May 4, 2018

Texas Court of Criminal Appeals

O’Brien v. State

No. PD-0061-16                5/2/18


Must the jury unanimously agree on the specific predicate crime to convict a defendant of engaging in organized criminal activity under Penal Code §71.02?


No. Engaging in organized criminal activity is a “circumstances of conduct” offense; therefore, the commission of a predicate crime constitutes a manner and means of committing the single offense of engaging in organized criminal activity. Additionally, the court may properly instruct the jury in the disjunctive regarding the predicate offenses. Read opinion.

Concurrence (Alcala, J.):

“Examining the plain statutory language as a whole, I conclude that the State may obtain a conviction for engaging in organized criminal activity by alleging alternative predicate offenses as long as those predicate offenses are, as in this case, the same grade felony or misdemeanor offense. Because the plain language of the statute adequately resolves the instant appeal without consideration of extra-textual matters, I respectfully concur with but do not join this Court’s majority opinion.” Read opinion.

Dissent (Walker, J.):

Penal Code §71.02 is not a “circumstances of conduct” offense but a “nature of conduct” offense. It consists of committing another offense while harboring the intent to “establish, maintain, or participate in a combination, the combination’s profits, or as a member of a criminal street gang.” Jury unanimity on the predicate offense is required because the offense of engaging in organized criminal activity acts as an enhancement that raises the degree of the offense based on the defendant’s intent. The types of crimes that may serve as predicate offenses are too varied, and permitting a non-unanimous verdict may be a violation of due process. Read opinion.

Dissent (Yeary, J.):

“I join Judge Walker’s dissenting opinion. For the reasons he expresses, I believe the Court is mistaken to conclude that the predicate offenses that go to establishing guilt for the offense of engaging in organized criminal activity constitute mere manner and means of committing the offense, such that the jury need not agree on which offense (or offenses) the defendant committed.” Read opinion.


This opinion will be very useful to prosecutors handling EOCA cases. A clear majority holds that it is the combination that is the gravamen of the offense, not the underlying offenses the combination committed. The majority reading seems the most natural reading, but be careful alleging the underlying offenses so that you only allege one degree of underlying offense—the defendant might be entitled to unanimity on the underlying offense when different degrees of offense are alleged because the degree of the EOCA offense is determined by the highest grade of underlying offense committed.

Supreme Court of Texas

In re State of Texas

No. 16-0829       4/27/18


Is a person civilly committed as a sexually violent predator prior to 2015 entitled to a lawyer for a hearing for placement in the post-2015, tiered-treatment program?


No. Generally, civil litigants are not entitled to appointed counsel unless mandated by the Legislature. The Civil Commitment of Sexually Violent Predators Act requires appointment of counsel for indigent persons during some hearings, but not for hearings modifying an existing commitment order to require participation in the tiered treatment program. Additionally, there is no due process right to appointed counsel during the modification hearing. Read opinion.


This is a very narrow holding. The trial court’s modification of the commitment order to comply with legislative changes does not appear to have put the sexual predator into a more restrictive regime.


The Texas Forensic Science Commission has adopted amendments to 37 Tex. Admin. Code §651.5 and §651.7 that go into effect on May 24. The changes add “crime scene reconstruction including bloodstain pattern analysis and trajectory determination” to the list of forensic disciplines exempt from accreditation requirements under Art. 38.35 of the Texas Code of Criminal Procedure. The change was needed to provide clarity to previously existing rules adopted by DPS. Under the previous rules, some courts were excluding bloodstain pattern analysis based on Art. 38.35, and some courts were admitting the same type of evidence. The accreditation exemption for bloodstain pattern analysis is intended to be temporary (for 15 months) to allow entities that perform this type of analysis the opportunity to obtain accreditation. To view the Commission’s hearing on bloodstain pattern analysis, see: