Barber v. State

• Citation: 764 S.W.2d 232
• Decision Date: 07 December 1988
• Docket Number: No. 512-84,512-84
• Parties: W.S. BARBER, B.S. Barber, and Jean C. Brown, Appellants, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 232

764 S.W.2d 232

W.S. BARBER, B.S. Barber, and Jean C. Brown, Appellants, v. The STATE of Texas, Appellee.

No. 512-84.

Court of Criminal Appeals of Texas,

En Banc.

Dec. 7, 1988.

Rehearing Denied Feb. 1, 1989.

Rex Houston, Henderson, for appellants.

Carter Beckworth, Dist. Atty., & John W. Tunnell & R. Clement Dunn, Asst. Dist. Attys., Longview, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Judge.

W.S. (Bull) Barber, B.S. (Buddy) Barber and Jean C. Brown were convicted by a jury of engaging in organized criminal activity. V.T.C.A., Penal Code, Section 71.02. The Texarkana Court of Appeals found the evidence insufficient to support the conviction and reversed. Barber v. State, 668 S.W.2d 424 (Tex.App.--Texarkana 1984). We disagree.

The statute provides:

"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 a [series of enumerated offenses, including theft]." V.T.C.A., Penal Code, Section 71.02(a).

A combination is defined as "five or more persons who collaborate in carrying on criminal activities." Section 71.01(a).

We adopt the summary of the evidence by the Court of Appeals. For our purposes, it will suffice to say that the underlying offense was an ongoing scheme to steal crude oil. Originally ten co-defendants, including the appellants, were indicted together for this offense. At the beginning of a joint trial for all the co-defendants the trial court deleted three of those names from the indictment. At the end of the State's case the trial court directed verdicts in favor of two more co-defendants. So when the case went to the jury, only five co-defendants remained. Five is the minimum number that can form a criminal combination under the statute, though the five need not consist only of the defendant or defendants at trial.

The combination could have been proven to be composed of five members not limited to the defendants on trial. That would have been permissible. V.T.C.A., Penal Code, Section 71.01(a)(2). Here, however, the charge was very specific. The charge concerning W.S. Barber is representative:

"If you believe from the evidence beyond a reasonable doubt that W.S. (Bull) Barber did, in Gregg County, Texas, on or about January 31, 1980,

"(1) with intent to establish, maintain or participate in a combination or in the profits of the alleged combination (sic) consisting of Jean C. Brown, W.S. (Bull) Barber, B.S. (Buddy) Barber, Bob Cunningham, and Wade Navarre, intentionally or knowingly agree with Jean C. Brown, B.S. (Buddy) Barber, Bob Cunningham, and Wade Navarre, that one or more of them would engage in conduct that would constitute the offense of theft of crude oil of the value of more than $10,000; and

"(2) further that W.S. (Bull) Barber and one or more of the other defendants did perform an overt act named in the indictment and in pursuance of the original agreement then you will find the defendant, W.S. (Bull) Barber, guilty."

The charge sets out the only possible combination the jury could find had been formed, one consisting of the five co-defendants. The jury was therefore authorized to find only that specific combination had been formed. The jury returned a finding of guilty as to W.S. Barber, B.S. Barber and Jean Brown. Wade Navarre and Bob Cunningham were acquitted.

In the instant case, the Court of Appeals found that the evidence was sufficient to connect W.S. Barber, B.S. Barber and Jean Brown to the theft of crude oil, but that there was insufficient evidence to establish beyond a reasonable doubt that all three appellants "participated in a combination with Bob Cunningham and Wade Navarre to commit or conspire to commit theft." In other words, the Court of Appeals found the evidence insufficient to establish the existence of the underlying combination due to the acquittal of Cunningham and Navarre. Therefore, the question that must be answered is: When a jury is charged that only five actors formed a criminal combination, and those five are tried jointly, can the convictions of any of the defendants stand if one or more is acquitted? We answer that question in the affirmative.

