At page 816 Defining combination for organized criminal activity under penal code1 citing case“We hold that such evidence is insufficient to sustain these convictions.”
- McDonald v. State, 692 S.W.2d 169 (Tex. App.—Houston [1st Dist.] 1985).publishedConsequently, there were only three people engaged in the combination, and the evidence was held to be insufficient. 626 S.W.2d at 816.
At page 817 Sustaining error and reversing conviction1 citing caseCir. 1981); United States v. Enstam, 622 F.2d 857, 687 (5th Cir. 1980); Sears v. United States, 343 F.2d 139, 142 (5th Cir. 1965). The defendant’s third point…
- Williams v. State, 646 S.W.2d 221 (Tex. Crim. App. 1983).publishedSee also: Weathered v. State, 128 Tex.Cr.R. 263 , 81 S.W.2d 91 (1935); Odneal v. State, 117 Tex.Cr.R. 97 , 34 S.W.2d 595 (1931). 1 For an analogous situation dealing with V.T.C.A., Penal Code, Section 71.02, see Humphrey v. State, 626 S.W.…
Other citing cases
- Cosper v. State, 657 S.W.2d 166 (Tex. App.—San Antonio 1983).published
v.
the STATE of Texas, Appellee
OPINION
GONZALEZ, Justice.After a trial before the court, Donald Louis Humphrey, Jr. [hereinafter Humphrey] was found guilty of engaging in organized activity. See: Tex. Penal Code Ann. § 71.02 (Vernon Supp.1980-1981). Punishment was assessed at three years imprisonment, however, his sentence was probated.
Humphrey was charged with committing theft with the intent to establish, maintain and participate in a “combination”. The alleged “combination” consisted of Humphrey, David Michael Paddock, Lawrence M. Durand, and two undercover Department of Public Safety agents. In his third point of error, Humphrey contends that the evidence was insufficient to sustain this conviction. We agree.
Section 71.02(a) of the Penal Code, in pertinent part, provides:
§ 71.02 Engaging in Organized Criminal Activity
(a) A person commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination, he commits or conspires to commit one or more of the following:
(1) ... theft. ..; Penal Code Ann. § 71.02(a) (Vernon Supp.1980-1981) (emphasis added). A “combination” is defined as “five or more persons who collaborate in carrying on criminal activities ...” Tex. Penal Code Ann. § 71.01(a) (Vernon Supp. 1980-1981) (emphasis added).
In this case, the alleged “combination” consisted of Humphrey, Paddock, Durand, and two undercover law enforcement agents. Undoubtedly Humphrey, Paddock, and Durand collaborated in carrying on criminal activities. The two undercover agents, however, were carrying on lawful activities, i.e., the enforcement of State law. Thus, the evidence used to convict Humphrey showed a combination of only three persons engaging in criminal activities. We hold that such evidence is insufficient to sustain these convictions. See: e.g., United States v. Martino, 648 F.2d 367, 405 (5th[*817] Cir. 1981); United States v. Enstam, 622 F.2d 857, 687 (5th Cir. 1980); Sears v. United States, 343 F.2d 139, 142 (5th Cir. 1965).
The defendant’s third point of error is sustained. The conviction of Humphrey is reversed and the judgment of the trial court is reformed to show an acquittal of the defendant. Gonzalez v. State, 588 S.W.2d 574 (Tex.Crim.App.1979).