PD-0661-15 PD-0661-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 5/29/2015 3:01:58 PM Accepted 6/1/2015 2:54:53 PM ABEL ACOSTA NO. PD-________-15 CLERK
IN THE COURT OF CRIMINAL APPEALS OF TEXAS AT AUSTIN _________________________
RUSSELL STARKS, Petitioner/Appellant
v.
THE STATE OF TEXAS, Respondent/Appellee _________________________
On Appeal in Cause No. F13-32480-K from the Criminal District Court No. 4 Of Dallas County, Texas And on Petition for Discretionary Review from the Fifth District of Texas at Dallas In Cause No. 05-14-00191-CR _________________________
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW _________________________
Counsel of Record:
Lynn Richardson Kathleen A. Walsh Chief Public Defender Assistant Public Defender State Bar Number: 20802200 Katherine A. Drew 133 N. Riverfront Blvd., LB 2 Chief, Appellate Division Dallas, Texas 75207-399 (214) 653-3550 (telephone) (214) 653-3539 (fax) kwalsh@dallascounty.org
June 1, 2015 LIST OF PARTIES
TRIAL COURT JUDGE Dominique Collins, Presiding Judge
APPELLANT Russell Starks
APPELLANT’S ATTORNEYS AT TRIAL Alison Grinter, State Bar No. 24043476 Naomi Green, State Bar No. 24068816
ON APPEAL Kathleen A. Walsh, State Bar No. 20802200
Assistant Public Defenders
Dallas County Public Defender’s Office 133 N. Riverfront Blvd., LB 2 Dallas, Texas 75207-4399
STATE’S ATTORNEYS AT TRIAL George Lewis, State Bar No. 24060167 Hilary Wright, State Bar No. 24056901
ON APPEAL G. Brian Garrison, State Bar No. 24065276
Assistant District Attorneys Dallas County District Attorney’s Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas 75207-4399
ii TABLE OF CONTENTS
INDEX OF AUTHORITIES.....................................................................................iv STATEMENT REGARDING ORAL ARGUMENT ............................................... 1 STATEMENT OF THE CASE .................................................................................. 1 STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE .................... 1 QUESTION FOR REVIEW ..................................................................................... 1 Whether the Court of Appeals erred in holding that the jury charge did not contain reversible error when Appellant was prosecuted and convicted under the law of parties and there was a complete absence of any reference to the law of parties in the application paragraph. ARGUMENT ............................................................................................................. 2 Pertinent Facts ................................................................................................. 2 The Court of Appeals’ Opinion ....................................................................... 4 Conclusion ....................................................................................................... 7 PRAYER FOR RELIEF ............................................................................................ 9 CERTIFICATE OF SERVICE .................................................................................. 9 CERTIFICATE OF COMPLIANCE ....................................................................... 10 APPENDIX
iii INDEX OF AUTHORITIES
Cases Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) (op. on reh'g.) ................................... 2, 4 Brown v. Collins, 937 F. 2d 175 (5th Cir. 1991) .................................................................................. 8 Cole v. Arkansas, 333 U.S. 196 (1948) ............................................................................................... 8 Dunn v.United States, 442 U.S. 100 (1979) ............................................................................................... 8 Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) ........................................................... 5, 8 McCormick v. United States, 443 U.S. 307 (1979) ............................................................................................... 8 Plata v. State, 926 S.W.2d 300 (Tex. Crim. App. 1996) overruled on other grounds by Malik v. State, 953 S.W.2d 234 (Tex. Cim. App. 1997) ................................5, 7, 8 Starks v. State, No. 05-14-00191-CR, 2015 Tex. App. LEXIS 4530 (Tex. App.—Dallas May 1, 2015) (not designated for publication) .............................................passim Vasquez v. State, 389 S.W.3d 361 (Tex. Crim. App. 2012) .......................................................4, 5, 6 Watson v. State, 693 S.W.2d 938 (Tex. Crim. App. 1985) ............................................................... 6 Statutes TEX. PENAL CODE § 7.01 ............................................................................................ 3 TEX. PENAL CODE § 7.02 ............................................................................................ 3 Rules TEX. R. APP. P. 66.3 (c) .............................................................................................. 7 TEX. R. APP. P. 66.3 (f) .............................................................................................. 7
iv TO THE HONORABLE COURT OF CRIMINAL APPEALS:
COMES NOW Russell Starks, Petitioner herein and Appellant before the
Court of Appeals, and respectfully submits this Petition for Discretionary Review.
