                                IN THE
                        TENTH COURT OF APPEALS

                              No. 10-15-00218-CR

                    EX PARTE MARCUS PILKINGTON


                         From the 54th District Court
                          McLennan County, Texas
                         Trial Court No. 2015-2154-2


                              No. 10-15-00219-CR


                    EX PARTE REGINALD WEATHERS


                         From the 54th District Court
                          McLennan County, Texas
                         Trial Court No. 2015-2155-2



                                  OPINION


      Marcus Pilkington and Reginald Weathers filed applications for writ of habeas

corpus, asserting that they were being illegally confined because they were arrested

without probable cause that they were guilty of the offense of engaging in organized
criminal activity. After hearings, the trial court found that the arrest-warrant affidavits

established probable cause and denied habeas relief to Weathers and Pilkington. They

both appeal, identically asserting in their sole issue that the affidavit lacks probable cause

because it fails to allege an agreement or act by Weathers or Pilkington and that “no

evidence was introduced at the hearing to establish the required conduct” for committing

the offense of engaging in organized criminal activity.

                                               I.

              An affidavit supporting an arrest warrant is denominated as a
       complaint in the Code of Criminal Procedure. See TEX. CODE CRIM. PROC.
       ANN. arts. 15.04, 15.05 (Vernon 2005); Weems v. State, 167 S.W.3d 350, 355
       (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). By statute, the complaint
       must, among other matters, “show that the accused has committed some
       offense against the laws of the State, either directly or that the affiant has
       good reason to believe, and does believe, that the accused has committed
       such offense.” TEX. CODE CRIM. PROC. ANN. art. 15.05(2).

               To satisfy the Fourth Amendment, the complaint “must provide the
       magistrate with ‘sufficient information to support an independent
       judgment that probable cause exists for the warrant.’” McFarland v. State,
       928 S.W.2d 482, 509 (Tex. Crim. App. 1996) (quoting Jones v. State, 568
       S.W.2d 847, 854 (Tex. Crim. App. 1978)); Weems, 167 S.W.3d at 356; accord
       Bell, 169 S.W.3d at 390.

Glaze v. State, 230 S.W.3d 258, 260 (Tex. App.—Waco 2007, pet. ref’d).

       Neither federal nor Texas law defines precisely what degree of probability suffices

to establish probable cause. Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App. 2007).

Probable cause is “a fluid concept—turning on the assessment of probabilities in

particular factual contexts—not readily, or even usefully, reduced to a set of neat legal

rules.” Id. at 64 (quoting Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 2329, 76 L.Ed.2d

527 (1983)). While probable cause requires more than mere suspicion, the affiant need

Ex parte Pilkington and Ex Parte Weathers                                                 Page 2
not present evidence establishing the suspect’s guilt beyond a reasonable doubt or by a

preponderance of the evidence. Moss v. State, 75 S.W.3d 132, 138 (Tex. App.—San

Antonio 2002, pet. ref’d); see also Glaze, 230 S.W.3d at 260 (“The complaint, however, ‘need

not contain sufficient evidence that would convince a jury of the defendant’s guilt beyond

a reasonable doubt.’”) (quoting McFarland, 928 S.W.2d at 509-10).

        To establish probable cause, there must be facts and circumstances within the

affiant’s knowledge and of which he has reasonably trustworthy information, sufficient

to warrant a prudent person to believe that the suspect had committed or was committing

an offense. Beverly v. State, 792 S.W.2d 103, 104-05 (Tex. Crim. App. 1990); see also Parker

v. State, 206 S.W.3d 593, 596 (Tex. Crim. App. 2006). A peace-officer affiant may rely on

information provided by other officers engaged in the investigation. Taylor v. State, 82

S.W.3d 134, 138 (Tex. App.—San Antonio 2002, no pet.) (citing and quoting Woodward v.

State, 668 S.W.2d 337, 344 (Tex. Crim. App. 1982) (en banc) (“[W]hen there has been some

cooperation between law enforcement agencies or between members of the same agency,

the sum of the information known to the cooperating agencies or officers at the time of

an arrest is to be considered in determining whether there was sufficient probable cause

therefor.”).

