634 S.W.3d 929
Tex. Crim. App.2021Background:
- Appellant Anthony George conspired with Burden, Ontiveros, and Range to rob victim Brian Sample in his hotel room after learning Sample kept cash in a closet safe.
- George changed clothes, wore gloves, brought Range (a large man) who had zip ties, parked off-site, and entered the hotel with Range; surveillance showed they were in the room ~17 minutes.
- Sample was brutally beaten, bound with zip ties, left unconscious and bleeding; George discarded Sample’s phone, took his watch, and left without helping; Sample later died of blunt force trauma and asphyxia.
- At trial the jury was instructed on capital murder (including conspirator liability) and lesser offenses; George requested a lesser-included instruction on robbery; the trial court denied it and the jury convicted of capital murder.
- The court of appeals upheld the denial, articulating a bright-line rule that one who conspires to steal should anticipate violent confrontation; the Texas Court of Criminal Appeals granted review.
- The Court rejected the bright-line rule as inappropriate but affirmed the denial of the robbery instruction on these facts, finding the murder was reasonably foreseeable under the totality of the circumstances.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a bright-line rule applies that a conspirator to a theft/robbery should always anticipate co-conspirator violence, foreclosing lesser-included robbery instructions | George: the court of appeals’ categorical rule is erroneous; entitlement to lesser instruction requires case-specific analysis | State: anticipatory violence is inherent to robbery conspiracies; robbery instruction unwarranted here | Court: Bright-line rule is incorrect; the question is fact-specific, but rejected George’s claim on these facts |
| Whether the trial evidence entitled George to a lesser-included-offense instruction on robbery (i.e., some evidence that he should not have anticipated the murder) | George: co-conspirators’ testimony (plan to only rob; George “just stood there”) shows he didn’t foresee or intend murder, so jury could rationally convict only of robbery | State: totality of facts (plan, clothing, gloves, Range as muscle, zip ties, disabling phone, silencing steps, disposal of phone, taking watch) show murder was reasonably foreseeable | Court: No. Co-conspirators’ statements do not rationally refute foreseeability; robbery was not a valid, rational alternative |
Key Cases Cited
- Solomon v. State, 49 S.W.3d 356 (Tex. Crim. App. 2001) (conspirator-liability analysis: foreseeability during commission can preclude lesser robbery instruction)
- Goad v. State, 354 S.W.3d 443 (Tex. Crim. App. 2011) (two-step lesser-included-offense test)
- Bullock v. State, 509 S.W.3d 921 (Tex. Crim. App. 2016) (entire record must be considered; testimony cannot be viewed in isolation)
- Sweed v. State, 351 S.W.3d 63 (Tex. Crim. App. 2011) (lesser offense must be a valid, rational alternative)
- Cavazos v. State, 382 S.W.3d 377 (Tex. Crim. App. 2012) (any evidence, even weak or contradicted, suffices if directly germane)
- Anderson v. State, 416 S.W.3d 884 (Tex. Crim. App. 2013) (foreseeability assessed under totality of circumstances; actual subjective anticipation not required)
- Skinner v. State, 956 S.W.2d 532 (Tex. Crim. App. 1997) (some evidence must be directly germane to the lesser offense)