In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-19-00082-CR 

TERRY MARTIN, APPELLANT 

 

V. 

 

THE STATE OF TEXAS, APPELLEE 

 

On Appeal from the County Court at Law No. 2 

Lubbock County, Texas 

Trial Court No. 2019-494,736, Honorable Drue Farmer, Presiding 

 

September 28, 2020 

 

MEMORANDUM OPINION 

 

Before QUINN, C.J., and PARKER and DOSS, JJ. 

Appellant Terry Martin appeals from his conviction for unlawfully carrying a weapon 

while “a member of a criminal street gang.”1 We reverse the judgment of the trial court.

Background

Appellant was riding his motorcycle north of New Deal when he was stopped by 

Corporal Michael Macias of the Lubbock County Sheriff’s Office. Officer Macias observed 

1 See TEX. PENAL CODE ANN. § 46.02(a-1)(2)(C) (West Supp. 2019), § 71.01(d) (West 2011).
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that the motorcycle was traveling faster than the posted speed limit, had a partially 

obscured license plate, and made an unsafe lane change. Officer Macias also noticed 

that appellant was wearing a vest, known as a “cut,” that read “Cossacks MC,” for 

Cossacks Motorcycle Club. When appellant pulled over, Officer Macias had him place 

his hands on his head and conducted a pat-down. He asked appellant if he had any 

firearms on him; appellant responded that he was carrying a pistol inside his vest. The 

officer placed appellant in handcuffs and, as he did so, queried, “I take it by your cut you’re 

a Cossack?” Appellant answered, “Yes, sir.” Officer Macias then informed appellant that 

the Cossacks are considered a criminal gang.

Following his arrest, appellant was charged with the offense of unlawfully carrying 

a weapon as a member of a criminal street gang. The jury found appellant guilty and 

assessed a fine of $400.

Discussion

Under section 46.02(a-1)(2)(C) of the Texas Penal Code, a person commits an 

offense if the person (1) intentionally, knowingly, or recklessly carries on or about his or 

her person a handgun (2) in a motor vehicle or watercraft that is owned by the person or 

under the person’s control (3) at any time in which the person is a member of a criminal 

street gang as defined by section 71.01 of the Texas Penal Code. TEX. PENAL CODE ANN. 

§ 46.02(a-1)(2)(C). A criminal street gang is defined 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.” TEX. PENAL CODE ANN. 

§ 71.01(d).
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By this appeal, appellant challenges the constitutionality of this statutory 

framework, both facially and as applied to him. Additionally, appellant asserts that the 

evidence is insufficient to support his conviction.

Issue Nos. 1-7: Facial Challenges

In his first through seventh issues, appellant asserts that the statutory framework 

under sections 46.02(a-1)(2)(C) and 71.01(d) of the Texas Penal Code is facially 

unconstitutional under the First, Second, and Fourteenth Amendments of the United 

States Constitution. Specifically, he argues that this framework is facially unconstitutional 

(1) under the Equal Protection Clause of the Fourteenth Amendment, (2) under the First 

and Fourteenth Amendments because it impairs the right of association, (3) under the 

First and Fourteenth Amendments because it authorizes state action based on the 

doctrine of guilt by association, (4) under the First and Fourteenth Amendments because 

it is overbroad, (5) under the Due Process Clause of the Fourteenth Amendment because 

it violates the right to travel, (6) under the Second and Fourteenth Amendments, and (7) 

under the Due Process Clause of the Fourteenth Amendment because it is 

unconstitutionally vague. The State responds that appellant’s facial constitutional 

challenges have not been preserved for appellate review because appellant did not raise 

any such challenges at the trial court level. 

Generally, constitutional challenges are forfeited by a defendant who fails to object 

before the trial court. Curry v. State, 910 S.W.2d 490, 496 & n.2 (Tex. Crim. App. 1995)

(en banc). The Court of Criminal Appeals has held that a defendant may not raise for the 
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first time on appeal a facial challenge to the constitutionality of a statute. Karenev v. 

State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009).

In this case, appellant did not make any objection at trial that the statutory 

framework under sections 46.02(a-1)(2)(C) and 71.01(d) of the Texas Penal Code is 

unconstitutional. Following Karenev, we must conclude that appellant may not raise his 

facial constitutionality challenges at this stage of the proceedings. Appellant’s first seven 

issues are overruled.