                                                     II.

        In assessing the sufficiency of an arrest-warrant affidavit, the reviewing court is

limited to the four corners of the affidavit.1 McLain v. State, 337 S.W.3d 268, 271 (Tex.



1
 To the extent that each appellant’s issue asserts in part that the State was required to introduce “evidence”
at the hearings that establishes that each appellant committed the offense, we overrule in part the issue

Ex parte Pilkington and Ex Parte Weathers                                                              Page 3
Crim. App. 2011); Glaze, 230 S.W.3d at 260. Accordingly, and because of the constitutional

preference for warrants, we apply a highly deferential standard in reviewing a

magistrate’s decision to issue a warrant. Gates, 462 U.S. at 234-37, 103 S.Ct. at 2330-31;

McLain, 337 S.W.3d at 271. As long as the magistrate had a substantial basis for

concluding that probable cause existed, the magistrate’s probable-cause determination

will be upheld. Gates, 462 U.S. at 236, 103 S.Ct. at 2331; McLain, 337 S.W.3d at 271.                 The

affidavit is not to be analyzed hypertechnically. Gates, 462 U.S. at 236, 103 S.Ct. at 2331;

McLain, 337 S.W.3d at 271.        Rather, the reviewing court should interpret the affidavit in

a common-sense and realistic manner, recognizing that the magistrate was permitted to

draw reasonable inferences. McLain, 337 S.W.3d at 271; Rodriguez, 232 S.W.3d at 61.

                                                   III.

        At the hearing on Pilkington’s application, the parties stipulated to admission of

the testimony of Weathers, who had testified at his own habeas hearing before the same

trial court earlier on that day, and the trial court took notice (“knowledge and information

or recognition”) of it.2 The parties further stipulated to the arrest affidavits in both cases,

which were identical except for personal identifiers of the suspects in the offense of

engaging in organized criminal activity. In each hearing, the trial court found that, within




because the State did not have a burden to produce evidence apart from the affidavit and because the trial
court was limited to the four corners of the affidavit.

2
 Weathers and Pilkington were (and have been represented) by the same counsel, and the State was likewise
represented by the same attorneys. In Pilkington’s hearing, the parties relied on Weathers’s testimony from
the Weathers hearing. But because our review is limited to the four corners of the affidavit, we cannot
consider the testimony of Weathers in either appeal. Nelson v. State, No. 07-02-00527, 2004 WL 1947809, at
*1 (Tex. App.—Amarillo Sept. 2, 2004, pet. ref’d) (not designated for publication).

Ex parte Pilkington and Ex Parte Weathers                                                           Page 4
its four corners, the arrest-warrant affidavit established probable cause and thus denied

habeas relief.

                                             IV.

       A person commits the offense of engaging in organized criminal activity if, “with

intent to establish, maintain, or participate in a combination or in the profits of a

combination or as a member of a criminal street gang, the person commits or conspires to

commit one or more of the following: (1) murder, capital murder, …[or] aggravated

assault … .” TEX. PENAL CODE ANN. § 71.02(a)(1) (West Supp. 2014).

       Under the first main element of engaging in organized criminal activity, the State

must show probable cause that a defendant intended to establish, maintain, or participate

in either a combination or a criminal street gang. Barrera v. State, 321 S.W.3d 137, 152 (Tex.

App.—San Antonio 2010, pet. ref’d). A criminal street gang is defined as three or more

persons who have a common identifying sign or symbol, or an identifiable leadership,

who continuously or regularly associate in the commission of criminal activities. TEX.

PENAL CODE ANN. § 71.01(d). Membership in a criminal street gang may be established

by the display of tattoos or other symbols representing gang membership. Barrera, 321

S.W.3d at 152 (citing Garza v. State, 213 S.W.3d 338, 347 (Tex. Crim. App. 2007)).

