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What Does It Mean To Be Prosecuted As Part of a "Combination" in an Engaging in Organized Criminal Activity Case?

Posted by Ed McClees | Nov 21, 2017 | 0 Comments

The Engaging in Organized Criminal Activity ("EOCA") statute, as codified in Chapter 71 of the Texas Penal Code, was created as Texas's version of the Federal Racketeer Influenced and Corrupt Organizations ("RICO") statute. 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 offenses listed in the statute.  The laundry list of offenses includes offenses such as murder, aggravated robbery, various sex offenses, various fraud offenses, certain gambling offenses, and others.

For purposes of charging someone under the "combination" theory, there are two overarching elements that are necessary: (1) that the defendant intended to establish, maintain, participate in, or participate in the profits of a combination; and (2) that the defendant committed or conspired to commit one of the enumerated offenses found in Tex.Pen.Code § 71.02(a), which needs to also be listed in the indictment.

There are also two parts to the mental state required for an EOCA charge. First, the defendant must have the mental state that is required for the underlying crime.  Second, the state must prove that the defendant intended to establish, participate in, or participate in the profits of a "combination."  The defendant must possess more than the intent to commit the enumerated offense.  Also, the proof must consist of more than evidence that a combination existed and that the defendant committed one of the enumerated offenses. The defendant must perform an overt act" in furtherance of the combination.  That "overt act" need not itself be criminal. 

To prove that the defendant intended to participate in the combination the state must present evidence showing 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.  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.

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 was part of a group of three or more people who commit one of the crimes listed in the EOCA statute.  While multiple people working together to commit a single crime may be guilty of that crime under the theory of the law of parties, 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.  State v. Viet Huu Nguyen 1 S.W.3d 694, 697 (Tex.Crim.App. 1999).  The evidence needs to show that (1) a defendant's accomplices had engaged in ongoing multiple criminal activities, and (2) a defendant agreed to join the existing organized crime unit, knowing that it has committed or will commit multiple criminal activities. Van Phi Nguyen v. State, 21 S.W.3d 609, 614 (Tex.App. - Houston [1st] 2000, pet. ref'd).

If you are charged with Engaging in Organized Criminal Activity it is important to hire a lawyer who is well versed in the complexities involving this statute that are often misunderstood by experienced police officers, prosecutors and defense lawyers. Ed McClees is Board Certified in Criminal Law by the Texas Board of Legal Specialization, and is the former Chief of the Organized Crime Section at the Harris County District Attorney's Office, where he was in charge of prosecuting various Engaging cases.  He has taught courses on the engaging statute to prosecutors and police officers.  Give us a call to schedule a consultation.

About the Author

Ed McClees

Ed is a criminal trial lawyer who is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is a former Harris County District Attorney where he served as chief of the Organized Crime Section, prosecuting cases involving complex organized criminal activities, including Fr...

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