Black v. State

723 S.W.2d 674, 1986 Tex. Crim. App. LEXIS 869

• Court: Court of Criminal Appeals of Texas
• Decided: November 5, 1986
• Docket: 121-85
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was convicted of aggravated possession of a controlled substance with intent to deliver. Punishment was assessed at 12 years confinement in the Texas Department of Corrections. In an unpublished opinion, the Dallas Court of Appeals reversed the conviction, holding that the trial court’s charge did not instruct the jury as to the application of the law of parties to the facts of the case. Black v. State, No. 05-83-00366-CR (Tex.App.— Dallas, delivered December 12, 1984). We granted the State’s petition for discretionary review to examine the Court of Appeals’ decision. We will vacate and remand.

Appellant was a passenger in a motor home driven from Los Angeles, California, to Dallas, Texas. Seventy-eight and a half pounds of phencyclidine (PCP) was recovered from the van in Dallas County. Appellant and two other individuals were in the van at the time of the arrest.

In pertinent part, appellant made the following objection to the charge:

The defendant objects in that the Court’s charge fails to apply the law to the specific facts as the definitions pertain to “knowing possession,” the definition of “possession” itself, as to the circumstantial evidence definition, as to the law of parties, and as to the “mere presence” law.

(R. I-32, II-697, 700-701) (emphasis added). The objection was overruled. (R. II-706-708).

I. Preservation of Error

The Court of Appeals presumably found this objection sufficient to preserve any alleged error because it reached the merits of appellant’s ground of error. The State argues that appellant’s objection was not specific enough to preserve error. We disagree.

Article 36.14, V.A.C.C.P. (Supp.1986), provides that a defendant shall present his objection to the charge, “distinctly specifying each ground or objection.” Eight members of this Court found the following objection sufficient to preserve alleged charging error on the law of parties: “And our third objection, Your Honor, is that the Court has failed to specifically apply the law of parties to the facts in this case.” Govan v. State, 682 S.W.2d 567, 569 (Tex.Cr.App.1985), (emphasis in original). That holding was reaffirmed by a plurality of this Court in Brown v. State, 716 S.W.2d 939 (Tex.Cr.App., 1986) (Campbell, J., concurring and dissenting, joined by T. Davis, McCormick and Miller, JJ.) (not yet reported).¹

Appellant’s objection in the instant case is substantially equivalent to the objections in Govan, supra, and Brown, supra. Therefore, we hold that appellant’s objection was sufficiently specific to preserve any alleged error and to apprise the trial court of his complaint.

II. Law of Parties

The Court of Appeals held that the trial court did not instruct the jury as to the application of the law [of parties to the facts] of the case. Clark, supra. The Court of Appeals cited McCuin v. State, 505 S.W.2d 827 (Tex.Cr.App.1974) as its sole authority.

The State concedes that “the law of parties needs to be made applicable to the facts of the case when a timely, proper, specific objection is made on that ground.” Brief for the State, p. 8. However, the State argues that such error may be harmless if the evidence clearly supports appellant’s guilt as a principal actor. We agree.

Where the evidence clearly supports a defendant’s guilt as a principal actor, any error of the trial court in charging on the law of parties is harmless. Brown, supra; Govan, supra. Cf. Art. 36.19, V.A.C.C.P. (1981); Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985) (standard for reviewing charging error for harm).²

In the instant case, the Court of Appeals did not determine whether the charging error was harmless, despite the State’s argument in its brief before that court. State’s Brief in the Court of Appeals, at 28.³ Therefore, although the Court of Appeals’ holding that the trial court erroneously failed to apply the law of parties to the facts of the case is correct, the Court of Appeals must consider whether the charging error was harmless.

The judgment of the Court of Appeals is vacated and remanded to the Court of Appeals for consideration in light of Govan, supra, and Brown, supra.

CLINTON, J., concurs in result.

1 . In Brown, the defendant made the following objection: "We would also object to the court’s charge, Your Honor, on the grounds that it fails to apply specifically the law of parties to the facts in this case.” At 942. Presiding Judge Onion, joined by two other judges, characterized Govan, supra, as an "aberration” and would have overruled it "to the extent of any conflict.” Brown, supra, at 945 (Onion, P.J., joined by W.C. Davis and White, JJ.). However, that view did not receive the support of either a plurality or a majority of this Court. That view can be most accurately characterized as "plurality dictum." Faulder v. Hill, 612 S.W.2d 512, 516 n. 3 (Tex.Cr.App.1981) (Roberts, J., concurring and dissenting).

2 . In his dissenting opinion, Judge Teague argues that Govan, supra, fails to apply the proper standard for reviewing charging error. On the contrary, Judge’s Teague’s analysis misapplies the harmless error test established by Almanza, supra.

In Almanza supra, this Court recognized that Article 36.19, V.A.C.C.P. (1981), requires this Court to reverse convictions for charging error only if actual harm to a defendant occurred. If no objection to the charging error was made, then “egregious harm” must have occurred. If an objection was made, then only “some harm” must have occurred. The presence or absence of actual harm is determined through an examination of the entire record. Thus, this Court abandoned the former rule of automatic reversal in favor of a practical standard requiring the demonstration of actual harm.

Judge Teague argues that harm is shown in the instant case because there is a "logical possibility” that the jury convicted appellant as a party. See also Hayes v. State, No. 955-82 (Tex.Cr.App., delivered March 12, 1986, pending on reh’g) (Teague, J., dissenting) (not yet reported) (arguing harm is present whenever there is the logical possibility of an improper verdict). However, that approach suffers from at least three defects. First, Judge Teague only relies upon the charge itself in finding the presence of harm. He ignores the statement of facts, the jury argument and any other relevant documents in the record. In Almanza, supra, this Court made it clear that charging error must be reviewed in the context of the entire record. Second, Judge Teague prefers to apply theoretical generalities to all cases rather than realistic probabilities to particular cases. That approach returns this Court to pre-Almanza law, requiring automatic reversal of convictions for technical charging error, regardless of individual records. Third, even if Judge Teague’s "logical possibility” test was appropriate, it incorrectly presumes that a jury would convict a defendant as a party even in the face of sufficient evidence to convict him as a principal. That presumption is itself illogical.

Using Almanza, supra, in its proper context, Govan, supra, only requires reversal of preserved charging error on the law of parties if the law of parties was actually necessary for the jury to decide the case. If the evidence was sufficient to support a conviction of a defendant as a principal, then a jury would rationally convict the defendant as a principal rather than as a party.

Judge Teague responds that the jury could have rejected whatever evidence might have shown appellant to be guilty as a principal. That argument might be persuasive if the record indicated that the jury had some basis for rejecting the evidence of the appellant's guilt as a principal, i.e., if the State argued that appellant was guilty as a party or if there was conflicting evidence of appellant’s guilt as a principal. However, if there was no rational basis for the jury to reject the evidence of the defendant’s guilt as a principal, why should this Court presume the the jury acted irrationally and unnecessarily relied upon the law of parties? Given the emphasis in Almanza, supra, upon actual rather than theoretical harm, the more practical approach of Govan, supra, properly presumes that the jury' acted rationally and accepted the evidence of the defendant’s guilt as a principal, unless the record indicates otherwise.

3 . The absence of harmless error analysis is understandable. Brown, Govan, and Almanza were all decided after the Court of Appeals decision in the instant case. Thus, the Court of Appeals did not have the opportunity to apply this Court’s most recent decisions regarding jury charge error on the law of parties.