Munoz v. State

• Decision Date: 14 August 2000
• Citation: 29 S.W.3d 205
• Parties: (Tex.App.-Amarillo 2000) ERASMO MUNOZ, Appellant v. THE STATE OF TEXAS, Appellee NO. 07-99-0214-CR
• Court: Texas Court of Appeals

Page 205

29 S.W.3d 205 (Tex.App.-Amarillo 2000)

ERASMO MUNOZ, Appellant v. THE STATE OF TEXAS, Appellee

NO. 07-99-0214-CR

IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO

AUGUST 14, 2000

FROM THE 121ST JUDICIAL DISTRICT FOR TERRY COUNTY; NO. 4343; HON. KELLY G. MOORE, PRESIDING

Before QUINN and REAVIS and JOHNSON, JJ.

Brian Quinn, Justice

Erasmo Munoz (appellant) appeals his conviction for engaging in organized crime. Through three points of error, he questions the legal and factual sufficiency of the evidence underlying his conviction, the trial court's refusal to grant him a continuance, and its failure to charge the jury on a lesser included offense. We reverse.

Background

The State indicted appellant for engaging in organized crime. The accusation involved appellant's alleged collaboration with Concepcion Mendoza and Maria Marin (the woman with whom Mendoza lived) regarding the sale of approximately 27 pounds of marijuana. The record discloses that Mendoza had previously sold one pound of marijuana to an undercover officer named Arredondo in September of 1997. The contraband was obtained by Mendoza from an individual named Angel Lamar. In October of 1997, the officer again approached Mendoza about acquiring more marijuana, however, he sought more than a pound this time. Rather, the parties discussed the acquisition of approximately 30 pounds of the controlled substance. Furthermore, the negotiations occurred not only between Mendoza and the officer, but eventually included Marin.

Given the inquiry from Arredondo, Mendoza approached appellant to determine where such a quantum of the drug could be obtained. Whether Mendoza had ever acquired drugs from appellant before goes unmentioned in the record. Nevertheless, appellant told Mendoza "I will let you know in 15 days." Several days passed before Mendoza again approached appellant. At that time, appellant stated "that it was nothing yet" and "wait a little longer."

On October 30, 1997, appellant obtained the marijuana and informed Mendoza of same. Mendoza then contacted Arredondo. Later that day, Arredondo arrived at the home of Mendoza and Marin to discuss the sale. Initially, Mendoza was not there. Nevertheless, Marin told the officer about the marijuana and its location. During this conversation, the parties discussed price, and Marin also mentioned that appellant was the supplier. This representation about appellant being the potential supplier had also been mentioned to Arredondo by Mendoza. Yet, nothing of record indicates that Arredondo himself ever conversed or dealt with appellant prior to this transaction.

Eventually, Mendoza arrived home and undertook the negotiations. He contacted appellant to determine the logistics of the sale. When he did so, he was told that the drug was in another town (O'Donnell) and it had not yet arrived. This information was then relayed to Arredondo. After waiting a while, Arredondo told Mendoza to contact him if and when he secured the contraband and then Arredondo left.

Shortly before midnight on the 30th, appellant contacted Mendoza and told him that the drug had arrived from O'Donnell. Mendoza then called Arredondo, who agreed to meet Mendoza at a gas station. By the time the two met at the station, Mendoza had already visited with appellant and obtained a pound of the marijuana to show to Arredondo; appellant had refused to allow Mendoza to take the entire quantity without paying for it. When Arredondo arrived at the station, he inspected the sample and agreed to go with Mendoza to acquire the rest. The two then drove, in separate vehicles, to appellant's home. There, they found appellant, Viola Munoz, Carlos Munoz, Marin, a juvenile, and two other Hispanics that neither Mendoza nor Arredondo recognized. While the others watched, appellant gestured towards a plastic cooler and said that approximately 27 pounds of marijuana was in it. Arredondo opened the cooler, concluded that the substance was marijuana, and informed appellant that he had to return to his car to get the money.

As Arredondo left the house, other officers who arrived at the scene were signaled to begin the raid. A group of officers then entered the home, secured its occupants (save for the two unknown Hispanics who purportedly escaped) and conducted a search. As a result of the search, the police found the cooler with the marijuana, a handgun, a set of scales in Mendoza's car, a brown paper bag containing "two bundles" of marijuana in a back bedroom, and a small notebook containing names and phone numbers in appellant's pocket. Though the notebook had "some similarities to" the type of book "used by people in the narcotics business," no one could testify that it was such a book. Nor could anyone testify that the names and phone numbers contained in it were those of people in any way involved with controlled substances.¹

Point One - Legal and Factual Sufficiency of the Evidence

Through his first point, appellant argues that the evidence is both legally and factually insufficient to establish that he "intended to be part of a combination" formed to pursue criminal activities. We agree and sustain the point.

