1. “Is ‘possession with intent to deliver’ a predicate offense for engaging in organized criminal activity because it falls within ‘unlawful manufacture, delivery . . . of a controlled substance’ which is one of EOCA’s enumerated predicate offenses?”
2. "Can an EOCA conviction predicated on an offense that is not a predicate be reformed to that necessarily subsumed offense?"
Parker pleaded open to engaging in organized criminal activity (EOCA) by possessing a controlled substance with intent to deliver. On appeal, he argued that possession with intent to deliver was not one of the enumerated predicate offenses for EOCA and thus he should be acquitted. Tex. Penal Code § 71.02(a).
The court of appeals agreed, holding that the only qualifying predicate offense for possession cases are those involving “forgery, fraud, misrepresentation, or deception.” The court of appeals acquitted Parker of EOCA and held that the conviction could not be reformed to possession with intent to deliver under Thornton v. State, 425 S.W.3d 289 (Tex. Crim. App. 2014).
The State argues that “unlawful manufacture, delivery . . . of a controlled substance” in the list of EOCA predicate offenses refers to the umbrella offense of manufacture and delivery. The State contends that the statute should be interpreted based on the objective meaning of the text at the time of its enactment. At that time, there was a single comprehensive offense entitled “Unlawful Manufacture or Delivery of Controlled Substances,” that included (as it does today) possession with intent to deliver. The State also argues that even if possession with intent to deliver is not a proper predicate, the court of appeals should have reformed the conviction to that offense. Parker’s guilty plea is an admission to all the elements of EOCA by possession with intent to deliver, and hence it is sufficient to support a conviction for that alleged predicate offense.