In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-16-00245-CR 

KENYETTA DANYELL WALKER, APPELLANT 

 

V. 

 

THE STATE OF TEXAS, APPELLEE 

 

On Appeal from the 163rd District Court 

Orange County, Texas 

Trial Court No. B-150206-R, Honorable Dennis Powell, Presiding 

 

March 30, 2017 

 

MEMORANDUM OPINION 

 

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. 

We have before us an appeal from a conviction for “engaging in organized 

criminal activity.” Kenyetta Daniel Walker, through her attorney, poses one issue 

questioning both the legal and factual sufficiency of the evidence underlying the 

conviction. We reverse but not for the reasons cited by appellant’s counsel. 1

 

1

Because this appeal was transferred from the Ninth Court of Appeals, we are obligated to apply 

its precedent when available in the event of a conflict between the precedents of that court and this court. 

See TEX. R. APP. P. 41.3.
2

Background

Appellant was arrested after the investigation of a shoot-out occurring at a 

residence wherein she, two children, and at least one male lived. The incident was 

captured on surveillance cameras mounted outside the house, or at least the extent of 

the incident occurring outside the abode was filmed. The video obtained from those 

cameras revealed three individuals forcing their way into the abode, flashes of light 

appearing through the windows, and three men leaving or attempting to leave. One of 

the three appeared unscathed. One limped away. One crawled out only to die in the 

front yard. The video also captured appellant removing a bag from the house and 

depositing it in a car. It was eventually discovered that the bag contained controlled 

substances, including hydrocodone for which appellant would eventually be charged 

with possessing. 

Other evidence indicated that the three men entered the abode and began firing 

weapons. In response, appellant acquired a gun and returned fire. Her return fire 

apparently struck one or more of the intruders. 

The police arrived and found the dead body lying on the ground outside the 

house and a male occupant of the house sitting injured by or on the porch. Once inside,

they discovered bullet holes in the walls, scales, plastic baggies, a large sum of small 

denomination dollar bills, raw marijuana, and other drugs. Many of the drugs and drug 

paraphernalia were found in a “man-cave” bedroom. Some evidence indicated that 

appellant kept a majority of her clothes in that “man-cave.” 

The State eventually indicted appellant. Through the instrument, it alleged that 

she committed the following acts:
3

did then and there intentionally and knowingly possess a controlled 

substance, to wit: Dihydrocodeinone, hydrocodone with one or more 

active nonnarcotic ingredients, in an amount by aggregate weight 

including adulterants and dilutants, of 400 grams or more[.]

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 who collaborated in carrying on said criminal activity[.]

Before trial, the indictment was amended to read that she possessed the controlled 

substance “with intent to deliver.” Trial was had on that indictment, and the jury charge 

tracked the indictment’s language. Needless to say, the jury found appellant guilty of 

the alleged crime, and judgment was entered upon that verdict. 

Sufficiency of the Evidence

Utilizing the standard of review specified in Villa v. State, we conclude that legally 

sufficient evidence supports the conviction, as charged. See Villa v. State, No. PD0541-15, 2017 Tex. Crim. App. LEXIS 288, at *10 (Tex. Crim. App. Mar. 22, 2017) 

(stating that the standard of review for determining the legal sufficiency of the evidence 

is whether, after viewing all of the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the 

crime beyond a reasonable doubt. The standard requires the appellate court to defer to 

the responsibility of the trier of fact to fairly resolve conflicting testimony, to weigh the 

evidence, and to draw reasonable inferences from basic facts to ultimate facts. The 

reviewing court must not engage in a divide and conquer strategy but rather consider 

the cumulative force of all the evidence. The obligation to defer to the trier of fact 

encompasses the inferences drawn from the evidence as long as they are reasonable 
4

ones supported by the evidence and are not mere speculation.).

2

 Simply put, more than 

some evidence appeared of record enabling a reasonable fact-finder to conclude,

beyond a reasonable doubt, that (1) those residing in the house, including appellant,

operated a drug business therefrom, (2) appellant possessed the quantity of 

hydrocodone alleged in the indictment with intent to deliver, and (3) she so possessed 

the controlled substance with the intent to establish, maintain, or participate in a 

combination or in the profits of a combination who collaborated in carrying on said 

criminal activity. So, we overrule her sole issue. However, in arriving at this conclusion 

we encountered a circumstance unmentioned by appellant, and that we now address. 

Indictment and Charge Error

The circumstance encountered pertains to the crime alleged. Again, the State 

sought to prosecute appellant for and convict her of engaging in organized criminal 

activity under Texas Penal Code § 71.02. According to that statute, a person “commits 

an offense if, with the intent to establish, maintain, or participate in a combination or in 

the profits of a combination or as a member of a criminal street gang, the person 

commits or conspires to commit” one or more predicate offenses mentioned in the 

statute. See TEX. PENAL CODE ANN. § 71.02(a) (West Supp. 2016). The predicate 

offense mentioned in the indictment and incorporated into the jury charge involved the 

possession of a controlled substance with the intent to deliver. Yet, that particular 

offense’s language fails to appear within the litany of offenses itemized in § 71.02(a)(1)–

(18). Indeed, it has been held that the mere possession of a controlled substance is not 

a predicate offense under the organized crime statute. Garcia v. State, No. 03-04-

 

2 We have no obligation to conduct a “factual sufficiency” review as requested by appellant since 

the advent of Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). 
5

00515-CR, 2006 Tex. App. LEXIS 3204, at *2 (Tex. App.—Austin Apr. 20, 2006, no 

pet.) (mem. op., not designated for publication) (stating that the “mere possession of a 

controlled substance is not a predicate offense under the organized crime statute”). Nor 

is the possession of a controlled substance with intent to deliver a predicate offense. 