Standard of Review

The standards of review applicable to claims of legal and factual insufficiency are well-settled and need not be repeated. Instead, we cite the litigants to Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560, 573 (1979) and Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996)(en banc) for explanations of same.

Next, to secure a conviction for engaging in organized crime, the State had to prove that the accused 1) "with intent to establish, maintain, or participate in a combination or in the profits of a combination" and 2) committed or conspired to commit one or more predicate offenses. Tex. Penal Code Ann, § 71.02(a) (Vernon Supp. 2000).² Additionally, the word "combination" appearing under the first prong of section 71.02(a) has been defined as meaning "three or more persons who collaborate in carrying on criminal activities, although . . . 1) [the] participants may not know each other's identity; 2) membership in the combination may change from time to time; and 3) [the] participants may stand in a wholesaler-retailer or other arm's-length relationship in illicit distribution operations." Id. at § 71.01(a)(1), (2), & (3). In turn, this definition has been interpreted by our Court of Criminal Appeals as obligating the state to prove not only that the accused intended to establish, maintain, or participate in a group of three or more but also that the members of the group intended to work together in a continuing course of criminal activities. Dowdle v. State, 11 S.W.3d 233, 235-36 (Tex.Crim.App.2000); Nguyen v. State, 1 S.W.3d 694, 697 (Tex.Crim.App.1999).

Given the foregoing definition and interpretation, two observations are of particular importance. First, section 71.02(a) requires proof of two different mens rea, i.e., that of the accused and that of the group. Not only must the defendant intend to participate, maintain, or establish a group, but also the group must intend to work together in a continuing course of criminal activity. Dowdle v. State, supra. In other words, there must be evidence of an agreement to act together in this continuing course of activity. Barber v. State, 764 S.W.2d 232, 235 (Tex.Crim.App.1988).

Second, the continuing course of criminal activity referred to must encompass more than one crime, Nguyen v. State, 1 S.W.3d at 697, or criminal episode. Ross v. State, 9 S.W.3d 878, 882 (Tex. App.--Austin 2000, no pet.). That is, it is not enough to show that the members came together only to commit one offense. Id. For instance, the facts in Nguyen were held insufficient to illustrate a continuing course of illegal conduct because the group involved simply desired to avenge an insult. Nguyen v. State, 1 S.W.3d at 696-97. Once the insult was avenged, the reason for and existence of the group dissipated.

Similarly, in Ross, the boys forming the group were overcome with road rage and because of that sought to retaliate against the female who purportedly cut them off while driving. Ross v. State, 9 S.W.3d at 880. And, although in pursuing their goal they committed several criminal offenses, nothing indicated that once they achieved their goal the members intended to continue their illegal conduct. Id. Given this, the Ross court felt compelled to hold that the evidence, at most, simply depicted that the members temporarily organized to commit one criminal episode which did not satisfy the elements of section 71.02(a).

That the life of the group is of limited duration, however, is not alone determinative. For instance, in Mast v. State, 8 S.W.3d 366 (Tex. App.--El Paso 1999, no pet.) the facts illustrate that the group existed to sell tools that had been stolen. While nothing in the opinion suggests that the group intended to continue operations once the tools were sold, the court nevertheless found that the requisite intent to pursue a course of continuing criminal activity existed. This was so given the evidence that showed the group engaged in at least two criminal transactions during its brief life. Id. at 370. The fact that the actual duration of the band may be brief does not immunize one from prosecution as long as the evidence reveals the requisite mens rea and agreement.

Finally, as has been recognized for years, mens rea is a rather difficult element to prove via direct evidence. Seldom does the accused deign to facilitate his conviction by admitting to having the state of mind required to support conviction. Thus, circumstantial evidence may be used to prove it. Morales v. State, 828 S.W.2d 261, 263 (Tex.App.--Amarillo 1992, pet. granted), aff'd, 853 S.W.2d 583 (Tex.Crim.App.1993). It may also be used to prove the existence of an agreement to collaborate in continuing criminal activities. Mast v. State, 8 S.W.3d at 369.

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