Posted on 09/17/2015 2:13:27 PM PDT by don-o
Mr. Bergman pauses to note that an intent to enter into an agreement to engage in organized criminal activity may be inferred from the acts of the parties. (Tex. Penal Code 71.01) so it stands to reason that a lack of intent to engage in organized criminal activity can also be inferred from the acts of the parties. Here, Mr. Bergman left a firearm with his motorcycle. If his intent was to join a group with the intent that the group commit murder, capital murder or aggravated assault, why leave the firearm with his motorcycle? One does not bring a knife to a gun fight!
I would note, however, that under the logic used by courts, "inference" is a one-way street, always pointing to guilt.
Just that the legal standard for conviction is quite different from the legal standard for probable cause. So, those cases don;t stand for the proposition that either Hart of Munoz should not have been arrested - even though the affidavits in support of arrest and indictment probably failed to recite the factual elements described by the appellate court.
Most people believe that courts are consistent - they are not. Most people believe the courts correctly apply the law, in many cases they do not.
At any rate, the recent appellate decision in the Texas Tenth Court of Appeals re: Pilkington and Weathers set out the model for
We conclude that the magistrate could have reasonably inferred from the profusion of weapons at the scene and the subsequent violence that Pilkington and Weathers, as members of a criminal street gang, each agreed "with one or more persons that they or one or more of them engage in conduct that would constitute the offense" of capital murder, murder, or aggravated assault.Lastly, we address each appellant's specific complaint that the affidavit does not allege that each of them performed "an overt act in pursuance of the agreement." Id. At the hearings, the State argued that, on the day in question, Pilkington and Weathers committed overt acts by showing up at the restaurant--by being present and wearing their distinctive signs or symbols identifying each of them as a member of a criminal street gang, along with other members of a criminal street gang. As noted above, the overt act need not be criminal in itself. See Barrera, 321 S.W.3d at 154. The magistrate could have reasonably inferred that their presence and wearing their distinctive signs or symbols identifying each of them as a member of a criminal street gang was an overt act. The magistrate also could have reasonably inferred from their presence, from their wearing their distinctive signs or symbols, and from the profusion of weapons at the scene and the subsequent violence that each of them performed an overt act by either encouraging, soliciting, directing, aiding, or attempting to aid the commission of the underlying offenses of capital murder, murder, or aggravated assault. See id.
Since inference is allowed throughout the legal process, even at trial should the DA obtain an indictment, the judge at the examining trial is free to infer guilt from association. All Reyna has to bring is a printout from the DPS database, that lists Desgraciados Motorcycle Club; or in the alternative, submit evidence linking Desgraciados Motorcycle Club with either Cossacks or Bandidos.
When remarking on the Texas Tenth Court of Appeals decision in the past, I've maintained a position that the decision is in error. It bootstraps conspiracy from the incident. That logic works every time, and does not distinguish a non-conspirator from a conspirator.
Note that Munoz and the Tenth Court of Appeals are in conflict ...
And, while it could be said that Carlos Munoz (one of appellant's children) assisted in the transaction by trying to dispose of the drug during the raid, no evidence begins to suggest that he played any role in any other transactions of his father or that he so desired or intended. The same can be said of Viola Munoz, the minor son, and the two unknown Hispanics. They were present and undoubtedly knew what was happening, but we are unable to say that a fact-finder could reasonably infer from mere presence and knowledge of the circumstances any agreement to jointly engage in illegality over the course of time.Basically, the Munoz case says it is unreasonable to infer conspiracy from presence at the scene and knowledge of the crime.
Now see what the Texas Tenth Court of Appeals says ...
We conclude that the magistrate could have reasonably inferred from the profusion of weapons at the scene and the subsequent violence that Pilkington and Weathers, as members of a criminal street gang, each agreed "with one or more persons that they or one or more of them engage in conduct that would constitute the offense" of capital murder, murder, or aggravated assault.
@Don Yes. I will be there.— Tommy Witherspoon (@TSpoonFeed) September 18, 2015
“B. Application-One Never Brings a Knife to a Gun Fight”
...
Wouldn’t fists and knives count for an assault?
Some of the wounded who were taken to the hospital had suffered knife wounds.
I remember a witness or two stating that they were surprised that the altercation quickly turned into shots being fired.
Could one have expected assault and still not have expected gunfire?
“Desgraciados” is a Badidos “support” club
Bergman said he believes there must have been some way police could have warned him and other cyclists before the violence broke out. “Of course, we didn’t know anything until it was too late,” he said. “By the time we pulled in and I saw what we were encountering, I couldn’t go forward and I couldn’t go backward.” He continued, “All you could do was jump off your bike and run for cover.”
That sounds like Bergman was part of the convoy of bikers that was pulling in to the lot when the fight broke out.
The first state witness is DPS Lt. Steve Schwartz. He has testified at previous examining trials involving other bikers.— Tommy Witherspoon (@TSpoonFeed) September 18, 2015
The state is playing a video of the Bandidos and their support groups riding into the Twin Peaks parking lot. Bergman is seen riding in.— Tommy Witherspoon (@TSpoonFeed) September 18, 2015
Jarrett said Bergman's statement that he arrived with a "few of his friends" is an "outright lie" based on the video evidence.— Tommy Witherspoon (@TSpoonFeed) September 18, 2015
Schwartz said you have to do something to earn the Bandidos support patch.— Tommy Witherspoon (@TSpoonFeed) September 18, 2015
Schwartz said Bergman was an "active supporter" of the violence the Bandidos were involved in that day.— Tommy Witherspoon (@TSpoonFeed) September 18, 2015
Schwartz said Bergman has been arrested five times since 1985. Bergman said he has no criminal record in his statement.— Tommy Witherspoon (@TSpoonFeed) September 18, 2015
Taking a lunch break. Back at 1:15 p.m.— Tommy Witherspoon (@TSpoonFeed) September 18, 2015
Similar to the definition of "active supporter of the violence," which I believe the state defines as being on scene, or being on the way to Twin Peaks; combined with being a Cossack, Bandido, or support group (whatever that is).
Jarrett said Bergman has arrests for assault, DWI, resisting arrest and injury to a child. -- Tommy Witherspoon (@TSpoonFeed) 12:58 PM - 18 Sep 2015If those are unrelated to club/gang business, I don't see how they are relevant as evidence. These incidents would certainly be suppressed at trial, regardless of being club/gang related or not.
Evidence shows Waco police bullets hit bikers in May shootout - Chicago Tribune
The AP reviewed more than 8,800 pages of evidence, including police reports, dash-cam video, photos and audio interviews related to the May 17 confrontation. ...Waco police spokesman Patrick Swanton declined to comment on the evidence the AP reviewed, citing a gag order in the criminal case of one of the bikers. ...
Bikers were taken to the Waco convention center for processing after the shootout and were told on the way that they were going to be interviewed as witnesses, according to a 430-page Texas Department of Public Safety report that corroborates what arrested bikers have told AP.
Broden now is cross-examining DPS Lt. Stephen Schwartz, who said he doesn't know how often the biker coalition meets.— Tommy Witherspoon (@TSpoonFeed) September 18, 2015
The next tweet is interesting, Cossacks not a gang in DPS database in 2014.
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