Johnson v. State

739 S.W.2d 299, 1987 Tex. Crim. App. LEXIS 664

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Appellant was convicted by a jury of the offense of aggravated kidnapping under V.T.C.A. Penal Code, § 20.04(a)(1). The trial court assessed punishment at fifty years confinement in the Texas Department of Corrections.

In his only ground of error on appeal to the Fourteenth Court of Appeals appellant complained that the trial court erred in refusing to respond to his trial objection that the jury charge failed “to allege the specific acts that the State is relying on to make him a party. It does not say depending on solicitation, encouragement, direction, aid or attempt to aid one Mr. Clifford in the commission of this offense.” See V.T.C.A. Penal Code, § 7.02(a)(2). Though the State expressly invited the jury in its summation thus to find appellant guilty as a party to the offense, the court of appeals held in an unpublished opinion that any error in failing to apply the law of parties to the facts was harmless. Johnson v. State, 702 S.W.2d 691 (Tex.App.— Houston [14th] 1985). The court of appeals found “[t]here is a reasonable inference that appellant was one of the two male guards who actually restrained the complainant[,]” and thus, that the evidence supported a jury finding that appellant was guilty as a primary actor. Rather than relying on our opinion in Govan v. State, 682 S.W.2d 567 (Tex.Cr.App.1985), as direct authority in support of its holding, however, the court of appeals cited our subsequent opinion in Watson v. State, 693 S.W. 2d 938 (Tex.Cr.App.1985), for the proposition that the jury charge given actually “benefits appellant[,]” in that it “simply increased the [S]tate’s burden with respect to appellant’s culpability.”

In his petition for discretionary review appellant now challenges the court of appeals’ conclusion that the charge given actually inured to his benefit, and continues to insist that under Jaycon v. State, 651 S.W.2d 803 (Tex.Cr.App.1983) and Apodaca v. State, 589 S.W.2d 696 (Tex.Cr.App.1979), he was entitled to a charge adequately applying the law of parties to the facts of the offense. We granted appellant’s petition in order to determine whether the court of appeals has rendered a decision that conflicts with applicable decisions of this Court. Tex.R.App.Pro., Rule 200(c)(3).

I.

At approximately 1:30 p.m. on the afternoon of February 23, 1984, Marjorie Lem-ieux was accosted by a single masked assailant in the driveway of her home in Houston. Her wrists and ankles were bound with tape, a pillowcase was secured over her head, and she was placed under a carpet in the back seat of her own Jaguar and driven away. For the next 27 hours two men, one her original abductor and the other a man with what she described as a “Tex-Mex” accent, drove her around in the .Jaguar, occasionally together but usually singly, in shifts of three to four hours. Between shifts the car would stop at a rendezvous point, where the complainant had a distinct sense that other people were present — in fact, her original abductor told her there were four people there in a van, two women and two men, and he “insinuated” that “these people were in control of what was going on, that he was following orders.” Contrary to the finding of the court of appeals, there is no indication that either of complainant’s two “guards” was appellant.

Sometime between 8:00 and 10:00 a.m. on the morning of February 24th, while the man with the “Tex-Mex” accent was driving, yet a third man got into the Jaguar as it sat parked in some dark, presumably covered area. This man refused to talk to complainant, but he had a persistent cough which set him apart from the others. For the next 45 minutes the third man got in and out of the car, apparently conducting ransom negotiations from a nearby telephone. At times when he was in the car, complainant could hear the sound of “a pencil writing on paper” coming from his side of the front seat.

Complainant’s husband, Henry Lemieux, had been contacted by telephone around 3:30 p.m. on the 23rd at his place of business. The caller demanded a $200,000 ransom. Lemieux immediately notified the police and also the F.B.I., who installed a recording device in his home telephone. Over the next 24 hours eight calls involving ransom negotiations, first from a male voice and later from what sounded like a female voice, were recorded. The first voice was shown to belong to one Harry Arnold Clifford. Appellant’s sixteen year old girlfriend identified the second as appellant’s imitation of a female voice, which she had heard on many occasions. On the afternoon of the 24th, several more calls were placed to designated public telephones, but these calls could not be recorded. The last of these calls involved a third, once again male voice. From listening to appellant speak in the courtroom, Lemieux was able to identify this third voice as his also.

