January-February 2012

Three’s the key … but you’ll need more

Factors to consider when charging an Engaging in Organized Criminal Activity (EOCA) case

Ben Hoover

Assistant Criminal ­District Attorney in Wichita County

It’s been said that two heads are better than one. If true, then it’s only logical that three are preferable to two. In Texas, three may also be the key to ensuring that when criminals are caught, they can be charged with the crime of engaging in organized criminal activity (EOCA). While three makes for a crowd, it does not necessarily correlate to a “combination.” When it comes to proving an EOCA case in Texas, there is more required than just proving that three or more persons committed a crime or even multiple crimes. The law requires proof of an ongoing course of criminal activity.

At first glance

The decision to charge a defendant under Penal Code §71.02 (Engaging in Organized Criminal Activity) begins with the arresting agency. Often, the arresting officer may believe that EOCA applies to an offense listed under that section because three or more people either committed the crime or were involved in some way. Additionally, the enhanced charge typically results in a higher bond when the defendant makes his initial appearance before the magistrate. As with all cases, however, it is imperative for the prosecutor to carefully analyze the facts. Many times, the evidence is insufficient to prove that a combination existed despite evidence of multiple persons who have committed multiple crimes.

    Consider the following scenario: Officers respond to a theft in progress on a residential street. They locate three men in a vehicle matching an eyewitness’s description. Inside the vehicle, officers find three cast-iron garden pots. The eyewitness says that he observed the three men stop at multiple houses. At each location, all three men exited the vehicle, dumped the plants and soil from the pots, and loaded them into the car. The victims identified their property and estimated the aggregate value of the pots to be $750, a Class A misdemeanor amount. The arresting officer charges the men with state jail EOCA-theft and seizes the vehicle as contraband (asset forfeiture requires commission of a felony offense). The officer states in his report that “the offense was enhanced to a state jail felony by the participation of three subjects involved for profit of items stolen.” Despite evidence of three different thefts by three or more individuals, the report offers no other indication that the defendants intended to continue in their activity.

    Now’s the moment when you reach for your brand spanking new edition of the Annotated Criminal Laws of Texas and flip to Penal Code Chapter 71 (“Organized Crime”). “Combination?” “Collaborate?” “Conspire to commit?” Even though some of these terms are defined in §71.01 (Definitions), a review of the pertinent caselaw may be necessary. Many of the fact scenarios encountered in EOCA cases are close calls when it comes to the charging decision. I hope the following summary of opinions will aid you in that process.

Insufficient to establish EOCA

A review of the cases that did not qualify under the EOCA statute provides a good starting point. Many of them have common factors: multiple offenses committed within one criminal episode, participation by three or more persons during the commission, and ultimately, lack of a coordinated action or continuous course of conduct.

    In Nyugen v. State, the Texas Court of Criminal Appeals found the evidence was insufficient to support an EOCA conviction.1 In Nyugen, a group of friends attended a party sponsored by the Asian Cultural Committee at the University of Texas. Afterward, Nyugen and a group of people met at a restaurant for breakfast where they encountered a group of men who had attended another party sponsored by the Latin American Students Association. One of the men from the other group, Morena, heckled a woman from Nyugen’s group as she walked by their table. Nyugen’s group then confronted the others about the comment. A disturbance erupted and Nyugen’s group was asked to leave the restaurant. Upon leaving, Nyugen and three other men decided to return and fight but first retrieved a .22 semi-automatic rifle. The four waited outside the restaurant and then ambushed Morena and two friends as they stood in the parking lot. Nyugen fired the rifle and shot Morena in the head and leg, fatally wounding him. One of Morena’s friends was also wounded. At trial, Nyugen admitted that he was the triggerman, that a friend drove the car, and that another man passed the gun to him from the backseat. He was convicted of murder and EOCA, but the Austin Court of Appeals reversed the EOCA conviction and the Court of Criminal Appeals affirmed.

    The Court of Criminal Appeals determined that: 1) to prove a “combination,” the State must prove that a group of three or more intended to work together in a continuing course of criminal activities; 2) the evidence was legally insufficient to show a “combination”; and 3) the evidence need not prove that members of a combination committed more than one criminal act as long as there is intent to establish a combination. In Nyugen, the court outlined that you can prove your case with only one criminal offense, but the trick is proving the continuity of the group. Although murder was committed with intent and by agreement of the group, there was no evidence that the group would work together in continuing a course of criminal activities.

