Charles Wade Briggs v. the State of Texas ( 2023 )

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-22-00058-CR
CHARLES WADE BRIGGS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 336th District Court
Fannin County, Texas
Trial Court No. CR-20-27896
Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Justice van Cleef
MEMORANDUM OPINION
On the night of July 21, 2017, at least three men forced their way into the home of Gina
and Johnnie Jones, and while one of the men subdued Gina, the other men subdued Johnnie and
shot him at close range in the back of his head. Johnnie survived the attempt to murder him. A
Fannin County jury convicted Charles Wade Briggs of attempted1 murder,2 burglary of a
habitation with intent to commit aggravated assault,3 and engaging in organized criminal
activity.4 In this appeal,5 Briggs challenges his conviction for engaging in organized criminal
activity. He contends (1) that there was insufficient evidence to support the jury’s verdict that he
engaged in organized criminal activity, (2) that the trial court erred when it failed to give an
accomplice-witness instruction, and (3) that the evidence does not corroborate the testimony of
the accomplice witness. Because we agree that the evidence was insufficient to support Briggs’s
conviction, we reverse the trial court’s judgment and render a judgment of acquittal for the
charge of engaging in organized criminal activity.
1
See TEX. PENAL CODE ANN. § 15.01.
2
See TEX. PENAL CODE ANN. § 19.02(b)(1). Briggs was sentenced to twenty years’ imprisonment for attempted
murder.
3
See TEX. PENAL CODE ANN. § 30.02(a)(1), (d)(2). Briggs was sentenced to ten years’ imprisonment for burglary of
a habitation with intent to commit aggravated assault.
4
See TEX. PENAL CODE ANN. § 71.02(a) (Supp.). Briggs was sentenced to forty-five years’ imprisonment for
engaging in organized criminal activity.
5
In his appeal in our cause number 06-22-00056-CR, Briggs appeals his conviction for attempted murder, and in his
appeal in our cause number 06-22-00057-CR, Briggs appeals his conviction for burglary of a habitation with intent
to commit aggravated assault.
I. The Evidence at Trial
The evidence at trial showed that sometime after 10:00 on the night of July 21, 2017,
Gina Jones was in her kitchen when she was knocked unconscious by an unknown intruder.
When she woke up, she was laying on the floor on her back, with a man she knew as Josh on top
of her holding her down with his right hand on her throat. Gina heard another man go to her
door and tell a third man to come in. Those two men, one of whom had a gun in his hand, went
to the back of the Joneses’ house. Although Gina could not identify the two other men, she
described the one with the gun as taller with dark hair and the other as shorter with curly hair. A
short time later, Gina heard the gun discharge. The two men came running by, told Josh that he
was supposed to keep her knocked out, and told him to get her cell phone. When the men were
gone, Gina called 9-1-1 and reported that her husband had been shot by a group of men. Gina
testified that, sometime before the shooting, Johnnie received a telephone call from a person who
said he was Josh’s dad.
Ralph Belen, a Fannin County deputy, was dispatched to the home at 10:40 p.m. and was
met at the door by Gina. She led him to the living room where Johnnie lay on his back. Belen
testified that Johnnie was shot in the back of the head, moaned, and was in and out of
consciousness.6
Texas Ranger Brad Oliver conducted the initial investigation. He testified that he did not
recover a shell casing but that the evidence showed that a hollow-point bullet was used. He
testified that he did not recover the firearm used and did not determine the type of firearm or
6
At the time of trial, Johnnie lived in an institution and was unable to walk or care for himself.
caliber used but that, based on the injuries Johnnie sustained and the blood spatter evidence, he
thought the firearm was a handgun.
Oliver recovered Johnnie’s cell phone and found several text messages, the last of which
was received at 7:25 p.m. on July 21 from a person identified as “Josh.” After Oliver determined
that the telephone number for “Josh” belonged to Joshua Wade Briggs, Briggs’s son, Gina
positively identified Josh from a photograph array as the person who held her down. On July 23,
Oliver went to Josh’s house to take a recorded statement.
In his statement, Josh claimed he lost his cell phone three days earlier but gave Oliver the
same telephone number as the one associated with “Josh” in Johnnie’s cell phone. Josh said that
he knew Johnnie as “Chip” and that Johnnie supplied him with methamphetamine and
marihuana. He claimed that he had not gone anywhere on July 21 and that the last time he went
to Johnnie’s house was on either July 19 or 20. Josh maintained that Gina lied if she said that he
was at Johnnie’s house. Josh provided information to Oliver that he was familiar with Johnnie’s
house and that he knew how to enter through the back door. Oliver found that significant
because Gina told him that the men invaded their home through the back door.