Issue Nos. 8-14: As-Applied Challenges

In his eighth through fourteenth issues, appellant argues that the statutory 

framework under sections 46.02(a-1)(2)(C) and 71.01(d) of the Texas Penal Code is 

unconstitutional as applied to him. Here, he contends the framework is unconstitutional 

as applied (1) under the Equal Protection Clause of the Fourteenth Amendment, (2) under 

the First and Fourteenth Amendments because it impairs his right of association, (3) 

under the First and Fourteenth Amendments because it authorizes state action against 

him based on the doctrine of guilt by association, (4) under the First and Fourteenth 

Amendments because it is overbroad, (5) under the Due Process Clause of the 

Fourteenth Amendment because it violates his right to travel, (6) under the Second and 

Fourteenth Amendments, and (7) under the Due Process Clause of the Fourteenth 

Amendment because it is unconstitutionally vague. The State, again, responds that 

appellant failed to make timely and specific objections to the statutory framework, as 

applied to him, at the trial court level.
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Like facial challenges, “as applied” constitutional challenges are subject to the 

preservation requirement and must be made at the trial court in order to preserve error. 

Reynolds v. State, 423 S.W.3d 377, 383 (Tex. Crim. App. 2014). Because appellant 

made no specific, timely claim of unconstitutionality at trial, these issues have not been 

preserved for our review. Accordingly, appellant’s eighth through fourteenth issues are 

overruled.

Issue No. 15: Sufficiency of the Evidence

In his final issue, appellant claims that the evidence is insufficient to show he was 

a member of a criminal street gang for purposes of the statute.

The standard that we apply in determining whether the evidence is sufficient to 

support each element of a criminal offense the State is required to prove beyond a 

reasonable doubt is the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 

S. Ct. 2781, 61 L. Ed. 2d 560 (1979). See Brooks v. State, 323 S.W.3d 893, 912 (Tex. 

Crim. App. 2010). Under that standard, when assessing the sufficiency of the evidence 

to support a criminal conviction, we consider all the evidence in the light most favorable 

to the verdict and determine whether, based on that evidence and reasonable inferences 

to be drawn therefrom, a rational trier of fact could have found the essential elements of 

the crime beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d 

at 912. The jury is the sole judge of the credibility of the witnesses and the weight to be 

given to their testimonies, and we will not usurp this role by substituting our judgment for 

that of the jury. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012).
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Under section 71.01(d), a criminal street gang is defined 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.” TEX. PENAL 

CODE ANN. § 71.01(d). In Ex parte Flores, the Fourteenth Court of Appeals held that, 

when read together, the provisions of section 71.01(d) and section 46.02(a-1)(2)(C) 

indicate that a gang member “must be one of the three or more persons who continuously 

or regularly associate in the commission of criminal activities.” Ex parte Flores, 483 

S.W.3d 632, 645 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d) (rejecting argument 

that a defendant need not be involved in or aware of gang’s criminal activities). Appellant 

contends that no evidence showed he regularly engaged in criminal activity as one of the 

three persons described in the statute.

The evidence presented at trial included testimony from the arresting officer, 

Corporal Macias, who testified that he was aware, from his training and experience, that 

the Cossacks are a criminal street gang. In addition, the State presented testimony from 

Deputy Joshua Cisneros of the Lubbock County Sheriff’s Office. Deputy Cisneros 

testified that he works in the street crimes unit, a part of the Texas Antigang Center, which 

works to disrupt the activity of criminal street gangs. He testified that he was familiar with 

the Cossacks and that they were a nationwide outlaw motorcycle gang. According to 

Deputy Cisneros, Cossacks are known to engage in criminal activities, namely assaults, 

threats of violence, intimidation, and illegal firearms possession.

Deputy Cisneros testified that law enforcement uses a statewide database known 

as TxGANG to identify and keep track of gang members. He explained that certain 

factors, which are set forth in the Texas Code of Criminal Procedure, are used to make a 
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determination that someone is a gang member. Two of these, namely a judicial finding

and a self-identification during a judicial proceeding, are standalone criterion, meaning an 

individual can be entered into the TxGANG system upon a showing of either one. A 

determination of gang membership can also be made if any two of the following criteria 

are met: a nonjudicial self-admission; identification by a reliable informant; a corroborated 

identification by an informant of unknown reliability; evidence the individual uses

technology to recruit new members; evidence the individual uses street gang dress, hand 

signals, tattoos, or symbols; or evidence that the individual has been arrested with known 

gang members for an offense or conduct consistent with gang activity. Finally, a 

determination can be made if there is evidence of any one of the preceding factors plus 

evidence that the individual visited gang members while they were imprisoned and

frequented known gang areas and associated with known gang members.