STATEMENT REGARDING ORAL ARGUMENT
Appellant believes that the facts of the case and the issues raised are such
that oral argument will not significantly aid this Court’s consideration and
disposition of this Petition.
STATEMENT OF THE CASE
A jury convicted Appellant of aggravated robbery and assessed punishment
at imprisonment for life and a fine of $10,000. (RR5: 52, 78: CR: 87, 93).
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
On May 1, 2015, in a memorandum opinion, the Court of Appeals for the
Fifth District of Texas affirmed Appellant’s conviction. Starks v. State, No. 05-14-
00191-CR, 2015 Tex. App. LEXIS 4530 (Tex. App.—Dallas May 1, 2015) (not
designated for publication). (See Appendix). No motion for rehearing was filed.
This Petition is timely if filed on or before May 31, 2015.
QUESTION FOR REVIEW
Whether the Court of Appeals erred in holding that the jury charge did not contain reversible error when Appellant was prosecuted and convicted under the law of parties and there was a complete absence of any reference to the law of parties in the application paragraph. ARGUMENT
This Petition presents the question of whether the complete absence of a
parties instruction in the application paragraph of the jury charge may be deemed
harmless error when the law of parties is the only theory under which the
conviction can be supported.
Pertinent Facts.
Appellant was charged with aggravated robbery by using or exhibiting a
firearm. (CR: 9). Based on the testimony presented by the complainant, it was
undisputed that Appellant himself never used or exhibited a firearm in the course
of the robbery. Review of the State’s voir dire, the State’s opening statement,
questions posed to the complainant, and the prosecutor’s closing argument, makes
it clear that the State’s prosecution of Appellant was based upon the theory of party
liability. (RR3: 40-42; RR4: 8-9, 83; RR5: 36-37, 46-47, 50-51). Indeed, the Dallas
Court acknowledged as much in its opinion in its application of the Almanza1
factors. Starks, 2015 Tex. App. LEXIS 4530 at *8-11.
Because the State’s prosecution was based upon the theory of party liability,
the trial court included instructions on the law of parties in the abstract portion of
the charge, as follows:
1 Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) (op. on reh’g).
2 All persons are parties to an offense who are guilty of acting together in the commission of an offense. A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.
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, encourages, direct, aids, or attempts to aid the other person to commit the offense.
Each party to an offense may be charged with the commission of the offense. Mere presence alone at the time and the place of the commission of an offense, or knowledge of an offense, if any was committed, does not constitute one criminally responsible as a party to the offense.
(CR: 82-83). See TEX. PENAL CODE §§ 7.01, 7.02.
The application paragraph read as follows:
Now, considering all the law contained in the court’s charge, if you find and believe from the evidence beyond a reasonable doubt that on or about January 11, 2013, in Dallas County, Texas, the defendant, RUSSELL STARKS, did then and there intentionally and knowingly, while in the course of committing theft of property and with intent to maintain control of said property, threaten and place THERESA ZAHN-BURNAM, hereinafter called complainant, in fear of imminent bodily injury and death, and the defendant did then and there use or exhibit a deadly weapon, to-wit: a firearm, you shall find the defendant guilty of aggravated robbery as charged in the indictment.
Unless you so find and believe from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will find the defendant not guilty.
(CR: 84). Both parties stated that they had no objections to the charge. (RR4: 135).
3 The Court of Appeals’ Opinion.
In affirming the conviction, the Dallas Court found that although the trial
court erred in failing to directly apply the law of parties to the facts, it was
“inconceivable how the jury could have been misled by the court’s charge”, and
was “unable to determine how appellant was harmed by the charge”. Starks, 2015
Tex. App. LEXIS 4530 at *11-12. The court of appeals based its decision in part
on the fact that the charge contained the abstract definition of the law of parties and
cited this Court’s decision in Vasquez v. State, 389 S.W.3d 361 (Tex. Crim. App.
2012) for the proposition that “a reasonable jury would refer to the abstract
definition of the law of parties without needing to have it repeated again in the
application paragraph.” Starks, 2015 Tex. App. LEXIS 4530 at *9. The Dallas
Court’s reliance on this Court’s decision in Vasquez is clearly misplaced.
