OPINION ON REMAND Before QUINN, C.J., and PIRTLE and PARKER, JJ. Following a plea of not guilty, Appellant, Jeffery Scott Estrada, was convicted by a jury of engaging in organized criminal activity,[1] and sentenced to seventeen years confinement. On direct appeal, this court reversed Appellant’s conviction because it was based, in part, on the submission of an invalid predicate offense, to-wit: possession of a controlled substance with intent to deliver. Based on that finding and our analysis of whether the judgment should be reformed in accordance with the precedent set forth in Bowen v. State, 374 S.W.3d 427 (Tex. Crim. App. 2012), and its progeny, we remanded the case to the trial court for further proceedings consistent with our opinion. See Estrada v. State, 570 S.W.3d 402 (Tex. App.—Amarillo 2019), vacated and remanded, Estrada v. State, 2020 Tex. Crim. App. Unpub. LEXIS 168 (Tex. Crim. App. Apr. 15, 2020). The State then filed a petition for discretionary review. By two grounds, the State argued this court erred in: (1) determining that possession with intent to deliver was an invalid predicate offense and (2) remanding this case to the trial court without conducting a harmless error analysis. On April 15, 2020, the Texas Court of Criminal Appeals refused the State’s petition for discretionary review as to its first ground based on Hughitt v. State, 583 S.W.3d 623 (Tex. Crim. App. 2019); however, it granted the State’s petition as to its second ground. The Court of Criminal Appeals then vacated the judgment of this court and remanded the matter so that we could determine if the necessary considerations for reformation were met in light of Walker v. State, 594 S.W.3d 330, 340 (Tex. Crim. App. 2020) (holding that the lack of a valid predicate offense under the same circumstances as in this case amounted to a substantive defect in the indictment, but not the lack of an indictment altogether and further finding that reformation of the judgment to possession of a controlled substance with intent to deliver was still authorized by the indictment as a lesser-included offense). Estrada, 2020 Tex. Crim. App. Unpub. LEXIS 168, at *2. On remand, believing our prior opinion did conduct a harmless error analysis, as reflected by our decision to remand for a new trial based on the valid predicate offense of delivery of a controlled substance, we requested supplemental briefing from the parties for guidance. Because the facts in Walker are somewhat distinguishable from the facts of this case, the State contends that it should be given the option of either (1) a new trial on the offense of engaging in organized criminal activity based upon the valid predicate offense of delivery of a controlled substance, as indicted[2] or (2) reformation of the judgment to the lesser-included offense of criminal conspiracy to commit possession of a controlled substance with intent to deliver more than 200 grams but less than 400 grams of methamphetamine.[3] In his supplemental brief, Appellant contends reformation is the appropriate disposition. Because the Court of Criminal Appeals has already implicitly rejected our previous analysis remanding this matter for a new trial as to the offense of engaging in organized criminal activity based on the predicate offense of delivery of a controlled substance, we vacate our prior opinion and hereby issue in its stead this opinion, reversing the judgment of the trial court and remanding the matter to the trial court to reform the judgment to reflect a conviction as to the lesser-included offense of criminal conspiracy to commit possession of a controlled substance with intent to deliver more than 200 grams but less than 400 grams of methamphetamine. We remand the cause to the trial court to conduct a new punishment hearing as to that conviction. ISSUES PRESENTED As to the judgment entered by the trial court, Appellant contends (1) the evidence is insufficient to establish that he committed the offense of engaging in organized criminal activity as alleged in the indictment and (2) the trial court erred in admitting his written statement and an audio recording of his interrogation, over objection, because he did not knowingly, intelligently, and voluntarily waive his rights before making the oral and written statements. BACKGROUND On May 8, 2014, Joaquin Coronado, Appellant’s cousin, and Mandy McKinley were arrested in Plainview. Mandy had methamphetamine on her person and Joaquin had an outstanding warrant. While in custody, they were interviewed by Agent Jeffrey Ashburn of the Criminal Investigation Division of the Texas Department of Public Safety regarding a methamphetamine distribution enterprise in Littlefield. According to Mandy, an admitted addict, she met Joaquin in January 2014, while he was incarcerated with her ex-husband. In March 2014, Joaquin subsequently sought her out to see if she could provide him with methamphetamine. The two used methamphetamine together and Joaquin began staying with her. At the time, Mandy had a source for obtaining methamphetamine, but when her source was arrested in mid- March, she contacted her niece in Amarillo to find a new source. Mandy’s niece put her in touch with a temporary source and eventually connected her and Joaquin with Kenneth Charles Dahl in mid-to-late March as their exclusive source. At first, Kenneth was delivering “quarters” (seven grams) to Joaquin and Mandy. As the frequency of their trips to Amarillo increased, so did the weight of the methamphetamine provided by Kenneth. Mandy testified that for “a couple of weeks,” they drove to Amarillo “every day,” taking alternate routes to avoid suspicion. Their routine was to purchase one ounce (28 grams) on one day and two ounces the next day and they alternated between one and two ounces thereafter. They bought the methamphetamine in bulk and she would weigh it. At Joaquin’s insistence, each ounce was divided into sixteenths (1.75 grams) which he would then “front” to others who would sell it for him. Pursuant to a series of questions from the prosecutor on the business of drug dealing, Mandy explained that “fronting” the methamphetamine meant providing the product to group members who in turn would sell it and bring back the money.