Mr. Bergman, like most of the other motorcyclists, was detained after the violence that erupted. He was later transferred to the Waco Convention Center under the guise that he would be questioned and released. It was only after several hours with his hands zip cuffed behind his back and being denied food that Mr. Bergman and others were told they were being arrested. Later, a bond was set in the amount of $1,000,000. ...I don't think a written record of this argument exists in the other examining trials. The judge won't be able to assert ignorance of the cases cited, and is put in a position of having to address the arguments.The affidavit does not identify of which Motorcycle club Mr. Bergman was a member. In violation of Franks v. Delaware, 438 U.S. 154 (1978), the affidavit also did not inform the court that Mr. Bergman did not take place in any violence nor had he been aware that any violence would take place.
Perhaps most troubling is that the affidavit may be perjurious [emphasis in brief]. Indeed, it is the responsibility of the Department of Public Safety to maintain a database of criminal street gangs in the state. Texas Code Crim. P. Art. 61.11. Nevertheless, the 2014 Texas Gang Threat Assessment report prepared by the Department of Public Safety only alleges the Bandidos to be a "street gang" and, contrary to Chavez's sworn statement, it does not allege the Cossacks nor its associates nor the Bandidos' associates to be "street gangs." See Attachment B. Interestingly, the 2015 DPS report (dated three months after the Twin Peaks incident) mentions the Twin Peaks incident but still does not allege the Cossacks nor its associates nor the Bandidos' associates to be "street gangs." ...
The law regarding allegations of engaging in organized criminal activity is well settled. The Court of Criminal Appeals made clear that, in order to commit the offense of engaging in organized criminal activity, "the actor must not only agree to participate but must himself perform some overt act in pursuance of that agreement." Barber v. State, 764 S.W.2d 232, 235 (Tex. Crim. App. 1988). Indeed, the defendant must have the "intent to form a group to carry on criminal activities," Nguyen v. State, 1 S.W.3d 694. 697 (Tex. Crim. App. 1999).
These principles were summarized by the Court of Criminal Appeals in Hart v. State, 89 S.W.3d 61, 63-64 (Tex. Crim. App. 2002) (emphasis added):
"There are two parts to the mental state requirement in engaging in organized criminal activity. One mental state requirement is included in the commission of one of the enumerated offenses. Tex. Penal Code 71.02(a). For example, if the enumerated offense is theft, the State must prove that the appellant intended to deprive the owner of property as part of proving the underlying enumerated offense. Tex. Penal Code 31.03(a)."The other mental state requirement in section 71.02(a) is that the defendant intend to establish, maintain, participate in, or participate in the profits of a combination. This second requirement must be more than the intent to commit the enumerated offense because otherwise the statutory element would be superfluous. The proof must consist of more than evidence that a combination existed and that the defendant committed one of the enumerated offenses; the evidence must support a finding that the defendant intended to establish, maintain, participate in, or participate in the profits of a combination. Otherwise, the express requisite intent in the statute would be meaningless."
In short "the mens rea and the actus reus of this crime must coincide before a person can be prosecuted under Section 71.02." Lucario v. State, 698 S.W.2d 835, 840 (Tex. App.-Houst. [1st Dist.] 1983). In other words, the engaging in organized criminal activity statute "requires that the actor know of the criminal activity of the group." Id.
An excellent example of these important principles can been seen in Munoz v. State, 29 S.W.3d 205 (Tex. App.-Amarillo 2000). There, Munoz was part of a drug transaction. Id. at 207-08. Nevertheless, in holding that Munoz was not part of a "group" for the purpose of the engaging in organized criminal activity statute, the Court of Appeals wrote:
"Nor are we able to conclude that evidence of record supports a reasonable inference that appellant agreed to combine with his wife, children or the two unknown Hispanics for the purpose of engaging in continuing activities. Admittedly, all were present when the sale to Arredondo was occurring and most likely knew what was transpiring. 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. Moreover, it is these indicia, or lack thereof, that distinguish our situation from that in Mast."In Mast, four people lived in the house wherein the homeowner hid stolen tools and all four knew that the tools were stolen. Mast v. State, 8 S.W.3d at 369. All knew where they were concealed and that the "plan" was to sell them. Id. Moreover, three of the four performed acts which manifested their involvement, including hiding the tools and personally negotiating their sale to others. None of that appears here. Other than the attempt by Carlos to dispose of the drugs, the evidence does not show that Carlos, Viola, the minor child, or the two unknown Hispanics negotiated the sale, hid the drugs, delivered the drugs, acted as security, or the like. Again, aside from Carlos, the most that can be gleaned from the record is that they were just present and knew what was occurring. Moreover, as for Carlos, nothing indicates that he did or intended to do anything other than dispose of the marijuana in this one transaction. At this juncture, we hesitate to conclude that mere presence at the scene and knowledge of what is occurring evinces an agreement to assist in the past or at the moment or in the future."
B. Application-One Never Brings a Knife to a Gun Fight
Mr. Bergman concedes that he was a member of the Desgraciados Motorcycle Club and that he was in the vicinity of the Twin Peaks violence, however, those facts alone hardly establish probable cause to believe he engaged in organized criminal activity.
First, there is no indication that the Desgraciados, the group of which Mr. Bergman was a member, took place in any of the violence. Second, there is no evidence that Mr. Bergman "[knew] of any criminal activity of the group." Lucario, 698 S.W.2d at 840. Finally, even if the Desgraciados did participate in the violence and Mr. Bergman knew that the Desgraciados participated in that type of violent criminal activity, there is absolutely no evidence supporting a claim that Mr. Bergman took any act in pursuance of participating in the violence as required by the Court of Criminal Appeals. Barber, 764 S.W.2d at 235.
In sum, one can return to the example used by the Court of Criminal Appeals in Hart and the discussion by the Amarillo Court of Appeals in Munoz.
Again, the Court of Criminal Appeals in Hart gave the following example: if the enumerated offense is theft, the State must prove that the appellant intended to deprive the owner of property as part of proving the underlying enumerated offense. Hart, 89 S.W.3d at 63 (emphasis added). From this it follows that, if the enumerated offense is murder, capital murder or aggravated assault, the State must prove Mr. Bergman intended that a person was murdered or assaulted by the group of which he joined.
Also, similar to Munoz, the fact that Mr. Bergman was present at the incident does not "evince an agreement" to assist any group in committing murder, capital murder or aggravated assault "in the past or at the moment or in the future." Munoz, 29 S.W.3d at 210.
One distinction worth mentioning, the Hart and Munoz cases follow trials, and don't establish a test for probable cause. They do, however, establish factual elements that must be alleged, in order for the alleged crime to have "probably been committed by the accused."
The emphasis on "guise that he would be questioned and released" is mine, not Broden's. I recall being challenged on the contention that the accused were held under the guise of being questioned, and present this as evidence that the accused were held under the guise of being questioned then released.
One other point, and I've noted it before, the 2014 and 2015 DPS reports are not the DPS databases. I would be reluctant to assert, as Broden has, that the affidavit may be perjurious because Desgraciados Motorcycle Club is not in the DPS reports. The Desgraciados Motorcycle Club may well be in the secret contents of the DPS database.
How does that not go directly to probable cause? If they were arrested due to a faulty affidavit lacking factual elements, then how can it be a legal arrest in compliance with the 4th Amendment?
btw, thanks for digging this up and posting!
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.
“B. Application-One Never Brings a Knife to a Gun Fight”
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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?
Actually the "group" Mr. Bergman was a member of on May 17th was a convoy of fifteen bikers led by a Bandido with a dozen 'bad reputation' patches on his vest.
Keep trying Brodin...