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because Ex parte Flores’s interpretation is (2) the person is:
contrary to the plain language of the statute. . . . .
Specifically, in holding that a “gang ‘member’ (C) a member of a criminal street gang, as
must be one of the three or more persons who defined by section 71.01.
continuously or regularly associate in the
commission of criminal activities,” Ex “Member” is not defined, but section 71.01
parte Flores and the court of appeals collapse defines a criminal street gang as “three or
the two requirements into one, contrary to the more persons having a common identifying
plain language. Instead, according to the State sign or symbol or an identifiable leadership
Prosecuting Attorney (SPA), in determining who continuously or regularly associate in the
gang membership for UCW, two requirements commission of criminal activities.” Tex. Penal
are clear from sections 46.02(a-1)(2)(C) and Code § 71.01(d).
71.01(d): (1) the defendant must be a member
of thegroup, and (2) the group, among other In Ex parte Flores, the appellant argued that
things, must continuously or regularly “the term ‘criminal street gang,’ which section
associate in the commission of crime. 46.02(a-1)(2)(C) borrows from section 71.01(d)
of the Penal Code, is overbroad and
The SPA also argues that the court of appeals criminalizes constitutionally protected
went beyond Ex parte Flores, requiring direct conduct.” Flores also argued that section
participation in crime. Specifically, the State 46.02(a-1)(2)(C) uses the overbroad term
complains that the court did not address the “member” in defining who may not carry a
significance of Appellant’s four-year handgun in a vehicle.
membership, monetary contributions from
dues, or past leadership role, although all of First, the Flores court analyzed the
these things facilitated the Cossacks’ primary construction of the term “criminal street gang.”
activities (committing assaults, according to According to Flores, the term “criminal street
the State’s expert). Instead, the State complains gang” means “three or more persons having
that the court looked only to either (1) a common identifying sign, (2) a
evidence that Appellant was physically and common identifying symbol, or (3) an
personally involved in crime. Accordingly, the identifiable leadership who continuously or
SPA argues that the court erred by finding the regularly associate in the commission of
evidence to be insufficient for conviction. criminal activities.” Therefore, three or more
persons qualify as a criminal street gang if they
Texas Penal Code section 46.02(a-1)(2)(C) have a common identifying sign or symbol. n
provides that the appellant’s view, under this interpretation,
the three or more persons need not
A person commits an offense if the person continuously or regularly associate in the
intentionally, knowingly, or recklessly carries commission of criminal activities. As a result,
on or about his or her person a handgun in a the statute prohibits “a wide array of
motor vehicle or watercraft that is owned by constitutionally protected conduct by
the person or under the person’s control at prohibiting groups of people from meeting,
any time in which: congregating, or assembling, and having an
. . . . identifying sign or symbol.” This would lead to
Sept./Oct. 2022 www.texaspoliceassociation.com • (512) 458-3140 35
