2015.93: Spaghetti Prosecution in Waco

 Posted on November 17, 2015 in Uncategorized

Here is one of the indictments arising from the Waco Twin Peaks killings:


This indictment charges three offenses: Murder ("Code: 19.02"), Aggravated Assault ("22.02"), and two counts Engaging in Organized Criminal Activity ("71.02").

Murder and Aggravated Assault are lesser-included offenses of the two EOCA counts. "Committing the offense as a member of a criminal street gang" makes an agg assault a first-degree felony, and makes a murder a fifteen-to-life crime.

To convict this defendant of the most serious offense charged the State would have to prove at least (under the law of parties):

  1. That the defendant intended to promote or assist the commission of some felony;

  2. That murder resulted, and should have been anticipated as a result of the carrying out of that crime;

  3. That the defendant solicited, encouraged, directed, aided, or attempted to aid another person to commit that felony; and

  4. That the defendant did so as a member of a criminal street gang.

Here's an interesting question: to convict the defendant of the EOCA, does the State have to prove beyond a reasonable doubt which person was murdered, or can the jury give a general verdict, so that they all agree that a murder occurred, just not which one? The answer ought to be "no," but the State might argue that "commits murder" is just a manner or means of committing EOCA, and a jury does not have to be unanimous on which manner and means a defendant has used to commit an offense. ((For example, if four jurors believe beyond a reasonable doubt that D murdered C by stabbing him, four believe that D murdered C by beating him, and four believe that D murdered C by shooting him, they may find D guilty of murdering C.)) If that were correct, then the jurors wouldn't even have to be unanimous on which underlying offense-murder or aggravated assault-the defendant was responsible for.

If the State had any confidence that they could prove their case-that D, as a member of a criminal street gang, deliberately assisted someone in committing a felony that predictably resulted in a certain person's case-they would have pled each murder separately. What they are hoping to do is throw a bunch of stuff at the wall, and hope that something sticks. If the State pleads, "D murdered A or B or C or... Z," the jury is much more likely to convict out of sheer confusion than if the State pleads "D murdered A" as one count, "D murdered B" as another, and so forth.

The unit of prosecution for EOCA as pled is not the criminal street gang, but rather the underlying offense. ((If they had pled EOCA by conspiring, the conspiracy would be the unit of prosecution, and it could include multiple deaths.)) So murdering A as a member of a criminal street gang is a separate offense from murdering B as a member of a criminal street gang. Multiple offenses arising from one "criminal episode" may be alleged in a single indictment, but they must be pled in separate counts.

If we take the gang allegations out of the picture (the State could abandon those allegations at any time) it seems obvious to me that the murders and aggravated assaults are even more improperly pled. The State has pled ten murders in one paragraph, and twenty-three aggravated assaults in the other. That'd be a separate ground for quashing the indictment.

The Waco defendants haven't paid me enough to research the issue, but their lawyers should certainly be considering motions to quash.

In Texas, motions to quash must be filed by the earlier of a) the formal motion-filing deadline, if there is one; and b) the day before trial. I'd wait till the last possible moment to file a motion to quash so that the State can waste as much time riding a defective charging instrument as possible before I force them to choose a different horse.

What good does a motion to quash do in this case? If it's denied, something interesting is preserved for appeal, and the lesser-included agg assault and murder are probably off the table because the only way the indictment works is if it's for a single count of EOCA pled in two separate pairs of two paragraphs. If the motion to quash is granted, the State has to rewrite their indictment to match the law-one count for each murder, one count for each aggravated assault, and sixty-six counts of EOCA.

Either way, the State's options for proving the case are narrowed. Which is, as Martha Stewart might have said, "a good thing."

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