     TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-00-00077-CR
                                      NO. 03-00-00186-CR



                                    Pedro Garcia, Appellant

                                                and

                                   Jacinto Benitez, Appellant

                                                 v.

                                 The State of Texas, Appellee




    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
     NOS. 0993634 & 0993631, HONORABLE TOM BLACKWELL, JUDGE PRESIDING




               Appellants Pedro Garcia and Jacinto Benitez were jointly tried and convicted of

engaging in organized criminal activity, and assessed punishments of imprisonment for forty years

and a $10,000 fine. See Tex. Penal Code Ann. § 71.02 (West Supp. 2001). They contend the

district court erred by refusing to give a requested instruction in its charge to the jury. We will

overrule this contention and affirm both convictions.

               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 specified offenses.      See Tex. Penal Code Ann. § 71.02(a) (West Supp. 2001).

“‘Combination’ means three or more persons who collaborate in carrying on criminal activities
. . . .” Id. § 71. 01(a) (West Supp. 2001). “‘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 an overt act in pursuance

of the agreement.” Id. § 71.01(b).

               Each indictment alleged that the named defendant:


        with the intent to establish, maintain and participate in a combination and the
        profits of a combination consisting of said defendant and at least two of the
        following other individuals: [twenty-one persons including codefendant], did
        conspire to commit motor vehicle theft in an aggregated amount of over $200, 000,
        and said defendant did agree with at least one of the following: [five persons
        including codefendant] that at least one of them engage in conduct that would
        constitute the offense; and [five persons including codefendant] in pursuance of
        said agreement did perform an overt act, and said defendant in pursuance of said
        agreement did perform at least one of the following overt acts, to wit: [numerous
        acts, including the purchase and sale of stolen motor vehicles and the transport of
        illegal aliens from Mexico to Texas].


The evidence shows that appellants and the other conspirators were engaged in a scheme by which

vehicles were stolen, used to transport illegal aliens, and then abandoned. The sufficiency of the

evidence to sustain the convictions is not questioned.

               Garcia asked the court to instruct the jury that “you must be unanimous as to which

two persons, if any, that the Defendant conspired with and you also [must] be unanimous as to

which of the overt acts, if any, [the defendant] did perform. ” Garcia and Benitez contend they

were entitled to this or a similar instruction under the opinion of the United States Supreme Court

in Richardson v. United States, 526 U.S. 813 (1999). 1

    1
      The State urges that Benitez did not join in the request and therefore did not preserve the
alleged error. Benitez replies that he was permitted to adopt all motions filed by Garcia. Because

                                                2
               Richardson was a prosecution for engaging in a continuing criminal enterprise. See

21 U. S.C. A. § 848 (West 1999). Section 848 provides that a person engages in a continuing

criminal enterprise if he “violates any provision of this subchapter or subchapter II of this chapter

[dealing with controlled substances offenses] the punishment for which is a felony” and if “such

violation is part of a continuing series of violations [of the specified statutes] which are undertaken

by such person in concert with five or more other persons . . . .” Id. § 848(c). The Supreme

Court held that in a prosecution under section 848, the jury “must unanimously agree not only that

the defendant committed some ‘continuing series of violations’ but also that the defendant

committed each of the individual ‘violations’ necessary to make up that ‘continuing series. ’”

Richardson, 526 U. S. at 815.

               Garcia and Benitez argue by analogy to Richardson that the jury in these causes

should have been required to unanimously agree not only that each engaged in an overt act in

pursuance of the agreement, but also unanimously agree as to which overt act he committed. The

requested instruction also would have required jury unanimity regarding the persons with whom

each appellant conspired. 2




the alleged error is clearly before us in Garcia’s appeal, and because we conclude that the
instruction was properly refused, we do not decide the preservation of error issue in Benitez’s
appeal.
   2
       In his brief, Garcia contends only that the jury should have been required to unanimously
agree as to the overt act he committed. Benitez contends that jury unanimity also should have
been required with respect to both the identify of the persons with whom he agreed and the overt
acts the coconspirators committed. Neither appellant contends that unanimity was required with
respect to the identity of the other members of the alleged combination.

                                                  3
              A careful analysis of the Richardson opinion is necessary. The Court began by

recognizing that crimes are defined in terms of elements, and that a jury need not always decide

unanimously which of several possible sets of underlying “ brute facts” make up a particular

element of an offense. Id. at 817 (citing Schad v. Arizona, 501 U. S. 624, 631-32 (1991)

(plurality op.)). For example, where use of deadly force is an element of the charged offense,

the jury would not be required to unanimously agree whether the defendant used a knife or a gun

to accomplish that element. Id. As the Court saw it, the issue in Richardson was whether the

statutory phrase “series of violations” referred to a single element (the “series”) or to several

elements (the “violations”). Id. at 817-18.


