COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-09-00373-CR
JOHNNY RAY WALLER APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
OPINION ON REHEARING
On July 7, 2011, this court issued an opinion reversing the trial court’s
judgment and remanding the case for a new trial. After due consideration, a
majority of this court agrees to grant the State’s motion for rehearing to delete
part IV of our prior memorandum opinion. The substance of the remainder of our
prior opinion, authored by Justice Dauphinot, and set forth below, remains
unchanged. We withdraw our prior memorandum opinion, concurring memorandum
opinion, and judgment dated July 7, 2011, and substitute the following in its
place.
A jury convicted Appellant Johnny Ray Waller of arson causing the death
of Geovany Gustavo Guerra, burglary of a habitation with intent to commit arson,
and felony murder of Guerra in the course of committing arson, all charged in
separate counts of a single indictment, and assessed Appellant’s punishment at
forty-five years’ confinement for each count. The trial court sentenced him
accordingly, ordering that the sentences run concurrently.
Appellant brings ten points, arguing that the trial court reversibly erred by
denying his challenges for cause of veniremembers who could not consider the
full range of punishment and by submitting a jury charge that did not require a
unanimous jury verdict or contain an accomplice witness instruction; that the
evidence is factually insufficient to support his convictions for arson as a party
and for felony murder as a party; and that trial counsel rendered ineffective
assistance by failing to request an accomplice witness instruction in the jury
charge. Because we hold that the trial court reversibly erred by failing to grant
Appellant’s challenges for cause of veniremembers who could not consider the
full range of punishment, we reverse the trial court’s judgment and remand this
case to the trial court for a new trial.
I. Summary of the Facts
2 Appellant and several other people had gone to James Griggs’s Haltom
City apartment one night because Appellant believed that Griggs owed him
money from a drug buy. At the time, Griggs was at his girlfriend’s apartment in
the same complex. Around 2:00 or 3:00 a.m., from his girlfriend’s apartment,
Griggs saw several people walking to his apartment. He also saw two vehicles in
the parking lot, one of which he recognized as Appellant’s girlfriend’s truck.
Griggs’s neighbor, Tara Daubig, testified that she and a friend were on her
balcony when she saw a black SUV driving around the parking lot. A black Ford
pickup truck met the SUV in front of her apartment, and one man got out of the
truck. About three men got out of the SUV. The group headed toward Griggs’s
apartment, shouting, ―Where’s James?‖ and ―We’ll find you.‖ She heard them
bang on a door. When they left, she noted that it was 2:30 a.m. Around 2:55
a.m., Griggs received a text from Appellant’s girlfriend that they were gone from
his apartment.
Melissa Svec, another neighbor, awoke between 4:00 a.m. and 4:30 a.m.
to the smell of smoke. She had been awakened briefly about forty-five minutes
before by a bang coming from a nearby apartment.
A third neighbor, Sandy Bethea, testified that she awoke to the smell of
charcoal lighter fluid around 4:00 a.m. She went back to sleep and was
awakened about thirty minutes later by someone knocking on her door and
informing her of the fire.
3 After receiving a phone call telling him that his apartment was on fire,
Griggs returned to his apartment and saw flames rolling along the ceiling. He
testified that he saw a can of lighter fluid on the counter.
After the fire in the three-story apartment building was extinguished by
firefighters, the body of Guerra was discovered in the bathtub of a third-floor
apartment.
While out on patrol several days later, Hurst Police Officer Amber Hull ran
the license plate of a car in front of her and discovered that the car had been
reported as stolen. Hull was in North Richland Hills at the time, so she followed
the car until a North Richland Hills police officer could respond. A North Richland
Hills police vehicle gave chase to the car but terminated the chase. The car was
later found abandoned in a subdivision. The police found Appellant and two
women hiding in a nearby drainage ditch. At trial, the North Richland Hills officer
who had chased the car identified Appellant as its driver.