Lemieux was instructed to place the ransom money in a van which he owned, and to leave the van parked at the Airport Holiday Inn. This was accomplished by about 5:00 p.m., and complainant was set free. The van was subsequently stopped a short distance from the motel, and its sole occupant, Clifford, was arrested. Officers recovered a gray canvas bag, which together with some of its contents, had been taken from complainant’s Jaguar.¹ Among the items found in the bag was a notepad belonging to complainant, on which both appellant’s and Clifford’s fingerprints were found. A documents examiner for the Houston Police Department found “definite indications” some of the writing on the pad, relating to the kidnapping and ransom demands, was in appellant’s handwriting. On the pad was a reference to “Peggy,” which was shown to be a fictitious name for appellant. Complainant testified this writing had not appeared on the notepad prior to her abduction. Additionally, half a dozen pages of looseleaf notebook paper which again displayed appellant’s fingerprints and handwriting were discovered in Clifford’s pocket.

Appellant’s fingerprints were also obtained from a coke bottle in Clifford’s car, which had been left in the airport parking lot at about 4:30 a.m. on the morning of February 24th.

During its final argument the State emphasized appellant’s various connections to Clifford. It was also asserted that appellant had been the man with the cough who had been in and out of the Jaguar for 45 minutes on the morning of February 24th, composing the messages that were later found in the van. Finally it was stressed that appellant’s voice was identified as that of one of the ransom negotiators. This, it was urged, provided direct evidence of appellant’s guilt as a party to the offense:

"... that’s not circumstantial evidence. That’s direct examination [sic: evidence?] under the law. There is no need to remove any other reasonable hypothesis.

“I submit, ladies and gentlemen, we have proved to you beyond a reasonable doubt, any doubt at all, that [appellant] participated in this as a party in the kidnapping of Mrs. Lemieux.”²

Because any evidence that appellant personally “secreted” or “held” complainant, see V.T.C.A. Penal Code, § 20.01(2)(A), was in fact purely circumstantial, it appears the State preferred that the jury proceed to verdict on a theory that appellant was criminally responsible as a party to the conduct of others, particularly Harry Arnold Clifford.

II.

In Watson v. State, supra, this Court concluded it was error to have charged the jury that the defendant could be found guilty of burglary of a habitation “acting either alone or as a party to the offense,” because we found no support in the record for a jury verdict that defendant acted as a primary actor in the entry of the premises. Review of the jury argument showed “the State was proceeding solely on a theory that [defendant] was guilty as a party.” Id., at 941. Nevertheless the Court found this error harmless under the “some harm” standard of Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985), relating to error which is preserved by timely objection. Noting that a charge on the law of parties normally benefits the State inasmuch as it “enlarges a defendant’s criminal responsibility^]” the Court found that “in the converse, a charge requiring the jury to find that a defendant acted alone increases the State’s burden and thus benefits the defendant.” 693 S.W.2d at 941-42.³

Simply put, the decision in Watson cannot stand as authority, direct or analogous, for a finding of harmless error in the instant cause. The court of appeals seems to have reasoned that, because in its view there was evidence appellant was guilty as a primary actor, any reference to the law of parties in the charge was superfluous and could only have operated to increase the State’s burden to appellant’s advantage. However, addition of the law of parties will never increase the State’s burden of proof. On the contrary, as Watson itself reiterated, submission of the law of parties under § 7.02(a)(2), supra, invariably makes it possible for the State to obtain a conviction on less than sufficient evidence to establish the accused actually committed an offense as otherwise defined in the Penal Code. In Watson the State could not have obtained conviction of defendant as a primary actor. It was therefore held that having required as an alternative to the theory of guilt as a party that the State actually establish his guilt as a primary actor could only have “benefited” the defendant. But Watson is inapposite here. That the evidence in a given case may be deemed legally sufficient to support conviction of the accused as a primary actor will not necessarily render a failure to apply the law of parties to the facts of the case over objection harmless, much less beneficial — especially where, as here, the State indicates it would prefer to proceed on the relatively simpler endeavor of proving guilt as a party.

Consequently we reject the court of appeals’ reliance upon Watson as a basis of analysis for determining harmfulness vel non in the instant cause. Instead we proceed to analysis under this Court’s decision in Govan v. State, supra, its precedents, and our more recent pronouncements in Almanza v. State, supra, and Black v. State, 723 S.W.2d 674 (Tex.Cr.App.1986).

III.

One way to dispose of the appellant’s contentions in fairly short order would be to adhere quite literally to the holding in Govan, and, finding that the jury was entitled to believe appellant was the third man in the Jaguar, and that his conduct amounted to “holding” of the complainant for purposes of Y.T.C.A. Penal Code, §§ 20.04(a) and 20.01(2)(A), conclude that the evidence “clearly supported” a jury verdict of guilt as a primary actor. On the state of this record, however, we do not perceive the question of “some harm” under Almanza to be so readily resolved.