In Vasquez, this Court reviewed an application paragraph which applied the
law of parties by simply using the phrase, “acting alone or as a party (as herein
defined).” Vasquez, 389 S.W.3d at 364, n. 5. The appellant objected to the trial
judge’s failure to apply the law of parties to the facts in the application paragraph.
Id. at 369. After applying the Almanza analysis, this Court found that the
appellant’s rights were not harmed. Id. at 372. In reaching its decision, this Court
held:
[A] general reference to the law of parties in the application paragraph is sufficient and is not error when the defendant does not object and 4 request a narrowing of the specific statutory modes of conduct that constitute party liability—whether he ‘solicited, encouraged, directed, aided or attempted to aid” another specified person to commit the offense. But if the defendant does request that the application paragraph refer only to those specific party-liability acts that are supported by the evidence, then he is entitled to such a narrowing. The failure to narrow the specific modes of party-liability conduct when properly requested is reversible error if the defendant has suffered actual harm to his rights.
Id. at 368.
In analyzing the charge issue in Vasquez, this Court also referred to its
decision in Plata v. State, 926 S.W.2d 300, 304 (Tex. Crim. App. 1996), overruled
on other grounds by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997). In
Plata, this Court “held that an application paragraph that made no mention of the
law of parties ‘either directly or by reference . . . for an offense committed by the
conduct of his codefendant,’ was erroneous, and the defendant was harmed
because the evidence was insufficient to convict him as a principal.” Vasquez,
389 S.W.3d at 368 (citing Plata, 926 S.W.2d at 304).
The outcome in this case is controlled by this Court’s decision in Plata, not
Vasquez. The facts are identical to those in Plata — the application paragraph
makes no mention of the law of parties either directly or by reference and the
evidence is insufficient to convict Appellant as a principal.
The Dallas Court also based its decision on their review of the record
showing evidence that Appellant was one of two individuals who participated in
5 the aggravated robbery, as well as statements made by the prosecutor during voir
dire, opening statement, and closing arguments which clearly indicated that the
State’s theory of prosecution was based upon party liability. The Dallas Court then
concluded that based upon the record, “it is inconceivable to us how the jury could
have been misled by the court’s charge”, citing this Court’s decision in Watson v.
State, 693 S.W.2d 938, 940 (Tex. Crim. App. 1985). Starks, 2015 Tex. App.
LEXIS 4530 at *11-12. Like Vasquez, the decision in Watson is factually
distinguishable from this case and does not support the opinion from the Dallas
Court. Like Vasquez, the application paragraph in Watson clearly referenced the
law of parties when it used the phrase, “acting either alone or as a party to the
offense”. Watson, 693 S.W.2d at 941. In this case, there is no reference whatsoever
to the law of parties in the application paragraph.
In its opinion, the Dallas Court also cites Watson for the proposition that a
charge requiring the jury to find that defendant acted alone increases the State’s
burden and thus benefits the defendant. Starks, 2015 Tex. App. LEXIS 4530 at
*12. The Dallas Court then states: “Similar to Watson, here the State had to satisfy
a heavier burden in proving to the jury that the appellant acted alone in committing
the aggravated robbery. If anything, appellant was helped by the court’s charge.”
Id. This statement appears to be an admission by the Dallas Court that the jury was
not authorized to convict Appellant under the law of parties and clearly conflicts
6 with the position taken by the court of appeals in most of the opinion’s analysis.
According to the opinion, on the one hand, the jury could not have been misled by
the court’s charge because the abstract definitions pertaining to the law of parties,
together with the evidence and arguments of the State showing that Appellant was
guilty as a party, was adequate to authorize Appellant’s conviction as a party.
While on the other hand, Appellant allegedly benefited from the charge because
the State had to prove that Appellant acted alone in committing the aggravated
robbery despite all of the evidence showing his guilt only as a party. Either the
charge authorizes a conviction under the law of parties, or it does not. Appellant’s
right to due process does not allow the Dallas Court to straddle the fence on this
issue.
Conclusion.
This Court should grant this Petition because the Dallas Court of Appeals
has decided this case in a way that conflicts with this Court’s decisions regarding
the rule of law applicable to jury charges. TEX. R. APP. P. 66.3 (c), (f).