A Haltom City police officer investigating the fire at the apartment complex
obtained a search warrant for the stolen vehicle. From the vehicle, the officer
recovered a small blow torch, a pistol equipped with a laser sight, a newspaper
clipping about the fire, and a piece of paper with Griggs’s prior address, his
driver’s license number, and his social security number.
In a videotaped statement to the police, Appellant admitted going to
Griggs’s apartment on the night of the fire ―to whip [his] ass‖ and also that he had
instructed a number of people to meet him in the apartment complex parking lot.
4 Appellant also admitted that one of his acquaintances kicked in the door to
Griggs’s apartment. Appellant stated that the apartment was empty, and he left.
As he was leaving, Appellant saw brothers K.C. and Jaime Sifuentes in the street
outside the complex. The brothers were among the people that Appellant had
called to meet him at the apartment complex. Appellant stated that they had a
gas container and wanted a ride, claiming that their car was out of gas.
Appellant said that he told the brothers the purpose of his visit and that they told
him something like, ―Don’t worry about it,‖ ―It’ll get taken care of,‖ and ―We got it
taken care of,‖ but they did not say anything about starting a fire.
Alan LeMaster, who was also charged with arson for the fire, testified for
the State at Appellant’s trial. LeMaster testified that he and the Sifuentes
brothers were at his godmother’s apartment on the night of the fire. K.C.
received a phone call from Appellant and went outside to talk. When K.C. came
back inside, he told his brother that ―it was time to go.‖ The brothers invited
LeMaster to go with them. K.C. said that they were going to collect some money
owed to Appellant. They stopped at a gas station on the way; LeMaster testified
that he went inside to use the restroom while the brothers ―were supposedly
getting gas for [their] car.‖ Appellant called K.C., who told him that they were on
their way.
LeMaster stated that when they arrived at the complex, the brothers went
into Griggs’s apartment and told LeMaster to wait at the top of the stairs.
LeMaster went into the apartment at one point and saw K.C. holding a cup of
5 liquid in his hand and asking Jaime about a good spot. LeMaster did not smell
gas fumes, lighter fluid, or anything of that sort. The brothers told LeMaster to go
back to the stairs. About a minute later, the brothers ran out of the apartment,
and all three ran back to the car. K.C. drove around the parking lot until flames
could be seen coming out of the building. The brothers dropped LeMaster back
off at his godmother’s apartment, where K.C. made a telephone call and told
someone that the brothers ―did what [they] were supposed to and [that they
would] be on [their] way to handle business.‖ The brothers then left but returned
about an hour later with some methamphetamine and some money.
LeMaster’s godmother testified that LeMaster had told her that he had
gone into the apartment with the brothers and had started a fire to take care of a
problem for Appellant.
In the jury charge, the trial court charged the separate paragraphs of each
of the three counts in the disjunctive. There was a separate verdict form for each
count. The jury charge did not state that the jury had to be unanimous on any
single theory of the alternative manners and means of committing the offense in
each count.
The jury charge also contained special issues relating to a deadly weapon
finding. The jury did not find that Appellant had exhibited a deadly weapon in the
form of a combustible or flammable liquid or material or ―carbon monoxide and/or
smoke‖ or that he knew that such deadly weapon would be used.
6 The jury charge did not contain an accomplice witness instruction
regarding LeMaster’s testimony, and Appellant did not request such an
instruction or object to the trial court’s failure to include one.
II. Sufficiency of the Evidence
Appellant argues in his seventh and eighth points that the evidence is
factually insufficient to support his convictions for arson as a party and for felony
murder as a party. The State argues that ―[b]y attacking only the factual
sufficiency of the evidence, Appellant has implicitly conceded that the evidence is
factually sufficient. His seventh and eighth points of error should therefore be
overruled.‖
After Appellant filed his brief, the Texas Court of Criminal Appeals held that
there is no meaningful distinction between the legal sufficiency standard and the
factual sufficiency standard.1 Thus, the Jackson standard, which is explained
below, is the ―only standard that a reviewing court should apply in determining
whether the evidence is sufficient to support each element of a criminal offense
that the State is required to prove beyond a reasonable doubt.‖2 We therefore
apply the Jackson standard to Appellant’s seventh and eighth points.
