BITTICK, CHARLES v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-0013-24

CHARLES BITTICK, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SECOND COURT OF APPEALS
TARRANT COUNTY

KEEL, J., delivered the opinion of the Court in which KELLER, P.J., and
HERVEY, RICHARDSON, YEARY, and SLAUGHTER, JJ., joined. NEWELL and
MCCLURE, JJ., concurred. WALKER, J., did not participate.

OPINION

A jury convicted Appellant of aggravated assault and engaging in organized

criminal activity (“EOCA”). On appeal he challenged, among other things, the

sufficiency of the evidence to support his EOCA conviction. The court of appeals

affirmed the conviction. Bittick v. State, 680 S.W.3d 405, 418 (Tex. App.—Fort Worth

2023). We granted review to decide whether an EOCA conviction depends on a
Bittick 2

defendant’s commission of multiple crimes. It does not; a defendant’s commission of a

single predicate crime will support the conviction.

I. Background

A. Appellant and Vagos

According to the collective testimony of law enforcement officers:

Vagos was a criminal street gang that first moved into Texas around 2018. In

September of that year, gang-unit officers encountered Appellant and other Vagos

members at a motorcycle rally at the Fort Worth Stockyards. Appellant admitted to

them that he was a member of Vagos and allowed them to take photographs of him

wearing his “cut.” It displayed the Vagos logo and a “bottom rocker” that said

“California” and meant that he was a fully-fledged member of Vagos, not merely a

prospect. Other patches displayed “We give what we get,” the gang’s motto; “Green

Nation,” a reference to Vagos’s colors; “1%,” indicating that Vagos is an outlaw gang

unlike the 99% of motorcyclists who follow the law; “MF,” suggesting that he had had a

violent encounter with a non-club member; and a swastika, signifying that Appellant’s

chapter consisted of white males.

Officers investigating Vagos at the Stockyard rally also talked to Christopher Vick

and photographed him wearing his cut. Vick had a leather cut, indicating that he had

been a Vagos member for at least five years. His cut included many of the same patches

as Appellant’s, plus a Loki patch, signifying that he had had a violent encounter with

rival club members. Most notably, Vick’s cut included two patches that said “nomad.”
Bittick 3

The officers explained that these indicated that Vick was a high-ranking Vagos member

handpicked to start a new chapter in a new area. The investigating officers arrested three

Vagos members for unlawfully carrying weapons, but not Appellant or Vick.

B. The Assault

On June 1, 2019, David Perez stopped at a 7-Eleven on his way home from work,

and Appellant and a group of people parked next to him in a pickup truck. The truck’s

occupants wore Vagos colors and/or insignia. Perez said something to Appellant after

he opened his truck door and hit Perez’s car, and Appellant punched him twice in the

face. Appellant’s compatriots soon joined in, and they chased, punched, and kicked

Perez before leaving the scene in their truck.

After retreating into the store, Perez called for help, and his wife, her sister, and

police soon arrived. From store video footage, officers identified two Vagos members

among Perez’s attackers—Appellant and William Canida. During the on-scene

investigation, a man arrived on a motorcycle, stored his cut in a saddle bag, and entered

the store. He seemed interested in the investigation and listened to Perez’s conversation

with police and watched some of the security footage of the assault. He re-donned his

cut when he left the store. Perez’s sister-in-law recognized the logo on his cut from that

worn by attackers shown in the video and told investigators about her observations.

Gang unit officers later identified him as Vick.

C. Court of Appeals

Appellant argued on appeal that the evidence was legally insufficient to support
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his EOCA conviction because it did not show that he “continuously or regularly”

committed crimes other than the predicate offense of aggravated assault, but the court of

appeals upheld the conviction. Bittick v. State, 680 S.W.3d 405, 418 (Tex. App.—Fort

Worth 2023). It reasoned that the State needed to show only Appellant’s “individual

participation in crime.” Id. at 417 (quoting Martin v. State, 635 S.W.3d 672, 679 (Tex.

Crim. App. 2021)). It noted that, unlike the statute at issue in Martin, § 71.02 merely

enhances the severity of already-criminalized acts. Id. at 418. It held that “when the

State proved that [Appellant] committed the underlying predicate crime, it

simultaneously proved his ‘individual participation in crime.’” Id. (quoting Martin, 635

S.W.3d at 679).

Appellant challenges the court of appeals’s holding as a misinterpretation of

Martin. He argues that the “continuous association” requirement for street-gang

membership is not satisfied by commission of a single EOCA predicate crime; a

defendant’s connection to continuous criminal conduct is required.