Oliver took Briggs’s recorded statement that day. Briggs said that he got a telephone call
at work on July 21 and was told that Josh left on his motorcycle. Briggs tried to call Josh even
though he said Josh had lost his cell phone. He maintained that he left work a little after 8:00
p.m. and that Josh was home when he arrived about forty-five minutes later. Briggs said he
would not let Josh leave after that and that he went to bed around one or two the next morning.
He denied that he knew where Josh got his methamphetamine and gave Oliver his cell phone
number.7
After taking those statements, Oliver obtained two photographic arrays—one that
contained the photograph of Briggs and one that contained the photograph of Briggs’s brother,
Dallas Shane Briggs (Shane). Oliver explained that he obtained one for Shane because Shane
was the president of the local chapter of an outlaw motorcycle gang called the “Kinfolk.” Gina,
however, was not able to identify either Briggs or Shane as the other men who invaded her
home. Oliver acknowledged that neither Briggs nor Josh was associated with the “Kinfolk”
gang.
When asked on cross-examination if he had any evidence that Briggs was at Johnnie’s
house on the night of July 21, Oliver maintained that Josh confessed that his father was at
Johnnie’s house during Josh’s trial six months earlier. Oliver pointed out several excerpts in the
transcript of Josh’s testimony from that trial placing Briggs at Johnnie’s house that night:
A. [By Oliver] . . . [T]he answer, it says, We –Shane and I went to the
front door. I don’t know where the other car went – where the other car, where
they were. They – they came in the house, and I don’t know where they parked at
or anything like that.
So he’s talking about his dad was in another vehicle. There was – two
vehicles left their house, and he’s talking about that car. And I believe there’s one
other place here. Just give me a second. I’ll find it.
....
A. . . . . Line 8, question was asked by the State, “Okay. Where was
your dad during all of this?”
7
Oliver also interviewed Sapphire Owens, Josh’s then-girlfriend, and Elizabeth Briggs, Briggs’s wife, who gave
information consistent with that given by Josh and Briggs.
Joshua Briggs: “I don’t remember. It all happened so fast. I don’t
remember him even being in the house.”
“Okay. Your dad did go with you to the residence; is that correct?”
“He was in a different vehicle.”
“But he did go to the location?”
[“]We – Shane and I went to the front. I don’t know where the other car
went – where the other car, where they were. They came in the house.[”]
Let me look here and see. I thought there was one other place, sir. Here
we go. On Page 32, sir, question number – Line 23. It says, “Okay” – that was a
question asked by the State. “Okay. You indicate your father was in another
vehicle, but he – but he was at the” – “he was at the residence?” Question.
“I never seen him come in the house. I never seen him at the residence,
but he got in the car that Mac was in.”
The cell phone records of Josh, Briggs, and Gina from July 18, 2017, through July 27, 2017,
were introduced into evidence. Elizabeth Buhay, an analyst with the telecommunication research
analysis unit of the Texas Department of Public Safety, testified that those records showed that,
on July 20 at 11:03 p.m., Briggs made a call on his cell phone to the telephone owned by Gina
and that the call lasted one minute and five seconds. Buhay testified that the records showed that
Briggs’s cell phone exchanged calls with Josh’s cell phone eight times between 5:45 p.m. and
7:59 p.m. on July 21 and that it exchanged calls with Shane’s cell phone four times between 8:01
p.m. and 8:21 p.m. on July 21. In addition, Buhay testified that there was no contact between
Briggs’s cell phone and Shane’s cell phone after July 21. Buhay testified that the records
showed that Josh made a cell phone call to Gina’s cell phone at 10:14 p.m. on July 21.
David Thompson, the commander of the criminal investigation division of the Fannin
County Sheriff’s Office (FCSO), subsequently took over the investigation. He testified that,
although they suspected Josh, Briggs, and Shane were involved in the shooting based on Gina’s
and Johnnie’s statements, the consistency of the phone records with their statements, and the
inconsistencies between Josh’s and Briggs’s statements and the phone records, there was not
enough evidence to make an arrest. This changed on August 17, 2020, when Sapphire Briggs,
Josh’s wife at the time, came to the FCSO to make a complaint on an unrelated matter.