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the
1 Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (overruling Clewis v. State, 922 S.W.2d 126, 131–32 (Tex. Crim. App. 1996)). 2 Id.
7 prosecution to determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. 3 The jury is the sole
judge of the credibility of the evidence and the weight to be given to each piece
of evidence.4
The sufficiency of the evidence in a criminal case is not determined by a
no-evidence standard.5 Instead, we must look at all the evidence to determine
whether a rational jury could have found that the State proved every element of
the offenses of arson and felony murder beyond a reasonable doubt.
As the Texas Court of Criminal Appeals has explained,
[T]he law in Texas allows individuals to be charged as a party to an offense and to be held criminally responsible for the conduct of another when that individual acts in concert with another person in committing an offense. Circumstantial evidence alone may be used to prove that a person is a party to an offense. 6
Appellant argues, and the record reflects, that he was not present when
LeMaster or the Sifuentes brothers, or both LeMaster and the Sifuentes brothers,
set the fire that destroyed Griggs’s apartment and caused Guerra’s death.
3 Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). 4 Brooks, 323 S.W.3d at 899. 5 Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989), overruled on other grounds by Geesa v. State, 820 S.W.2d 154, 161 (Tex. Crim. App. 1991), overruled on other grounds by Paulson v. State, 28 S.W.3d 570, 571 (Tex. Crim. App. 2000). 6 Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006).
8 Appellant also points out that the jury specifically found in Special Issues One
and Two that he did not use or know that any type of accelerant would be used to
start a fire.
Nevertheless, there was evidence from which the jury could conclude that
Appellant had instructed LeMaster and the Sifuentes brothers to act as enforcers
to punish Griggs for failing to pay Appellant what was owed. There was also
evidence from which the jury could conclude that when Appellant left Griggs’s
apartment, he knew that the Sifuentes brothers would stay behind to inflict that
punishment when the apartment was empty.
By not answering the deadly weapon special issue in the affirmative, the
jury expressed its belief that Appellant did not anticipate that an accelerant would
be used. Although there was evidence of a gas can, Griggs saw a can of lighter
fluid, and a neighbor smelled lighter fluid. There was also evidence that one of
the Sifuentes brothers called someone and reported that ―[they had done] what
[they] were supposed to.‖ There was also evidence of a blow torch in the car that
Appellant was seen driving immediately before his capture. We therefore
conclude that the jury’s verdict regarding the special issues was not necessarily
inconsistent with a finding of guilt.
Applying the appropriate standard of review, we hold that, as Appellant
phrased his seventh and eighth points, the evidence is sufficient to support
Appellant’s guilt as a party to both arson and felony murder. We overrule
Appellant’s seventh and eighth points.
9 III. Jury Selection
In his first, second, and third points, Appellant argues that the trial court
reversibly erred by denying his challenges for cause to three members of the
venire, numbers 13, 14, and 20. Appellant properly preserved his complaints by
striking the three veniremembers, requesting additional strikes, and showing that
he was forced to accept at least three specific objectionable jurors.7
The indictment charges in both paragraphs of the first count that Appellant
committed arson of a habitation within the limits of an incorporated city or town,
―and/or knowing that the said habitation[] was located on property belonging to
another, and death was suffered by Geovany Gustavo Guerra by reason of the
commission of said arson.‖ The first count of the indictment, then, charges
commission of first-degree arson.8
Both paragraphs of Count Three charge that Appellant intentionally or
knowingly committed or attempted to commit an act clearly dangerous to human
life, arson, that caused the death of Guerra and that Appellant was in the course
of or immediate flight from the commission or attempted commission of a felony
(arson in the first paragraph and burglary of a habitation in the second
7 See Loredo v. State, 159 S.W.3d 920, 923 (Tex. Crim. App. 2004). 8 See Tex. Penal Code Ann. § 28.02(a)(2), (d) (West 2011).