This Court has uniformly insisted that the State may not support a jury
verdict of guilty upon the theory that an accused was criminally responsible for an
offense committed by the conduct of another person unless the court’s charge
specifically and adequately authorizes the jury to convict the accused upon that
theory. Plata, 926 S.W.2d at 304. A charge is adequate for this purpose only if it
7 either contains an application paragraph specifying all of the conditions to be met
before a conviction under such theory is authorized, or contains an application
paragraph authorizing a conviction under conditions specified by other paragraphs
of the jury charge to which the application paragraph necessarily and
unambiguously refers, or contains some logically consistent combination of such
paragraphs. Id. (and cases cited therein).
In Malik, this Court recognized that due process prevents an appellate court
from affirming a conviction based upon legal and factual grounds that were not
submitted to the jury. Malik v. State, 953 S.W.2d 234, 238 n. 3 (Tex. Crim. App.
1997) (citing McCormick v. United States, 500 U.S. 257, 269-70 & 270 n. 8
(1991); Dunn v. United States, 442 U.S. 100 (1979); Cole v. Arkansas, 333 U.S.
196, 201-02 (1948)). In Malik, this Court also noted the Fifth Circuit’s holding in
Brown v. Collins, 937 F.2d175, 182 (5th Cir. 1991) which implied “that the
complete absence of a parties instruction from the jury charge may present
constitutional problems.” Malik, 953 S.W.2d at 238 n. 3.
8 PRAYER FOR RELIEF
For the reasons herein alleged, Appellant prays this Court grant this petition
and, upon reviewing the judgment entered below, remand the case for a new trial.
Respectfully submitted,
/s/ Kathleen A. Walsh Kathleen A. Walsh Lynn Richardson Assistant Public Defender Chief Public Defender State Bar No. 20802200 Dallas County Dallas County Public Defender’s Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-2 Dallas, TX. 75207-4399 (214) 653-3550 (telephone) (214) 653-3539 (fax)
CERTIFICATE OF SERVICE
I hereby certify that on the 29th day of May, 2015, a true copy of the
foregoing petition for discretionary review was served by electronic delivery to G.
Brian Garrison, Assistant District Attorney, at Brian.Garrison@dallascounty.org.;
and was also served by electronic delivery to Lisa C. McMinn, State Prosecuting
Attorney, at Lisa.McMinn@spa.texas.gov.
/s/ Kathleen A. Walsh Kathleen A. Walsh
9 CERTIFICATE OF COMPLIANCE
I hereby certify that the word count in this document, which is prepared in
Microsoft Word 2010, is 2,592.
10 APPENDIX No Shepard’s Signal™ As of: May 28, 2015 3:52 PM EDT
Starks v. State Court of Appeals of Texas, Fifth District, Dallas May 1, 2015, Opinion Filed No. 05-14-00191-CR
Reporter 2015 Tex. App. LEXIS 4530
RUSSELL STARKS, Appellant v. THE STATE OF TEXAS, Judgment affirmed as modified. Appellee LexisNexis® Headnotes Notice: PLEASE CONSULT THE TEXAS RULES OF APPELLATE PROCEDURE FOR CITATION OF Criminal Law & Procedure > ... > Robbery > Armed Robbery > UNPUBLISHED OPINIONS. Elements
Prior History: [*1] On Appeal from the Criminal District HN1 A person commits an offense if he commits robbery as Court No. 4, Dallas County, Texas. Trial Court Cause No. defined in Section 29.02, and he uses or exhibits a deadly F-1332480-K. weapon, Tex. Penal Code Ann. § 29.03(a) (2011). Tex. Penal Code Ann. § 29.02 (2011) states: (a) A person commits an offense if, in the course of committing theft as defined in Core Terms Chapter 31 and with intent to obtain or maintain control of the property, he: (1) intentionally, knowingly, or recklessly parties, jury charge, commission of the offense, aggravated causes bodily injury to another; or (2) intentionally or robbery, gun, criminally responsible, convicted, robbery, knowingly threatens or places another in fear of imminent modify, purse, talk, deadly weapon, trial court, approached, bodily injury or death. porch Criminal Law & Procedure > Appeals > Reversible Error > Jury Instructions Case Summary HN2 The appellate court reviews complaints of jury charge Overview error by first determining whether error exists. If error HOLDINGS: [1]-In the absence of a request or objection, exists, the appellate court must determine whether the error the trial court’s charge was adequate to authorize defendant’s caused sufficient harm to warrant reversal. When the error was not objected to, the error must be fundamental and conviction as a party and the court’s failure to directly apply requires reversal only if it was so egregious and created the law of parties to the facts was not fundamental error, and such harm that the defendant has not had a fair and impartial a reasonable jury would refer to the abstract definition of the trial. Egregious harm consists of error affecting the very law of parties without needing to have it repeated again in basis of the case or depriving the defendant of a valuable the application paragraph; [2]-A reasonable jury could have right. Egregious harm exists when a defendant has suffered concluded that defendant was acting with intent to promote actual, rather than merely theoretical, harm from jury-charge or assist the commission of the offense; [3]-Defendant was error. The appellate court assesses harm in light of the entire not harmed by the charge as the State had a heavier burden jury charge, the state of the evidence (including the contested in proving to the jury that defendant acted alone in issues and the weight of probative evidence), the arguments committing the aggravated robbery; [4]-The judgment was of counsel, and any other relevant information revealed by modified to reflect that defendant was convicted under the the record of the trial as a whole. Penal Code. Criminal Law & Procedure > ... > Jury Instructions > Particular Outcome Instructions > Elements of Offense 2015 Tex. App. LEXIS 4530, *1
