                                   NO. 12-19-00132-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

 DIKEMBI RASHAD SPENCER,                           §       APPEAL FROM THE 114TH
 APPELLANT

 V.                                                §       JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                          §       SMITH COUNTY, TEXAS

                                   MEMORANDUM OPINION
       Dikembi Rashad Spencer appeals his conviction for engaging in organized criminal
activity. In a single issue, Appellant argues the jury charge on guilt failed to include the necessary
mens rea of the charged offense. We affirm.


                                           BACKGROUND
       On November 13, 2017, Detective Jim Holt of the Tyler Police Department was dispatched
to a shooting at the Chelsea Creek Apartments. After he arrived, Detective Holt learned that one
of the victims, Terry Rogers, was in the hospital suffering from gunshot wounds.               While
interviewing Rogers, Detective Holt learned that Rogers had been robbed at gunpoint earlier in the
day.
       During his investigation, Detective Holt learned that Rogers was robbed while attempting
to sell marijuana to Cameron Campbell, Devonte Black, and Appellant. The investigation further
showed that Campbell, Black, and Appellant were members of the criminal street gang, the
Westside Rollin 60’s Crips (the Westside Crips). As a result, Appellant was arrested and charged
by indictment with engaging in organized criminal activity. Appellant pleaded “not guilty” and
the matter proceeded to a jury trial. The jury ultimately found Appellant “guilty” as charged and
sentenced him to fifty years confinement. This appeal followed.
                                              CHARGE ERROR
        In his sole issue, Appellant contends the trial court erred when it failed to include the
necessary mens rea of the charged offense when charging the jury.
Standard of Review
        The review of an alleged jury charge error in a criminal trial is a two-step process. Abdnor
v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). First, an appellate court must determine
whether there was error in the jury charge. Id. Then, if there is charge error, the court must
determine whether there is sufficient harm to require reversal. Id. at 731–32. The standard for
determining whether there is sufficient harm to require reversal depends on whether the appellant
objected to the error at trial. Id. at 732.
        If the appellant objected to the error, the appellate court must reverse the trial court’s
judgment when the error “is calculated to injure the rights of the defendant.” TEX. CODE CRIM.
PROC. ANN. art. 36.19 (West 2006). This means no more than that there must be some harm to the
accused from the error. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). An
appellant who did not raise the error at trial can prevail only if the error is so egregious and created
such harm that he has not had a fair and impartial trial. Id. “In both situations the actual degree
of harm must be assayed in light of the entire jury charge, the state of the evidence, including the
contested issues and weight of probative evidence, the argument of counsel and any other relevant
information revealed by the record of the trial as a whole.” Id.
        The record must show that the defendant suffered actual harm, not merely theoretical harm.
Id. at 174. In assessing whether the trial court erred by denying a requested defensive instruction,
an appellate court must examine the evidence offered in support of the defensive issue in the light
most favorable to the defense. Farmer v. State, 411 S.W.3d 901, 906 (Tex. Crim. App. 2013).
        Generally, a trial court must deliver to the jury “a written charge distinctly setting forth the
law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). The charge
must include an instruction on any defensive theory raised by the evidence and properly requested
by the defendant. Booth v. State, 679 S.W.2d 498, 500 (Tex. Crim. App. 1984). But the trial court
has no duty to instruct the jury sua sponte on unrequested defensive issues because they are not
“the law applicable to the case.” Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013). A
defendant who fails to preserve his request for a defensive instruction cannot complain about its
omission on appeal because he procedurally defaulted his complaint. Id.



                                                   2
The Jury Charge
       Appellant was charged with the offense of engaging in organized criminal activity in
violation of Section 71.02 of the Texas Penal Code. Under the relevant portion of that statute, a
person commits an offense


       if, with the 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) ... aggravated robbery ....


TEX. PENAL CODE ANN. § 71.02(a)(1) (West Supp. 2019). “Criminal street gang” is defined as
“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 activities.” Id. § 71.01(d)
(West 2011).
       In this case, the charge submitted to the jury contained the following instructions relevant
to Appellant’s contentions:


       A person commits the offense of engaging in organized criminal activity if, as a member of a
       criminal street gang, the person commits certain criminal offenses, included aggravated robbery.
       To prove the defendant is guilty of engaging in organized criminal activity, the state must prove
       beyond a reasonable doubt, two elements. The elements are that-
                1. The defendant committed the offense of aggravated robbery; and
                2. The defendant did this as a member of a criminal street gang.
       ....


       “Criminal street gang” means three (3) or more persons having a common identifying sign or symbol
       or an identifiable leadership who continuously or regularly associate in the commission of criminal
       activities.
       ....


The charge did not instruct the jury that a person commits the offense of engaging in organized
criminal activity if he acts with intent to participate as a member of a criminal street gang.
Error in the Charge
       Appellant argues that Section 71.02(a)(1) requires the jury to find that he committed the
criminal act with the intent to participate in the commission of the act as a member of the criminal
street gang. See TEX. PENAL CODE ANN. § 71.02(a)(1). He insists that a correct charge must
include an instruction that the State is required to “prove that [a defendant] had the culpable mental




