Clinton Morgan
In little more than a year, the Court of Criminal Appeals has released three opinions explaining what the State must plead and prove in a prosecution for Engaging in Organized Criminal Activity (EOCA). Considering the complexity of the statute, this level of attention was probably needed.
Penal Code §71.02 makes it 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 [defendant] commits or conspires to commit” one of many listed offenses. In 2017, in Villa v. State,1 the Court of Criminal Appeals decided what sort of evidence is needed to prove membership in a street gang. Earlier this year in O’Brien v. State,2 the Court explained that a jury need not be unanimous on which underlying offense the defendant committed.
Most recently in Zuniga v. State,3 the Court discussed what evidence is needed to prove that a defendant committed an offense “as a member of a criminal street gang.” Spoiler: The statute means exactly what it says.
Ricardo Zuniga was (is?) a member of the Barrio Aztecas gang. The Barrio Aztecas claim “the entire El Paso region” as their territory and demand a cut from other gangs that sell narcotics in that area.4 If a rival gang member fails to pay this extortion money, “the Barrio Aztecas implement several forms of discipline, which may include killing that member.”5
On June 21, 2009, the Vargas brothers (Jesus and Jose) were murdered outside a bar in Socorro, near El Paso. The Vargases were confirmed members of the Barrio Campestre Locos gang, and the bar was a known hangout of the Barrio Aztecas. Witnesses said that a group of Barrio Aztecas members, including Zuniga, beat the brothers and then shot them.6 One witness said that Zuniga was the shooter. Zuniga fled to Mexico.
When he was arrested three years later, Zuniga was charged with one count of capital murder (murdering two people in a single criminal episode) and two counts of engaging in organized criminal activity. The engaging indictments alleged that Zuniga, “as a member of a criminal street gang … commit[ed] the criminal offense of murder.”
In addition to eyewitness testimony about the murders, the State put on evidence regarding how law enforcement classifies individuals as gang members. Zuniga had been classified as a Barrio Aztecas member since 2004. The State also put on a gang expert who testified about the Barrio Aztecas. This witness said that the Vargas murders were consistent with Barrio Aztecas activities. The jury convicted Zuniga of all three charges. He got life without parole for the capital murder, and two 60-year sentences for the engaging charges.
On appeal to the Eighth Court, Zuniga raised 11 points of error, including challenging the sufficiency of the evidence to support all three convictions. The Eighth Court held that the evidence was sufficient to support the capital murder conviction. However, the engaging convictions were another matter.
Citing a 2002 Court of Criminal Appeals case, Hart v. State,7 the Eighth Court said there were two mental-state requirements for engaging in organized criminal activity: the mental state for the underlying offense (in this case, murder) and an intent to establish, maintain, or participate as a member of a criminal street gang.8 The Eighth Court explained: “The State must prove not only that the defendant is a member of a criminal street gang … [but] the evidence must [also] support a finding that the defendant intended to establish, maintain, or participate as a member of a criminal street gang.” Despite evidence that 1) Zuniga was a member of Barrio Aztecas, 2) others involved in the murders were members of Barrio Aztecas, 3) the victims were members of a rival gang, 4) the murders occurred at a Barrio Aztecas hangout, 5) shortly before the murder Zuniga had told another gang member involved in the murder that he had to “do his job,” and 6) the murders were consistent with Barrio Aztecas activity, the Eighth Court held the evidence was insufficient to prove that Zuniga intended to commit the murders as a member of a gang.
A unanimous Court of Criminal Appeals disagreed. Writing for the Court, Judge Alcala explained that the Eighth Court had misinterpreted the intent requirement for engaging in organized criminal activity. Engaging can be charged in two different ways, either 1) “with the intent to establish, maintain, or participate in a combination or in the profits of a combination,” or 2) “as a member of a criminal street gang.” The grammatical structure of the statute indicates that the intent requirement from the “combination” theory of liability does not extend to the “street gang” theory of liability.9
Where the Eighth Court had gone astray was its reliance on Hart. That case had been charged under the “combination” theory of liability; thus, there actually were two mental state requirements. However, for a defendant charged under the “street gang” theory, as Zuniga was, the statute did not require proof of a particular intent beyond what was required to prove the underlying offense. To convict a defendant charged with engaging “as a member of a criminal street gang,” the State’s evidence must show merely “a connection or nexus between the defendant’s commission of the underlying offense and his gang membership.”10 That is, the evidence must prove that he committed the offense as a gang member, not just that he was a gang member who happened to commit an offense.
The difference between the Eighth Court’s interpretation and the CCA’s interpretation is significant. The evidence in this case plainly showed a gang murder. If that evidence was not sufficient to show intent to act as a gang member, it seems unlikely anything short of an explicit declaration would suffice (e.g., “I heard the defendant say, ‘Gentlemen, these Barrio Campestre Locos miscreants have deprived us Barrio Aztecas of our fair earnings. Let us assail them!’”). There are an awful lot of gang crimes where it would be impossible for the State to obtain such evidence.
The rest of the CCA’s opinion goes on to recount the exact same evidence discussed in the Eighth Court’s opinion. That evidence was sufficient to support the conviction under the correct statutory interpretation. Under the CCA’s interpretation, when gang-bangers commit crimes as part of their gang lifestyle, they can be prosecuted for engaging in organized criminal activity. Their precise motive—to make money, to expand territory, to avenge insults, to have fun—is not an element and will not factor into a sufficiency review. All the State needs to show is that the defendant committed the underlying offense “pursuant to his role or capacity as a gang member.”11
Endnotes
1 514 S.W.3d 227 (Tex. Crim. App. 2017).
2 544 S.W.3d 376 (Tex. Crim. App. 2018).
3 ___ S.W.3d ___, No. PD-0174-17, 2018 WL 2711145 (Tex. Crim. App. June 6, 2018).
4 Id. at *6.
5 Zuniga v. State, No. 08-14-00153-CR, 2016 WL 5121992 (Tex. App.—El Paso Sept. 21, 2016) (mem. op. not designated for publication) rev’d in part, No. PD-0174-17 (Tex. Crim. App. June 6, 2018).
6 The appellate opinions are vague on the details of the beating, but the lower court’s opinion goes into some detail of the autopsy. Both brothers sustained multiple blunt force injuries and non-lethal stab wounds prior to being shot. Jesus was stabbed in the ear with an icepick, “part of which was still embedded in his head.”
7 89 S.W.3d 61 (Tex. Crim. App. 2002).
8 Zuniga, 2016 WL 5121992 at *12 (emphasis added, brackets removed).
9 To determine if the intent requirement from one part of a statute extends to a latter part of a statute, one easy method is to remove the intervening words and see if the resulting phrase makes sense. Here it does not: “with the intent to establish, maintain, or participate … as a member of a criminal street gang.”
10 Zuniga, 2018 WL 2711145 at *3.
11 Id. at *7.