HN3 A jury charge must distinctly set forth the law Opinion applicable to the case and set out all of the essential elements of the offense, Tex. Code Crim. Proc. Ann. art. 36.14 (2007). The meaning of a jury instruction must be MEMORANDUM OPINION taken from the whole charge, and jurors are not authorized Opinion by Justice Brown to return a verdict except under those conditions given by the application paragraph of the charge. A jury charge is Appellant Russell Starks appeals his jury conviction for adequate if it either contains an application paragraph aggravated robbery. After finding appellant guilty, the jury specifying all of the conditions to be met before a conviction assessed his punishment at life imprisonment and a $10,000 under such theory is authorized, or contains an application fine. On appeal, appellant raises a single point of error paragraph authorizing a conviction under conditions complaining he was convicted on legal and factual grounds specified by other paragraphs of the jury charge to which that were not submitted to the jury. As modified, we affirm the application paragraph necessarily and unambiguously the trial court’s judgment. Because all dispositive issues are refers, or contains some logically consistent combination of settled in law, we issue this memorandum opinion. TEX. R. such paragraphs. APP. P. 47.2(a), 47.4.
Criminal Law & Procedure > Appeals > Reversible Error > Jury On January 11, 2013, complainant Theresa Zahn-Burnam Instructions returned to her home around 8:00 p.m. As she inserted her house key into her front door lock, a black man wearing a HN4 The appellate court assesses harm in light of the entire gray hoodie approached her on her porch and ordered her to jury charge, the state of the evidence (including the contested open the door. Knowing her two sons were alone inside the issues and the weight of probative evidence), the arguments house, she dropped to the ground and curled up into a fetal of counsel, and any other relevant information revealed by position. As she lay on the ground, she became aware that the record of the trial as a whole. the man was holding a gun. The man holding the gun said, ″If you say a word, I will just shoot [*2] you now.″ She Criminal Law & Procedure > ... > Jury Instructions > Particular began to scream for help and then a second black man Instructions > Elements of Offense wearing a striped polo shirt approached her on the porch. At HN5 A charge on the law of parties enlarges a defendant’s first, she thought the second man heard her screams and had criminal responsibility. Likewise in the converse, a charge come to help her. However, when the second man requiring the jury to find that a defendant acted alone approached the porch, he asked, ″Where is your purse? increases the State’s burden and thus benefits the defendant. Where is your purse?″ Ms. Zahn-Burnam handed over her purse and the two men ran away. After they were out of Criminal Law & Procedure > Sentencing > Corrections, sight, she went inside her house, called the police and Modifications & Reductions > Court’s Authority provided a description of the suspects. HN6 The appellate court has the power to modify an Sergeant Rodell Byrd testified he was off duty at a local incorrect judgment and make the record speak the truth shopping center at the time of the robbery. He received a when it has the necessary data and information to do so, Tex. call about the robbery because he was approximately one R. App. P. 43.2(b). The appellate court’s authority to reform block from the location. Byrd responded in his personal, incorrect judgments is not dependent on the request of any un-marked vehicle and began searching the area for the party, nor does it turn on a question of whether a party has suspects. He saw two males matching the provided or has not objected in trial court; the appellate court may act description in a vehicle and called for marked patrol units to sua sponte and may have a duty to do so. respond. He continued to follow the suspects until the patrol units arrived. Byrd dropped back and let the patrol units Counsel: For appellants: Kathleen Walsh, Katherine Drew, approach the vehicle. When the lights and sirens were Lynn Richardson, Dallas, TX. activated by the police, the suspects fled at a high rate of speed, and the officers gave chase. Byrd testified Charles For appellees: G. Brian Garrison, Susan Hawk, Dallas, TX. Polk was apprehended, [*3] and they found his hooded sweatshirt in the vehicle with a cell phone, a Target receipt, Judges: Before Justices Myers, Evans, and Brown. Opinion and small caliber ammunition. by Justice Brown. Officer Jason Peacock testified he was in one of the patrol Opinion by: ADA BROWN units that approached the suspects’ vehicle. Peacock chased
