dissenting.
I respectfully dissent to the disposition of appellants’ first point of error. This case is controlled by Fee v. State, 841 S.W.2d 392 (Tex.Crim.App.1992). In Fee, the court found that, despite instructions on the definition of the term combination and the defenses excluded from the organized criminal activity statute, the jury would have been required to find that the appellant and all others alleged in the application paragraph conspired to commit theft as a prerequisite to convicting the appellant. The application paragraph in Fee reads, in relevant part:
Now bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt, that on or about the 11th day of August A.D., 1983, Jose L. Araujo, Thomas Scott Bates, Steven Fee, Benjamin A. Morgan, Jerry Lee Pierce, Jose Jorge Trevino, Jr., and James Henry Woemer, Jr., ... together with others unknown to this Grand Jury, with intent to establish, maintain and participate in a combination and in the profits of a combination, did conspire and agree to commit and did commit the criminal offense of Theft over $20,000.00, and in pursuance of such agreement the said defendants performed overt acts as follows, to wit: ...
The court held that, because the State failed to object to the trial court’s charge and failed to present evidence against three members of the combination, the evidence, as measured against the application paragraph of the charge, was insufficient to convict Fee. Id. at 396. The court reached this conclusion despite the fact that the charge contained a definition of the term “combination” and an instruction that it is no defense to a combination that one or more members is found not guilty.
The court in Fee, noted that the ease before it was analytically indistinguishable from Ortega v. State, 668 S.W.2d 701 (Tex.Crim.App.1983). Ortega was prosecuted for credit card abuse. The indictment alleged he knowingly used the credit card of another with the specific intent to fraudulently obtain property and services. The application paragraph in the court’s charge tracked the language of the indictment and instructed the jury to find Ortega guilty of credit card abuse if the jury found that he knowingly used the credit card of another with specific intent to fraudulently obtain property and services. The court of criminal appeals found that the State was bound to prove Ortega intended to fraudulently obtain property and services and remarked that “there is no such thing as ‘surplusage’ in the part of the court’s instructions to the jury which authorizes conviction[.]” Id. at 705, n. 10.
The majority attempts to distinguish Fee and Ortega by stating that the application paragraphs in those cases unnecessarily included language that was descriptive of an essential element of the offense and, therefore, could not be considered surplusage. The court of criminal appeals has held, however, that the rule applies regardless of whether the language is descriptive of an essential element. Langston v. State, 855 S.W.2d 718 (Tex.Crim.App.1993).
In Langston, the court held that the State’s burden was elevated in a trespass case because the trial court included the name of the owner of the property in the application paragraph. The court noted that the identity of the owner is not an essential element of criminal trespass. The State, however, by failing to object to the inclusion of the owner’s name in the application paragraph, was required to prove the identity of the owner of the property. Id. at 721. Therefore, the fact that the membership of the combination is not an essential element of the offense has no bearing on appellant’s first point of error.
The majority relies on the holding in Jones v. State, 907 S.W.2d 850 (Tex.App.—Houston [1st Dist.] 1995, pet. refd), for the proposition that the application paragraph in this case did not elevate the State’s burden of proof. In Jones, the First Court of Appeals had a similar situation: an application paragraph that listed fifteen persons as being members of the combination, but no evidence *366against some of the people listed as members of the combination. The application paragraph in Jones differed from the paragraph in this case in that, in Jones, the application paragraph qualified combination as consisting of three or more persons. The court held that applying the definition of combination given in the charge and the qualification of that term in the application paragraph, the State was not required to prove the participation of all those persons listed in the charge in a combination with the appellant.
In the ease before us, the application paragraph does not qualify the term combination. The application paragraph in this case is almost identical to the one in Fee where the court of criminal appeals held the State failed to meet its burden. The charge in this case authorized conviction only in the event the jury should find that all eleven persons participated in the combination. This elevated the State’s burden of proof beyond the minimum necessary to establish a violation of the statute. As long as the State does not object to a jury charge that enhances its burden, sufficiency of the evidence will be measured against that charge. The State’s response does not propose a rational basis to deviate from that rule in this ease. I would sustain appellants’ first point of error, reverse the conviction, and render judgment of acquittal.