II. Standard of Review

We assess legal sufficiency by viewing the evidence in the light most favorable to

the verdict and asking whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

319 (1979); Zuniga v. State, 551 S.W.3d 729, 732 (Tex. Crim. App. 2018). We compare

the trial evidence to “the elements of the offense as defined by a hypothetically correct

jury charge for the case.” Zuniga, 551 S.W.3d at 733 (quoting Malik v. State, 953
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S.W.2d 234, 240 (Tex. Crim. App. 1997)). And we review de novo a sufficiency

question that depends on statutory construction. Long v. State, 535 S.W.3d 511, 519

(Tex. Crim. App. 2017). Statutory construction depends on the statute’s literal

text. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). We give effect to its

plain meaning unless the language is ambiguous or would lead to absurd results that the

Legislature could not possibly have intended. Id. When a statute does not define a

term, we construe it according to common usage. State v. Hardin, 664 S.W.3d 867, 873

(Tex. Crim. App. 2022).

III. EOCA

As pertinent here, a person commits EOCA if he, “as a member of a criminal

street gang . . . commits or conspires to commit one or more of the following: (1)

aggravated assault[.]” Tex. Penal Code § 71.02(a). A hypothetically correct jury

charge would require proof that a defendant 1) as a member of a criminal street gang 2)

committed aggravated assault. Zuniga, 551 S.W.3d at 735.

A “criminal street gang” is “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 activity.” Tex. Penal Code §71.01(d). Acting “as a

member of a criminal street gang” means “acting ‘in the role, capacity, or function of’ a

gang member at the time of the offense.” Zuniga, 551 S.W.3d at 735 (quoting American

Heritage College Dictionary 78 (3d ed. 1993) (defining “as”)). It requires “proof of a

connection or nexus between the defendant’s commission of the underlying offense and
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his gang membership.” Id. at 734.

In Villa v. State, the assault victim’s testimony that Villa and five other gang

members attacked him was sufficient to show Villa acted as a gang member. 514

S.W.3d 227, 232-33 (Tex. Crim. App. 2017). The victim did not have “to explain how

he knew [Villa] was a gang member for a rational jury to believe that he did in fact know

it.” Id. at 233. And the evidence was sufficient to show that the attack “was a gang-

motivated crime” because the “other attackers were identified as gang members,” and

Villa “worked in concert” with them, adding “further support for the jury’s conclusion

that [Villa] was himself a gang member.” Id. Notably, we did not require proof that

Villa committed any other crimes to establish his membership. There was sufficient

evidence “on the basis of the complainant’s testimony alone.” Id.

In Zuniga, the evidence was sufficient to show that the defendant “was acting in

the role, capacity, or function of ‘a member of a criminal street gang’” when he shot the

two victims. Zuniga, 551 S.W.3d at 736. He was “an established member” of a gang.

Id. at 738. The murders were committed “at a location known to be frequented” by the

gang. Id. Other known members of the gang joined in the attack “alongside and in

cooperation with” Zuniga. Id. The victims were members of a rival gang. Id. The

gang would typically assault rival gang members who encroached on their territory. Id.

And Zuniga had earlier told “Sparky” to “do his job.” Id. Given these facts, a rational

jury could conclude that “the coordinated assault on [the victims by gang members] was

gang-related activity” and that Zuniga’s cooperation with other gang members in the
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attack “was pursuant to his role, capacity, or function as a” gang member. Id.

IV. Analysis

In 2018, Appellant was identified as a member of Vagos, a criminal street gang.

See § 71.01(d). In 2019, he and another documented Vagos member, Canida, acted

together with others wearing Vagos colors to attack the complaining witness. They

arrived together, surrounded and chased the complainant, beat and kicked him, and then

fled together. After the fact, Vagos poobah Vick surveilled the on-scene investigation,

further demonstrating a nexus between the assault and the gang. Based on this evidence,

any rational jury could have found beyond a reasonable doubt that Appellant committed

aggravated assault as a member of Vagos, a criminal street gang—the only requirements

of an EOCA conviction. See Zuniga, 551 S.W.3d at 735; Villa, 514 S.W.3d at 228.

Appellant, however, argues that more was required. He claims that Martin

imposed onto § 71.02 a requirement that the defendant commit multiple criminal acts

since a gang member must be one of the people in the gang who “continuously or

regularly” commits crimes. See Martin, 635 S.W.3d at 677-80; see also Nguyen v. State,

1 S.W.3d 694, 696 (Tex. Crim. App. 1999) (the phrase “carrying on criminal activities”

in § 71.01(a) (combinations) implies doing more than one thing). Martin, however,

interpreted the Unlawful Carrying of a Weapon (UCW) statute, which differs

significantly from the EOCA statute. And even if Martin applied here, its reasoning

supports Appellant’s conviction.