10 paragraph). That is, Count Three of the indictment charges that Appellant
committed felony murder of Guerra.9
During voir dire, defense counsel asked the venire, ―If the facts justify it
and the law allows it, could you—where you found somebody guilty beyond a
reasonable doubt of arson where somebody had died, could you consider the
minimal range of punishment?‖ Then he explained the possible minimum
punishments of five or fifteen years.
Venireperson Number 14, Kelly Koreneck, stated,
If we found whoever guilty beyond a reasonable doubt, why would we go for the minimum? That just seems like a slap on the wrist, if someone died. If someone has died, then you—someone needs to be held accountable for that and somebody should.
....
[KORENEK]: So I would go to the maximum.
[DEFENSE]: And—and you would always go to the maximum?
[KORENEK]: If we found them guilty beyond a reasonable doubt, why would we go for the minimum?
The jurors indicated that death justified maximum punishment. But death
of an individual was an essential element of two counts of the indictment. The
jury would reach the issue of punishment only if they found the defendant guilty
beyond a reasonable doubt, that is, only if they found all the elements, including
9 See id. § 19.02(b)(3) (West 2011).
11 death, beyond a reasonable doubt.10 Had there been no death, Appellant would
have been acquitted of the charged offenses.
Venireperson Number 12, Sasidara Manne said, in discussing the range of
punishment and intoxication as mitigation of punishment,
When a person’s drunk beyond the limit— . . . —that means he’s already guilty. So whether it’s involuntary or voluntary, it’s not a question in my mind. Drinking beyond the limit itself he is—he—he committed a big mistake. Therefore, you know, he is treated like a normal person. He should be punished to the maximum.
[DEFENSE]: To the maximum?
[MANNE]: Yes.
[DEFENSE]: You could never consider the minimum?
[MANNE]: No, sir.
Venireperson Number 13, Ms. Collins, volunteered that she agreed with
the ―people that are sitting here with me,‖ immediately after Manne spoke.
Defense counsel clarified that Collins was speaking of Manne when she referred
to the people that were sitting there with her.
Venireperson Number 20, Benjamin Hatcher, firmly stated that he could
not ―go for the minimum punishment if someone died.‖ Hatcher was recalled and
insisted that he could not consider the minimum punishment. After the trial judge
intervened, Hatcher finally said, ―[T]he answer is yes, I can consider the
minimum.‖ And then the trial court clarified,
10 See Tex. Code Crim. Proc. Ann. art. 37.07, § 2(b) (West Supp. 2010).
12 [COURT]: And the maximum?
[HATCHER]: Yes, and the maximum.
While the State is correct in stating that a juror who could not consider the
full range of punishment under certain circumstances is not disqualified, the
circumstance cannot be an essential element of the offense. 11 A juror must be
able to consider the full range of punishment in a murder case 12 but is not
disqualified if he or she could not consider the full range under certain
circumstances,13 for example, if torture was involved, or in a mercy killing, or if a
child was killed. But here, the circumstance that precluded considering the full
range of punishment was finding guilt beyond a reasonable doubt if there was a
death; that is, conviction.
The State argues that Hatcher was a vacillating juror. He appears, rather,
to be an acquiescing juror. But Korenek and Collins were neither vacillating nor
confused. They were adamant.
