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).