OPINION
BURGESS, Justice.
A jury convicted Brice Christopher Chat-man of murder and assessed punishment at forty-five years’ confinement in the Texas Department of Criminal Justice, Institu[639]*639tional Division. The judgment includes an affirmative finding of the use of a deadly weapon in the commission of the offense and cumulates the sentence with a twenty year sentence for attempted murder in Cause No. 56739. We will address appellant’s three points of error out of order.
Point of error one challenges the trial court’s denial of a challenge for cause of venireperson Walter Christian. Mr. Christian inquired about parole and indicated that he would be inclined to consider parole in assessing punishment. When asked if he would follow the court’s instructions regarding parole, Mr. Christian stated that he would follow the law and would not consider knowledge he has gained from outside the case. Appellant urges error based on the trial court’s denial of his motion to excuse the venireman for cause.
We find that appellant failed to follow the procedural steps necessary to present the issue for appellate review. Appellant must demonstrate that (1) the voir dire of the individual venireperson was recorded and transcribed; (2) at trial appellant asserted a clear and specific challenge for cause on clearly articulated grounds; (3) he used a peremptory strike on the venireperson who should have been excused for cause; (4) he exhausted his peremptory challenges; (5) he requested additional peremptory challenges; and (6) an objectionable juror sat on the case. Harris v. State, 790 S.W.2d 568, 581 (Tex.Crim. App.1989).
Appellant objected to the denial of his challenge for cause, as follows:
[By Defense Counsel:] We are going to object to Mary Burch in that we were forced to make — use a peremptory challenge on Walter Christian, who was number 12 on the jury panel, the one that we had requested be removed for cause. And if Mary Burch is to get on the jury then we would have exercised a peremptory challenge on her had the Court not forced us to use one on Walter Christian. If she is on the jury we would object on that basis.
We have the benefit of the individual voir dire of Mr. Christian. The record does not contain the strike lists for the state and the defense. From his objection, we can tell that appellant objected on a clear and specific ground, that appellant exercised a peremptory strike against Mr. Christian, and that an objectionable juror served on the jury. The record does not demonstrate that appellant exercised all of his peremptory strikes. He never requested an additional peremptory strike. Appellant cannot show harm in the absence of a request for additional strikes. Point of error one is overruled.
Point of error three urges reversible error occurred when the prosecutor argued to the jury that witnesses had been frightened from the courtroom. Appellant testified that his attorney gave him a list of eleven possible eyewitnesses and of those only Kerry Williams showed up. During closing argument defense counsel argued as follows:
Now, let’s look at the witnesses that weren’t brought in because I had told you it would be a little bit of a surprise to me. As I had told you in the beginning in voir dire, I expected this trial to be pretty long because we had been given the name of 15 witnesses that we expected to testify. As Mr. Chatman has stated, during our conversations before this trial when those witnesses were given to me I went and gave them to him. I said, “These are the guys. There’s 11 people on this list.” I said, “These are the guys that are going to say you are guilty, that are going to testify.”
I’ve been in this business a while. And I have been lied to before. In my opinion, when I saw these 11 witnesses that were given to me that were eyewitness, that were supposed to come in here and testify that this happened, I said, “Let me tell you. Brice. I’m advising you right now if these people come in you are going to get found guilty. You had better plead guilty. That’s your best shot.” He said, “Mr. McLemore, I didn’t do it.” He said, “I’m sorry. I didn’t do it.” I looked at these 11 witnesses. I said, “Okay. This is the game that you want to play. Then all I’m here for is to do [640]*640my job. We’ll let those 12 people decide what really happened on this.”
Well, funny things happen in trials, don’t they? If 11 witnesses were listed and best they can come up with was Kerry Williams, then I think that tells you what kind of case they’ve got here.
Next, the prosecutor argued as follows:
You know 11 — He said there were 11 eyewitnesses out there. Maybe they were scared to come in here and testify today. Maybe they were threatened and told not to come. Maybe Kerry Williams—
[Defense Counsel:] Objection, your Honor. That’s an invitation to speculation.
THE COURT: Overruled.
[Prosecutor:] Maybe they were scared to come here. Maybe they were threatened or told not to come. Maybe Kerry Williams was the only one who had guts enough to stand up to someone like that, someone if you don’t buy their cocaine they will shoot you.