Thompson testified that, when he interviewed Sapphire that day, she provided information about
the shooting that was not known to the public and that only people involved would know.
Thompson also testified that her statement was consistent with those of Gina and Johnnie and
was consistent with the phone records.8
Based on that new evidence, Thompson obtained arrest warrants for Josh and Briggs.
After Josh was arrested, Briggs fled into the woods as deputies pulled into his driveway. With
the aid of prison dogs, Briggs was located behind a house. After his arrest, Josh was interviewed
and again repeatedly denied that he had any knowledge of the shooting of Johnnie.9 Briggs was
also interviewed and repeatedly denied that he had any involvement, that he knew Johnnie, that
he was at Johnnie’s house, and that he made the telephone calls.
8
Before Sapphire came forward, Shane died in a motorcycle accident in 2019.
9
Robert Williams, an investigator with the FCSO, also interviewed Josh because he was familiar with him from
other cases. In that interview, Josh repeatedly denied that he was at Johnnie’s house, that he knew Johnnie, or that
he had any knowledge about the incident. Williams also interviewed Briggs, who also repeatedly denied that he was
at Johnnie’s house, that he knew Johnnie, or that he had any knowledge about the incident. Williams knew Josh
because Josh had some theft cases and was a confidential informant in a few narcotics cases. He also testified that
Briggs helped the FCSO recover a large amount of property stolen by Josh.
Thompson testified that Josh was charged with attempted murder because Johnnie was
shot in the head from point-blank range, which indicated they intended to kill him. Josh was also
charged with burglary with intent to commit an aggravated assault and with engaging in
organized criminal activity. He opined that the organized criminal activity charge was
appropriate because there was evidence that three or more people conspired to commit a crime
and at least three were inside the residence when Johnnie was shot. He testified that
investigators had not definitively determined who pulled the trigger but knew that Josh and two
other people were in the house. Thompson testified that in October 2021, Josh admitted that he
was at Johnnie’s house and that he was involved, named one other person involved, and
indicated that Briggs was at Johnnie’s house at the time of the shooting.
On cross-examination, Thompson testified that Johnnie said that, before the shooting, he
received a telephone call from someone who identified himself as Josh’s father and threatened
him that, if he continued to sell drugs to his son, there would be hell to pay. Thompson
considered “hell to pay” to be a threat, but also agreed that it could mean that Johnnie would go
to jail. Thompson testified that he did not know (1) whether Briggs had a gun on the night of
July 21, 2017, (2) whether Briggs shot Johnnie, (3) whether Briggs ordered someone to shoot
Johnnie, or (4) whether Briggs went inside Johnnie’s house that night. He testified that Josh’s
confession placed Briggs at Johnnie’s house, if not inside.
Thompson concluded from Sapphire’s statements, and from the statements of Briggs’s
daughter, Logan Briggs, that Briggs was at the scene and that Briggs organized and solicited the
incident. Thompson opined that the telephone records confirmed Johnnie’s statement that he
received a call from Josh’s father, contradicted Briggs’s statement that he was at home at the
time of the incident, and contradicted Josh’s original statement that he had lost his cell phone
before the incident.
Sapphire testified that she married Josh on April 19, 2019, and that they had been
together for five or six years when they married. She was close to all of Josh’s family, and she,
Josh, his parents, and his grandmother all lived in homes on the same pasture in Honey Grove.
Sapphire testified that Josh got involved in drugs in high school and that he had a problem with
methamphetamine.
She remembered that, on the night of July 21, 2017, Josh was “freaked out” about
Johnnie, who was his drug dealer. Josh was scared about something to do with Johnnie and
drugs. Josh told his father, who then called Johnnie and afterward called Shane. Shane then
came to Briggs’s house with three or four members of his biker gang.10 After they arrived, they
talked to Josh and Briggs about the situation, then they got ready outside. The women were told
to stay inside.11 Sapphire could not hear their conversation but could see them gathering their
weapons, which she said consisted of guns and a wooden stick. Sapphire’s understanding was
that they were going to scare Johnnie so he would leave Josh alone. She described their
demeanor as fairly calm and determined. Sapphire testified that, once it started getting dark,
Josh, Briggs, Shane, and the people Shane brought with him left the house. She remembered that
Josh and Briggs were in a truck and that the rest were on motorcycles.
