Barber v. State

In Barber v. State, 764 S.W.2d 232 (Tex. Cr. App. 1988), the Court distinguished the elements of criminal conspiracy from those of organized criminal activity, emphasizing that the latter offense requires that "the actor must not only agree to participate but must himself perform some overt act in pursuance of that agreement." Barber, 764 S.W.2d at 235. However, Barber did not address the law of parties. The Court of Appeals was incorrect in its conclusion that the definition of engaging in organized criminal activity set forth in Barber precludes the State from relying on the law of parties in prosecutions for that offense. If anything, Barber's implication for the law of parties is simply that the elements of engaging in organized criminal activity render the State's reliance on the doctrine unnecessary. Because the "overt act" element of organized criminal activity need not be criminal in itself, (764 S.W.2d 232 (Tex. Cr. App. 1988)) acts that suffice for party liability - those that encourage, solicit, direct, aid, or attempt to aid the commission of the underlying offense - would also satisfy the overt act element of section 71.02. This does not mean, however, that the law of parties is "inapplicable" in a prosecution under section 71.02.