       The second main element of engaging in organized criminal activity can be

committed by two means: Actual commission of the underlying offense, or conspiring

to commit the underlying offense. Id. at 142-43. To establish the offense of engaging in

organized criminal activity through a conspiracy, the State must present probable cause

as to the commission of an overt act in pursuance of the agreement by both a defendant

Ex parte Pilkington and Ex Parte Weathers                                               Page 5
and one or more members of the conspiracy. TEX. PENAL CODE ANN. § 71.02(a); Barrera,

321 S.W.3d at 152 (citing McIntosh v. State, 52 S.W.3d 196, 199 (Tex. Crim. App. 2001)).

               With respect to the element requiring an overt act by the defendant
       himself, it is well established that the overt act need not be criminal in itself.
       Barber, 764 S.W.2d at 235. Acts that promote or solicit an offense, and thus
       amount to liability as a party, may be used to meet the overt act element for
       organized criminal activity. Otto, 95 S.W.3d at 284 (holding the law of
       parties is applicable to prosecution for organized criminal activity). In
       holding the law of parties is applicable, the Court reasoned that “[b]ecause
       the ‘overt act’ element of organized criminal activity need not be criminal
       in itself, acts that suffice for party liability—those that encourage, solicit,
       direct, aid, or attempt to aid the commission of the underlying offense—
       would also satisfy the overt act element of section 71.02.” Id. (citing Barber,
       764 S.W.2d at 235). In Otto, the appellants were the leaders of the Republic
       of Texas, an organization that functioned as a combination, and planned an
       aggravated kidnapping of residents who had reported their activities to law
       enforcement. Otto, 95 S.W.3d at 283. The evidence showed that, although
       not present during the kidnapping, the appellants planned the kidnapping,
       and were in radio contact with the abductors during the kidnapping, and
       helped negotiate the release of the victims. Id. at 284. The Court noted the
       appellants’ position as leaders of the combination and held that “their
       involvement in the planning, execution and aftermath of the kidnapping
       was tantamount to encouraging, directing, aiding, or attempting to aid in
       the offense, and therefore, it authorized a conviction under the law of
       parties.” Id. at 285; see Barber, 764 S.W.2d at 235 n.1 (noting that a “ring
       leader” may be found guilty of engaging in organized criminal activity
       under section 71.02(a) based on evidence that he “(1) intended to participate
       in a criminal combination, and (2) performed the overt act of soliciting and
       organizing others in furtherance of the combination ...”).

Barrera, 321 S.W.3d at 154 (footnote omitted).

       “Conspires to commit” means that a person agrees with one or more other
       people that one or more of them will engage in conduct that would
       constitute the offense and one or more of them perform an overt act in
       pursuance of the agreement. TEX. PENAL CODE ANN. § 71.01(b). An
       agreement constituting “conspiring to commit” may be inferred from the
       acts of the parties. Id. To prove participation in the agreement, the State
       must prove the defendant had an intent to participate in a criminal
       combination and that the defendant performed some overt act, not


Ex parte Pilkington and Ex Parte Weathers                                                   Page 6
          necessarily criminal, in furtherance of the agreement. Nwosoucha v. State,
          325 S.W.3d 816, 831 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d).

Lashley v. State, 401 S.W.3d 738, 743 n.1 (Tex. App.—Houston [14th Dist.] 2013, no pet.).

          Commission of only a single underlying offense is sufficient to prove engaging in

organized criminal activity.           Nguyen v. State, 1 S.W.3d 694, 697 (Tex. Crim. App. 1999).

The gravamen of the offense is the continuity element, id., and to satisfy that element, the

State must “prove that a defendant intended to participate in a continuing course of

criminal activity.” Lashley, 401 S.W.3d at 744.                “There must be proof of an intent to

participate in a criminal combination that extends beyond a single criminal episode, ad

hoc effort, or goal, regardless of whether multiple laws were broken within the confines

of that episode or effort.” Id. Under the statute, continuity can be satisfied by showing

that a defendant participated in either a combination or a criminal street gang. See TEX.

PENAL CODE ANN. § 71.02(a)(1).

                                                      V.

