PD-0013-24 03/27/2024
“Did the Appeals court incorrectly interpret Martin v. State when it determined that the requirement of “continuous association” in a street gang is satisfied by the underlying crime and no additional or prior crime is required for the charge of Engaging in Organized Criminal Activity?”
While getting out of a fellow gang member’s truck, Bittick dinged the car next to him. Perez, the car owner, responded verbally, and Bittick punched Perez in the face. Perez tried to run away, and Bittick’s fellow gang members wrestled him to the ground. Bittick then kicked and punched Perez repeatedly. Bittick was charged with aggravated assault and engaging in organized criminal activity (EOCA) as a member of a criminal street gang.
At trial, the State offered testimony that Bittick self-identified as a Vagos motorcycle gang member and was present at a gang rally where other Vagos members were arrested for weapons-related offenses. Vagos members wear a vest with a “1-percenter” patch. Officers testified that this is a reference to an assertion that 99% of motorcycle riders are law-abiding citizens and that those who designated themselves as 1-percenters claim to not be law-abiding. The jury convicted Bittick of both offenses.
On appeal, Bittick argued the evidence was insufficient to show, as an element of gang-member EOCA, that he was a member of a criminal street gang. A 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.” Martin v. State, 635 S.W.3d 672, 679 (Tex. Crim. App. 2021), held that to be a gang member for purposes of gang-member unlawful carrying of a weapon (UCW), the defendant had to be one of the three or more continuously-or-regularly-associating-in-crime individuals. The court of appeals agreed that because both gang-member EOCA and gang-member UCW refer to the same criminal street gang definition, Martin’s requirement of individual participation in crime should also extend to gang-member EOCA. But it also held that Bittick’s participation in the aggravated assault was sufficient to meet this requirement. It noted that the defendant in Martin required evidence of additional crimes because his only offense was UCW, conduct that was only criminal due to his gang membership. EOCA, by contrast, is illegal regardless of gang-membership. The State’s proof of the underlying predicate crime (here, aggravated assault) simultaneously proves his individual participation in crime.
Bittick argues that the court of appeals has effectively determined that the individual participation requirement overrides the requirement of continuous association. He contends that “continuous” connotes more than one crime, and that Martin requires at least two crimes. He argues that committing one crime is no evidence that he participated in a continuous commission of criminal activities.