10
Sapphire testified that Shane’s biker gang was a violent gang and that everybody in the family knew it.
11
Sapphire testified that she, Briggs’s wife (Liz), his mother (Mary), Josh, and Sapphire’s child (Kaydence) were in
the house.
After a while, the men returned. Sapphire testified that Josh was freaking out, laid on top
of her in a chair, and tried to tell her what happened but could not because he was crying. Then
Briggs and Shane came in, and Shane explained to them what happened and told them they could
not tell anybody about it. He said that his group did not play around and that, if anybody said
anything, they would come for them, their family, and everyone they cared about, including their
mom, sister, brother, and children. He said that they would kill everyone.
Although Shane said that, Sapphire testified, Briggs agreed with everything he said and
said that Shane was not kidding and that they had to be careful. Then Briggs said that somebody
would probably come around because a telephone call was indicated on the victim’s cell phone
before the incident happened. They said they all needed to be on the same page on what to say
when someone showed up. Briggs came up with the story that they were to tell—that they were
all home all night and did not leave. Sapphire remembered that Shane had an empty shell casing
that he showed them and said, “This is what happens to drug dealers that sell drugs to kids.”
Sapphire testified that, later that night, Josh told her what happened. He told her (1) that
he was instructed to hold the lady down in the front room, (2) that Shane and Briggs went to the
back room, (3) that a couple of other people came through the back door, and (4) that Johnnie
was shot in the head. A couple of days later, a Texas Ranger came by, and everyone told him
what they had been instructed to say. She testified that, when the topic randomly came up in the
following years, Briggs talked about how they got away with it and did not get caught.
According to Sapphire, Briggs was bragging, without remorse or shame. Sapphire testified that
it came up when she threatened to leave Josh, and Briggs told her that she knew a lot and made
sure that she would not say anything. However, the last time she left, Briggs told her that they
knew how to kill someone and that the same thing could happen to her.
Johnnie testified that, in July 2017, he received a telephone call from a man who said he
was Josh’s dad and asked if he was selling drugs to his son. Although Johnnie denied selling
drugs to his son, the man said that he was “going to send somebody to take care of [him].” On
the night of the shooting, Gina tried to warn him because they had already jumped her, then three
men rushed at him. He testified that he fought back until he got tired, then they held him down
and the dad looked at him and told him, “[W]hen I called you . . . I told you I would send
somebody to take care of you.”12
Josh testified that he did not recall if he used methamphetamine on the day of the
incident. He claimed that he probably went riding on his father’s motorcycle and that Shane was
at the house when he got back. According to Josh, Shane noticed he was high, pulled him
behind a shed, and threatened to blow his head off if he did not tell Shane where he got the dope.
Since Shane had a gun, Josh told him that he got it from Johnnie. While they were behind the
shed, some of Shane’s friends showed up, and they and Shane had a conversation in the
driveway.
Josh also testified that, at some point, he and Shane left the house in a car, but he did not
remember anybody else leaving. When they got to Johnnie’s house, he went to the back door,
knocked, and was let in by the lady. Shane then pushed him down and knocked the lady down,
and when he got back up, Shane threw him on the lady and told him to hold her. Then the other
12
Johnnie testified that, as a result of the shooting, he had about five percent use of his limbs, still had parts of the
bullet in his brain, was not able to walk, and resided in a nursing home.
bikers ran through the back door to the other end of the house, and he heard a gunshot. He
assumed Shane pulled the trigger.
Josh testified that, when they returned to Briggs’s house, Shane and the bikers told
everyone that they were never there, and if anybody said they were, they would come back and
kill everyone, including the children. Josh maintained that Briggs was sitting with his family and
was shaken up.
On direct examination, Josh maintained that he never saw Briggs at Johnnie’s house and
that he did not remember seeing him before he left his house. He maintained that, at his trial, he
said he did not know if Briggs was there and that he never saw him. He denied that he testified
that he saw Briggs get in the car with a man known as “Mac.” On cross-examination, Josh
agreed (1) that Briggs was at his house before he and Shane went to Johnnie’s house, (1) that
Briggs did not want Shane to be there, (3) that Briggs and Shane talked in the driveway where
Briggs tried to get Shane to leave, and (4) that Briggs told Shane to leave multiple times. He
testified that he did not see Briggs at Johnnie’s house or on the property that night.