[4] She disagreed with Joaquin’s business practice of “fronting” because members of the group were using most of the methamphetamine and not bringing back enough cash to replenish their supply of methamphetamine. At times, she was forced to use her own money to “re-up” the supply. By April 2014, she became frustrated when strangers began coming and going from her apartment to obtain methamphetamine from Joaquin. Mandy met Appellant in March 2014, through Joaquin, and the three began using methamphetamine together. She recalled Appellant accompanying her and Joaquin to Amarillo on one trip to buy methamphetamine. She also witnessed Joaquin give Appellant some of the methamphetamine. Appellant, also an admitted methamphetamine user, either purchased or did favors for Joaquin in exchange for methamphetamine. Appellant would keep some for personal use and at times, sold some for profit to pay his bills and make his car payment. He claimed he obtained methamphetamine in an amount of 1.75 grams at a time. On two occasions, Joaquin and Mandy enlisted him to cash forged payroll checks for profit. In that enterprise, Appellant kept more than half of the cash as his profit. Joaquin and Mandy were arrested on May 8, 2014. Almost six weeks later, on June 24, 2014, Appellant was arrested for possession of methamphetamine. More than a week later, on July 2nd, while still in custody, he was interviewed by Agent Ashburn regarding distribution of methamphetamine between March 2014 and May 2014. During that interview, which lasted over two hours, Appellant was properly admonished regarding his Miranda rights on two separate occasions. Appellant admitted he was a methamphetamine addict and that Joaquin controlled the methamphetamine distribution enterprise. At the time of Appellant’s interview, several members of the criminal combination alleged by the State were already in custody. Over the course of the interview, Appellant admitted that he acquired methamphetamine from Joaquin in exchange for favors. Appellant also admitted he was enlisted to cash the two forged payroll checks for Joaquin with fake identification provided by Mandy and that after cashing the checks, he kept a large portion of the cash for himself.[5] Appellant denied he was selling methamphetamine for Joaquin and claimed the methamphetamine provided to him was for his personal use. He later admitted he sold some of the methamphetamine for profit. He described how he would buy 1.75 grams of methamphetamine at a time for eighty dollars and then resell it for one hundred dollars. He also named at least three persons to whom he sold methamphetamine. Appellant further admitted traveling to Amarillo with Joaquin and Mandy on one occasion to meet Mandy’s source at a truck stop. He denied seeing the source but knew they had acquired methamphetamine because they did not have any with them when they left for Amarillo. When asked by Agent Ashburn if Appellant would agree that Joaquin “pretty much ran the show here in Littlefield as far as selling meth,” Appellant agreed that Joaquin “was the man.” In exchange for Agent Ashburn’s notifying the district attorney of Appellant’s cooperation, Appellant agreed to make a written statement describing the methamphetamine operation and the check-cashing scheme. Appellant acknowledged that there were no guarantees in exchange for his cooperation. In his written statement, Appellant implicated “Felix, Ashley, and Tawny” as other participants “in the deal” with Joaquin. After writing his statement, Appellant affixed his signature to it. He also identified other associates in a photographic lineup. The evidence outlined a methamphetamine distribution ring headed by Joaquin. He and his co-conspirators, including Appellant and Mandy, would travel to Amarillo from Littlefield to obtain methamphetamine from Kenneth to be distributed to surrounding towns. Quantities transported by Joaquin and his associates ranged from ounces to pounds of methamphetamine. In an eleven-page indictment, returned on April 12, 2016, Appellant was charged with the felony offense of engaging in organized criminal activity. In relevant part, the indictment alleged that Jeffery Scott Estrada: [O]n or about and between the 1st day of March, 2014 through the 15th day of May, 2014, and before the presentment of this indictment, in [Lamb County, Texas], did: Then and there knowingly deliver or possess with the intent to deliver a controlled substance in Penalty Group 1, to-wit: Methamphetamine, in an amount of 200 grams or more but less than 400 grams. And the defendant did then and there commit said offense with the intent to establish, maintain, or participate in a combination or in the profits of a combination, said combination consisting of three or more of the following individuals: Kenneth Charles Dahl, Joaquin Manuel Coronado, Mandy Beth McKinley, Celina Laiz Rodriguez, Ashley Kohl Rios, Eliseo Joel Martinez, Santiago Vizcarra, Jr., Isidro Lopez, Rodney Trevino, Jr., Summer McFadin, Felix