Page 2 of 5 2015 Tex. App. LEXIS 4530, *3
the vehicle until it ran across a median and became disabled. intent to promote or assist the commission of the Peacock saw appellant, wearing a striped polo shirt, exit the offense, he solicits, encourages, directs, aids, or attempts vehicle and run. He chased the appellant until appellant to aid the other person to commit the offense. gave up, at which time appellant was apprehended by ... Peacock. Now, considering all the law contained in the court’s The police escorted Ms. Zahn-Burnam to the location of the charge, if you find and believe from the evidence apprehension where she was one hundred percent certain of beyond a reasonable doubt that on or about January 11, the identification of Charles Polk. Due to the lighting in the 2013, in Dallas County, Texas, the defendant, RUSSELL street, she was not completely certain about the identity of STARKS, did then and there intentionally and appellant, even though he was wearing a striped polo shirt knowingly, while in the course of committing theft of as she had described to the police during her 9-1-1 call. property and with intent to obtain and maintain control of said property, threaten and place THERESA Evidence was introduced of surveillance video from a local ZAHN-BURNAM, hereinafter called complainant, in Target store that showed appellant and Polk shopping fear of imminent bodily injury and death, and the together approximately one hour before the robbery occurred. defendant did then and there use or exhibit a deadly The police department also investigated the disabled vehicle weapon, to-wit: a firearm, you shall find the defendant and found the owner, who reported loaning the vehicle to guilty of aggravated robbery as charged in the her boyfriend, who in turn loaned the vehicle to appellant on indictment. the night of [*4] the robbery. And finally, evidence was introduced of appellant speaking to a third party during a The language of the application paragraph tracked [*6] the jail telephone call when appellant stated, ″Hey, your language of the indictment. At trial, both parties stated that girlfriend did good by reporting the vehicle stolen,″ and they had no objections to the charge. when discussing whether or not they ″got away safe,″ appellant stated, ″It all come from him not doing what I told Appellant was charged under section 29.03, which states, him to do, put her to sleep. It would have never happened, HN1 ″A person commits an offense if he commits robbery all that hollering and screaming and shit wouldn’t never as defined in Section 29.02, and he . . . uses or exhibits a happened.″ deadly weapon.″ TEX. PENAL CODE ANN. § 29.03(a) (West 2011). Section 29.02 states: Appellant was indicted for aggravated robbery and entered a plea of ″not guilty.″ A jury found appellant guilty of the (a) A person commits an offense if, in the course of offense charged. Appellant entered a plea of ″not true″ to the committing theft as defined in Chapter 31 and with enhancement paragraph alleged in the indictment. The jury intent to obtain or maintain control of the property, he: found the allegation of a prior offense for burglary of a habitation to be true and assessed appellant’s punishment at (1) intentionally, knowingly, or recklessly causes bodily life imprisonment and a fine of $10,000. injury to another; or (2) intentionally or knowingly threatens or places In a single point of error, appellant argues the application another in fear of imminent bodily injury or death. paragraph failed to authorize a conviction under the law of the parties and appellant was therefore convicted on legal TEX. PENAL CODE ANN. § 29.02(a) (West 2011). and factual grounds that were not submitted to the jury. HN2 We review complaints of jury charge error by first The jury charge read, in relevant part: determining whether error exists. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). If error exists, we All persons are parties to an offense who are guilty of must determine whether the error caused sufficient harm to acting together in [*5] the commission of an offense. A warrant reversal. Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. person is criminally responsible as a party to an offense Crim. App. 2005). When, as here, the error was not objected if the offense is committed by his own conduct, by the to, the error must be fundamental and requires reversal conduct of another for which he is criminally ″only if it was so egregious and created such harm that the responsible, or by both. defendant has not had a fair and impartial trial.″ Barrios v. A person is criminally responsible for an offense State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (citing committed by the conduct of another if acting with Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.
