Texas Stamp


PD-1034-20 01/27/2021

“Does unlawful carrying a weapon by a gang member, Tex. Penal Code § 46.02(a-1)(2)(C), require proof the defendant was continuously or regularly committing gang crimes?”

Martin was pulled over on his motorcycle for traffic violations. He was wearing a Cossacks Motorcycle Club vest and admitted being a member. Inside the vest was a handgun. Martin was arrested and charged with UCW by a gang member, which makes it an offense to intentionally, knowingly, or recklessly carry a handgun in one’s motor vehicle “at any time in which” the person is a member of a criminal street gang. Penal Code § 71.01(d) defines a “criminal street gang” as “three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities.” At trial, both sides agreed Martin was a member of the Cossacks; the issue was whether the Cossacks continuously or regularly associated in committing crimes so as to be a criminal street gang. The focus of the State’s evidence was on the Cossacks’ criminal activities, not Martin’s. The jury convicted.

On appeal, Martin argued the evidence was insufficient to prove he was a criminal street gang member. The court of appeals agreed, adopting the reasoning in Ex parte Flores, 483 S.W.3d 632 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d). That case held that when the requirement that the person be a gang member is “read together” with the criminal-street-gang definition, the result is that the gang member must be one of the three or more persons continuously or regularly associating to commit crime. Because Martin’s presence during the Twin Peaks shooting was the “sole piece of evidence indicating that [he] was ever involved in criminal activity,” the court of appeals rendered a judgment of acquittal.  

 The State argues that requiring a defendant’s personal involvement in the gang’s ongoing crimes is contrary to the plain language of the statute, produces odd results, and is at odds with how gangs operate. It contends Ex parte Flores’s interpretation wasn’t required to make the statute constitutional. To the extent there is concern that a member could be convicted without knowing the criminal nature of the organization to which he or she belongs, that culpable mental state issue shouldn’t be corrected by heightening the actus reus requirement. The State contends the statute may require no more than joining others to assist in the gang’s effort to commit crimes and, if so, the court of appeals erred in not considering Martin’s four-year membership, financial support from dues, and past leadership role.  

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