       If the statute creates a single element, a “series,” in respect to which individual
       violations are but the means, then the jury need only agree that the defendant
       committed [some] of all the underlying crimes the Government has tried to prove.
       The jury need not agree about which . . . . On the other hand, if the statute makes
       each “violation” a separate element, then the jury must agree unanimously about
       which . . . crimes [i. e., “violations”] the defendant committed.


Id. at 818.

              The Court concluded that each “violation” in the “series of violations” constitutes

a separate element, and therefore jury unanimity was required in respect to each individual

“violation.” Id. at 824. The Court found its primary support for this conclusion in the statutory

language.


       The words “violates” and “violations” are words that have a legal ring. A
       “violation” is not simply an act or conduct; it is an act or conduct that is contrary
       to law. That circumstance is significant because the criminal law ordinarily
       entrusts a jury with determining whether alleged conduct “violates” the law . . .


                                                4
       and . . . a federal criminal jury must act unanimously when doing so. . . . To hold
       that each “violation” here amounts to a separate element is consistent with a
       tradition of requiring juror unanimity where the issue is whether a defendant has
       engaged in conduct that violates the law. To hold the contrary is not.


Id. at 818-19.

                 The Court added that both fairness and history supported its interpretation of the

statute. Id. at 819-20. Treating each individual violation as a means, rather than as an individual

element, risked having a jury convict without having unanimously agreed that the defendant

committed any of the alleged series of offenses. Id. at 819. The Court noted further that there

was no precedent in federal criminal law for treating individual criminal violations as simply

means toward the commission of a greater crime. Id. at 821.

                 The Texas organized crime statute is easily distinguishable from the continuing

criminal enterprise statute at issue in Richardson. Section 71.02 does not require proof of a

continuing series of criminal acts or violations; the only criminal act that must be proved is the

commission of or conspiracy to commit one of the specified crimes. Penal Code § 71.02(a). In

these causes, the indictments alleged that appellants conspired with others to commit theft. The

critical element of a criminal conspiracy is the agreement among the conspirators to commit the

criminal offense. See Penal Code § 71.01(b); see also United States v. Shabani, 513 U. S. 10,

16 (1994) (criminal agreement is actus reus of conspiracy); Williams v. State, 646 S.W.2d 221,

223-24 (Tex. Crim. App. 1983) (agreement is essential to existence of conspiracy). While section

71.01(b) also requires a showing that the defendant and one or more coconspirators committed

an overt act in pursuance of the agreement, the overt acts do not have to be criminal. See McCann



                                                 5
v. State, 606 S.W.2d 897, 898 n.1 (Tex. Crim. App. 1980) (in conspiracy, overt act need not be

unlawful in itself); Childress v. State, 807 S.W.2d 424, 431 (Tex. App.—
                                                                       Amarillo 1991, no pet.)

(same; prosecution for engaging in organized criminal activity). 3

               The State was required to prove that (1) each appellant, with the requisite intent,

agreed with one or more persons that one or more of them would steal motor vehicles having an

aggregate value of $200,000 or more; (2) each appellant performed an overt act in pursuance of

the agreement; and (3) one or more of the coconspirators also performed an overt act in pursuance

of the agreement. See Fee v. State, 841 S.W.2d 392, 395 (Tex. Crim. App. 1992). Each of

these elements had to be proved beyond a reasonable doubt to the jury’s unanimous satisfaction.

It is well established, however, that an indictment may allege different methods of committing an

offense, and that it is proper for the jury to return a general verdict of guilty if the evidence is

sufficient to support a finding under any of the theories submitted. Kitchens v. State, 823 S.W.2d

256, 258 (Tex. Crim. App. 1991). The names of the various coconspirators and the various overt

acts alleged in the indictment were, in effect, alternate means of committing the offense.

               Both the relevant statutory language and established practice in conspiracy

prosecutions lead us to conclude that the identities of the persons with whom Garcia and Benitez

conspired, and the overt acts actually committed pursuant to the agreements, were preliminary fact

issues as to which jury unanimity need not be required. See Schad, 501 U. S. at 631-32; Kitchens,

823 S.W.2d at 258; Carrion v. State, 802 S.W.2d 83, 89-90 (Tex. App.—
                                                                    Austin 1990, no pet.)

  3
     At common law, a conspiracy was punishable even though no act was done beyond the mere
making of the agreement. 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law
§ 6.5(c) at 93 (1986). The function of an overt act requirement is simply to manifest that the
conspiracy is at work. Id. at 95 (quoting Yates v. United States, 354 U.S. 298, 334 (1957)).

                                                 6
(applying Kitchens in a conspiracy prosecution). The district court did not err by refusing the

requested jury instruction.

                The sole point of error in each appeal is overruled and the judgments of conviction

are affirmed.




                                              __________________________________________

                                              Mack Kidd, Justice

Before Justices Kidd, Yeakel and Jones*

Affirmed

Filed: February 28, 2001

Publish




*
    Before J. Woodfin Jones, Justice (former), Third Court of Appeals, sitting by assignment. See
    Tex. Gov’t Code Ann. § 75.003(a)(1) (West 1998).


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