Martin was convicted under an old version of Penal Code § 46.02(a-1)(2)(C) that
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criminalized carrying a handgun in a motor vehicle or watercraft if “the person is … a

member of a criminal street gang as defined by section 71.01.” Martin, 635 S.W.3d at

673; see Act of June 15, 2007, 80th Leg., R.S., ch. 693, sec. 1, 2007 Tex. Gen. Laws

1318 (current statute at Tex. Penal Code § 46.04(a-1)). He challenged the sufficiency of

the evidence to show he was a member of the Cossacks, arguing that the evidence failed

to show that he personally committed crimes. Id. at 675. He “admitted that he was

factually a Cossacks member but denied that he was legally a Cossacks member because

the State failed to prove that he was personally a criminal.” Id. at 675-76 (citing Ex

Parte Flores, 483 S.W.3d 632 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d)). The

State countered that the statute’s plain language required it to prove only that Martin was

a member of the Cossacks, not that he participated in the gang’s crimes. Id. at 676.

We held that under the UCW statute, “a person is a ‘member’ of a criminal street

gang only when he is ‘one of the three or more persons who continuously or regularly

associate in the commission of criminal activities.’” Id. at 678 (adopting the reasoning

of Ex Parte Flores, 483 S.W.3d 632). We rejected the State’s broader definition since it

would “trigger the culpability of an otherwise innocent person merely by joining or

participating in” a criminal street gang “with or without knowledge of the organization’s

criminal activity.” Id. Under that definition, even “innocent” members who did not

know of the gang’s criminal activities would risk prosecution by engaging in otherwise

lawful acts. Id. at 678. Their conviction would require neither a mens rea nor an actus

reus. Id. at 679. We lamented, “Though not a criminal for purposes of carrying a
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firearm, [Martin] became one simply by riding his motorcycle while wearing his cut.”

Id. at 678.

Instead of that absurd result, Martin reasoned that the Legislature must have

intended “member” in the UCW statute to be read together with the definition of

“criminal street gang” in § 71.01(d) so that the actor must “continuously or regularly”

engage in crime. Id. at 679. We said, “This interpretation of section 46.02(a-1)(2)(C)

does not” implicate the First Amendment or make a person a gang member “simply by

association with a” gang. Id. “The Flores court properly clarified what conduct makes

an individual a member of a criminal street gang: individual participation in crime.”

Id. “Because no evidence showed Martin knew of the Cossacks’ criminal activities or

that he was “involved in any criminal activity pursuant to his membership in the

Cossacks[,]” he “did not come within the purview of Texas Penal Code sections 46.02(a-

1)(2)(C) or 71.01(d).” Id.

But the EOCA statute differs from the UCW statute in that it does not criminalize

otherwise-lawful conduct; instead it enhances punishment for a specific, already-

criminalized act when committed by a gang member. Tex. Penal Code §§ 71.02(a)(1)-

(21). Even though § 71.02 requires only one criminal act, it still requires proof of a

mens rea and an actus reus, compare with Martin, 635 S.W.3d at 678; it requires

individual participation in crime, id. at 679; it does not punish mere membership in a

group, id. at 678; it does not punish members who are ignorant of the gang’s criminal

activities, id.; and it does not implicate the right to freely associate; id. at 679.
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Appellant’s case is the inverse of Martin’s. Martin was an “otherwise innocent”

gang member who “became” a criminal simply by wearing his gang attire. Id. at 678.

The State failed to prove even that Martin knew about the gang’s criminal activity, much

less that he individually participated in crime “pursuant to his” gang membership. Id. at

680. But here the State proved that Appellant individually participated in crime pursuant

to his gang membership—the aggravated assault on Perez—and thus met its burden of

proof for an EOCA conviction. Zuniga, 551 S.W.3d at 735; Villa, 514 S.W.3d 227, 232-

33. The State also offered evidence of his awareness of his gang’s criminal activities

when it documented his cut’s “1%” and “MF” patches the year before the assault. In

short, the evidence we found lacking against Martin was amply brought to bear against

Appellant.

VI. Conclusion

By its plain language, § 71.02 punishes anyone who commits a designated crime

as a gang member. The evidence proved that Appellant did just that. We affirm the

judgment of the court of appeals.

Delivered: November 27, 2024

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