          The arrest-warrant affidavit at issue states in pertinent part as follows:

          My name is MANUEL CHAVEZ and I am commissioned as a peace officer
          with the City of Waco by The State of Texas. I hereby state upon my oath
          that I have reason to believe and do believe that heretofore, and before the
          making and filing of this Complaint, that on or about May 17, 2015, in
          McLennan County, Texas, the said _________________3 did then and there,
          as a member of a criminal street gang, commit or conspire to commit
          murder, capital murder, or aggravated assault, against the laws of the State.

          My probable cause for said belief and accusation is as follows:

          Three or more members and associates of the Cossacks Motorcycle Club
          (Cossacks) were in the parking lot of the Twin Peaks restaurant in Waco,

3
    The parties stipulated in each hearing that Pilkington and Weathers were named in the affidavits at issue.

Ex parte Pilkington and Ex Parte Weathers                                                              Page 7
         McLennan County Texas. Three or more members and associates of the
         Bandidos Motorcycle Club (Bandidos) arrived in the parking lot of the Twin
         Peaks restaurant and engaged in an altercation with the members and
         associates of the Cossacks. During the course of the altercation, members
         and associates of the Cossacks and Bandidos brandished and used firearms,
         knives or other unknown edged weapons, batons, clubs, brass knuckles,
         and other weapons. The weapons were used to threaten and/or assault the
         opposing factions. Cossacks and Bandidos discharged firearms at one
         another. Members of the Waco Police Department attempted to stop the
         altercation and were fired upon by Bandidos and/or Cossacks. Waco Police
         Officers returned fire, striking multiple gang members.          During the
         exchange of gunfire, multiple persons where [sic] shot. Nine people died
         as a result of the shooting between the members of the biker gangs.
         Multiple other people were injured as a result of the altercation.       The
         members and associates of the Cossacks and Bandidos were wearing
         common identifying distinctive signs or symbols and/or had an identifiable
         leadership and/or continuously or regularly associate in the commission of
         criminal activities. The Texas Department of Public Safety maintains a
         database containing information identifying the Cossacks and their
         associates as a criminal street gang and the Bandidos and their associates as
         a criminal street gang.

         After the altercation, the subject was apprehended at the scene, while
         wearing common identifying distinctive signs or symbols or had an
         identifiable leadership or continuously or regularly associated in the
         commission of criminal activities.

         After the altercation, firearms, knives or other unknown edged weapons,
         batons, clubs, brass knuckles, and other weapons were recovered from
         members and associates of both criminal street gangs.

         Multiple motorcycles with common identifying signs or symbols of the
         Cossacks and Bandidos and their associates were recovered at the scene.
         Additional weapons including: firearms, ammunition, knives, brass
         knuckles, and other weapons were found on the motorcycles.

         The four corners of the affidavit show the following facts in support of probable

cause:

        On May 17, 2015, in McLennan County, three or more members of the Cossacks
         motorcycle club were in the parking lot of the Twin Peaks restaurant, then three
         or more members of the Bandidos motorcycle club arrived in the Twin Peaks

Ex parte Pilkington and Ex Parte Weathers                                                Page 8
         parking lot.

        The Cossacks and Bandidos are known criminal street gangs who have distinctive
         identifying signs and symbols, an identifiable leadership, and continuously or
         regularly associate in the commission of criminal activities.

        An altercation arose between members of the Cossacks and members of the
         Bandidos. During the altercation, members of both clubs produced firearms and
         other deadly weapons, and those weapons were used to assault and threaten
         members of the opposing club.

        Police officers attempting to end the altercation were fired on, and police officers
         returned fire. Nine people died as a result of the incident, and many others were
         injured.

        Members of the Cossacks and Bandidos were identifiable by the distinctive signs
         and symbols they were wearing.

        Pilkington and Weathers were apprehended at the scene of the altercation, and
         they were wearing distinctive signs or symbols identifying each of them as a
         member of a criminal street gang.

        Firearms and other weapons were recovered from the apprehended persons who
         were identifiable as members of the respective criminal street gangs. Numerous
         motorcycles were at the scene bearing distinctive signs or symbols identifying
         them as belonging to members of the respective gangs, and additional firearms
         and other weapons were recovered from the motorcycles present at the scene.