At the outset it is important to note the distinctions between prosecutions under V.T.C.A., Penal Code, Section 15.02, criminal conspiracy, and V.T.C.A., Penal Code, Section 71.02, organized criminal activity. In Texas, the rule in criminal conspiracy prosecutions is that one or more persons must conspire to commit an offense and then perform some overt act in furtherance of the conspiracy. One person acting alone cannot commit conspiracy. Section 15.02, supra. The rule has evolved that, "inasmuch as two persons are necessary to a conspiracy, if two are tried and one is acquitted, the other must also be acquitted." Hustead v. State, 95 Tex.Cr.R. 49, 251 S.W. 1074 (1923). The same rule inheres in cases of civil liability for conspiracy. Barbier v. Barry, 345 S.W.2d 557 (Tex.Civ.App.-Dallas 1961, no writ).

There is, however, an important difference between the conspiracy and organized criminal activity statutes besides the number of participants. To be guilty of the offense of organized criminal activity an actor must commit or conspire to commit one or more of the enumerated crimes, with the specific intent of participating in a criminal group of at least five persons. The statute also defines "conspires to commit:"

" 'Conspires to commit' means that a person agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense and that person and one or more of them perform some overt act in pursuance of the agreement." Section 71.01(b), supra.

It is in this paragraph that the statute diverges from the criminal conspiracy statute, Section 15.02, supra, which holds a person guilty if:

"he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense; and

"(2) he or one or more of them performs an overt act in pursuance of the agreement."

A person may be guilty of criminal conspiracy by doing nothing more than agreeing to participate in the conspiracy, as long as another conspirator commits some overt act in furtherance of the conspiracy. But to commit the offense of engaging in organized criminal activity, the actor must not only agree to participate but must himself perform some overt act in pursuance of that agreement. Guilt requires two ingredients: (1) intent to participate in a criminal combination, and (2) the defendant's performing some act, not necessarily criminal in itself, in furtherance of the agreement. It is therefore possible that five people could form a combination to engage in organized criminal activity, that three of them would be guilty of the crime in that they did some act in furtherance of the criminal scheme, while the remaining members would not be guilty because they performed no overt acts in aid of the criminal combination. ¹

It is possible for the State to try five co-defendants who are the only alleged members of the criminal combination, and the evidence support convictions of only three of the co-defendants and acquittal of two. Committing organized criminal activity requires five or more participants. It does not require five convictions, even if the five are tried in the same trial.

With the above analysis in mind, we turn to the question of the sufficiency of the evidence to establish the criminal combination. In Benson v. State, 661 S.W.2d 708, 715 (Tex.Cr.App.1982) (on motion for rehearing), this Court stated:

"[W]hen a charge is correct for the theory of the case presented we review the sufficiency of the evidence in a light most favorable to the verdict by comparing the evidence to the indictment as incorporated into the charge."

Given the court's charge to the jury in the instant case, in reviewing the sufficiency of the evidence we are restrained from going outside the five defendants remaining at the close of the case to find a combination.

In reviewing the sufficiency of the evidence, an appellate court should look at the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Carlsen v. State, 654 S.W.2d 444 (Tex.Cr.App.1983); Acevedo v. State, 633 S.W.2d 856 (Tex.Cr.App.1982). The standard for such review on appeal is the same for both direct and circumstantial evidence. Wilson v. State, 654 S.W.2d 465 (Tex.Cr.App.1983) (opinion on rehearing); Denby v. State, 654 S.W.2d 457 (Tex.Cr.App.1983) (opinion on rehearing); Freeman v. State, 654 S.W.2d 450 (Tex.Cr.App.1983) (opinion on rehearing). In making that determination in a circumstantial evidence case, we must also employ the "exclusion of outstanding reasonable hypothesis" analysis. Carlsen v. State, supra.

Wade Navarre ² was the apparent "money man" in the deal, getting a $100,000 loan for an unspecified East Texas oil deal. At some point he was introduced to Jean Brown and "Bull" Barber. Navarre next appears with Brown in leasing the Creek Terminal property, the site where at least some of the stolen oil was stored for later shipment. Telephone records show that calls were placed later, during the operational phase of the scheme, between a number listed in Navarre's name and those of Creek Terminal and Barber Well Service.

Jean Brown, nominally the sole proprietor of Creek Terminal, set up operations at the facility with the help of Navarre, W.S. Barber and Bob Cunningham, the first "manager" of the facility. The property was leased, storage tanks were moved onto the property from W.S. Barber's farm, trucks were purchased, drivers were hired and directed, bank accounts were opened, agreements for the sale of oil were...