Texas has a crime called Engaging In Organized Criminal Activity (“EOCA”). It sounds like it means that the accused has to be a member of the mafia or a street gang, but a person can be convicted of EOCA without being in any type of formal organization like the mafia or a gang. So, what does it mean, how is it used, and what are the defenses to it?
What is EOCA?
By creating the EOCA crime, the Texas Legislature decided that when people get together to commit multiple crimes, the fact that they join forces makes it worse than if one person had just the crimes. A conviction for EOCA requires proof that three or more people joined together in a “combination” to commit certain criminal activities that are listed in the law itself.
Texas’ highest criminal court, the Texas Court of Criminal Appeals, held in a case called Nguyen v. State, 1 S.W.3d 694 (Tex. Crim. App. 1999), that the criminal activities must be more than just a single criminal transaction, which would be something like a drug delivery or one attempt to defraud someone. Instead, the State must prove that the three people engaged in a continuous course of criminal activity. This is known as “continuity.”
How Do Prosecutors Use EOCA
Generally, an EOCA conviction increases the degree of the offense of the most serious individual crime the accused has committed. For example, if the EOCA charge is based on three third-degree felonies, then the EOCA charge will be a second-degree felony.
Prosecutors probably most often charge EOCA in drug and theft or fraud cases. If three or more people join together to distribute illegal drugs, and if they distribute those drugs on three different occasions, then prosecutors could charge EOCA in addition to three counts of drug distribution for the three times drugs were actually distributed. Similarly, if three people join together to steal and sell cars, and if they do that more than three times, prosecutors could charge EOCA in addition to charges for the individual thefts.
In drug cases involving distribution in a drug-free zone, such as within 1000 feet of a school, an EOCA charge can dramatically increase a defendant’s sentence. This is because Texas law says that a conviction for distributing drugs in a drug-free zone must run consecutively to (be stacked onto) a conviction for any other type of offense, whereas convictions for a series of related offenses generally run concurrently (at the same time). EOCA is considered another type of offense. So, if a defendant is convicted of three counts of distributing drugs in a drug-free zone, and receives ten year sentences for each, they would normally run concurrently (at the same time), meaning the effective sentence would be ten years. But if the defendant is also convicted of EOCA based on those three distributions, and if the defendant receives a ten year sentence for the EOCA charge, that ten-year sentence must be stacked on top of the three sentences for drug distribution in a drug-free zone, meaning that the defendant would effectively get a 20-year sentence. So, effectively, the mere fact that at least three people were involved doubled the sentence in this example.
Defending Against EOCA Charges
Here are some examples of defenses against EOCA charges:
-Not guilty of the underlying offenses.
The defendant did not commit the underlying offenses that are alleged to be part of the organized criminal activity.
-Fewer than three people involved:
The State must prove, beyond a reasonable doubt, that at least three people were part of the criminal combination. If there is a reasonable doubt about whether certain people really participated, so that the number may be less than three, then the defendant should be found not guilty.
-No proof of continuity.
All three persons who are part of the alleged combination must intend to be part of a continuing course of criminal activity—not just a single transaction. For this defense, it is important for the defense lawyer to request a jury instruction on continuity. Some judges will instruct the jury by repeating the language of the EOCA law. That language, however, does not clearly indicate that continuity is a prerequisite for a conviction, as the Nguyen case held.
An EOCA charge is complicated, and it can make serious criminal charges even more serious. If you or a loved one is charged with EOCA, you should make sure that you consult a criminal defense lawyer who has expertise with this statute.