Delarosa, Gillyan Goodwin, Natasha Rodriguez, Amanda Silvas, William Grant, Tawny Castillo and Jonathan Estrada, who collaborated in carrying on the heretofore criminal activity, by agreeing with one another that they would engage in conduct constituting said offense, and each individual named above, together with one or more of those individuals, performed an overt act in furtherance of said agreement, to-wit: [whereupon the indictment lists ten pages of "overt acts."] At no time did Appellant move to quash the indictment or otherwise object to the indictment on the basis that possession with intent to deliver is not a predicate offense for purposes of the offense of engaging in organized criminal activity. At trial, when the jury charge tracked the indictment, Appellant again did not object on that basis. After submission of the case to the jury, it returned a general verdict of guilty as to the offense of engaging in organized criminal activity and then later assessed Appellant’s punishment at seventeen years confinement in the Institutional Division of the Texas Department of Criminal Justice. ENGAGING IN ORGANIZED CRIMINAL ACTIVITY A person commits the offense of engaging in organized criminal activity “if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination . . . the person commits or conspires to commit one or more of the following: [enumerated predicate offenses].” TEX. PENAL CODE ANN. § 71.02(a). The predicate offenses are then listed in the eighteen enumerated subsections to section 71.02(a). The subsection relevant to this particular prosecution is subsection five which provides as follows: (5) unlawful manufacture, delivery, dispensation, or distribution of a controlled substance or dangerous drug, or unlawful possession of a controlled substance or dangerous drug through forgery, fraud, misrepresentation or deception; § 71.02(a)(5). The gravamen of the offense of engaging in organized criminal activity is a circumstance surrounding the conduct—the existence or creation of a combination that collaborates in carrying on criminal activities. O’Brien v. State, 544 S.W.3d 376, 391 (Tex. Crim. App. 2018). A “combination” requires three or more persons who collaborate in carrying on criminal activities. § 71.01(a) (West 2011). “Profits” means property constituting or derived from any proceeds obtained, directly or indirectly, from an offense listed in section 71.02. § 71.01(c). “Conspires to commit” means that a person agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense and that person and one or more of them perform an overt act in pursuance of the agreement. An agreement constituting conspiring to commit may be inferred from the acts of the parties. § 71.01(b). The overt act “need not be criminal in itself” and “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.” Otto v. State, 95 S.W.3d 282, 284 (Tex. Crim. App. 2003). CHARGE ERROR—UNASSIGNED ERROR Here, the predicate offenses alleged in both the indictment and the jury charge for the offense of engaging in organized criminal activity were (1) delivery of a controlled substance, to-wit: methamphetamine, in an amount of 200 grams or more but less than 400 grams and (2) possession with intent to deliver, a controlled substance, to-wit: methamphetamine, in an amount of 200 grams or more but less than 400 grams. The indictment further alleged that Appellant committed one or more of these predicate offenses as part of a collaboration of three or more persons “agreeing with one another that they would engage in conduct constituting said offense.” As a matter of unassigned error, we note that possession with intent to deliver is not a predicate offense enumerated in section 71.02(a). See Hughitt, 583 S.W.3d at 631; Walker v. State, No. 07-16-00245-CR, 2017 Tex. App. LEXIS 2817, at *5-6 (Tex. App.— Amarillo March 30, 2017) (mem. op., not designated for publication), rev’d in part on other grounds and remanded, 594 S.W.3d at 340; State v. Foster, No. 06-13-00190-CR, 2014 Tex. App. LEXIS 5877, at *4 (Tex. App.—Texarkana June 2, 2014, pet. ref’d) (mem. op., not designated for publication) (stating that “the terms of [section 71.02(a)(5)] are not violated by simply possessing a controlled substance with the intent to deliver it” and concluding the trial court properly quashed an indictment alleging organized criminal activity based on the predicate offense of simply possessing a controlled substance with intent to deliver). A clear reading of section 71.02(a)(5) indicates that simple possession of a controlled substance is a predicate offense only if committed through forgery, fraud, misrepresentation, or deception. See § 71.02(a)(5). An incorrectly alleged predicate offense is fundamental error where, as here, it cannot be ascertained whether the jury voted to convict based upon the proper predicate offense of delivery of a controlled substance or the improper predicate offense of possession with intent to deliver. See Fraser v. State, 523 S.W.3d 320, 342 (Tex. App.