Johnny Ray Waller v. State

353 S.W.3d 257, 2011 Tex. App. LEXIS 8403, 2011 WL 5009861

• Court: Court of Appeals of Texas
• Decided: October 20, 2011
• Docket: 02-09-00373-CR
• Status: Published

Opinions

LEE ANN DAUPHINOT, Justice,

dissenting and concurring on rehearing.

I would deny the State’s motion for rehearing. Other than that, I am in complete agreement with the majority opinion. But because we are remanding this case, in the interest of judicial economy, I note with concern two issues raised below but not raised on appeal.

The trial court instructed the jurors that they must find Appellant guilty of arson if they found beyond a reasonable doubt that Appellant “entered into a conspiracy with Casimer Sifuentes or Jaime Sifuentes to commit the felony offense of Aggravated Assault on James Griggs, or Burglary of a Habitation with intent to commit theft, or Burglary of a Habitation with the intent to commit assault” and in the attempt to carry out the agreement the Sifuentes brothers committed arson, causing Guerra’s death, “and that such offense was committed in furtherance of the unlawful purpose to commit Burglary of a Habitation or Aggravated Assault, and was an offense that should have been anticipated as a result of the carrying out of the agreement,” even “though [Appellant] may have had no intent to commit it.” The trial court provided a similar instruction that the jurors must convict Appellant of murder if they found beyond a reasonable doubt that Appellant “entered into a conspiracy with Casimer Sifuentes or Jaime Sifuentes to commit the felony offense [of] Burglary of a Habitation” and that “in the attempt to carry out this agreement,” the Sifuentes brothers committed burglary of a habitation and felony murder of Guerra and that “such offense was committed in furtherance of the unlawful purpose, and was an offense that should have been anticipated as a result of the carrying out of the agreement,” even “though he may have had no intent to commit it.”

Immediately following the section 7.02(a) penal code instruction, the trial court, com-billing language from subsections (a) and (b) of section 7.02, instructed the jury that

[a] person is criminally responsible for an offense committed by the conduct of another if, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of carrying out the conspiracy.²²

The trial court then instructed the jury on the definition of conspiracy as set out in section 15.02 of the penal code:

The term “conspiracy” means an agreement with one or more persons that they or one of [sic] more of them engage in conduct that would constitute a felony. An agreement constituting a conspiracy may be inferred from the acts of the parties....

... [I]t is no defense that the person for whose conduct the defendant is criminally responsible has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense or of a different type or class of offense, or is immune from prosec[u]tion.²³

The trial court did not instruct the jury pursuant to section 15.02(d) that “[a]n offense under this section is one category lower than the most serious felony that is the object of the conspiracy, and if the most serious felony that is the object of the conspiracy is a state jail felony, the offense is a Class A misdemeanor.”²⁴

Essentially, in attempting to provide a section 7.02(b) instruction, the trial court actually instructed the jury that they could convict Appellant as a party to the more serious offense if the jury found Appellant guilty of section 15.02 conspiracy, an offense for which he was not indicted.

It is well established that the offense of criminal conspiracy is a separate offense and is not a lesser included offense of the aim of the conspiracy,²⁵ nor is it the same as the law of parties.²⁶ In Pereira v. United States, defendants Pereira and Brading were charged with and convicted for violating the federal mail fraud statute and the National Stolen Property Act and conspiracy to commit those offenses.²⁷ The Pereira court held that the substantive offenses and conspiracy to commit the substantive offenses are separate offenses because each contains an element that the other does not.²⁸ Conspiracy requires the State to prove an agreement. Murder, as a principal or as a party, does not require the State to sustain the burden of proving an agreement. The instruction, contrary to the mandate of Malik,²⁹ both permits the jury to convict of an offense that is neither charged in the indictment nor a lesser included offense of that charged in the indictment and also increases the burden of the State beyond that prescribed by the indictment by requiring the State to prove an agreement.

