Page 38 - TPA Journal September October 2022
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which turned into a shootout where On appeal, Appellant claimed that the
several people were killed. evidence was insufficient to show that
he was a member of a criminal street gang.
Appellant testified on his own behalf. He Appellant admitted that he was factually
stated that he had been a member of a Cossacks member but denied that he was
the Cossacks for four years but that he did not legally a Cossacks member because the
believe that Cossacks were a criminal State failed to prove that he personally was a
street gang. He testified that he had never been criminal. For this, he relied on the
convicted of a felony or a misdemeanor,3 other Fourteenth Court of Appeals’ interpretation in
than traffic violations. Appellant admitted to Ex parte Flores that a “member” is one of the
being at the Twin Peaks Waco shootout three or more persons who continuously or
involving Cossacks, Bandidos, and law regularly associate in crime.
enforcement that resulted in nine deaths. At the
shootout, Appellant did not have a weapon on The Seventh Court of Appeals agreed, accep ed
his person, although he had one in his vehicle. the interpretation of the statute from Ex parte
He was arrested and detained, along with Flores, and held: “To be a gang member for
some 170 others who were present, and purposes of prosecution under the statute, ‘an
charged with criminal organization. These individual must be one of three or more
charges were later dismissed. Appellant persons with a common identifying sign,
testified that his best friend was one of seven symbol, or identifiable leadership and must
Cossacks who died in the shooting, and he a l s o
knew the others. He added tattoos to his continuously or regularly associate in the
body in their memory. To his knowledge, no commission of criminal activities.’”
Cossacks had been convicted for the
Twin Peaks incident. The court of appeals held that, under Flores,
both gang membership and a connection to
Appellant testified that there were six Cossacks criminal conduct are required and the record
in Lubbock, and they were mechanics and city is “devoid of evidence” showing that Appellant
employees, not criminals, although he associated in the commission of
acknowledged that law enforcement officers criminal activities. The court noted that
could not join. He and the other Cossacks paid Appellant’s arrest at Twin Peaks on
dues to a national organization, and they had charges that were later dismissed does not
common colors, a logo, and a motto. Appellant establish that he continuously or regularly
testified that he and the other five Cossacks in associated in the commission of criminal
Lubbock did not plot crimes together, activities. Therefore, the court of appeals held
and he denied personally assaulting anyone that the evidence was insufficient to show that
with other members. He testified he did Martin himself regularly or continuously
not participate in any bar fights or agree with engaged in criminal activity pursuant to his
other Cossacks to beat up Bandidos. membership in a gang.
The jury found Appellant guilty of the offense
of UCW and set his punishment The State Prosecuting Attorney’s Office filed a
at a fine of $400.00 with no term of petition for discretionary review with this
confinement. Court, arguing that the court of appeals erred
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