—Amarillo 2017), rev’d, 583 S.W.3d 564 (Tex. Crim. App. 2019) (finding that when a jury charge allows for conviction on a theory not supported by the law, the verdict cannot stand). Although the Court of Criminal Appeals has determined that the enumerated predicate offenses listed under section 71.02(a) are merely alternate manner and means of committing the offense of engaging in organized criminal activity and are not elements of the primary offense, O’Brien, 544 S.W.3d at 391, such a distinction is of little consequence where, as here, the jury charge allows for a conviction based upon facts which do not constitute an offense. It is simply a fundamental constitutional principle that one cannot be convicted for something that does not constitute a criminal offense. Posey v. State, 545 S.W.2d 162, 163 (Tex. Crim. App. 1977) (holding that “if it is the manner and means by which an act is done that makes the otherwise innocent act a criminal offense, it is necessary to allege facts showing the manner and means which make the act a criminal offense”). Furthermore, if the facts alleged do not constitute a criminal offense, the error need not be preserved through objection and it may be raised sua sponte by a reviewing court as unassigned error. Sanchez v. State, 209 S.W.3d 117, 120-21 (Tex. Crim. App. 2006) (holding same). Because the jury charge in this case allows for a conviction based on facts that do not constitute the offense of engaging in organized criminal activity, Appellant’s conviction cannot stand. Accordingly, based on this unassigned error, the judgment of the trial court is reversed. PROPER REMEDY In Bowen v. State, 374 S.W.3d 427 (Tex. Crim. App. 2012), the Court of Criminal Appeals held that when an appellate court reverses a conviction it is not necessarily limited to ordering an acquittal or remanding for a new trial. It may, instead, reform the judgment to reflect a conviction as to any lesser-included offense established by the evidence and remand for a new punishment hearing. Id. at 431-32. Under this precedent, in an appropriate circumstance, an intermediate appellate court may reform a judgment if two conditions are met: (1) the jury necessarily found every element necessary to convict the accused of the lesser-included offense when it convicted the accused of the reversed offense and (2) there is sufficient evidence to support a conviction as to that lesser-included offense. Here, the State contends reformation of the judgment to reflect a conviction for the lesser-included offense of criminal conspiracy would be appropriate. TEX. PENAL CODE ANN. § 15.02(a). Under this section of the Texas Penal Code, a person commits criminal conspiracy if, with intent that a felony be committed, he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the felony offense the object of the conspiracy, and he or one of the co-conspirators performs an overt act in pursuance of that offense. Appellant likewise agrees that reformation would be appropriate. An offense under section 15.02(a) of the Texas Penal Code is punishable according to the range of punishment one category lower than the most serious felony that is the object of the conspiracy. § 15.02(d). As originally indicted in this case, the felony offense the object of the conspiracy would be possession with intent to deliver a controlled substance, to-wit: methamphetamine in an amount of more than 200 grams but less than 400 grams. TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (e). This offense is a special punishment felony punishable by imprisonment for life or for a term of not more than 99 years or less than 10 years and by a fine not to exceed $100,000. § 481.112(e). Therefore, criminal conspiracy to commit possession with intent to deliver methamphetamine greater than 200 grams but less than 400 grams is an offense punishable as a first degree felony, i.e., by imprisonment for life or for a term of not more than 99 years or less than 5 years and a fine not to exceed $10,000. TEX. PENAL CODE ANN. § 12.32(a), (b) (West 2019). Here, by returning a verdict of guilty as to the offense of engaging in organized criminal activity (including the improper predicate offense of possession with intent to deliver), each juror necessarily found every element necessary to convict the accused of the lesser-included offense of criminal conspiracy, where the felony the object of the conspiracy was possession with intent to deliver. That is to say, every juror who believed Appellant engaged in organized criminal activity (whether by actual delivery or by possession with intent to deliver) necessarily found Appellant agreed with one or more persons that they or one or more of them would engage in conduct that would constitute the offense of possession with intent to deliver, and he or one of his co-conspirators performed an overt act or acts in pursuance of that offense. Furthermore, having reviewed the record, we find there is sufficient evidence to support a conviction as to the lesser-included offense of criminal conspiracy, where the felony offense the object of the conspiracy is possession with intent to deliver methamphetamine in an amount greater than 200 grams but less than 400 grams. By returning its verdict of guilty, the jury rejected Appellant’s defense that he was merely a user with no intent to engage in a combination with others for the purpose of acquiring, possessing, and distributing methamphetamine. Accordingly, we find reformation of the judgment to reflect a conviction for the lesser-included offense of criminal conspiracy to commit possession of a controlled substance, to-wit: methamphetamine, in an amount greater than 200 grams but less than 400 grams, to be the appropriate remedy under the facts of this case. CONCLUSION Therefore, we reverse the judgment of the trial court and remand this matter to the trial court to reform the judgment to reflect a conviction for the offense of criminal conspiracy to commit possession of a controlled substance, to-wit: methamphetamine, in an amount greater than 200 grams but less than 400 grams, and further, to hold a punishment hearing attendant to this post-reformation conviction in accordance with this opinion. Patrick A. Pirtle Justice Publish.