In sum, Josh testified at Briggs’s trial in a manner that placed blame for the crimes at the
Jones house on Shane—who was deceased—and the other bikers.
Logan Briggs testified that Briggs is her father and that, at some point, she lived with
Briggs, Josh, and her sister Ashlyn. She testified that, in the summer of 2020 after he and
Sapphire broke up, Josh told her that Briggs, Shane, he, and a few others went down the road to a
man’s house, that he had to hold the girl down, and that the others beat the guy with a gun. Josh
told her that Briggs made him do it and did not say that Shane threatened him or Briggs.
II. The Evidence Was Insufficient to Support the Jury’s Verdict
In this appeal, Briggs challenges the sufficiency of the evidence to support his conviction
for engaging in organized criminal activity. He argues that there is no evidence that he conspired
to commit the predicate crimes alleged, that he participated in those crimes, or that there was an
agreement to continue to engage in criminal activity beyond the single criminal episode on the
night Johnnie was shot. We agree that there was legally insufficient evidence presented at trial
to support a conclusion that Briggs intended to participate in a combination beyond the night of
the shooting.
A. Standard of Review
“In evaluating legal sufficiency, we review all the evidence in the light most favorable to
the trial court’s judgment to determine whether any rational jury could have found the essential
elements of the offense beyond a reasonable doubt.” Williamson v. State, 589 S.W.3d 292, 297
(Tex. App.—Texarkana 2019, pet. ref’d) (citing Brooks v. State, 323 S.W.3d 893, 912 (Tex.
Crim. App. 2010)). “Our rigorous legal sufficiency review focuses on the quality of the evidence
presented.” Id. (citing Brooks, 323 S.W.3d at 917–18 (Cochran, J., concurring)). “We examine
legal sufficiency under the direction of the Brooks opinion, while giving deference to the
responsibility of the jury ‘to fairly resolve conflicts in testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts.’” Id. (quoting Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007)).
“Legal sufficiency of the evidence is measured by the elements of the offense as defined
by a hypothetically correct jury charge.” Id. (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex.
Crim. App. 1997)). “The ‘hypothetically correct’ jury charge is ‘one that accurately sets out the
law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof
or unnecessarily restrict the State’s theories of liability, and adequately describes the particular
offense for which the defendant was tried.’” Id. (quoting Malik, 953 S.W.2d at 240).
In our review, we consider “events occurring before, during and after the commission of
the offense and may rely on actions of the defendant which show an understanding and common
design to do the prohibited act.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)
(quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985)). It is not required that
each fact “point directly and independently to the guilt of the appellant, as long as the cumulative
force of all the incriminating circumstances is sufficient to support the conviction.” Id.“Circumstantial evidence and direct evidence are equally probative in establishing the guilt of a
defendant, and guilt can be established by circumstantial evidence alone.” Paroline v. State, 532
S.W.3d 491, 498 (Tex. App.—Texarkana 2017, no pet.) (citing Ramsey v. State, 473 S.W.3d
805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13) (citing Guevara v. State, 152
S.W.3d 45, 49 (Tex. Crim. App. 2004))). “Further, ‘we must consider all of the evidence
admitted at trial, even if that evidence was improperly admitted.’” Williamson, 589 S.W.3d at
297–98 (quoting Fowler v. State, 517 S.W.3d 167, 176 (Tex. App.—Texarkana 2017), rev’d in
part by 544 S.W.3d 844 (Tex. Crim. App. 2018)).
The jury, as “the sole judge of the credibility of the witnesses and the weight to be given
their testimony[, could] ‘believe all of [the] witnesses’ testimony, portions of it, or none of it.’”
Id. at 297 (second alteration in original) (quoting Thomas v. State, 444 S.W.3d 4, 10 (Tex. Crim.
App. 2014)). “We give ‘almost complete deference to a jury’s decision when that decision is
based upon an evaluation of credibility.’” Id. (quoting Lancon v. State, 253 S.W.3d 699, 705
(Tex. Crim. App. 2008)).
B. Engaging in Organized Criminal Activity
“Under the Penal Code, a person engages in organized criminal activity ‘if, with the
intent to establish, maintain, or participate in a combination or in the profits of a combination, he
commits or conspires to commit one or more [enumerated offenses, including theft].’” Hart v.
