Kevin Allan BARNES, Appellant, v. The STATE of Texas, State.
No. 2-99-322-CR.
Court of Appeals of Texas, Fort Worth.
July 19, 2001.
Finally, the due process argument regarding broad form submissions in a termination case has been considered and summarily rejected by the Supreme Court. Texas Dept. of Human Services v. E.B., 802 S.W.2d 647, 649 (Tex.1990). The Dosseys have not brought themselves within the Crown Life exception because they have not shown that any theory submitted to the jury was “an improperly submitted invalid theory.” Crown Life Ins. v. Casteel, 22 S.W.3d 378, 388 (Tex.2000). We fly in the face of existing Texas Supreme Court precedent on this issue by holding to the contrary.
AFFIDAVITS OF JURORS
While we have recently held that we cannot consider the affidavit of a juror regarding what affected their deliberations, the majority quotes a juror‘s affidavit and relies on it to reverse the trial court‘s judgment. See Tucker v. Interstate Brands Corp., No. 10-98-333-CV (Tex.App.--Waco April 4, 2001, not designated for publication). This is improper. See
CONCLUSION
For the reasons expressed herein, I respectfully dissent.
Law Office of Larry M. Moore, and Larry M. Moore, Fort Worth, for appellant.
Tim Curry, Criminal District Attorney, Charles M. Mallin, Assistant Crim. D.A. and Chief of the Appellate Section, and Edward L. Wilkinson, Anne Box, and Robert Foran, Asst. D.A.s, Fort Worth, for appellee.
PANEL A: CAYCE, C.J.; DAY and DAUPHINOT, JJ.
CAYCE, Chief Justice.
INTRODUCTION
A jury convicted Kevin Allan Barnes of the offense of capital murder, and the trial court assessed an automatic life sentence. In seventeen points, appellant complains about accomplice witness testimony, the admission of hearsay statements of his coconspirators, inclusion of the law of parties in the jury charge, the automatic life sentencing scheme, and the affirmative deadly weapon finding in the judgment. We will affirm.
BACKGROUND
On October 9, 1997, Myron Nash, Carlis Russell, and Tonero Rainey stole “a whole bunch of rifles” and firearms from a house in Arlington, Texas. They loaded the guns into the trunk of Rainey‘s blue Cadillac and drove to S.R.‘s house at 2512 Vogt Street in Fort Worth. S.R. and Nash knew each other because S.R. had previously dated Nash‘s brother. Nash entered S.R.‘s house and told her that he had “just hit a lick” and that he needed to store some things at her house for a short while. S.R. agreed, and Nash and his companions
Later that day, Nash, Russell, and Rainey went to appellant‘s apartment, arriving in a sports car. Nash and Russell revealed to appellant and D‘Andre Edwards that they had stolen the guns from a house in Arlington, and showed them a .38 they had obtained in the robbery. They informed appellant and Edwards that they planned to sell the stolen weapons.
That same evening, the Fort Worth police, conducting an unrelated investigation, obtained permission from S.R. to search her house. The police told S.R. that they were looking for stolen property such as televisions, refrigerators, and appliances. The officers discovered the cache of guns in the attic, but confiscated only the handguns after S.R. claimed that the rifles belonged to her uncle. In addition to the guns, the police officers recovered nineteen rounds of ammunition, a night scope, two bandanas, and a wool cap. S.R. contacted Nash that night and told him that the police had confiscated the firearms. Nash sent someone to pick up the remaining rifles on the evening of October 10, and Nash returned S.R.‘s car around 10:30 p.m. that evening.
In a telephone conversation on October 10, appellant discussed “hitting a lick” with Chris Hill. Edwards overheard the conversation because he was listening on the extension in another room of the apartment. Edwards inferred that appellant and Hill were discussing “[m]aking some money” by an “illegal method.” About an hour later, appellant and Edwards were joined by Hill, Deangus Wright (known as “D“), and “the white boy.” The group was angry with Myron Nash (known as “Big O“) for “messing them over with the guns.” They again discussed “hitting a lick” and “mak[ing] some money” together. Appellant obtained a gun, and his companions, all but Edwards, made masks out of bandanas. Appellant, Wright, Hill, and the white boy left the apartment after thirty minutes. When they left, appellant had a .38 revolver.
At approximately 2:00 a.m. on October 11, 1997, someone rang the doorbell of S.R.‘s house and identified himself as “D.” Thinking it was a friend she knew by the name of “Derrick,” S.R. unlocked the door. At least three men burst into the room with guns drawn and masks over their faces. One of the assailants held a gun to S.R.‘s face and demanded to know where “O” was. The others moved past them into the house. Left alone with S.R., the first intruder sexually assaulted her.
