Written by attorney Stephen Andrew Hamer

Engaging In Organized Criminal Activity

Engaging In

Organized Criminal Activity:

A Synopsis of the Texas Crime

Every Texas criminal defense attorney should make themselves very familiar with the law regarding the crime of Engaging In Organized Criminal Activity (EIOCA). It is essentially an enhanced charge to the offenses listed in Texas Penal Code § 71.02. Texas police officers routinely “over-charge" offenders with EIOCA. This provides for a difficulty in successfully prosecuting most of these arrests. A knowledgeable criminal defense attorney can often convince the prosecutor to lower or dismiss the charge, because arresting officers often incorrectly think that EIOCA applies. My experience has shown that most defendants were arrested for EIOCA simply because they were connected IN SOME WAY with other people involved in committing a crime. However, THAT IS NOT ENOUGH. THE LAW REQUIRES MORE PROOF!

While Penal Code § 71.01 is illustrative, an examination of relevant case law is necessary to supplement the § 71.01 definitions.

Texas Penal Code §71.02(a) states that:

A person engages in an organized criminal activity: when the person, with the intent to establish, maintain, or participate in a combination or in the profits of a combination, commits or conspires to commit one or more of the enumerated offenses.

Penal Code §71.02 also provides for a “street gang" element, not addressed in this synopsis.


State must prove defendant intended to “establish, maintain, or participate in" a combination.

“Combination" means 3 or more persons who collaborate in carrying on criminal activities.

“Collaborate in carrying on criminal activities" means the members of the group of 3 or more intend to work together in a continuing course of criminal activities." [1]

SO… To establish participation in a combination, the State must prove

that defendant intended to establish, maintain, or participate in a group of three or more, in which the members intend to work together in a continuing course of criminal activities. [2]

Combination requires proof of more than working jointly to commit a crime; it requires proof of CONTINUITY. [3]

Evidence of multiple criminal violations alone does not establish a combination. [4]

If there is lack of proof concerning the

continuing course of criminal activities,

the defense must raise the issue at trial!


There are TWO PARTS to the mental state requirement:

First: intent required for underlying offense; and

Second: intent to establish, maintain, participate in, or participate in the profits of a criminal combination.

SO… the proof must be more than the intent to commit underlying offense.

The proof must be more than evidence that a combination existed and defendant committed enumerated offense;

The evidence must support a finding that: defendant committed the underlying offense… AND he did it in order to facilitate the combination. [5]

­CRIMINAL is key here. For example, if 1 member of a group of 3 is an undercover officer, there can be no combination. [6]

Direct evidence of intent is not required. Jury may infer intent from facts which tend to prove its existence, including acts, words, and conduct of accused, and the method of committing the crime. [7]



Texas Penal Code §71.01(b) states that “conspiring to commit" means that defendant agrees with at least one person that defendant or at least one other engage in conduct that would constitute the offense and defendant and one or more of them perform an overt act in pursuance of the agreement.

State must prove:

Existence of a combination;


Defendant agreed with at least one of the other persons that

Defendant or at least one of the others would engage in conduct that would constitute the underlying offense,


The defendant, and

at least one of the others performed an overt act in pursuance of the agreementt.

The state must prove two overt acts.One of these acts must have been committed by the defendant.

tPenal Code § 71.01(b) states that an agreement constituting conspiring to commit may be inferred from the acts of the parties.



For conspiracy, defendant must simply Agree To Participate in conspiracy, as long as another conspirator commits some overt act in furtherance of conspiracy.

For EIOCA, Defendant must

Agree to participate


Himselfperform some overt act in pursuance of that agreement.v

Thus, if the group is charged with conspiring to commit EIOCA and are jointly tried, the defendants who did not personally perform an overt act will be acquitted. [8]

vThe overt act need not be criminal itself. The law of parties applies to EIOCA (i.e. acts that encourage, solicit, aid, or attempt to aid the commission of the underlying offense, are sufficient to satisfy the requisite overt act. [9]


Multiple Punishments In Single Prosecution… OK

A defendant indicted both for EIOCA and the underlying offense, can be punished at the conclusion of the prosecution for both offenses. [10]

Successive Prosecutions… NOT OK

Successive prosecutions for EIOCA and the underlying offense, violates the Double Jeopardy clause. [11]

[1] Nguyen v. State, 1S.W.3d at 694, 696-97 (Tex. Crim. App. 1999).

[2] Nguyen, 1S.W.3d at 697 (Tex. Crim. App. 1999).

[3] Id. at 696-97

[4] Ross v. State, 9 S.W.3d 878, 880 (Tex. App.—Austin 2000, pet. ref’d).

[5] Nguyen,1 S.W.3d 694; Hart v. State, 89 S.W.3d 61, 65 (Tex. Crim. App. 2002)

[6] Humphrey v. State, 626 S.W.2d 816, 816 (Tex. App., Corpus Christi 1981, no pet.)

[7] Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999)

[8] Barber v. State, 764 S.W.2d 232, 235 (Tex. Crim. App. 1989)

[9] Otto & McLaren v. State, 95 S.W.3d 282, 285 (Tex. Crim. App. 2003)

[10] Garza v. State, 213 S.W.3d 338, 348 (Tex.Crim.App. 2007)

[11] Ex parte Chaddock, ___S.W.3d___(Tex.Crim.App.2012) (No. AP-76,547; 6-27-12)

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