Texas Stamp


PD-0174-17 06/07/2017

"In holding the evidence legally insufficient to support the defendant's convictions for engaging in organized criminal activity, specifically, that the State failed to prove that the defendant committed the predicate murders as a member of a criminal street gang, the Court of Appeals improperly required proof of the motive of the gang itself. Even after recognizing that the evidence showed that the defendant and his fellow gang members acted in concert in killing the victims, the Court of Appeals nevertheless improperly held that absent proof of why the gang attacked and killed the victims, the evidence was insufficient to allow the jury to rationally conclude that the killings were a gang activity and that the defendant participated in the killings as a member of the gang."

Zuniga was convicted of two counts of engaging in organized criminal activity (EOCA). EOCA makes it an offense to commit certain predicate offenses (including murder) "with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang." The evidence showed Zuniga was a gang member and aided his fellow gang members in murdering two members of another gang. The State offered testimony that Zuniga's gang retaliates against other gangs who do not pay them extortion money and that these murders were consistent with the gang's activities, as they would be for almost any gang. Also, Zuniga made a comment before the murders that he "had to do his job." But the State was precluded from introducing other evidence that would have shown that the murders were in retaliation for the victims' failure to pay.

The court of appeals found the evidence legally insufficient. The court found EOCA required that the defendant commit the predicate offense "with the intent to . . . participate . . . as a member of a criminal street gang." Without evidence like what the trial court excluded, the court of appeals found the evidence insufficient to show Zuniga committed the murders with the requisite intent.

The State points out that the statute requires that the defendant commit the predicate offense "as a member" of a gang—not that he have the intent to participate as a gang member. Either way, evidence that Zuniga was a part of a group of gang members who acted in concert to kill the victims was sufficient proof he participated in the killings as a gang member. The State acknowledges that proof of gang membership and a predicate offense are not enough. A murder or aggravated assault could be the independent impulse or conduct of a rogue gang member. But when several gang members decide to attack and kill someone and act together in carrying out that decision, their conduct is gang activity. Requiring any further proof would make the gang's motive for the killings an additional, non-statutory element of the offense and make the State refute an alternative reasonable hypothesis that the killings occurred for a non-gang-related reason.

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