State, 89 S.W.3d 61, 63 (Tex. Crim. App. 2002) (quoting TEX. PENAL CODE ANN. § 71.02).
“The term combination means ‘three or more persons who collaborate in carrying on criminal
activities.’” Id. (quoting TEX. PENAL CODE ANN. § 71.01(a)). “To establish participation in a
combination, the State must prove ‘that the appellant intended to “establish, maintain, or
participate in” a group of three or more, in which the members intend to work together in a
continuing course of criminal activities.’” Id. (quoting Nguyen v. State, 1 S.W.3d 694, 697 (Tex.
Crim. App. 1999)). In other words, there must be continuity to the combination in which the
defendant and at least two other persons intended and “agreed to ‘work together in a continuing
course of criminal activities.’” Nguyen v. State, 1 S.W.3d 694, 697 (Tex. Crim. App. 1999)
(quoting Nguyen v. State, 977 S.W.2d 450, 455 (Tex. App.—Austin 1998, pet. ref’d)).
As a result, an agreement to jointly commit a single crime will not satisfy the requirement
to show a combination.13 Id. Likewise, a showing of multiple crimes in a single criminal
13
This is not to say that a showing of a series of criminal acts is required to show an intent to engage in a continuing
course of criminal activities. Rather, the Texas Court of Criminal Appeals has explained that “a showing of an
intent to establish a combination did not foreclose the possibility that the proscribed action may be the first actual
episode may not show the continuity needed to establish a combination. Ross v. State, 9 S.W.3d
878, 882 (Tex. App.—Austin 2000, pet. ref’d). Rather, “[t]here must be proof of an intent to
participate in a criminal combination that extends beyond a single criminal episode, ad hoc
effort, or goal, regardless of whether multiple laws were broken within the confines of that
episode or effort.” Lashley v. State, 401 S.W.3d 738, 744 (Tex. App.—Houston [14th Dist.]
2013, no pet.) (citing Arredondo v. State, 270 S.W.3d 676, 682–83 (Tex. App.—Eastland 2008,
no pet.). In Ross, a group of boys sought to retaliate against a girl who purportedly cut them off
in traffic. Ross, 9 S.W.3d at 880. The boys committed a series of assaults while pursuing the
girl on Interstate 35 and beat her when she was forced to come to a stop. Id. at 880, 882.
Because there was no evidence that would lead to a reasonable inference of an agreement to
continue criminal activity after their final assault on the girl, the court of appeals held that the
evidence was insufficient to support a conviction for engaging in organized criminal activity. Id.
at 882.
Under the Texas Penal Code, a person may engage in organized criminal activity either
by commission, or by conspiring to commit, one or more of the enumerated offenses. See
O’Brien, 544 S.W.3d at 392; TEX. PENAL CODE ANN. § 71.02 (Supp.). Whether the State
charges the defendant with engaging by commission or engaging by conspiracy, “the State still
must prove the existence of a criminal combination.” O’Brien, 544 S.W.3d at 393 (citing
Nguyen, 1 S.W.3d at 695–96). In other words, in both instances, the State must show an
agreement between the defendant and at least two other persons to continue criminal activity.
crime committed by a member of the combination.” O’Brien v. State, 544 S.W.3d 376, 390 (Tex. Crim. App. 2018)
(citing Nguyen, 1 S.W.3d at 697).
C. Analysis
The indictment charged Briggs with conspiring to commit burglary, aggravated assault
with a deadly weapon, assault causing bodily injury, deadly conduct, theft, tampering with
witnesses, obstruction or retaliation, or the unlawful transportation of a firearm. Briggs
challenges the sufficiency of the evidence to support a finding that there was an agreement to
continue to engage in criminal activity beyond the single criminal episode on the night Johnnie
was shot. The State concedes that the offenses that occurred during the invasion of Johnnie’s
home could be viewed as a single criminal episode but asserts that the members of the
combination unlawfully transported firearms,14 tampered with witnesses,15 and committed
obstruction and retaliation.16
We agree that there is legally sufficient evidence of an agreement between Briggs, Shane,
Josh, and possibly others, to exact revenge upon Johnnie for selling methamphetamine to Josh
and that, in executing that plan, multiple offenses were committed in a single criminal episode.