State v. Foster, No. 06-13-00190-CR, 2014 Tex. App. LEXIS 5877, at *3–7 (Tex. App.—

Texarkana June 2, 2014, pet. ref’d) (mem. op., not designated for publication) (stating 

that “the terms of [§ 71.02(a)(5)] are not violated by simply possessing a controlled 

substance with the intent to deliver it” and concluding that the trial court properly 

quashed an indictment alleging organized criminal activity based upon the predicate 

offense of simply possessing a controlled substance with intent to deliver). So, it seems

that the indictment failed to accurately allege a crime within the scope of § 71.02(a).3 

Assuming arguendo that the failure to accurately allege a predicate offense is 

substantive defect in the indictment to which one must object or waive, see TEX. CODE 

CRIM. PROC. ANN. art. 1.14(b) (West 2005) (stating that when a defendant fails to object 

to a defect, error, or irregularity of form or substance in an indictment or information 

before the date on which the trial on the merits commences, he waives the right to 

object to the defect); Garcia v. State, 32 S.W.3d 328, 331–32 (Tex. App.—San Antonio 

2000, no pet.) (finding a like defect in the indictment waived but noting that it was not 

waived when incorporated into the jury charge), the same language appeared in the jury 

 

3

The State was afforded opportunity to address the situation via supplemental briefing. And,

though it concluded in its supplemental brief that the indictment legitimately charged appellant with 

committing the offense of engaging in organized criminal activity, it never really explained how it came to 

that conclusion. Rather, it merely opined that “[a]lthough not specifically worded in accordance with 

Section 71.02, the offense Appellant committed, particularly considering her committing or conspiring to 

commit the illegal distribution of narcotics, is a crime encompassed within Section 71.02.” (Emphasis 

added). While the distribution of controlled substances may be a predicate offense, see TEX. PENAL CODE 

ANN. § 71.02(a)(5), the State did not accuse her of that predicate. Nor did it cite us to authority 

suggesting that it or we can unilaterally change the predicate offense after trial and conviction.
6

charge. That is, the charge submitted during the guilt innocence phase of the trial 

simply tracked the allegations in the indictment. Through it, the trial court informed the 

jurors that they could convict appellant of engaging in organized criminal activity by 

finding that she simply committed the predicate offense of possessing a controlled 

substance with the intent to deliver. Consequently, because that is not a legitimate 

predicate offense, as discussed above, the charge permitted the jury to convict 

appellant for committing an offense outside the scope of § 71.02(a). 

So, it can be said that the jury charge is erroneous when it instructed the jury on 

the crime of engaging in organized criminal activity. It incorporated some of the 

elements of § 71.02(a) (those relating to the accused committing or conspiring to 

commit a predicate offense with “the intent to establish, maintain, or participate in a 

combination or in the profits of a combination”) while omitting others (the statutorily 

designated predicate offense). More importantly, error in the jury charge need not be 

preserved through objection by the accused; it may be raised sua sponte by a reviewing 

court as unassigned error. See Sanchez. v. State, 209 S.W.3d 117, 120–21 (Tex. Crim. 

App. 2006). 

The charge being erroneous is not enough to warrant reversal, though. We must 

assess whether the error was harmful. In doing that, we first note that appellant did not 

object to it. Consequently, the requisite harm must be egregious in nature. See State 

v. Ambrose, 487 S.W.3d 587, 594 (Tex. Crim. App. 2016); Glaze v. State, No. 09-13-

00549-CR, 2015 Tex. App. LEXIS 10146, at *13 (Tex. App.—Beaumont Sept. 30, 2015,

pet. ref’d) (mem. op., not designated for publication). And, such harm is present when 

the error “‘affects the very basis of the case, deprives the defendant of a valuable right,
7

or vitally affects a defensive theory.’” See Ambrose, 487 S.W.3d at 597–98 (quoting

Marshall v. State, 479 S.W.3d 840 (Tex. Crim. App. 2016)). Charge error permitting a 

jury to convict someone for acts outside the expressed language of a penal provision 

cannot but “affect the very basis of the case” or “deprive the defendant of a valuable 

right,” namely his right to freedom unless convicted for violating a criminal statute. 

Consequently, the charge error in question is egregiously harmful and that warrants 

reversal of the judgment. 

Accordingly, we reverse the judgment of the trial court and remand the cause for 

a new trial.

Brian Quinn

Chief Justice

Do not publish.