Jury arguments must be confined to the areas of (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Alejandro v. State, 493 S.W.2d 230 (Tex.Crim.App.1973). Since the point of error on appeal must have been raised at trial, we consider appellant’s argument only as it pertains to a call to the jury to speculate. We agree that the prosecutor speculated on the reason why the eleven potential witnesses did not appear. While to some extent this argument was invited by the speculative and unsupported comments by defense counsel, defense counsel did not invite the state to speculate on where the witnesses were or why they did not appear at trial. Nevertheless, in light of the eyewitness testimony placing appellant in the back of the pickup truck shooting into the cab and the evidence of appellant’s violent nature, we find that beyond a reasonable doubt the improper argument made no contribution to the conviction or the punishment assessed. Tex.R.App.P. 81(b)(2). Point of error three is overruled.
Point of error two challenges the sufficiency of the evidence to support the conviction. The proper standard of appellate review is whether, viewing all of the evidence in the light most favorable to the verdict, any rational jury could have found all of the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Appellant argues that the eyewitness’ testimony identifying appellant as the shooter is contradictory. Appellant and a companion approached the truck occupied by the victim and Clarence Joseph Leonard. A drug transaction resulted in an argument over money. Mr. Leonard testified that someone jumped into the back of the truck and fired several shots into the vehicle. This person was identified as appellant by eyewitness Kerry Williams. The back window was shattered from the outside.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
BURGESS, Justice.
A jury convicted Brice Christopher Chat-man of murder and assessed punishment at forty-five years’ confinement in the Texas Department of Criminal Justice, Institu[639]*639tional Division. The judgment includes an affirmative finding of the use of a deadly weapon in the commission of the offense and cumulates the sentence with a twenty year sentence for attempted murder in Cause No. 56739. We will address appellant’s three points of error out of order.
Point of error one challenges the trial court’s denial of a challenge for cause of venireperson Walter Christian. Mr. Christian inquired about parole and indicated that he would be inclined to consider parole in assessing punishment. When asked if he would follow the court’s instructions regarding parole, Mr. Christian stated that he would follow the law and would not consider knowledge he has gained from outside the case. Appellant urges error based on the trial court’s denial of his motion to excuse the venireman for cause.
We find that appellant failed to follow the procedural steps necessary to present the issue for appellate review. Appellant must demonstrate that (1) the voir dire of the individual venireperson was recorded and transcribed; (2) at trial appellant asserted a clear and specific challenge for cause on clearly articulated grounds; (3) he used a peremptory strike on the venireperson who should have been excused for cause; (4) he exhausted his peremptory challenges; (5) he requested additional peremptory challenges; and (6) an objectionable juror sat on the case. Harris v. State, 790 S.W.2d 568, 581 (Tex.Crim. App.1989).
Appellant objected to the denial of his challenge for cause, as follows:
[By Defense Counsel:] We are going to object to Mary Burch in that we were forced to make — use a peremptory challenge on Walter Christian, who was number 12 on the jury panel, the one that we had requested be removed for cause. And if Mary Burch is to get on the jury then we would have exercised a peremptory challenge on her had the Court not forced us to use one on Walter Christian. If she is on the jury we would object on that basis.
We have the benefit of the individual voir dire of Mr. Christian. The record does not contain the strike lists for the state and the defense. From his objection, we can tell that appellant objected on a clear and specific ground, that appellant exercised a peremptory strike against Mr. Christian, and that an objectionable juror served on the jury. The record does not demonstrate that appellant exercised all of his peremptory strikes. He never requested an additional peremptory strike. Appellant cannot show harm in the absence of a request for additional strikes. Point of error one is overruled.
Point of error three urges reversible error occurred when the prosecutor argued to the jury that witnesses had been frightened from the courtroom. Appellant testified that his attorney gave him a list of eleven possible eyewitnesses and of those only Kerry Williams showed up. During closing argument defense counsel argued as follows:
Now, let’s look at the witnesses that weren’t brought in because I had told you it would be a little bit of a surprise to me. As I had told you in the beginning in voir dire, I expected this trial to be pretty long because we had been given the name of 15 witnesses that we expected to testify. As Mr. Chatman has stated, during our conversations before this trial when those witnesses were given to me I went and gave them to him. I said, “These are the guys. There’s 11 people on this list.” I said, “These are the guys that are going to say you are guilty, that are going to testify.”