We also agree that Shane’s threats to kill every member of Briggs’s family should he or his
fellow gang members be implicated in the attack on Johnnie is some evidence of witness
tampering and obstruction or retaliation. Critically, what is lacking in the trial record is any
14
See TEX. PENAL CODE ANN. § 46.02(a-1)(2)(A), (B) (Supp.) (requiring, among other things, that the person
“carries on or about his or her person a handgun in a motor vehicle or watercraft that is owned by the person or
under the person’s control”). Although the firearm used in the shooting of Johnnie was not recovered, there was no
evidence that it was transported by a person in a motor vehicle owned by or under the control of that person.
15
See TEX. PENAL CODE ANN. § 36.05.
16
See TEX. PENAL CODE ANN. § 36.06.
evidence of an agreement between Briggs, Shane, and Shane’s gang members regarding that
threat.
The only evidence of that threat was through Sapphire’s testimony. Regarding the threat,
Sapphire said,
[Shane] told us that if we tried to tell anybody what happened, that the people that
Shane ran with would kill all of us. And [Shane] said they didn’t care if it was
your mom, your sister, brother, kid, nothing, that it didn’t matter who it was, that
they would come kill everyone we cared about if we tried to tell anybody that
they were affiliated with the situation.
Sapphire also testified that Briggs said Shane was not kidding, that Shane was serious, that they
had to be careful, and that Briggs devised a plan for what the family members should say if
questioned by law enforcement.
From the testimony regarding Briggs’s actions after Shane made his threat, a reasonable
jury could infer that Briggs agreed with those involved in shooting Johnnie that his, Josh’s,
Shane’s, and the gang members’ involvement in the shooting should not be revealed. However,
it is unremarkable that persons involved in a serious crime would agree to keep their
involvement secret. At most, that would amount to the final act of the single criminal episode
that sought revenge on Johnnie.
An examination of Sapphire’s testimony shows that a reasonable jury could not infer
from that testimony that Briggs entered into an agreement with Shane and his gang members to
threaten the lives of his family. First, Shane’s threat was conditional; he and his gang would
execute it only if a member of Briggs’s family told somebody that Shane and his gang were
involved in the shooting. He did not make a similar threat if Briggs or Josh were implicated in
the crime. Further, the threat to “kill everyone [they] cared about” necessarily included Briggs’s
mother, wife, children, and grandchildren, as well as Briggs himself. No reasonable jury could
infer that Briggs would agree to such a threat against all those for whom he cared.
Sapphire also testified that, several times between the night of the incident and when she
left Josh in August 2020, she threatened to leave Josh. When she made those threats to leave
Josh, Briggs reminded her that she knew a lot and made sure that she would not say anything.
When she finally left in 2020, Briggs told her, “[W]e know how to kill somebody and . . . same
thing could happen to you.” Notably, Sapphire did not testify that Briggs ever reminded her of
the threat made by Shane or that he made any threat that involved Shane and his gang. Further,
the final threat by Briggs was made at least eight months after Shane died. While this may be
evidence that Briggs, individually, threatened Sapphire, it is not evidence of an agreement
between Briggs, Shane, and the gang members to threaten the lives of Briggs’s family.
As a result, we find that there was legally insufficient evidence of an agreement between
Briggs and at least two other persons to continue criminal activity beyond the single criminal
episode that sought revenge on Johnnie. Consequently, we find that there was legally
insufficient evidence to support Briggs’s conviction for engaging in organized criminal activity.
III. No Lesser-Included Offense Under the Indictment
After finding that the evidence was insufficient to support a defendant’s conviction, we
are required to determine whether the conviction should be modified to reflect a conviction for a
lesser-included offense. See Canida v. State, 434 S.W.3d 163, 166 (Tex. Crim. App. 2014). To
do so, we
must answer two questions: 1) in the course of convicting the appellant of the
greater offense, must the jury have necessarily found every element necessary to
convict the appellant for the lesser-included offense; and 2) conducting an
evidentiary sufficiency analysis as though the appellant had been convicted of the
lesser-included offense at trial, is there sufficient evidence to support a conviction
for that offense? If the answer to either of these questions is no, the court of
appeals is not authorized to reform the judgment. But if the answers to both are
yes, the court is authorized—indeed required—to avoid the “unjust” result of an
outright acquittal by reforming the judgment to reflect a conviction for the lesser-
included offense.
Thornton v. State, 425 S.W.3d 289, 300 (Tex. Crim. App. 2014).