         The State asserts that the following reasonable inferences can be drawn from the

affidavit:

       1. A large number of people were involved in the altercation, as indicated by the
       nine fatalities and multiple persons who were injured.

       2. The altercation started when members of the Bandidos appeared at a gathering of
       the Cossacks.

     3. The actions and reactions by members of the rival gangs were so volatile and lethal
     as to result in nine fatalities.

       4. The profusion of firearms and other weapons recovered from the rival gang
       members reflected anticipation or planning of a violent encounter.

Ex parte Pilkington and Ex Parte Weathers                                              Page 9
     5. The display of distinctive identifying signs and symbols by members of the rival
     factions present at the scene reflected coordinated planning and action specific to the
     two rival groups.

       Plainly, the affidavit does not allege that Pilkington or Weathers committed one of

the underlying offenses of capital murder, murder, or aggravated assault, one of the two

means of committing the second main element. See TEX. PENAL CODE ANN. § 71.02(a)(1)

(“the person commits or conspires to commit one or more of the following”). Thus, we

turn to each appellant’s specific complaint that the affidavit does not allege an agreement;

i.e., that he conspired to commit one of the underlying offenses—that he agreed “with one

or more persons that they or one or more of them engage in conduct that would constitute

the offense … .” Id. § 71.01(b). The statute specifically states that the “agreement

constituting conspiring to commit may be inferred from the acts of the parties.” Id. And

in reviewing the affidavit, the magistrate was permitted to draw reasonable inferences

from the facts in the affidavit. We conclude that the magistrate could have reasonably

inferred from the profusion of weapons at the scene and the subsequent violence that

Pilkington and Weathers, as members of a criminal street gang, each agreed “with one or

more persons that they or one or more of them engage in conduct that would constitute

the offense” of capital murder, murder, or aggravated assault.

       Lastly, we address each appellant’s specific complaint that the affidavit does not

allege that each of them performed “an overt act in pursuance of the agreement.” Id. At

the hearings, the State argued that, on the day in question, Pilkington and Weathers

committed overt acts by showing up at the restaurant—by being present and wearing


Ex parte Pilkington and Ex Parte Weathers                                            Page 10
their distinctive signs or symbols identifying each of them as a member of a criminal

street gang, along with other members of a criminal street gang. As noted above, the

overt act need not be criminal in itself. See Barrera, 321 S.W.3d at 154. The magistrate

could have reasonably inferred that their presence and wearing their distinctive signs

or symbols identifying each of them as a member of a criminal street gang was an overt

act. The magistrate also could have reasonably inferred from their presence, from their

wearing their distinctive signs or symbols, and from the profusion of weapons at the

scene and the subsequent violence that each of them performed an overt act by either

encouraging, soliciting, directing, aiding, or attempting to aid the commission of the

underlying offenses of capital murder, murder, or aggravated assault. See id.

        In conclusion, by applying the highly deferential standard in reviewing the

magistrate’s decision to issue the arrest warrant based on the four corners of the affidavit,

we find that the magistrate had a substantial basis for concluding that probable cause

existed to believe that Pilkington and Weathers committed the offense of engaging in

organized criminal activity.4 We overrule Pilkington’s and Weathers’s sole issue and

affirm the trial court’s denial of habeas relief in each case.5




                                                          REX D. DAVIS
                                                          Justice

4
 We reiterate that the affidavit does not have to establish the suspect’s guilt beyond a reasonable doubt or
by a preponderance of the evidence.

5
 To expedite these matters, we invoke Rule 2 to submit these cases and issue this opinion without notice
under Rule 39.8. See TEX. R. APP. P. 2; 39.8.

Ex parte Pilkington and Ex Parte Weathers                                                           Page 11
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Chief Justice Gray dissents with a note)*
Affirmed
Opinion delivered and filed August 20, 2015
Publish
[CR25]

*(Chief Justice Gray dissents. A separate opinion will not issue.)




Ex parte Pilkington and Ex Parte Weathers                            Page 12
