Jackson v. State

898 S.W.2d 896, 1995 Tex. Crim. App. LEXIS 54, 1995 WL 296364

• Court: Court of Criminal Appeals of Texas
• Decided: May 17, 1995
• Docket: 1367-92
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

WHITE, Judge.

A jury convicted appellant of burglary of a vehicle. TEX.PENAL CODE ANN. § 30.04. After finding both of the enhancement allegations to be “true”, the jury assessed appellant’s punishment at confinement for thirty-five years in the Texas Department of Criminal Justice, Institutional Division. Appellant pursued a direct appeal.

Appellant argued on appeal that the evidence at trial was insufficient to support the jury’s verdict of guilty. Appellant explained that his indictment did not allege that he was a party to the instant offense. He contended the jury charge failed to include the law of parties in the paragraph applying the law to the facts of the ease. Appellant concluded the evidence was insufficient to support the verdict because there was no evidence showing he alone was the principal actor in the commission of the instant offense. The Court of Appeals agreed and reversed appellant’s conviction, ordering that he be acquitted.¹ Jackson v. State, No. 2-90-060-CR (Tex.App. — Fort Worth, July 15, 1992). The State petitioned this Court to review the Court of Appeals’ decision. This Court voted to grant the State’s petition.

The State asserts the Court of Appeals erred when it held “the charge authorizing the jury to convict the appellant under the law of parties was insufficient.” The State points out that appellant did not object at trial to the failure of the application paragraph to apply the law of parties to the facts of the instant case. The State argues the charge to the jury contained a paragraph following the application paragraph which set out the law of parties as it related to the instant case. The State concludes the evidence at trial was sufficient to convict appellant as a party to the instant offense. We will reverse the decision of the Court of Appeals.

The State was unable to prove at trial that appellant was the primary actor in the commission of the instant offense. A witness testified she saw a black male remove the T-tops from a Corvette and put them in a silver Lincoln Continental driven by another black male. This witness contacted the owner of the Corvette and gave her a description of the Continental and its license plate number. The witness could not identify the man who was driving the Continental or the man who she saw removing the T-tops. The owner of the Corvette called the police, reporting the crime and giving the police the information provided by the witness. Soon after this call, the police stopped the Continental and apprehended appellant. At the time of the arrest, appellant was driving the Continental. During an inventory of the Continental, the police found the stolen Corvette T-tops in the trunk of the Continental.

In the indictment against appellant, the State alleged:

“that DERWIN LATHOMAS JACKSON, who is hereafter styled defendant, on or about the first day of July, A.D., 1989 and anterior to the presentment of this Indictment, in the county and state aforesaid, did then and there intentionally and knowingly, without the effective consent of Peggy Stanley, the owner thereof, break into and enter a vehicle and a part thereof with intent to commit theft;”

The State did not allege in the indictment that appellant was a party to the commission of the instant offense.

In its charge to the jury, the trial court instructed them on the application of the law to the facts of the instant case as alleged in the indictment and on the law of parties as it applied to the instant case. It did so in several paragraphs. The trial court presented them as follows:

“Therefore, if you believe from the evidence beyond a reasonable doubt that the defendant, DERWIN LATHOMAS JACKSON, did, in Denton County, Texas, on or about the 1st day of July, 1989, then and there intentionally or knowingly, without the effective consent of Peggy Stanley, the owner thereof, break into or enter a vehicle or a part thereof with intent to commit theft, then you will find the defendant guilty of Burglary of a Motor vehicle as charged in the indictment;

“If you do not believe, or if you have a reasonable doubt thereof, you will find the defendant not guilty.

“You are further instructed that an indictment is no evidence of guilt. Therefore, you are instructed in this case that the indictment herein shall not be considered by the jury as any evidence of guilt, if any.

“A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, or by the conduct of another for which he is criminally responsible, or both. Each party to an offense may be charged with the commission of the offense.

“Mere presence alone will not make a person a party to an offense. A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, or encourages or directs or aids or attempts to aid the other person to commit the offense.

“Therefore, if you believe from the evidence beyond a reasonable doubt that the defendant, either by his own conduct, or acting with intent to promote or assist the commission of the offense, solicited, encouraged, directed, aided or attempted to aid another to commit an offense, and said other person did commit the offense, you will find the defendant guilty of said offense.

“If you do not so believe, or if you have a reasonable doubt thereof, you will find the defendant not guilty.”