Page 3 of 5 2015 Tex. App. LEXIS 4530, *6
1985) (op. on reh’g)). Egregious harm consists of error With respect to the entire jury charge, in this case the charge affecting the very basis of the case or depriving the contained the correct abstract definition of party liability. defendant of [*7] a valuable right. Nava v. State, 415 S.W.3d However, the application paragraph did not explicitly apply 289, 298 (Tex. Crim. App. 2013). Egregious harm exists the abstract law of parties to the facts of the case. [*9] when a defendant has suffered actual, rather than merely Instead, it instructed the jury should find appellant guilty if, theoretical, harm from jury-charge error. Id. We assess harm ″considering all the law contained in the court’s charge,″ in light of ″the entire jury charge, the state of the evidence they found appellant committed the offense. The jury (including the contested issues and the weight of probative needed only to refer to the previous section, which defined evidence), the arguments of counsel, and any other relevant criminal responsibility as a party. In the absence of a request information revealed by the record of the trial as a whole.″ or objection, however, the trial court’s charge was adequate Id. to authorize appellant’s conviction as a party and the court’s failure to directly apply the law of parties to the facts was Appellant argues that the application paragraph in the jury not fundamental error. Greene v. State, 240 S.W.3d 7, 15-16 charge failed to include the language for a finding of party (Tex. App.—Austin 2007, pet. ref’d). We conclude that ″a liability and there was no evidence that appellant ever used reasonable jury would refer to the abstract definition of the or exhibited a firearm in the course of the robbery. Appellant law of parties without needing to have it repeated again in complains he was convicted on legal and factual grounds the application paragraph.″ Vasquez v. State, 389 S.W.3d that were not submitted to the jury and was denied his right 361, 371 (Tex. Crim. App. 2012). to due process. The State concedes that the trial court erred in charging the jury but contends appellant failed to establish The next Almanza factor for this Court to consider is the he was egregiously harmed by the error. state of the evidence. Nava, 415 S.W.3d at 298. The record shows appellant was one of two individuals who participated HN3 ″A jury charge must distinctly set forth the law in the aggravated robbery. The evidence that appellant, applicable to the case and set out all of the essential approached Ms. Zahn-Burnam and demanded her purse, elements of the offense.″ Martin v. State, 200 S.W.3d 635, after Polk pointed a gun at her, was uncontroverted. Ms. 639 (Tex. Crim. App. 2006); see TEX. CODE CRIM. PROC. ANN. Zahn-Burnam testified it was clear to her that the two men art. 36.14 (West 2007). ″The meaning of a jury instruction were working together. A reasonable jury certainly could must be taken from the whole charge, and jurors are not [*8] have concluded that appellant was ″acting with intent to authorized to return a verdict except under those conditions promote or assist the commission [*10] of the offense.″ given by the application paragraph of the charge.″ Delapaz v. State, 228 S.W.3d 183, 212 (Tex. App.—Dallas 2007, pet. Lastly, we must consider the arguments of counsel, and any ref’d). A jury charge is adequate other relevant information revealed by the record of the trial if it either contains an application paragraph specifying as a whole. Nava, 415 S.W.3d at 298. The record shows that all of the conditions to be met before a conviction under during voir dire, the State’s attorney stated the following: such theory is authorized, or contains an application paragraph authorizing a conviction under conditions Now, I want to talk to you guys about some more legal specified by other paragraphs of the jury charge to stuff. This is called a law of parties. Now, the law of which the application paragraph necessarily and parties has got this big mumbled legal thing again. I’m unambiguously refers, or contains some logically going to read it to you, and talk about what it is. consistent combination of such paragraphs. ″A person is criminally responsible for the conduct of another, if acting with the intent to promote or assist the Plata v. State, 926 S.W.2d 300, 304 (Tex. Crim. App. 1996), commission of the crime. He solicits, encourages, overruled on other grounds by Malik v. State, 953 S.W.2d directs, aids, or attempts to aid the other person to 234, 239 (Tex. Crim. App. 1997). commit the offense.″ Because the State concedes the trial court likely erred, we conduct a harm analysis using the Almanza factors. Nava, And then during the State’s opening statement, the attorney 415 S.W.3d at 298. HN4 We assess harm in light of ″the elaborated, entire jury charge, the state of the evidence (including the contested issues and the weight of probative evidence), the After you hear all the evidence, the overwhelming arguments of counsel, and any other relevant information evidence in this case, ladies and gentlemen, there will revealed by the record of the trial as a whole.″ Id. be no doubt that on January 11, 2013, this defendant,