One of the men apparently searched the residence and came back to report that another woman was present in the house, S.R.‘s best friend, C.H. He returned to the bedroom where C.H. lay asleep and “started on” her. When the first assailant finished sexually assaulting S.R., he immediately attempted anal intercourse with her while one of his accomplices watched. After the first attacker finished and left the room, the second assailant placed a gun to S.R.‘s head and ordered her to perform oral sex on him. Sometime during the
The assailants then forced S.R. onto the bed and ordered C.H. to perform oral sex on her. C.H. refused, declaring she “wasn‘t gay.” One of the assailants replied that he did not care, and pointed a gun at her. C.H. pretended to perform oral sex on S.R., but the men were not satisfied and forced C.H. to crawl on her hands and knees out of the bedroom.
The first intruder returned and sexually assaulted S.R. again. When he had finished, the attacker stated angrily to S.R.: “[B]itch, you don‘t have no guns, you don‘t have no drugs, you don‘t have nothing in this motherf[---].” S.R. explained that the police had taken the guns, and told him to look at the receipt the officers had left. The man only expressed interest as to why the police had searched the house.
Minutes later S.R. heard a gunshot, heard C.H. scream, and then heard a second gunshot. C.H. was shot in the buttocks and the head. S.R. peered out from under the pillow and saw “someone still standing in the doorway pointing a gun” at her. S.R. was shot several times. She feigned death until the intruders left. The entire house had been ransacked in an obvious effort to find “something or ... to steal something.” C.H. died from the gunshot wounds, but S.R. survived.
Appellant returned to Edwards‘s apartment with Russell, Hill, Wright, and the white boy around 3:00 a.m. When they returned, Russell had a .38 gun, Hill had a chrome .38, appellant had a .380, and Wright had a .22 derringer. Wright also had a Texas ring and a necklace. Wright, Hill, and Michael Schiavo only stayed for five minutes before they went home. Appellant told Edwards that Wright had “somehow ... got in the room” and had “sex with one of the girls.” Appellant said that Russell “made the girls do things that--that were nasty,” including performing oral sex on him and on each other. Appellant admitted to Edwards that Russell had ordered him “to kill the girls” and that appellant shot one of the women “in the butt.” Russell then shot the girl in the head. Hill and Russell “shrugged their shoulders” and shot the second victim. Appellant admitted that at least one of the handguns the men had in their possession when they returned had come from S.R.‘s house.
From the photographic lineups, S.R. identified Rainey and Russell as the men who had come to her house with Nash to drop off the guns several days before the assault. In addition, she identified Russell as one of the men who had assaulted her. She also picked Russell and Rainey out in live lineups. DNA tests conducted on semen found on the bed sheet in S.R.‘s room matched appellant‘s DNA. DNA from semen taken from a vaginal swab of C.H. was consistent with having come from Hill and Wright.
As a result of the investigation, probable cause warrants were issued for appellant, Deangus Wright, Michael Schiavo, Carlis Russell, and Chris Hill, and they were arrested and charged with capital murder.
CAPITAL MURDER AND THE LAW OF PARTIES
A person commits capital murder if he intentionally or knowingly commits murder as defined under section 19.02(b)(1) “in the course of committing or attempting to commit ... robbery [or] aggravated sexual assault.”
Under the law of parties, a person may be convicted 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 both.
A person is also responsible for the conduct of another if, in an attempt to carry out a conspiracy to commit one felony offense, another felony is committed by one of the conspirators.
In this case, appellant was charged with the offense of capital murder as a party under section 7.02(a)(2) because he aided or attempted to aid Russell in the offense of murder while in the course of committing robbery or aggravated sexual assault. See
ACCOMPLICE WITNESS TESTIMONY
In his first and second points, appellant complains that the trial court erred in failing to instruct the jury that D‘Andre Edwards was an accomplice as a matter of law or in failing to submit the issue to the jury as a matter of fact because Edwards was susceptible to prosecution as a party or as a co-conspirator.
The accomplice witness rule mandates that “[a] conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed.”
A witness is not deemed an accomplice because he knew of the crime but failed to disclose it, or even concealed it. Medina v. State, 7 S.W.3d 633, 641 (Tex. Crim.App.1999), cert. denied, 529 U.S. 1102, 120 S.Ct. 1840, 146 L.Ed.2d 782 (2000); Harris v. State, 738 S.W.2d 207, 216 (Tex.Crim.App.1986), cert. denied, 484 U.S. 872, 108 S.Ct. 207, 98 L.Ed.2d 158 (1987). The defendant is entitled to an accomplice witness instruction only if there is sufficient evidence in the record of the witness‘s participation in the crime to support a charge against the witness for the offense with which the accused is charged or a lesser included offense. Medina, 7 S.W.3d at 641; Blake v. State, 971 S.W.2d 451, 454-55 (Tex.Crim.App.1998).