The indictment sufficiently and accurately charged appellant with the instant offense. The State did not need to indict appellant as a party to the commission of the burglary of the Corvette in order for the jury to convict him for being a party to that offense. The “law of parties may be applied to a case even though no such allegation is contained in the indictment.” This rule applies to the law of parties as it is set out in both TEX.PENAL CODE ANN. § 7.02(a)(2) and in § 7.02(b). Montoya v. State, 810 S.W.2d 160, at 165 (Tex.Cr.App.1989); and cases cited therein.

The sufficiency of the evidence in the instant case must be measured against the level of proof set forth in the trial court’s instructions to the jury. This Court reflected on this standard of review in Fisher v. State, 887 S.W.2d 49 (Tex.Cr.App.1994). Citing Benson v. State, 661 S.W.2d 708 (Tex.Cr. App.1982), cert. denied 467 U.S. 1219, 104 , 81 L.Ed.2d 372 (1984), this Court explained that the Jackson v. Virginia standard “must be applied to the evidence and to a correct charge that corresponds to the indictment allegations.” While the “indictment is directed to the defendant for notice and jurisdiction requirements”, it “is the charge that convicts.” Fisher v. State, 887 S.W.2d at 58; quoting Benson v. State, 661 S.W.2d, at 715.

In Boozer v. State, 717 S.W.2d 608 (Tex.Cr. App.1984) this Court dealt with a charge that erroneously set out an instruction on corroboration of accomplice witness testimony. Because the charge was erroneous as to a matter that “was not and need not have been pled in the indictment”, the sufficiency of the evidence was properly reviewed under the level of proof set down in the charge. See Fisher v. State, 887 S.W.2d at 53.

This is the situation in the instant case. The dispute concerns whether or not the charge properly applied the theory of parties to the facts before the jury. As pointed out above, the theory of parties need not be pled in an indictment. Montoya v. State, supra. The sufficiency of the evidence to convict appellant should be measured against the charge.

The Court of Appeals set out to do this in the proper manner. First, they determined whether the trial court’s charge was legally proper or contained error. They then determined whether sufficient evidence was admitted at trial to convict appellant of the elements of the crime as set out in the charge. See Chatman v. State, 846 S.W.2d 329, n. 1 at 331 (Tex.Cr.App.1993).

The Court of Appeals found that the “charge of the trial court did not authorize the jury to convict Jackson under the law of parties; the charge only authorized Jackson’s conviction as a primary actor, as provided in the application paragraph of the charge.” Jackson v. State, slip op., at 5. To reach this conclusion, the Court of Appeals chose to disregard the five paragraphs in the charge which followed the single paragraph applying the law to the facts which were alleged in the indictment. The Court of Appeals justified this decision because these paragraphs “did not sufficiently apply the law to the facts.” Jackson v. State, slip op., at 4. We disagree.

The Court of Appeals erred in its analysis by overlooking the fact that appellant never objected to the trial court’s instructions applying the law of parties to the facts of the instant case. The trial court charged the jury to find appellant not guilty if they had a reasonable doubt that appellant committed the offense either by his own conduct or by his actions as a party. Cf. Jones v. State, 815 S.W.2d 667, at 668 (Tex.Cr.App. 1991) (wherein the charge failed to apply the abstract law of parties to the facts of the case.). Appellant failed to present an objection to the sufficiency of the jury’s instruction on the law of parties to the trial court. “If a defendant desires a more explicit application of a particular method of acting as a party, it is his burden to request such or object to the charge.” Chatman v. State, 846 S.W.2d, at 332.

We find the Court of Appeals erred in its analysis when it disregarded appellant’s failure to object to the charge, limited its focus solely to the one paragraph which applied the law to the factual allegations that were set out in the indictment, and disregarded the instruction which applied the law of parties to the question of whether appellant committed “the offense”.

In the absence of a request by appellant to more explicitly apply the law of parties to the facts, we find the general application of the law of parties to the facts was sufficient to refer the jury to the abstract instructions on the law of parties and to the specific elements of the instant offense. We find the jury was not misled or confused by such application in the instant ease. No fundamental error is shown. Chatman v. State, 846 S.W.2d, at 332. Since there was sufficient evidence that appellant acted as a party in the commission of the instant offense, the Court of Appeals also erred in ordering the acquittal of appellant.

The judgment of the Court of Appeals is reversed. We remand this cause to the Court of Appeals to dispose of the two points of error that were not resolved on direct appeal.

OVERSTREET, J., dissents. MEYERS, J., not participating.

1 . Due to this disposition of appellant’s first point of error before it, the Court of Appeals did not address the other two points of error raised by appellant on direct appeal.