The contention on appeal and on petition for discretionary review in Govan was essentially the same as that in the present case: the trial court erred in failing to apply the law of parties to the facts of the case. The State managed subtly to shift the focus of inquiry, however, contending that because the “conviction did not depend upon the application of the law of parties,” “the unnecessary inclusion of the abstract definition of the law of parties and the addition of the phrase ‘acting alone or as a party as that term is defined herein’ to the application paragraph of the jury charge was harmless error.” 682 S.W.2d at 570. Relying upon a handful of cases deciding the issue as thus reformulated, this Court held, for the first time in these precise terms, that “because the evidence ... clearly supports [Govan’s] guilt as a principal actor, the error of the trial court in charging on the law of parties was harmless.” Id., at 570-71. In Black v. State, supra, the holding of Govan was reprised. Additional authority was found in Article 36.19, Y.A.C.C.P., as that provision was construed in Almanza, supra, subsequent to our opinion in Govan.

It is not altogether inappropriate that the Court should have recast the issue as it did in Govan. In the earliest case cited in Govan both contentions were raised — that the law of “principals,” as it was known under prior codes, should not in any manner have been submitted in the charge, and that, in any event, having been submitted, albeit over objection, it should at least have been applied to the facts rather than simply charged in the abstract. Durham v. State, 112 Tex.Cr.R. 395, 16 S.W.2d 1092 (1929). There the defendant and another were “engaged upon the joint enterprise” of selling intoxicating liquor. On original submission this Court found no error in the failure to apply the law of principals to the facts because there was no evidence raising an issue under that theory. Furthermore, and for the same reason, the abstract charge on the law of principals was not found to be “calculated to injure the rights of the defendant,” under former article 666, V.A.C. C.P. (1925), the immediate precursor to present Article 36.19, supra. On rehearing, in the course of upholding its original determination, the Court observed:

“When the evidence shows that the accused on trial was a principal actor in the commission of the offense, no charge on principals would be necessary, although the proof may also disclose that in doing the criminal act another took an equal part.”

16 S.W.2d at 1095. A host of cases raising one or both of the related issues in Durham followed, and were dispatched accordingly. See e.g., Lowe v. State, 377 S.W.2d 193 (Tex.Cr.App.1964), and cases listed at 195; Scott v. State, 450 S.W.2d 868 (Tex. Cr.App.1970); Hannon v. State, 475 S.W. 2d 800 (Tex.Cr.App.1972); Stein v. State, 514 S.W.2d 927 (Tex.Cr.App.1974). In each of these cases the evidence demonstrated the guilt of the defendant as a primary actor. Though in some the defendant clearly took an equal part with another, both being primary actors in commission of the offense, in none did an issue arise whether the defendant might have been guilty under the law of principals.

In a second line of cases the Court held that where the evidence supports conviction only upon a theory involving the law of principals, failure to apply that law to the facts upon request or objection will result in reversal. Oliver v. State, 160 Tex.Cr.R. 222, 268 S.W.2d 467 (1954); Barnes v. State, 145 Tex.Cr.R. 131, 166 S.W.2d 708 (1942); Crisp v. State, 125 Tex.Cr.R. 603, 69 S.W.2d 772 (1934). The demarcation between these two lines of cases was sufficiently fuzzy that the Court undertook to clarify it in McCuin v. State, 505 S.W.2d 827 (Tex.Cr.App.1974), setting out the following test:

“Where the evidence introduced upon the trial of the cause shows the active participation in the offense by two or more persons, the trial court should first remove from consideration the acts and conduct of the non-defendant actor. Then, if the evidence of the conduct of the defendant then on trial would be sufficient in and of itself, to sustain the conviction, no submission of the law of principals is required. The Durham rule governs in this situation.

“On the other hand, if 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 dependant, 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.”

Id., at 830. Though the underscored clause above might suggest that it would be error not to apply the law of principals upon request in any case in which the accused is susceptible under the proof to conviction under that theory, regardless of whether the evidence might also support conviction of the accused as a primary actor, in practice the Court continued to apply the Oliver rule to reverse only those cases in which the law of principals, now “parties,” was the only avenue of conviction available under the evidence. E.g., Apodaca v. State, supra; Rasmussen v. State, 608 S.W.2d 205 (Tex.Cr.App.1980) (opinion on original submission); Jaycon v. State, supra. Cf. Savant v. State, 544 S.W.2d 408 (Tex.Cr. App.1976). Where the evidence has been found “sufficient to sustain the conviction” of the defendant as a primary actor, that the trial court gave abstract instructions on the law of parties has been deemed, at least by panels of this Court, to be harmless. Todd v. State, 601 S.W.2d 718 (Tex. Cr.App.1980); Mauldin v. State, 628 S.W. 2d 793 (Tex.Cr.App.1982). Not surprising, then, that in Govan the Court should hold it is also harmless error to fail to apply the law of parties to the facts where the evidence “clearly supports” conviction of the accused as a primary actor.

