Penal Code section 71.02 (a) states:

"A person commits an offense if, with the intent to establish, maintain, or participatein a combination or in the profits of a combination or as a member of a criminal street gang, he commits or conspires to commit one or more of the following [offenses]...." (my emphasis)

Our indictment (which is based on prose from the TDCAA charging manual) states that the defendant committed the offense of aggravated assault "and did then and there commit said offense a a member of a criminal street gang."

Defense has filed motion to quash, believing that indictment should say "and with the intent to establish, maintain, or participate did then and there commit said offense as a member of a criminal street gang."

Do we have to prove "with the intent to establish, maintain, or participate" as part of the criminal street gang enhancement?

Defense is relying on two cases:

curiel v state 243 sw3d 10 (houston 2007)
nguyen v state 2008 wl 3823980 (dallas 2008) both which seems to hold that you must allege the with intent to maintain, establish or participate language

I'm relying on:

jaramillo v state 2002 wl 1301566 (el paso 2002) which seems to hold that charging either way is acceptable

Any input is greatly appreciated!