I’ve been in this business a while. And I have been lied to before. In my opinion, when I saw these 11 witnesses that were given to me that were eyewitness, that were supposed to come in here and testify that this happened, I said, “Let me tell you. Brice. I’m advising you right now if these people come in you are going to get found guilty. You had better plead guilty. That’s your best shot.” He said, “Mr. McLemore, I didn’t do it.” He said, “I’m sorry. I didn’t do it.” I looked at these 11 witnesses. I said, “Okay. This is the game that you want to play. Then all I’m here for is to do [640]*640my job. We’ll let those 12 people decide what really happened on this.”
Well, funny things happen in trials, don’t they? If 11 witnesses were listed and best they can come up with was Kerry Williams, then I think that tells you what kind of case they’ve got here.
Next, the prosecutor argued as follows:
You know 11 — He said there were 11 eyewitnesses out there. Maybe they were scared to come in here and testify today. Maybe they were threatened and told not to come. Maybe Kerry Williams—
[Defense Counsel:] Objection, your Honor. That’s an invitation to speculation.
THE COURT: Overruled.
[Prosecutor:] Maybe they were scared to come here. Maybe they were threatened or told not to come. Maybe Kerry Williams was the only one who had guts enough to stand up to someone like that, someone if you don’t buy their cocaine they will shoot you.
Jury arguments must be confined to the areas of (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Alejandro v. State, 493 S.W.2d 230 (Tex.Crim.App.1973). Since the point of error on appeal must have been raised at trial, we consider appellant’s argument only as it pertains to a call to the jury to speculate. We agree that the prosecutor speculated on the reason why the eleven potential witnesses did not appear. While to some extent this argument was invited by the speculative and unsupported comments by defense counsel, defense counsel did not invite the state to speculate on where the witnesses were or why they did not appear at trial. Nevertheless, in light of the eyewitness testimony placing appellant in the back of the pickup truck shooting into the cab and the evidence of appellant’s violent nature, we find that beyond a reasonable doubt the improper argument made no contribution to the conviction or the punishment assessed. Tex.R.App.P. 81(b)(2). Point of error three is overruled.
Point of error two challenges the sufficiency of the evidence to support the conviction. The proper standard of appellate review is whether, viewing all of the evidence in the light most favorable to the verdict, any rational jury could have found all of the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Appellant argues that the eyewitness’ testimony identifying appellant as the shooter is contradictory. Appellant and a companion approached the truck occupied by the victim and Clarence Joseph Leonard. A drug transaction resulted in an argument over money. Mr. Leonard testified that someone jumped into the back of the truck and fired several shots into the vehicle. This person was identified as appellant by eyewitness Kerry Williams. The back window was shattered from the outside. Appellant’s companion fired at least three shots at the decedent from outside of the driver’s side of the truck. The police recovered spent shell casings in both .22 and .25 caliber. Appellant argues that those shots may have caused the victim’s death. The pathologist testified that the cause of death was internal bleeding secondary to gunshot wounds to the trunk on the left flank. The pathologist found four gunshot wounds. Three bullets found in the body had entered the trunk on the left side and travelled from left to right. A fourth bullet travelled clear through the left arm. The victim was inside the truck on the driver’s side, but there is no testimony as to his position within the vehicle as each shot was fired.
The charge included an abstract instruction on the law of parties. The application paragraph authorized the jury to find appellant guilty if it found appellant "either acting alone or as a party, as that term has been defined, intentionally or knowingly caused the death_” The recent cases from the court of criminal appeals, Jones v. State, 815 S.W.2d 667 (Tex. Crim.App.1991) and Walker v. State, 823 S.W.2d 247 (Tex.Crim.App.1991), did not contain any reference to the law of parties within the application paragraph of the [641]*641charge. In order to determine if Jones and Walker are distinguishable from the case before us, we must analyze the authority cited in Jones: Oliver v. State, 160 Tex. Crim. 222, 268 S.W.2d 467 (1954); McCuin v. State, 505 S.W.2d 827 (Tex.Crim.App.1974); and Apodaca v. State, 589 S.W.2d 696 (Tex.Crim.App.1979).
