experienced and aggressive criminal defense lawyer to advocate on their behalf can be invaluable. The defense lawyer may be able to negotiate lesser charges during plea negotiations as well as challenging the state’s evidence at trial as well as fighting for lesser punishment that the state is seeking after any conviction.
1. Foundation for EOCA: List of Charges Under the Statute
Any initial evaluation of the case from a criminal defense standpoint must include a careful review of the evidence collected by the state and the corresponding charges asserted against the accused. The Texas Legislature has established a specific list of crimes that can form the basis of a EOCA charge.
Two things: (1) if the EOCA charge does not correspond to one of these statutorily listed crimes; or (2) if the evidence does not support these charges and they cannot be proven by the state, then the defense may be able to negotiate down those charges in a plea deal or move for their dismissal in the courtroom.
2. Was There Organized Criminal Activity as Defined by Texas Penal Code §71.02?
Under Texas Penal Code §71.02, things are specifically defined. The criminal defense attorney will comb through the prosecution’s evidence to make sure that each element of the enhancement charge has been factually established. This may include:
A. Arguing that Less Than Three People Were Involved
The statute requires that there be at least three (3) people involved in the offense. This is shown by proof of a “combination” or a “criminal street gang.” If the state’s evidence cannot establish facts to prove up these definitions under the statute (as described above), then the EOCA charge cannot succeed.
B. Arguing Against Course of Criminal Activity
The defense must also investigate whether or not there has been authenticated and admissible evidence sufficient to show beyond a reasonable doubt that there has been a collaboration in carrying on criminal activities as defined by Texas Penal Code §71.02.
The law mandates that there has to be more than just one event before someone can be charged and convicted for being involved in organized criminal activity. A single circumstance cannot support a charge of EOCA. Furthermore, a bunch of criminal charges that are based upon one criminal event cannot support conviction of violating Texas Penal Code §71.02.
The prosecution must have sufficient admissible evidence to meet its burden of proof that (1) there was (a) a combination or (b) a criminal street gang involved and that (2) the accused committed or conspired to commit one or more of the crimes as listed in the statute itself.
C. Intent to Organized Criminal Activity
The statute also requires proof of intent on the part of the defendant. The accused must be shown to have the “intent to establish, maintain, or participate…” before he or she can be convicted of engaging in organized criminal activity. If the prosecution does not have evidence to establish the necessary element of intent, then the charge can be challenged by the defense as insupportable.
3. Reduction of Sentence Under the Texas Organized Criminal Activity Law
With an aggressive and experience criminal defense, some individuals facing charges of organized criminal activity may be able to reduce their sentence under the statute. At trial, after a finding of guilt and during the punishment or sentencing phase, the defense may be able to assert statutory defenses under Texas Penal Code 71.01(d).
Here, if the defendant can establish: (1) he withdrew from the combination before commission of the offense (a) voluntarily and in (b) complete renunciation of it; and then he (2) made a “substantial effort” to prevent the offense from taking place, then he may be able to be sentenced to one category lower than the most serious offense that the defendant is proven to have conspired to commit. See, Texas Penal Code 71.01(d).
Of importance here: the statute requires this to be established by the defendant with a lower burden of proof, a “preponderance of the evidence,” rather than the burden required of the prosecution, which is “beyond a reasonable doubt.” Texas Penal Code 71.01(d).
Importance of Aggressive Criminal Defense When Facing EOCA Charges
For anyone in Texas who is facing criminal charges that include an allegation of being Engaged in Organized Criminal Activity, it is vital that they understand how an EOCA charge can escalate their punishment should they be convicted and sentenced.
EOCA Conviction Boosts Sentencing and Prison Time
Any crime listed in the EOCA Statute comes with serious sentencing; the lightest punishment for an EOCA listed crime corresponds to a Class A Misdemeanor and that means facing a state jail felony charge. In Texas, a state jail felony conviction involves a sentence of 6 months – 2 years in a state jail facility.
The EOCA conviction allows for the sentence to be enhanced, or escalated to a higher punishment. Consider the following:
- a third-degree felony involves sentencing between 2 – 10 years imprisonment;
- a second-degree felony involves sentencing between 2 – 20 years imprisonment; and
- a first-degree felony involves sentencing for life, or between 5 – 99 years imprisonment.
Accordingly, anyone accused of any crime that is listed in the EOCA law is not only facing the sentence that corresponds to that crime but the ability of the state to ask for an even greater punishment because of including an allegation that the accused engaged in organized criminal activity.
An individual can stand alone, being the only person arrested and charged, and nevertheless face severe and boosted (enhanced) sentencing based upon charges of organized criminal activity. A zealous and aggressive criminal defense in these cases is extremely important.
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