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9.3.

Conspiracy

West's Key Number Digest

West's Key Number Digest, Conspiracy 23 to 51


West's Key Number Digest, Criminal Law 422 to 428

Legal Encyclopedias

C.J.S., Conspiracy §§ 34 to 45

C.J.S., Conspiracy § 47

C.J.S., Conspiracy § 49

C.J.S., Conspiracy §§ 52 to 53

C.J.S., Conspiracy §§ 55 to 56

C.J.S., Conspiracy § 60

C.J.S., Conspiracy §§ 62 to 63

C.J.S., Conspiracy § 65

C.J.S., Conspiracy §§ 73 to 80

C.J.S., Conspiracy § 82
C.J.S., Conspiracy §§ 86 to 88

C.J.S., Conspiracy §§ 90 to 92

C.J.S., Conspiracy § 91

C.J.S., Conspiracy § 93(1, 5)

C.J.S., Conspiracy § 94(1, 3, 6)

C.J.S., Conspiracy § 96

C.J.S., Conspiracy § 57(1)

C.J.S., Criminal Law § 300

C.J.S., Criminal Law §§ 972 to 977

C.J.S., Criminal Law §§ 979 to 997

C.J.S., RICO (Racketeer Influenced and Corrupt Organizations) § 12

A conspiracy is committed if a defendant, acting with the intent to commit a


felony,
agrees with one or more individuals to engage in conduct that constitutes the
offense, and one or more of the conspirators performs an overt act in
furtherance of
the conspiracy. The agreement can be inferred from the parties' acts. It is no
defense that one or more of the conspirators is not criminally responsible;
that one
or more may have been acquitted, as long as two or more have not been; that
one of
the conspirators was not prosecuted, not convicted, convicted of a different
offense, or immune from prosecution; that the actor is legally incapable of
committing the intended offense; or that the offense was actually committed.
The
punishment grade is one level below that accorded the intended
offense.[FN1] This
standard is also utilized under the 1993 amendments.

As the Practice Commentary makes clear, the conspiracy statute, Section


15.02,
serves a dual purpose in criminal jurisprudence. First, it serves to fix the
point
of legal intervention at the agreement to commit the crime, plus an overt act
—a
point earlier in time than that fixed by the attempt statute,[FN2] but later
than
that fixed by the solicitation statute.[FN3] Second, it provides a means to
strike
at the special dangers of organized criminal activity and provides several
procedural and evidentiary advantages.[FN4]

Even though conspiracy is defined as a criminal agreement between two or


more
persons, a view reflecting the multilateral relationship of the conspirators,
Section 15.02 focuses on an individual's culpability by defining the offense
in
terms of the individual defendant's conduct rather than that of the
group.[FN5]
Thus, a given defendant's case will not be affected by the disposition of
coconspirators.
Conspiracy contains three essential elements: (1) the intent to commit a
felony, (2)
an agreement between two or more persons to commit that felony, and (3) an
overt act
by one of the conspirators in pursuance of or in furtherance of that
agreement.[FN6]

The corpus delicti of the offense of conspiracy is the agreement to commit a


crime.[FN7] The agreement is also the sine qua non of the offense. Without
the
agreement, there is no offense. If one of the parties to the conspiracy is, for
some
reason, insincere, as in the case of an undercover police officer entering into
an
agreement with the defendant merely to investigate but without the intent to
carry
out the offense, there is no conspiracy.[FN8]

The purpose of the overt act requirement has been described as providing
conspirators an opportunity to abandon the conspiracy and to avoid criminal
liability before the agreement is put into operation by a decisive act.[FN9]
The
overt act need not be the commission of the crime itself; in fact, the overt act
need not be criminal at all.[FN10] The commission of the intended crime is
never an
essential element of the crime of conspiracy.

One of the principal procedural advantages of the conspiracy theory is the


coconspirator exception to the hearsay rule. At its simplest, all statements
made by
coconspirators during the course of and in the furtherance of the conspiracy
are
admissible against any of the conspirators.[FN11] The hearsay exception is
not
limited to prosecutions for conspiracy but may be used in the prosecution of
any
offense in which coconspirators participate.[FN12] It is limited to only those
statements that are made prior to the conspiracy's termination and that
further its
aims.[FN13] A conspiracy is not terminated, however, until all that was
contemplated
to be done by the conspirators has been done.[FN14] Further, there must be
an
independent showing of the conspiracy before the statements are admissible,
with
evidence other than the statements.[FN15]

An indictment alleging conspiracy must allege the conduct that is the basis
of the
illegal agreement, at least in response to a claim for more specific
notice.[FN16]
Various circumstantial methods may establish conspiracy. Similar methods
of
operation together with joint activities and relationships will support a
finding of
conspiracy.[FN17] At least one court has ruled that the offense of conspiracy
applies only to offenses defined in the penal code unless the statute created
the
intended offense specifically either defines conspiracy or incorporates the
Penal
Code definition.[FN18]

[FNa0] Taos, New Mexico

--------------------------------------------------------------------------------

[FN1] V.T.C.A., Penal Code § 15.02.

[FN2] V.T.C.A., Penal Code § 15.01.


[FN3] V.T.C.A., Penal Code § 15.03.

[FN4] See V.T.C.A., Penal Code § 15.02, Practice Commentary.

[FN5] See V.T.C.A., Penal Code § 15.02, Practice Commentary.

[FN6] Dade v. State, 622 S.W.2d 580 (Tex.Crim.App.1981); Arney v. State,


580 S.W.2d
836 (Tex.Crim.App.1979).

[FN7] Brown v. State, 576 S.W.2d 36 (Tex.Crim.App.1978).

[FN8] Williams v. State, 646 S.W.2d 221 (Tex.Crim.App.1983). This


rationale is
carried over from the 1925 Penal Code. Weathered v. State, 128 Tex.Crim.
263, 81
S.W.2d 91 (App.1935). The 1970 Proposed Code would have eliminated the
“feigned
agreement” defense; this section, however, was not carried into the present
Code.

[FN9] Arney v. State, 580 S.W.2d 836 (Tex.Crim.App.1979) (Judge Clinton,


concurring).

[FN10] McCann v. State, 606 S.W.2d 897 fn. 1 (Tex.Crim.App.1980);


Brown v. State,
576 S.W.2d 36 (Tex.Crim.App.1978); Skidmore v. State, 530 S.W.2d 316
(Tex.Crim.App.1975).

[FN11] Delgado v. State, 544 S.W.2d 929 (Tex.Crim.App.1977).


[FN12] Rodriquez v. State, 552 S.W.2d 451 (Tex.Crim.App.1977).

[FN13] Denney v. State, 558 S.W.2d 467 (Tex.Crim.App.1977), cert. denied


437 U.S.
911, 98 S.Ct. 3104, 57 L.Ed.2d 1142 (1978).

[FN14] Bates v. State, 587 S.W.2d 121 (Tex.Crim.App.1979).

[FN15] Bates v. State, 587 S.W.2d 121 (Tex.Crim.App.1979).

[FN16] Lindsay v. State, 588 S.W.2d 570 (Tex.Crim.App.1979).

[FN17] Rainey v. State, 877 S.W.2d 48 (Tex.App.—Tyler 1994, no pet.).

[FN18] State v. Delay, 2006 WL 1041048 (Tex.App.—Austin 2006).