In Ex parte Brosky, the State chose to prosecute Brosky for conspiracy to commit murder after a jury recommended that his sentence for murder as a party be probated. Brosky argued that he' could not be prosecuted for conspiracy to commit murder under section 15.02 of the penal code because it was essentially the same offense as murder as a party, or, at best, a lesser included offense of murder as a party. We held that Brosky could be prosecuted for both the substantive offense and conspiracy to commit the substantive offense because they were different offenses.³⁰ After the second trial, Brosky again raised the double jeopardy argument, arguing that he could not be convicted of murder as a party and of conspiracy to commit murder. Again, this court held that they were two separate offenses, not two ways to commit the same offense and not a greater and lesser included offense.³¹ We relied on United States v. Felix, in which the United States Supreme Court recognized that a prosecution for conspiracy is not precluded by a prior prosecution for the substantive offense.³²

If a trial court instructs jurors that they may convict a defendant of the substantive offense, whether they find him guilty of the substantive offense or of conspiracy to commit the substantive offense, the trial court instructs the jurors that they may convict of either the indicted offense or of an unindicted offense that is not a lesser included offense of the greater substantive offense.³³

In Woodard v. State, the Texas Court of Criminal Appeals recently addressed the issue of whether a jury could be instructed to convict a defendant of conspiracy to commit the substantive offense when the defendant was not charged by indictment with conspiracy but only with the substantive offense.³⁴ The intermediate appellate court had reversed Woodard’s conviction on this ground.³⁵ Woodard was indicted for murder, both intentional murder and murder as a consequence of doing an act clearly dangerous to human life. The jury was instructed to convict if they found Woodard guilty of conspiracy to commit either robbery or aggravated robbery. The intermediate appellate court held that our federal and state constitutions do not permit conviction of an offense not alleged in the indictment, such as robbery or conspiracy.³⁶

The Texas Court of Criminal Appeals reversed the appellate court and affirmed the conviction because Woodard had participated in preparation of the jury charge that contained the conspiracy instruction.³⁷ The court noted,

[T]he federal constitutional rule that “a defendant cannot be held to answer a charge not contained in the indictment brought against him” is not based entirely “on the [due-process] right of the defendant to notice of the charge brought against him.” This rule is also based on the Fifth Amendment’s grand jury guarantee that no person “shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.” •

Our constitution contains a similar guarantee. The right to a grand jury-indictment under state law is a waivable right, which “must be implemented by the system unless expressly waived.”³⁸

In the ease now before this court, however, trial counsel timely and specifically objected to the conspiracy instructions and pointed out that Appellant was not charged with the offense of conspiracy. The trial court overruled Appellant’s objections and included the improper instructions.

Trial counsel also objected to the jury instructions that allowed the jury to convict Appellant both of arson causing Guerra’s death and of felony murder causing Guerra’s death in the course of arson. The trial court overruled his objections and allowed both convictions, raising the question of whether a person may be convicted of both arson resulting in death³⁹ and of felony murder,⁴⁰ with arson being both the underlying felony and the act clearly dangerous to human life that caused the death.⁴¹

I agree wholeheartedly with the majority’s determination of the merits of Appellant’s issues. I write only to bring this entire matter to a more efficient final resolution.

22 . Tex. Penal Code Ann. § 7.02(b) (West 2011).

23 . Id. § 15.02(a)-(c).

24 . See id. § 15.02(d).

25 . Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954).

26 . See Ex parte Brosky, 863 S.W.2d 783, 784 (Tex.App.-Fort Worth 1993, no pet.) (Brosky I)•

27 . Pereira, 347 U.S. at 3, 74 S.Ct. at 360.

28 . Id. at 11, 74 S.Ct. at 364.

29 . Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997).

30 . Brosky I, 863 S.W.2d at 784, 788.

31 . Brosky v. State, 915 S.W.2d 120, 140 (Tex.App.-Fort Worth, pet. ref'd) (Brosky II), cert. denied, 519 U.S. 1020, 117 S.Ct. 537, 136 L.Ed.2d 422 (1996).

32 . 503 U.S. 378, 390-91, 112 S.Ct. 1377, 1385, 118 L.Ed.2d 25 (1992).

33 . See generally Pereira, 347 U.S, 1, 74 S.Ct. 358; see Brosky I, 863 S.W.2d at 784 & n. 4.

34 . 322 S.W.3d 648, 649 (Tex.Crim.App.2010) (Woodard II).

35 . Woodard v. State, 300 S.W.3d 404, 406 (Tex.App.-Houston [14th Dist.] 2009) (Woodard I), rev'd, 322 S.W.3d at 659.

36 . Id. at 407-09.

37 . Woodard II, 322 S.W.3d at 659.

38 . Id. at 656-57 (citations omitted).

39 . Tex. Penal Code Ann. § 28.02(a)(2), (d) (West 2011).

40 . Id. § 19.02(b)(3).

41 .See, e.g., Littrell v. State, 271 S.W.3d 273, 279 (Tex.Crim.App.2008); Lawson v. State, 64 S.W.3d 396, 397-401 (Tex.Crim.App.2001) (Cochran, J., concurring).