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Nguyen v State1 S.W.3d 694September 22, 1999 No. 1673-98 IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. 1673-98 HOANG VIET HUU NGUYEN, Appellant v. THE STATE OF TEXAS ON STATES PETITION FOR DISCRETIONARY REVIEW FROM THE THIRD COURT OF APPEALS TRAVIS COUNTY Womack, J., delivered the opinion for a unanimous Court. The appellant was convicted of murder, Penal Code section 19.02(b), and engaging in organized criminal activity, Penal Code section 71.02. He appealed, and the Third Court of Appeals affirmed the murder conviction but ordered an acquittal as to the organized crime conviction. Nguyen v. State, 977 S.W.2d 450 (Tex. App.Austin 1998). We granted discretionary review to resolve two issues in the definition of the offense of engaging in organized criminal activity. A person commits the offense of engaging in organized criminal activity 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 [enumerated offenses]. Penal Code § 71.02(a). A combination is defined as three or more persons who collaborate in carrying on criminal activities. Penal Code § 71.01(a). The first issue concerns the meaning of combination. Should Penal Code section 71.01(a)s phrase collaborate in carrying on criminal activities be understood to include an agreement to jointly commit a single crime? If it does bear that meaning, the evidence in this case was sufficient to prove a combination. But if something more is required to prove a combination, as the Court of Appeals held, the evidence was insufficient.1 The State argues that the phrase collaborate in carrying on criminal activities, given its broadest possible meaning, can be understood to include an agreement to jointly commit a single crime. We hold that it cannot. In statutory interpretation, we endeavor to give effect to the whole statute, which includes each word and phrase, if possible. Ex parte Matthews, 933 S.W.2d 134, 136 n.3 (Tex. Cr. App. 1996); Dowthitt v. State, 931 S.W.2d 244, 258 (Tex. Cr. App. 1996). The State offers to define the phrase collaborate in carrying on criminal activities as work[ing] jointly in doing or conducting a crime. Brief at 11. Such a definition would be at odds with the language of the statute. The verb carrying on connotes an action that continues over time. The plural object, activities, implies that the combination seeks to do more than one thing. If the legislature intended the meaning that the State advances, the natural language should have been, collaborate in committing a criminal act, or the like. We also observe that with the construction proposed by the State, the term combination adds nothing more to the statute than the words three or more. The State already must show that the appellant committed or conspired to commit one of the enumerated offenses. See Penal Code § 71.02(a) (he commits or conspires to commit one or more of the following). If the legislature intended this construction, it would have been easier to say: A person commits an offense when he commits or conspires to commit one of the following enumerated crimes with two or more other people. Followed to its natural conclusion, this construction makes the phrase collaborate in carrying on criminal activities in the definition of combination superfluous. The commission or conspiracy to commit one of the enumerated offenses by definition includes the specific intent to do or conduct the crime. Thus, with that definition, the intent to establish, maintain, or participate in a combination adds nothing more to the statute than the intent to do the crime with two or more other people. Moreover, we cannot interpret a phrase within a statute in isolation; we must look at the phrase in situ. Thomas v. State, 919 S.W.2d 427, 430 (Tex. Cr. App. 1996). The context of the entire organized crime statute gives clues to the meaning of undefined words. The Court of Appeals correctly noted:
Nguyen, 977 S.W.2d at 455 (emphasis in original) (quoting Penal Code § 71.03(4)). In section 71.01 the term carrying on criminal activities likewise implies continuity something more than a single, ad hoc effort. Therefore, we hold that the phrase collaborate in carrying on criminal activities cannot be understood to include an agreement to jointly commit a single crime; the State must prove more than that the appellant committed or conspired to commit one of the enumerated offenses with two or more other people. The Court of Appeals said that the something more that the State must prove is continuity, in other words, that the appellant and two or more people agreed to work together in a continuing course of criminal activities. Id. We agree. Construing the statute to give meaning to all of the words contained therein leads to the conclusion that the State must prove that the appellant intended to establish, maintain, or participate in a group of three or more, in which the members intend to work together in a continuing course of criminal activities. We are not saying that the acts which prove this element of the offense must be criminal offenses. A good example of this is found in Barber v. State, 764 S.W.2d 232 (Tex. Cr. App. 1988), in which the appellants set up a scheme to steal oil. Holding that the evidence was sufficient to support the jurys verdict, this Court found that the element of intent to establish, maintain, or participate in a combination or the profits of a combination was proved by evidence of putting up the money for the operation, leasing property where stolen oil would be stored, calling to set up operations, setting up telephone service at the terminal where oil would be sold, moving oil storage tanks to the leased property, purchasing trucks and hiring drivers to transport the stolen oil, opening bank accounts, and making agreements for the sale of the oil. In the context of a legitimate business, none of these actions constitute evidence of a crime. In the context of organized crime when the goal is to set up a criminal organization, the acts listed above provide evidence of intent to do more than agree to commit one crime. In this case, the Court of Appeals was correct in holding that the evidence was insufficient to prove an intent to establish, maintain, or participate in a combination. The evidence does not indicate that there was any intent to form a group to carry on criminal activities, and the State does not point to any evidence in the record that supports such a finding. We hold that the evidence is legally insufficient to support the jurys verdict. In another ground for review, the State asks whether the evidence must prove that members of a combination committed a series of criminal acts to support a conviction for engaging in organized criminal activity. The answer is No, and the Court of Appeals did not hold to the contrary. Its opinion expressly stated:
Nguyen, 977 S.W.2d at 455. The holding of the Court of Appeals that something more than proof of the commission of the enumerated offense is required, which we have approved today, is not a requirement that more than one criminal offense must be proved to establish the offense. Moreover, this holding is not, as the State asserts, inconsistent with this Courts opinion in Barber v. State, 764 S.W.2d 232 (Tex. Cr. App. 1988). The Court in Barber did not address the point with which we deal today. The Court granted review of the question, 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? Id. at 234. This Courts holding that not all five members had to be convicted for the conviction of any one member to stand2 does not conflict with the holding of the Court of Appeals in this case. Because the Court of Appeals did not adopt a requirement that the State prove more than one offense to establish engaging in organized criminal activity, the States other ground for review is overruled. The judgment of the Court of Appeals is affirmed. EN BANC. DELIVERED. PUBLISH September 22, 1Both the State and the appellant adopted the factual summary of the Court of Appeals:
Nguyen, 977 S.W.2d at 452. 2The Court said, 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. Barber, 764 S.W.2d at 235. A person could be a member of a combination without committing the offense of engaging in organized criminal activity. If that member does not commit or conspire to commit one of the enumerated offenses, or conspires to commit an enumerated offense but does not perform an overt act in pursuance of the agreement, then he has not committed the offense of engaging in organized crime. See Penal Code § 71.01-.02; Barber, 764 S.W.2d at 235. This information is made available as a free public service for your personal, non-commercial use. While every effort has been made to provide accurate material at this site, it is provided "as is" and no representations are made that it is free of mistakes or inaccuracies. This file was derived from the text posted on the web site of the Texas Court of Criminal Appeals, by the automatic operation of conversion software, and may contain errors. Baker's Legal Pages are a public service of Freelance Enterprises, Inc.
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