Page 41 - TPA Journal September October 2022
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This absurd result is precisely what happened criminal street gang. TEX. PENAL CODE §§
in this case: Though not a criminal for purposes 46.02(a-1), 71.01. According to the SPA, to
of carrying a firearm, Appellant became one prove the second portion of the offense—that
simply by riding his motorcycle while wearing the same individual is a member of a criminal
his cut. This very fact scenario is what the court street gang—the State need only show
of appeals in Flores was trying to avoid in its that the accused is listed in the statewide gang
interpretation. The Flores court was clear database, and it is not necessary prove
that law enforcement may not arrest a person that he has any knowledge of the commission
under this section merely because they of criminal activities of the organization. We
recognize gang signs or symbols. Instead, law disagree. The Legislature must surely have
enforcement must also determine whether the intended that, to be a member of a criminal
person is carrying a handgun in a street gang, the actor “must be one of three or
vehicle and whether he or she continuously or more persons with a common identifying sign,
regularly associates in the commission symbol, or identifiable leadership and must
of criminal activity. also continuously or regularly associate in the
commission of criminal activities.” Otherwise,
Although the constitutionality of the statute is the statute would attach a mens rea to nothing
not challenged in this proceeding, we cannot more than membership in an organization.
ignore the unconstitutional implications of the Membership alone does not make conduct
SPA’s interpretation. criminal, and in fact, the First Amendment to
the United States Constitution specifically
The Flores court recognized that without protects the freedom of association.
requiring direct participation in the
organization’s criminal activity, the statute The Flores court properly clarified what
cannot withstand constitutional scrutiny. This conduct makes an individual a
is because an interpretation without member of a criminal street gang: individual
direct participation requires neither criminal participation in crime. This interpretation of
mens rea nor actus reus by the accused section 46.02(a–1)(2)(C) does not prevent
unlawful weapon carrier. Instead, it would gang members from gathering to engage in any
only require the accused to join an activities protected by the First Amendment. It
association in which criminal activity occurs does not deem a person to be a “member” of a
regularly among three or more individuals— criminal street gang simply by associating with
even if the accused is unaware of such a group that has three or more members who
conduct. We have previously held that where continuously or regularly associate in the
otherwise innocent behavior becomes criminal commission of criminal activities.
because of the circumstances under which it is Therefore, it does not implicate the
done, a culpable mental state is required as to constitutional right to freedom of association
those surrounding circumstances. or authorize state action based on the doctrine
of guilt by association.
Applicable to the present case, a person
commits unlawful carry if he “intentionally, With this in mind, we now turn to the second
knowingly, or recklessly carries on or about his part of the SPA’s argument that the court of
person a handgun” while being a member of a appeals erred in holding that the evidence is
Sept./Oct. 2022 www.texaspoliceassociation.com • (512) 458-3140 37
