NO. 1865-00






Holcomb, J., filed a dissenting opinion, in which Womack, J., joined.


A Harris County jury found appellant, Robert Ward Hart, guilty of engaging in organized criminal activity. (1) On direct appeal, appellant argued that the evidence was legally insufficient to support his conviction because the State failed to "prove that [he] and two or more [other] people agreed to work together in a continuing course of criminal activities." The Fourteenth Court of Appeals, with one justice dissenting, accepted appellant's argument, reversed the judgment of the trial court, and rendered a judgment of acquittal. Hart v. State, No. 14-99-00010-CR (Tex.App.-Houston [14th Dist.] 2000) (not published). A majority of this Court now affirms the court of appeals' judgment of acquittal. I respectfully dissent, and I do so for two reasons.

First, even assuming, for the sake of argument, that the majority is correct in its view that Penal Code 71.02(a) requires, for conviction, evidence that the defendant knew of the combination's existence, the evidence adduced at appellant's trial was sufficient to prove exactly that. Given the evidence adduced at trial, discussed at length in the majority's opinion, a reasonable jury could have concluded beyond a reasonable doubt that (1) appellant conspired with a group of three other people to steal a key to a Land Cruiser from Sterling McCall Toyota in Houston, (2) appellant later participated, along with two members of the same group, in the theft of the Land Cruiser, and (3) appellant knew that one or more members of the same group would later forge a title to the Land Cruiser in order to facilitate its unlawful sale. In other words, given the evidence at trial, a reasonable jury could have found that appellant was a party to the theft of the Land Cruiser as part of his ongoing collaboration with others to carry on criminal activities. Thus, the evidence was sufficient to support appellant's conviction even under the majority's reading of the statute.

Second, I do not agree with the majority's view that 71.02 requires, for conviction, evidence that the defendant knew of the combination's existence. Under our decision in Boykin v. State, 818 S.W.2d 782 (Tex.Crim.App. 1991), we must interpret unambiguous statutes literally, unless doing so would lead to absurd results. Read literally, 71.02(a)(1) does not require, for conviction, that the defendant actually knew that the group in which he intended to participate was a combination. To prove an offense, the State need only prove that (1) a person (2) committed one of the enumerated offenses (3) with the intent to participate in a group, and (4) the group was in fact a combination. In this case, the State plainly proved all four of those elements.

Our decision in Nguyen v. State, 1 S.W.3d 694 (Tex.Crim.App. 1999), provides no support for the majority's decision today. In that case, we had to decide whether the evidence adduced at trial proved the existence of a combination. There, the evidence showed that the defendant was guilty of murder, but there was no evidence of a continuing course of criminal activity. The evidence showed that a confrontation erupted between the defendant and his friends on the one hand and the victim and his friends on the other, that the defendant and his friends left the scene, and that they later returned with the murder weapon. There was no evidence that any of the actors intended to commit more than one crime. We recognized that that fact pattern did not fit within the language or spirit of the organized crime statute.

The instant case, in contrast, fits squarely within the language of the statute. It is undisputed that a combination existed. Furthermore, the evidence established that appellant was invited to participate, and did participate, in a theft planned by the combination. That is sufficient for conviction under the statute.

Section 71.02(a)(1)'s plain language does not require, for conviction, specific knowledge on the part of the defendant of prior criminal acts by members of the combination. It does not require that the defendant be involved in planning, have a desire to commit future criminal acts, or be able to identify other participants. The statute requires only that the defendant 'intend to participate,' which appellant did.

The apparent legislative intent underlying 71.02(a)(1) is to penalize all those involved in organized criminal activity. Even if the accused participates in only one enumerated offense, he is guilty of organized criminal activity if he also intends to participate in a group which is in fact a combination. Those with the bad luck to be apprehended in the course of their first (and, hence, their last) offense are to be treated as part of the combination. The underlying policy of deterrence is obvious.

I respectfully dissent.



1. Texas Penal Code 71.02(a)(1) provides, in relevant part, that "[a] person commits an offense if, with the intent to ... participate in a combination..., he commits or conspires to commit one or more of [several enumerated offenses, including theft]." Texas Penal Code 71.01(a), in turn, defines "combination" as "three or more persons who collaborate in carrying on criminal activities."