Two questions regarding engaging in organized crime and committing the listed offense of capital murder:

(1) What's the lawful punishment range for "engaging" under 71.02 where the underlying offense alleged is capital murder? The statute says "one category higher" unless it's a first degree, but makes no specific provision for capital murder. The best we can come up with is that death is not a lawful sentence under 71.02 (but you would, of course, have the option to charge 19.03 in an additional count).

(2) Has anyone ever charged engaging this way? (Cause I can't find a single case in nearly 200 annotations to 71.02.) Are there potential benefits or drawbacks to including the engaging charge?

Although I have never seen it done in practice, I have always assumed that the death penalty is available for either engaging by committing or by conspiring. The plain language of the statute does not dispense with that possibility. Also, subsection (c) of Section 71.02 clearly states that "Conspiring to commit an offense under this section is of the same degree as the most serious offense listed in Subsection (a) that the person conspired to commit." The way I read it, this means that if a person commits engaging by conspiring to commit capital murder, it is a capital offense, which pursuant to section 12.31 of the Penal Code carries the possibility of death as a punishment. It would seem a little inconsistent to me to decide that death is available for engaging by conspiring to commit capital murder but not for engaging by committing captial murder.

Of Course, I have not done extensive research on this issue, and I defer to those who have and to any clear expressions of legislative intent that say otherwise.

[This message was edited by kyeary on 02-09-05 at .]

[This message was edited by kyeary on 02-10-05 at .]