The State relies on Davis v. State to argue that Appellant did not
sufficiently instruct Korenek and Collins on the law that would govern them as
jurors:
To preserve error for a trial court’s erroneous denial of a challenge for cause, appellant must show that: (1) he asserted a
11 See id. art. 35.16(c)(2) (West 2006). 12 See id. 13 Sadler v. State, 977 S.W.2d 140, 142 (Tex. Crim. App. 1998).
13 clear and specific challenge for cause; (2) he used a peremptory challenge on the complained-of venire member; (3) his peremptory challenges were exhausted; (4) his request for additional strikes was denied; and (5) an objectionable juror sat on the jury. Appellant has properly preserved error with respect to each of the challenged venire members.
If a trial judge errs in overruling a challenge for cause against a venire member, then a defendant is harmed if he uses a peremptory strike to remove the venire member and thereafter suffers a detriment from the loss of the strike. Appellant was denied any additional peremptory strikes. To demonstrate harm, appellant must show that the trial court erroneously denied one challenge for cause.
When reviewing a trial court’s decision to deny a challenge for cause, we look at the entire record to determine if there is sufficient evidence to support the ruling. The test is whether a bias or prejudice would substantially impair the venire member’s ability to carry out the juror’s oath and judicial instructions in accordance with the law. Before venire members may be excused for cause, the law must be explained to them, and they must be asked whether they can follow that law, regardless of their personal views. The proponent of a challenge for cause has the burden of establishing that the challenge is proper. The proponent does not meet this burden until he has shown that the venire member understood the requirements of the law and could not overcome his or her prejudice well enough to follow the law.
We review a trial court’s ruling on a challenge for cause with considerable deference because the trial judge is in the best position to evaluate a venire member’s demeanor and responses. A trial judge’s ruling on a challenge for cause may be reversed only for a clear abuse of discretion. When a venire member’s answers are vacillating, unclear, or contradictory, we accord particular deference to the trial court’s decision.14
14 Davis v. State, 329 S.W.3d 798, 807 (Tex. Crim. App. 2010), cert. denied, No. 10-10063, 2011 WL 4530525 (Oct. 3, 2011) (citations omitted).
14 The trial court, not the lawyers, bears the obligation of instructing the jurors
on the law.15 Davis instructs us that the proponent of the challenge bears the
burden not of instructing the jurors but of showing that the challenged ―venire
member understood the requirements of the law and could not overcome his or
her prejudice well enough to follow the law.‖16 The distinction is subtle, but it is
significant. The attorneys do not bear the burden of instructing the venire on the
law. The attorneys do bear the burden of providing a sufficient record showing
that the venire has been instructed and understands the law. Presumably, if the
trial court fails to provide adequate instruction, the lawyers may provide the
missing information to the venire or may ask the trial court to do so. In either
case, the record must reflect that the challenged veniremembers could not follow
the law even though they had been adequately instructed in the requirements of
the law.
The trial court thoroughly instructed the venire on the burden of proof and
the meaning of beyond a reasonable doubt. The lawyers thoroughly discussed
the obligations of jurors to consider the entire range of punishment. The lawyers
dealt with at least one veniremember who had trouble understanding why the
death penalty was not available. The veniremembers were told repeatedly what
the range of punishment was and that they had to be able to consider the full
15 See Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007). 16 See Davis, 329 S.W.3d at 807.
15 range of punishment. They were repeatedly instructed that if the facts justified it
and the law allowed it, they were required to be able to give full and fair
consideration to the full range of punishment. Only then would they be qualified
to serve as jurors. They were told that they had only to consider the entire range
and that there was a difference between considering the entire range and
assessing a particular punishment.
Members of the venire announced that they believed that Appellant was
guilty because he had been arrested and that nothing could change their mind.
Manne stated that the he could not be ―a fair person to sit in that chair and make
a decision as a juror‖ if there was ―any doubt‖ that a person committed ―a
violence.‖ He would require the defense to prove Appellant’s innocence beyond
a reasonable doubt if there was any allegation of violence.