Deputy Cisneros expressed the opinion that appellant was a member of the 

Cossacks motorcycle gang because appellant made a nonjudicial self-admission to 

Corporal Macias and he was wearing the cut and the black and yellow colors of the 

Cossacks. Moreover, appellant previously had been identified as a gang member and 

entered in the TxGANG database by two different agencies: the McLennan County 

Sheriff’s Office, which relied on appellant’s gang attire and detention with gang members 

on a gang-related offense, and DPS Communications in Waco, which relied on 

appellant’s nonjudicial self-admission and his detention with gang members on a gangrelated offense.

However, although Deputy Cisneros testified that Cossacks were engaged in 

continuous illegal activities in Lubbock, he admitted that he knew of no criminal charges
8

filed against Cossacks in the area. He acknowledged that he could not prove the 

Cossacks’ criminal activities, stating, “The only thing I do have is just intelligence.”

Appellant testified that he did not believe that Cossacks are a criminal street gang

and that he has never been convicted of a felony or a misdemeanor, other than traffic 

violations. Appellant further testified regarding his detention with gang members, stating 

that in May of 2015, he was at the Twin Peaks restaurant in Waco where Cossacks and 

Bandidos had gathered for a meeting. A shootout involving Cossacks, Bandidos, and law 

enforcement erupted, resulting in nine deaths. Appellant did not have a weapon on his 

person, although he had one in his vehicle. He was arrested and detained, along with 

some 170 others who were present, and charged with criminal organization. The charges 

against him were later dismissed.

In this appeal, appellant argues:

The only evidence that Appellant had ever been entangled with law 

enforcement in any way was a report showing the Waco Police Department 

arrested Appellant in McLennan County for the engaging in organized crime 

in 2015. These charges were dismissed. A later report from the Waco 

Police Department revealed that police ran a background check and did not 

find anything that would prohibit Appellant from legally possessing a 

handgun. The Waco Police Department returned Appellant’s gun to him. 

Other than this police report, the State introduced no evidence of any prior 

conviction or criminal activity involving Appellant. Appellant, in fact, had no 

criminal record.

Appellant concludes that this evidence is insufficient to show that he himself 

regularly or continuously engaged in criminal activity pursuant to his membership in a 

gang and that, consequently, he does not come within the purview of 71.01(d) or section 

46.02(a-1)(2)(C) of the Texas Penal Code.
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We agree with appellant. To be a gang member for purposes of prosecution under 

the statute, “an individual must be one of three or more persons with a common identifying 

sign, symbol, or identifiable leadership and must also continuously or regularly associate 

in the commission of criminal activities.” Ex parte Flores, 483 S.W.3d at 648 (emphasis 

added). While the evidence establishes the first half of the equation, i.e., appellant’s 

membership as a Cossack, the record is devoid of evidence of the second half, i.e., a 

showing that he associated in the commission of criminal activities. Under Ex parte 

Flores, both gang membership and a connection to criminal conduct are required. See 

id.

The State claims that appellant “was not only aware of the criminal activity 

occurring within the Cossacks Outlaw Motorcycle Gang, but was an active participant in 

the illegal activity—particularly assaults and threats of violence.” Tellingly, this assertion 

is made with no citation to the record, and in our review of the evidence, we find no support 

for the State’s claim. The sole piece of evidence indicating that appellant was ever 

involved in criminal activity was the evidence of his presence at the Twin Peaks shooting. 

This single arrest, on charges which were later dismissed, does not establish that 

appellant continuously or regularly associated in the commission of criminal activities.

On this record, we find the evidence was insufficient to allow the factfinder to find

the essential elements of the crime beyond a reasonable doubt.

Conclusion

We overrule appellant’s first fourteen issues because they have not been 

preserved for appellate review. We sustain appellant’s fifteenth issue because we find 
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that the jury’s verdict was not supported by sufficient evidence. Having sustained 

appellant’s fifteenth issue, we reverse the judgment of the trial court. We have considered 

whether reformation of the judgment to reflect a conviction for a lesser-included offense 

is appropriate. See Thornton v. State, 425 S.W.3d 289, 300 (Tex. Crim. App. 2014). We 

see no lesser-included offense as to which the two questions outlined in Thornton can be 

answered in the affirmative. Accordingly, we render a judgment of acquittal. See TEX. R.

APP. P. 43.2(c), 43.3.

Judy C. Parker

 Justice

Do not publish.