Is It a Crime to Look Like a Member of a “Criminal Street Gang”?

October 21st, 2020 by Tad Nelson in Misdemeanor Crimes

One of the ideals of our criminal justice system is the notion that someone is not guilty of a crime simply based on how they look or appear. Unfortunately, reality does not always meet this ideal. For example, in recent years there has been a movement against individuals who are perceived as belonging to a “street gang” based on their dress or appearance.

The Texas Penal Code actually defines a street gang as “three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities.” Now, that definition clearly indicates the group must actually be involved in the commission of crimes. Nevertheless, police are often quick to arrest perceived gang members without regard for whether any crimes have actually occurred.

Appeals Court Throws Out Misdemeanor Conviction Due to Lack of Evidence

The Texas Seventh District Court of Appeals recently addressed such a case. In Martin v. State, the defendant was riding his motorcycle through Lubbock County when he was stopped for speeding. During the stop, the officer noted the defendant wore clothing suggesting he belonged to a particular motorcycle club.

The defendant also had a firearm with him, which he disclosed to the officer. The officer proceeded to arrest the defendant. Why? Because in Texas, it is a misdemeanor offense for a member of a “criminal street gang” to carry a firearm. And the officer believed the defendant’s motorcycle club to be a criminal street gang. A jury subsequently convicted the defendant of the misdemeanor offense and fined him $400.

man in handcuffs

The problem, as the Court of Appeals explained, was that there was no evidence that the defendant actually belonged to a criminal street gang. The arresting officer relied on the defendant’s dress to conclude he belonged to an organization considered a criminal street gang. But this conclusion was based on general law enforcement intelligence, not any specific crimes allegedly committed by the defendant.

Indeed, the defendant himself testified that aside from traffic tickets, he had “never been convicted of a felony or a misdemeanor.” And as the Seventh District noted, it is not enough to prove a person belongs to a gang based on their dress or affiliation. The defendant “must also continuously or regularly associate in the commission of criminal activities.”

Here, the only evidence produced regarding the defendant’s association with criminal activity came from a 2015 incident in Waco. There was apparently a shootout between the defendant’s motorcycle club and another organization, both of whom are considered criminal street gangs by law enforcement. The defendant did not participate in the shooting, but he was arrested along with approximately 170 other individuals who were present. However, police later released the defendant without charging him.

Given all this, the Seventh District reversed the jury’s verdict and ordered the defendant acquitted on the misdemeanor charge.

Speak with a Houston Misdemeanor Crimes Defense Lawyer Today

Even when a misdemeanor only results in a fine without jail time, you still have the right to contest the legality of the prosecution or the sufficiency of the evidence presented at trial. A qualified criminal defense attorney can represent you in such matters. So if you have been charged with a misdemeanor offense and need representation, contact the Law Offices of Tad Nelson & Associates in Houston, Galveston or League City today. Call 281-280-0100.

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