Page 4 of 5 2015 Tex. App. LEXIS 4530, *10
Mr. Russell Starks and codefendant, Charles Polk, had to satisfy a heavier burden in proving to the jury that the committed aggravated robbery with a deadly weapon, appellant acted alone in committing the aggravated robbery. and we would ask that you find him guilty. If anything, appellant was helped by the court’s charge. We find the error to have been harmless. During the trial, when the trial court asked if anyone objected to the proposed jury charge, neither party had any However, we do take a sua sponte action in regard to this objections. And then [*11] during the closing argument, the case. The judgment incorrectly states that appellant was State argued: convicted under the ″Statute for Offense: 29.03 Tax Code.″ HN6 This Court has the power to modify an incorrect I want to talk to you also about the law of parties, judgment and make the record speak the [*13] truth when something that we talked about earlier. We talked about we have the necessary data and information to do so. TEX. R. the law of parties. And so I just want to highlight for APP. P. 43.2(b); see Woods v. State, 398 S.W.3d 396, 406 you why both of the people on that front porch was [sic] (Tex. App.—Dallas 2013, pet. ref’d). ″Our authority to responsible for the aggravated robbery. We obviously reform incorrect judgments is not dependent on the request know that one person had the gun. And that person was of any party, nor does it turn on a question of whether a identified immediately. That person had the gun and he party has or has not objected in trial court; we may act sua had it out so that she could see it. He had the gun and sponte and may have a duty to do so.″ Woods, 398 S.W.3d at he pointed it, but he also had it down. But it was visible 406 (citing Asberry v. State, 813 S.W.2d 526, 531 (Tex. the entire time. Remember we talked about using or App.—Dallas 1991, pet. ref’d)). The record shows appellant exhibiting that deadly weapon. That gun was the was convicted for aggravated robbery with a deadly weapon enforcement. That gun was letting them do whatever under section 29.03 of the ″Penal″ Code and not the ″Tax″ they wanted to do on that porch, including having Mr. Code. Accordingly, we modify the trial court’s judgment to Starks come up and take her purse. And he didn’t have remove ″Tax Code″ as ″Statute for Offense″ and in its place to grab it from her because that enforcer was there. All to reflect ″Penal Code″ as ″Statute for Offense.″ he had to do was ask and she gave it to him. Both of In conclusion, we modify the trial court’s judgment to those people had a plan. And she knew that they were reflect appellant was convicted under the Penal Code. As together once they came up and said, give me your modified, we affirm the trial court’s judgment. purse. So they are both guilty of aggravated robbery. /Ada Brown/ After a careful review of the entire record, ″it is inconceivable to us how the jury could have been misled by ADA BROWN the court’s charge.″ [*12] Watson v. State, 693 S.W.2d 938, JUSTICE 940 (Tex. Crim. App. 1985) (jury application paragraph that authorized conviction if the jury found that the defendant DO NOT PUBLISH ″acting either alone or as a party to the offense″ committed burglary was harmless under Almanza analysis when there TEX. R. APP. P. 47.2(b). was no evidence to support conviction as a principal; jury must have found defendant guilty as a party). JUDGMENT
Further, we are unable to determine how appellant was Based on the Court’s opinion of this date, the judgment of harmed by the charge. The Court of Criminal Appeals has the trial court is MODIFIED as follows: explained, HN5 ″A charge on the law of parties enlarges a Tax Code will be removed as the Statute for Offense defendant’s criminal responsibility. Romo v. State, 568 and Penal Code will be replaced in its stead. S.W.2d 298 (Tex. Crim. App. 1978) (op. on reh’g). Likewise in the converse, a charge requiring the jury to find that a As REFORMED, the judgment is AFFIRMED. defendant acted alone increases the State’s burden and thus benefits the defendant. Watson v. State, 693 S.W.2d 938, 942 Judgment entered this 1st day of May, 2015. (Tex. Crim. App. 1985). Similar to Watson, here the State
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