    One of the more difficult tasks in an EOCA prosecution is proving intent, which raises several questions. First, how do you prove intent, and secondly, whose intent must you prove? Arredondo v. State helps to answer the question of how to prove the existence of a combination and confirms that direct evidence is not needed. In that case, two men at a party sexually assaulted a minor female. After a wild night of drugs and alcohol, the victim awoke with little memory of the previous night. A medical examination, however, revealed the presence of the appellant’s semen in the victim’s vagina. The State offered evidence that Arredondo raped the victim while others watched and cheered him on. Afterward, another man raped the victim and others physically assaulted her. A jury convicted Arredondo of aggravated sexual assault and EOCA. The Eastland Court of Appeals said that a jury may infer intent from “any facts that tend to prove the combination’s existence, including the defendant’s words, acts, and conduct, and the method of committing the enumerated offense.” The court added that it is permissible to infer an agreement to work on a common project when each person’s action is consistent with realizing the common goal. However, the court determined that a single ad hoc incident is insufficient for EOCA purposes. Arredondo’s aggravated sexual assault charge was affirmed but his EOCA conviction reversed.

    In Hart v. State, the Texas Court of Criminal Appeals outlined the requisite mental states for an EOCA conviction. Two parts were identified: 1) whether the defendant intended to commit the underlying enumerated offense; and 2) whether he intended to establish, maintain, participate in, or participate in the profits of a combination. In Hart, the Houston police busted an auto theft ring that had targeted a local dealership during a 15-month period. The theft ring was shown to have multiple participants:  a leader, one who ran the body shop, one who ordered cars, an inside man who provided keys, and someone who obtained the keys. The evidence at trial proved that the appellant joined in only one theft with people who had been participating in a theft ring. It was not shown that the appellant knew of the theft ring’s existence or that he intended to participate in it. As the Eastland Court did in Arredondo, the Court of Criminal Appeals in Hart observed that direct evidence was not required because the jury could infer intent from any of the facts which tend to prove its existence. Nonetheless, the EOCA conviction was reversed due to insufficient evidence.

    Two years before Hart, the Amarillo Court of Appeals in Munoz v. State identified two types of mens rea that are required in an EOCA case. One is that of the defendant and the other is that of the group. In Munoz, the appellant was convicted of EOCA based on the sale of approximately 27 pounds of marijuana. It was shown that the appellant unwittingly negotiated with an undercover officer and two other people to distribute the marijuana. At trial, it was undisputed that Hart participated in a group of three of more and that he unlawfully distributed or delivered a controlled substance. However, he did dispute the existence of a combination, and the court agreed with him. Even though one of his co-defendants had previously sold drugs to the undercover officer, the appellant had supplied drugs only on the occasion in question. There was no evidence of the appellant having provided drugs to these individuals in the past or of discussions about future transactions.

    Two other cases worth reviewing are Roberson v. State and Ross v. State. In Roberson, the Eastland Court of Appeals found the evidence to be legally insufficient for EOCA when the defendant was present in a vehicle with two others and a number of forged checks. Although considerable evidence established the defendant’s guilt for forgery and also implicated another passenger, there was no evidence linking the three in a continuing course of criminal activity. Similarly, in Ross, evidence was found to be insufficient when the appellant and two others chased down a female driver and assaulted her during a fit of road-rage. The appellant and his cohorts committed a series of assaults against the victim as they pursued her down IH-35, including several vehicular assaults and an eventual physical beating. The court determined that the assaults were a spontaneous, retaliatory series of actions that were all part of the same criminal episode and not a continuing course of criminal activity.


A good way to know how to proceed is to first know how not to. The aforementioned cases are all examples of situations in which EOCA convictions were reversed based on insufficiency of the evidence. A thorough search will uncover troves of opinions outlining scenarios where EOCA convictions were upheld. There are additional factors to consider that are not discussed here, such as overt acts and the law of parties. The main thing to gain from this discussion is an awareness that an EOCA charge can appear solid at first glance but may lack the requisite criteria necessary to withstand scrutiny on appeal. The table on this page provides a quick reference guide to the EOCA opinions that are outlined herein. Also included are a few cases that were not discussed but that illustrate scenarios in which EOCA convictions were affirmed.


1 For cites to each case mentioned, please see the chart (below as a PDF) on this page.