In footnote 2 of Black v. State, supra, the Govan test for harm was harmonized with our opinion in Almanza. Judge Teag-ue argued in dissent that so long as evidence raises the issue of guilt of the accused under the law of parties, it should be reversible error not to apply that law to the facts, irrespective of whether the evidence might also “clearly support” his conviction as a primary actor:

“In the face of a timely and specific objection, such as the one interposed in this case, a showing of ‘some harm’ has been demonstrated because there is a logical possibility, supported by evidence, that the jury convicted [defendant] upon a theory of vicarious culpability without being expressly informed of the facts it must find before doing so. The rule in Govan precludes a finding of harm in such context.”

723 S.W.2d at 683. Speaking for the majority in rejecting this “logical possibility” conception of “some harm” under Alman-za, Judge Campbell opined that, on the contrary, it would be illogical to presume that, confronted by evidence an accused was the primary actor in commission of an offense, a jury would choose nevertheless to proceed upon a theory of parties simply because that theory also had some support in the evidence. Instead the Court advocated the kind of “examination of the entire record” called for in Almanza, supra, whereby:

“... the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.”

686 S.W.2d at 171. Judge Campbell acknowledged that “if the record indicated some basis for rejecting the evidence of the [defendant’s] guilt as a [primary actor,] i.e., if the State argued that [defendant] was guilty as a party or if there was conflicting evidence of [defendant’s] guilt as a [primary actor,]” then “some harm” could be predicated on the trial court’s failure to apply the law of parties to the facts. To this extent, footnote 2 of Black suggests, the simple inquiry whether the evidence “clearly supports” guilt of the accused as a primary actor would prove an inadequate gauge of harmfulness, at least in the face of a timely and specific objection.

Such is the case here. It may be that a reasonable jury could find appellant’s relatively fleeting presence in the Jaguar on the morning of February 24th, assuming they believe it was him, was sufficient to establish he himself “restrained” the complainant, here by- “holding” her. §§ 20.-04(a) and 20.01(2)(A), supra. However, it is clear the State considered the voice identifications of appellant to constitute direct, and therefore more compelling evidence of his guilt as a party to the conduct of Clifford and others, which direct evidence was reinforced by the circumstances indicating his presence in the Jaguar on the morning of the 24th. Just as clearly, that was a less rigorous theory upon which to prosecute appellant on this record, since it would avoid the otherwise necessary risk the jury (or an appellate court, for that matter) might decide his conduct by itself was insufficient actus reus to convict him as a primary actor in the offense.

Because the evidence raised an issue whether appellant was guilty under the law of parties as defined in § 7.02(a)(2), supra, we hold it was error for the trial judge to refuse appellant’s request that the charge more explicitly apply the law of parties to the facts of this case.⁴ Moreover, because that was the theory of prosecution best supported by the evidence and most fervently advanced before the jury in the State’s final argument, we hold this error precipitated at least “some harm” to appellant under Almanza v. State, supra, irrespective of whether the evidence incidentally supported conviction of appellant as a primary actor as well. Cf. Arline v. State, 721 S.W.2d 348 (Tex.Cr.App.1986).

The judgment of the court of appeals is therefore reversed and the cause is remanded to the trial court for a new trial.

WHITE J., concurs in result. ONION, P.J., and W.C. DAVIS and McCOKMICK, JJ., dissent.

Footnotes

1

. Also found in the van was the ski mask worn by the original abductor and a jacket which a police officer had observed one of complainant's abductors to be wearing immediately before she was released. These provide fairly compelling circumstantial indicators that Clifford was one of complainant’s "guards.”

2

. All emphasis supplied unless otherwise indicated.

3

. The instant writer did not participate in the decision in Watson and does not now concur in its rationale.

4

. Where evidence raises an issue whether the accused acted as a primary actor or as a party, the pattern jury charge found in McClung, Jury Charges for Texas Criminal Practice (rev.ed. 1987), at 12, would authorize in the paragraph applying the law to the facts that the accused be convicted if the jury should find he committed the offense "either acting alone or with_(or ‘another’) as a party to the offense as that term is hereinbefore defined.” However, we observe that such a charge fails sufficiently to inform the jury which specific mode or modes of conduct enumerated in § 7.02(a)(2), supra, (viz: whether the accused "solicited, encouraged, directed, aided or attempted to aid,” or some combination thereof, as raised by the evidence) may form an alternative basis for conviction. See Foreman and Jones, Submitting the Law of Parties in a Texas Criminal Prosecution, 33 Baylor L.Rev. 267, at 282 (1981). This was precisely the nature of appellant’s objection in the instant case.