Oliver was decided before the distinction between principals and accomplices was abolished by Tex.Penal Code Ann. § 7.01(c) (Vernon 1974). The evidence established that someone other than Oliver was the trigger man. The charge contained an abstract definition of the law of principals but failed to apply the law to the facts. The court stated:
The circumstances are sufficient to support a finding that he was present and was acting with Moody Puckett, but the question of whether he was present and, knowing that Puckett intended to kill the Negro, advised or encouraged Puckett in the murder, was not submitted to the jury
Oliver, 268 S.W.2d at 470.
In MeCuin, which was also decided under the old law of principals, the court held:
[I]f the evidence introduced upon the trial of the cause shows, or raises an issue, that the conduct of the defendant then upon trial is not sufficient, in and of itself, to sustain a conviction, the State’s case rests upon the law of principals and is dependent, at least in part, upon the conduct of another. In such a case, the law of principals must be submitted and made applicable to the facts of the case. Thus the Oliver rule will govern this fact structure.
McCuin, 505 S.W.2d at 830.
Apodaca applied the Oliver rule and reversed the conviction because the jury charge failed to apply the law of parties to the case. The State prosecuted on a theory that Apodaca acted as a party in that he solicited, encouraged, directed, aided or attempted to aid the actor. The charge contained an abstract definition of the law of parties. The application paragraph stated:
Now, therefore, if you believe from the evidence beyond a reasonable doubt that on or about January 12, 1976, in El Paso County, Texas, the Defendant, as a principal, acting under the immediate influence of sudden passion, arising from an adequate cause, intentionally or knowingly, either (1) caused the death of Edward Figueroa, by driving a motor vehicle, to wit: an automobile, into and causing it to collide with a motor vehicle, to wit: a pickup truck, driven by the said Edward Figueroa, or (2) intended to cause serious bodily injury, as a principal, and committed an act clearly dangerous to human life, to wit: drove a motor vehicle, to wit: an automobile, into and causing it to collide with a motor vehicle, to wit: a pcikup (sic) truck, driven by the said Edward Figueroa that caused his death, you will in either of such cases find the Defendant guilty of Voluntary Manslaughter. (emphasis added)
Apodaca, 589 S.W.2d at 698.
Apodaca was a passenger in the vehicle driven by John Lewis. Even though there was an abstract definition of the law of parties and the application paragraph authorized the jury to convict if it found Apodaca acted as a party (“principal”), the charge was erroneous because nowhere in the charge was the jury required to find that John Lewis committed any criminal acts for which Apodaca could be held responsible, if at all, because of his encouragement or assistance of those acts.
We cannot distinguish Apodaca. We conclude that Jones and Walker are applicable. The charge is insufficient to raise the issue of parties before the jury. We must review the evidence to determine if the evidence is sufficient to support a finding that appellant is guilty by virtue of his conduct alone. We find no evidence which explains how a bullet fired from appellant’s position could have entered the victim’s trunk on the left side and travelled horizontally to the right side of his body. It appears the bullets came from the gun held by the person standing to the left of the driver. Thus, it appears that it was not appellant’s sole conduct which caused the death of the victim.
[642]*642Apodaca resulted in a remand because the error was charging error. Garrett v. State, 749 S.W.2d 784, 792 (Tex.Crim.App.1986) precludes an analysis under Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1985) (opinion on rehearing). We hold that the evidence is insufficient to demonstrate that appellant is guilty in a non-parties capacity. Boozer v. State, 717 S.W.2d 608, 611-12 (Tex.Crim.App.1984) invokes the doctrines of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978) in situations where an erroneous charge places a greater burden upon the state than is warranted by the evidence, and the evidence is insufficient to support a verdict based upon that increased burden. We find no authority in the decisions of the Texas Court of Criminal Appeals which will alleviate this harsh result, even where the state’s theory was based on the law of parties and the application paragraph attempted to authorize the jury to convict appellant as a party to the offense. Point of error two is sustained.'
Points of error one and three are overruled. Point of error two is sustained and the judgment of the trial court reversed and remanded for entry of an order of acquittal.
REVERSED AND REMANDED.