                                                       3
state of intent to participate as a member of a criminal street gang.” See Curiel v. State, 243
S.W.3d 10, 19 n.7 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (although trial court’s jury
charge erroneously failed to require State to prove appellant had culpable mental state of intent to
participate as a member of a criminal street gang, appellant did not challenge the error and
appellate court did not need to address it). He asserts that the trial court erred in submitting a jury
charge that failed to track the language of the statute.
        In Licerio v. State, we interpreted “as a member of a criminal street gang” to mean “in the
role, capacity or function” of a member of a criminal street gang, not merely “while” a member.
Licerio v. State, No. 12-11-00326-CR, 2013 WL 414239, at *6 (Tex. App.—Tyler Jan. 31, 2013,
pet. ref’d) (mem. op., not designated for publication). We held that under Section 71.02(a), a
finding of guilty required the State to establish that the defendant committed one or more of certain
enumerated offenses with the intent to establish, maintain, or participate (1) in a combination; or
(2) in the profits of a combination; or (3) in the role, capacity, or function of a member of a criminal
street gang. Id. We found the charge erroneous, because it did not require the jury to find that the
appellant committed the underlying crime with the intent to “establish, maintain, or participate in
the role, capacity, or function of a member of a criminal street gang.” Id. at *5-6.
        And in Hampton v. State, we held that the intent to participate in the commission of the
underlying crime as a member of a criminal street gang is an essential element of the offense.
Hampton v. State, No. 12-15-00211-CR, 2016 WL 4126030, at *3 (Tex. App.—Tyler Aug. 3,
2016, pet. ref’d) (mem. op., not designated for publication) (emphasis in original). We further
held that a proper charge must contain this requisite intent element and cannot permit a finding of
guilt upon a showing of nothing more than that the defendant committed the underlying offense
“as a member of a criminal street gang.” Id. A correct jury charge must instruct the jury that “a
person commits the offense of engaging in organized criminal activity if, with intent to participate
as a member of a criminal street gang.” Id.; see also Jackson v. State, 314 S.W.3d 118, 127 (Tex.
App.—Houston [1st Dist.] 2010, no pet.).
        As the pertinent portion of the jury charge reflects, the charge submitted in Appellant’s
trial did not require the jury to find that Appellant intended to act as a member of a criminal street
gang. As a result, the trial court erred in submitting a charge that did not require the jury to find
the essential element of intent. See Hampton, 2016 WL 4126030, at *3.




                                                   4
Harm
       Having determined that the jury charge contained error, we must now address whether the
error caused harm sufficient to warrant reversal. Appellant did not object to the jury charge at
trial. Unpreserved charge error will not result in reversal absent egregious harm. Almanza, 686
S.W.2d at 171. The degree of harm must be assessed considering (1) the entire jury charge, (2)
the state of the evidence, (3) the argument of counsel, and (4) other relevant information revealed
by the record. Id.
       The jury charge provided the jury with the statutory definition of “criminal street gang.”
While the charge also defined “intent to deprive of property,” “intentionally threaten,” “knowingly
threaten,” “intentionally place in fear,” and “knowingly place in fear,” the definitions of
“intentionally” and “knowingly” were omitted. The application paragraph cannot be read as
requiring the jury to find that Appellant committed the underlying offense with the “intent to
participate in” the offense as a member of a criminal street gang.
       Nevertheless, the evidence at trial was uncontradicted that Appellant at least assisted in the
commission of the aggravated robbery of Rogers. Campbell contacted Rogers to set up a marijuana
deal. Campbell, Appellant, and Black all went to Rogers’s residence to purchase one pound of
marijuana. Campbell remained in the car while Appellant and Black went inside with Rogers and
a man named Christopher Hardy. After Appellant and Black confirmed Rogers had the marijuana,
they revealed firearms. They pointed firearms at Rogers and Hardy, took the marijuana without
paying for it, and all three men fled the scene.
       The evidence further demonstrated that Appellant was a member of the Westside Crips.
Campbell testified that he knows Appellant as a member of the Westside Crips. He further testified
that both Black and himself were members at the time of the robbery. Following the robbery, a
Snapchat video of Appellant in a room with guns and the marijuana was recorded. In the video,
Black and Campbell are seen making hand signals that correspond to membership in the Westside
Crips. Detective Chris Miller testified that all three men are documented as members of the
Westside Crips based on their actions and history.
       During voir dire and argument, the State did not seek an advantage from the absence of the
missing intent element in the charge. During voir dire, the State described the elements of the
charge as follows: “the Defendant committed the offense as a member of a criminal street gang,”
and “it’s about robbery being committed as a member of a criminal street gang.” And during



                                                   5
opening statements, the State explained its theory of the case that Campbell, Black, and Appellant,
“during the course of committing this robbery are members of a criminal street gang. That criminal
street gang is called the Westside Rollin 60’s Crips. That’s what makes this engaging in organized
criminal activity.”       And during closing, the State argued, “he’s committed the offense of
aggravated robbery, and he did so as a member of a criminal street gang.”
         There was nothing incendiary or misleading in the State’s comments. The evidence left no
room for doubt that the three gang members intended to participate in the aggravated robbery as
members of a criminal street gang. It is not reasonable to believe that Appellant would have
benefitted from a correct charge requiring the jury to find that he committed aggravated robbery
“with intent to participate in the aggravated robbery as a member of a criminal street gang.” See
Hampton, 2016 WL 4126030, at *4. As a result, Appellant was not egregiously harmed.
Appellant’s sole issue is overruled.


                                                  DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

                                                                JAMES T. WORTHEN
                                                                   Chief Justice


Opinion delivered February 12, 2020.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



                                                          6
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                         FEBRUARY 12, 2020


                                         NO. 12-19-00132-CR


                                 DIKEMBI RASHAD SPENCER,
                                          Appellant
                                             V.
                                    THE STATE OF TEXAS,
                                          Appellee


                                Appeal from the 114th District Court
                         of Smith County, Texas (Tr.Ct.No. 114-0333-18)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                    James T. Worthen Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
