Summary
holding evidence was insufficient to support an engaging-in-criminal-activity conviction where two undercover agents who were named in the indictment could not be members of the combination because they were carrying out lawful activities, i.e., the enforcement of State law
Summary of this case from Williams v. StateOpinion
No. 13-81-106-CR.
December 17, 1981.
Appeal from the 138th District Court, Cameron County, Harry D. Lewis, J.
Eduardo Roberto Rodriguez, Brownsville, for appellant.
Reynaldo Cantu, Jr., Criminal Dist. Atty., Brownsville, for appellee.
Before BISSETT, YOUNG and GONZALEZ, JJ.
OPINION
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 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).