Because “prosecutors have broad discretion in deciding which cases to prosecute,” Lang
v. State, No. PD-1124-19, 2022 WL 3641007, at *3 (Tex. Crim. App. Aug. 24, 2022) (quoting
Neal v. State, 150 S.W.3d 169, 173 (Tex. Crim. App. 2004), modifying a judgment is only
“proper when the ‘lesser included’ offense is authorized by the indictment,” Id. (quoting Walker
v. State, 594 S.W.3d 330, 340 (Tex. Crim. App. 2020)). See TEX. CODE CRIM. PROC. ANN. art.
37.09(1) (“An offense is a lesser included offense if . . . it is established by proof of the same or
less than all the facts required to establish the commission of the offense charged[.]”). In other
words, “a lesser-included offense exists if proof of the alleged offense would also prove the
supposed lesser-included offense.” Lang, 2022 WL 3641007, at *3. For that reason, we must
first determine whether there is a lesser-included offense of the greater offense as charged in the
indictment. See id.We use the cognate-pleadings approach “[t]o determine whether a lesser-included offense
exists under article 37.09(1).” Id. at *4 (citing Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim.
App. 2007)). Using this approach, we “compare[] the elements of the greater, charged offense as
stated in the indictment to the statutory elements of the purported lesser-included offense.” Id.(citing Fraser v. State, 583 S.W.3d 564, 568 (Tex. Crim. App. 2019)). We will find that an
offense is a lesser-included offense of the offense charged in the indictment “if the indictment for
the greater-inclusive offense either: 1) alleges all of the elements of the lesser-included offense,
or 2) alleges elements plus facts (including descriptive averments . . . ) from which all of the
elements of the lesser-included offense may be deduced.” Id. (quoting Ex parte Watson, 306
S.W.3d 259, 273 (Tex. Crim. App. 2009) (per curiam, op. on reh’g)).
As noted earlier, the indictment in this case charged Briggs with engaging in organized
criminal activity by conspiring to commit certain predicate offenses. The predicate offenses
alleged included both felonies (e.g., burglary of a habitation17 and aggravated assault with a
deadly weapon18) and misdemeanors (e.g., assault causing bodily injury19 and theft of a cell
phone20). “When the State charges a defendant with engaging by conspiracy—as with any
conspiracy—jury unanimity is not required regarding the particular overt acts alleged because
17
See TEX. PENAL CODE ANN. § 30.02(c)(2).
18
See TEX. PENAL CODE ANN. § 22.02(b) (Supp.).
19
See TEX. PENAL CODE ANN. § 22.01(b).
20
See TEX. PENAL CODE ANN. § 31.03(e)(3)
the gravamen of the offense is the agreement.” O’Brien, 544 S.W.3d at 392–93. Further,
“[w]hen the State charges a defendant with engaging by conspiracy—as with any conspiracy—
the State is not required to show a completed offense.” Id. at 393.
Under the organized crime statute, “‘[c]onspires to commit’ means that a person agrees
with one or more persons that they or one or more of them engage in conduct that would
constitute the offense and that person and one or more of them perform an overt act in pursuance
of the agreement.” TEX. PENAL CODE ANN. § 71.01. This definition is similar to the elements of
a criminal conspiracy. See TEX. PENAL CODE ANN. § 15.02(a)(1), (2). However, to commit a
criminal conspiracy, the State must also show that the person intended “that a felony be
committed.” TEX. PENAL CODE ANN. § 15.02(a). While the intent that a felony be committed
might be derived from the allegations that Briggs conspired to commit the felony offenses
alleged, the intent that a felony be committed cannot be derived from the allegation that Briggs
conspired to commit the misdemeanor offenses alleged.
Because, under the indictment, the State could prove the offense charged by showing that
Briggs conspired to commit only the predicate misdemeanor offenses, the alleged offense would
not also prove criminal conspiracy. For that reason, we find that there was no lesser-included
offense alleged under the indictment. Accordingly, we decline to modify the judgment to reflect
a conviction of a lesser-included offense.
IV. Disposition
For the reasons stated, we reverse the trial court’s judgment and render a judgment of
acquittal for the offense of engaging in organized criminal activity.21
Charles van Cleef
Justice
Date Submitted: January 27, 2023
Date Decided: April 21, 2023
Do Not Publish
21
Because Briggs’s first issue entitles him to an acquittal, we need not address his other issues.