CHARLES BITTICK, Appellant v. THE STATE OF TEXAS
NO. PD-0013-24
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
November 27, 2024
680 S.W.3d 405
KEEL, J.
ON APPELLANT‘S PETITION FOR DISCRETIONARY REVIEW FROM THE SECOND COURT OF APPEALS TARRANT COUNTY
KEEL, J., delivered the opinion of the Court in which KELLER, P.J., and HERVEY, RICHARDSON, YEARY, and SLAUGHTER, JJ., joined. NEWELL and MCCLURE, JJ., concurred. WALKER, J., did not participate.
OPINION
A jury convicted Appellant of aggravated assault and engaging in organized criminal activity (“EOCA“). On appeal he challenged, among other things, the sufficiency of the evidence to support his EOCA conviction. The court of appeals affirmed the conviction. Bittick v. State, 680 S.W.3d 405, 418 (Tex. App.—Fort Worth 2023). We granted review to decide whether an EOCA conviction depends on a
I. Background
A. Appellant and Vagos
According to the collective testimony of law enforcement officers:
Vagos was a criminal street gang that first moved into Texas around 2018. In September of that year, gang-unit officers encountered Appellant and other Vagos members at a motorcycle rally at the Fort Worth Stockyards. Appellant admitted to them that he was a member of Vagos and allowed them to take photographs of him wearing his “cut.” It displayed the Vagos logo and a “bottom rocker” that said “California” and meant that he was a fully-fledged member of Vagos, not merely a prospect. Other patches displayed “We give what we get,” the gang‘s motto; “Green Nation,” a reference to Vagos‘s colors; “1%,” indicating that Vagos is an outlaw gang unlike the 99% of motorcyclists who follow the law; “MF,” suggesting that he had had a violent encounter with a non-club member; and a swastika, signifying that Appellant‘s chapter consisted of white males.
Officers investigating Vagos at the Stockyard rally also talked to Christopher Vick and photographed him wearing his cut. Vick had a leather cut, indicating that he had been a Vagos member for at least five years. His cut included many of the same patches as Appellant‘s, plus a Loki patch, signifying that he had had a violent encounter with rival club members. Most notably, Vick‘s cut included two patches that said “nomad.”
B. The Assault
On June 1, 2019, David Perez stopped at a 7-Eleven on his way home from work, and Appellant and a group of people parked next to him in a pickup truck. The truck‘s occupants wore Vagos colors and/or insignia. Perez said something to Appellant after he opened his truck door and hit Perez‘s car, and Appellant punched him twice in the face. Appellant‘s compatriots soon joined in, and they chased, punched, and kicked Perez before leaving the scene in their truck.
After retreating into the store, Perez called for help, and his wife, her sister, and police soon arrived. From store video footage, officers identified two Vagos members among Perez‘s attackers—Appellant and William Canida. During the on-scene investigation, a man arrived on a motorcycle, stored his cut in a saddle bag, and entered the store. He seemed interested in the investigation and listened to Perez‘s conversation with police and watched some of the security footage of the assault. He re-donned his cut when he left the store. Perez‘s sister-in-law recognized the logo on his cut from that worn by attackers shown in the video and told investigators about her observations. Gang unit officers later identified him as Vick.
C. Court of Appeals
Appellant argued on appeal that the evidence was legally insufficient to support
Appellant challenges the court of appeals‘s holding as a misinterpretation of Martin. He argues that the “continuous association” requirement for street-gang membership is not satisfied by commission of a single EOCA predicate crime; a defendant‘s connection to continuous criminal conduct is required.
II. Standard of Review
We assess legal sufficiency by viewing the evidence in the light most favorable to the verdict and asking whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Zuniga v. State, 551 S.W.3d 729, 732 (Tex. Crim. App. 2018). We compare the trial evidence to “the elements of the offense as defined by a hypothetically correct jury charge for the case.” Zuniga, 551 S.W.3d at 733 (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). And we review de novo a sufficiency question that depends on statutory construction. Long v. State, 535 S.W.3d 511, 519 (Tex. Crim. App. 2017). Statutory construction depends on the statute‘s literal text. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). We give effect to its plain meaning unless the language is ambiguous or would lead to absurd results that the Legislature could not possibly have intended. Id. When a statute does not define a term, we construe it according to common usage. State v. Hardin, 664 S.W.3d 867, 873 (Tex. Crim. App. 2022).
III. EOCA
As pertinent here, a person commits EOCA if he, “as a member of a criminal street gang ... commits or conspires to commit one or more of the following: (1) aggravated assault[.]”
A “criminal street gang” is “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 activity.”
In Villa v. State, the assault victim‘s testimony that Villa and five other gang members attacked him was sufficient to show Villa acted as a gang member. 514 S.W.3d 227, 232-33 (Tex. Crim. App. 2017). The victim did not have “to explain how he knew [Villa] was a gang member for a rational jury to believe that he did in fact know it.” Id. at 233. And the evidence was sufficient to show that the attack “was a gang-motivated crime” because the “other attackers were identified as gang members,” and Villa “worked in concert” with them, adding “further support for the jury‘s conclusion that [Villa] was himself a gang member.” Id. Notably, we did not require proof that Villa committed any other crimes to establish his membership. There was sufficient evidence “on the basis of the complainant‘s testimony alone.” Id.
In Zuniga, the evidence was sufficient to show that the defendant “was acting in the role, capacity, or function of ‘a member of a criminal street gang‘” when he shot the two victims. Zuniga, 551 S.W.3d at 736. He was “an established member” of a gang. Id. at 738. The murders were committed “at a location known to be frequented” by the gang. Id. Other known members of the gang joined in the attack “alongside and in cooperation with” Zuniga. Id.. The victims were members of a rival gang. Id. The gang would typically assault rival gang members who encroached on their territory. Id. And Zuniga had earlier told “Sparky” to “do his job.” Id. Given these facts, a rational jury could conclude that “the coordinated assault on [the victims by gang members] was gang-related activity” and that Zuniga‘s cooperation with other gang members in the
IV. Analysis
In 2018, Appellant was identified as a member of Vagos, a criminal street gang. See
Appellant, however, argues that more was required. He claims that Martin imposed onto
Martin was convicted under an old version of
We held that under the UCW statute, “a person is a ‘member’ of a criminal street gang only when he is ‘one of the three or more persons who continuously or regularly associate in the commission of criminal activities.‘” Id. at 678 (adopting the reasoning of Ex Parte Flores, 483 S.W.3d 632). We rejected the State‘s broader definition since it would “trigger the culpability of an otherwise innocent person merely by joining or participating in” a criminal street gang “with or without knowledge of the organization‘s criminal activity.” Id. Under that definition, even “innocent” members who did not know of the gang‘s criminal activities would risk prosecution by engaging in otherwise lawful acts. Id. at 678. Their conviction would require neither a mens rea nor an actus reus. Id. at 679. We lamented, “Though not a criminal for purposes of carrying a
Instead of that absurd result, Martin reasoned that the Legislature must have intended “member” in the UCW statute to be read together with the definition of “criminal street gang” in
But the EOCA statute differs from the UCW statute in that it does not criminalize otherwise-lawful conduct; instead it enhances punishment for a specific, already-criminalized act when committed by a gang member.
VI. Conclusion
By its plain language,
Delivered: November 27, 2024
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