The entire venire, as well as individual members of the venire in the
presence of the entire venire, were repeatedly instructed that they had to follow
the law, had to require the State to prove guilt beyond a reasonable doubt, could
not presume guilt, and had to consider the entire range of punishment, be fair
and impartial, and follow the law. They were instructed that the minimum
punishment was five years but increased to fifteen years if the defendant had
been previously convicted of a felony. They were told that the maximum
punishment was life but that they had to be able to consider the entire range of
punishment and base their decision on the law and the evidence.
16 The trial court did an excellent job of allowing a full and thorough voir dire
of the venire. Veniremembers were also brought to the bench for individual voir
dire, and the lawyers and the trial court ferreted out any confusion and answered
questions and clarified any misunderstanding on the part of the veniremembers.
The members of the venire were repeatedly instructed in the law and their
obligations under the law.
The trial court assured that the requirements of Davis were fully met.
Korenek and Collins clearly understood that in order to be qualified to serve as
jurors, they had to fully and fairly consider the entire range of punishment. 17
They understood what that range of punishment was, both with and without proof
of a prior felony conviction.18 They understood that their punishment verdict
would have to be based on the law and the evidence. 19 Still, both rejected any
consideration of the minimum punishment. 20 We therefore hold that the trial
court abused its discretion by denying the challenges to those two
veniremembers, and we further hold that Appellant showed harm from the denial.
17 See Cardenas v. State, 325 S.W.3d 179, 186–87 (Tex. Crim. App. 2010). 18 See id. 19 See id. 20 See id.
17 We sustain Appellant’s first and second points, which are dispositive, and do not
reach the merits of his remaining points.21
IV. Conclusion
Having sustained Appellant’s dispositive jury selection points, we reverse
the trial court’s judgment and remand this case to the trial court for a new trial.
SUE WALKER JUSTICE
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
DAUPHINOT, J. filed a dissenting and concurring opinion.
PUBLISH
DELIVERED: October 20, 2011
21 See Tex. R. App. P. 47.1.
18 COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
DISSENTING AND CONCURRING OPINION 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, combining 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
2 committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of carrying out the conspiracy.1
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.2
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.‖ 3
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.
1 Tex. Penal Code Ann. § 7.02(b) (West 2011). 2 Id. § 15.02(a)–(c). 3 See id. § 15.02(d).
3 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, 4 nor is it
the same as the law of parties.5 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.6 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. 7 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,8 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
4 Pereira v. United States, 347 U.S. 1, 74 S. Ct. 358 (1954). 5 See Ex parte Brosky, 863 S.W.2d 783, 784 (Tex. App.—Fort Worth 1993, no pet.) (Brosky I). 6 Pereira, 347 U.S. at 3, 74 S. Ct. at 360. 7 Id. at 11, 74 S. Ct. at 364. 8 Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
4 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. 9 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.10 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. 11
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
9 Brosky I, 863 S.W.2d at 784, 788. 10 Brosky v. State, 915 S.W.2d 120, 140 (Tex. App.—Fort Worth, pet. ref’d) (Brosky II), cert. denied, 519 U.S. 1020 (1996). 11 503 U.S. 378, 390–91, 112 S. Ct. 1377, 1385 (1992).
5 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. 12
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. 13
The intermediate appellate court had reversed Woodard’s conviction on this
ground.14 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.15
12 See generally Pereira, 347 U.S. 1, 74 S. Ct. 358; see Brosky I, 863 S.W.2d at 784 & n.4. 13 322 S.W.3d 648, 649 (Tex. Crim. App. 2010) (Woodard II). 14 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. 15 Id. at 407–09.
6 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. 16 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.‖17
In the case 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 death18 and of felony murder,19 with
16 Woodard II, 322 S.W.3d at 659. 17 Id. at 656–57 (citations omitted). 18 Tex. Penal Code Ann. § 28.02(a)(2), (d) (West 2011).
7 arson being both the underlying felony and the act clearly dangerous to human
life that caused the death.20
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.
LEE ANN DAUPHINOT JUSTICE
19 Id. § 19.02(b)(3). 20 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).