In this case, Edwards testified that he overheard appellant and Hill talking on the phone about “hitting a lick.” Edwards only listened to the discussion. Later that night, appellant and several of his accomplices met at the apartment where Edwards was staying. Appellant, Hill, Wright, and “the white boy” talked about finding “Big O” because they were angry at him for “messing them over with the guns” and they discussed “hitting a lick.” The group never said where they were going or what they were going to do. Edwards testified that he listened to the conversation but did not participate in it. Edwards saw appellant and his companions obtain a .38 revolver and “do-rags” that they used as masks. Edwards asked if he could go with them. He was told that there was not enough room in the car for him, so he stayed behind. When the group returned several hours later, appellant described to Edwards how they had gone to an apartment where they sexually assaulted and then “killed some girls.”
Based on these facts, we conclude that Edwards was not an accomplice as a matter of law or as a matter of fact because he took no affirmative act to assist or promote the commission of the offense of capital murder. He did not help appellant or his accomplices plan the offense; he did not help them obtain the weapons or disguises used in the offense; he was not present during the commission of the offense; and he did not participate in the commission of the offense. Even though Edwards expressed a willingness to participate by asking if he could join them, he did not go with them nor did he know where they were going or what they were planning to do. At most, the evidence shows that Edwards knew about the crime after it had been committed and that he concealed his knowledge by not reporting it to law enforcement officials. Under these facts, Edwards could not have been prosecuted for capital murder or one of the lesser included offenses as a principal or a party. Thus, the trial court properly refused appellant‘s requested accomplice witness instructions. We overrule points one and two.
HEARSAY TESTIMONY
In points three and four, appellant contends that the trial court erred in admitting the hearsay statements of Tonero Rainey, Michael Schiavo, and Deangus Wright.
We review the trial court‘s decision to admit or exclude evidence under an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim. App.2000); Moon v. State, 44 S.W.3d 589, 593 (Tex.App.--Fort Worth 2001, pet. ref‘d). The trial court‘s ruling will be upheld as long as it is within the “zone of
If the trial court erroneously admits hearsay, we conduct a harm analysis. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998); see also
In point three, appellant complains that the trial court erred in allowing the hearsay statement of Tonero Rainey. Detective John David Thornton testified that Rainey “denied being at the Arlington offense, but stated that he wanted to help with everything, but he felt that his life would be in danger if he did.” Appellant objected at trial and asserts on appeal that this statement was inadmissible hearsay because it was not made in conjunction with a statement against the declarant‘s penal interest. See
A statement of the declarant‘s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant‘s will.
Rainey‘s statement to Detective Thornton is one of belief offered to prove the
In point four, appellant argues that the trial court erred by admitting the statements of appellant‘s co-conspirators under
A statement which was at the time of its making ... so far tended to subject the declarant to civil or criminal liability ... that a reasonable person in declarant‘s position would not have made the statement unless believing it to be true. In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
During his investigation, Detective Thornton interviewed Schiavo and Wright about their participation in the capital murder. Detective Thornton offered the following description of those interviews:
Q. [BY PROSECUTOR] Did you ever interview an individual named Michael Schiavo?
A. Yes, I did.
Q. Did he give you a statement about his participation in this capital murder?
A. Yes, he did.
Q. And did you also interview another individual named Deangus Wright?
A. Yes, I did.
Q. Did he give you a statement about his participation in this capital murder?
A. Yes.
[APPELLANT]: Judge, I‘m going to object to that. That assumes that the statement that he gave pertaining to an offense that he says that he committed and that is hearsay as to any statement that he gave and what it contained for him to say what the substance was.
THE COURT: Overruled.
Q. [BY PROSECUTOR] Both of these men that gave you these statements, did they tell you who else was involved in the capital murder?
A. Yes, he did. Yes, they did.
Q. And who did they say committed this capital murder on October 11th, 1997?
[APPELLANT]: Your Honor, we‘re going to object for the reason it will be hearsay.
THE COURT: Overruled.
THE WITNESS: Kevin Barnes.
Although Detective Thornton testified that Wright and Schiavo gave statements about their participation in the capital murder, the detective did not specify what they claimed their roles, if any, were in the capital murder. He only testified that Schiavo and Wright told him that appellant committed the capital murder on October 11, 1997. The statements made by Schiavo and Wright in this case are not so equally against their own interest as to reach the level or reliability required by
We must next review the record as a whole to determine whether the admission of those statements affected appellant‘s substantial rights. See
OBJECTIONS TO THE CHARGE
In points five through fifteen, appellant argues that the trial court erred in overruling his objections to the jury charge and denying his requested instructions.2 Appellant argues that the trial court erred by: (A) failing to limit the definition of “intentionally“; (B) failing to require the jury to find that appellant was a party to the offense of capital murder; (C) failing to require the jury to find that both appellant and Russell had the specific intent to kill; (D) failing to instruct the jury on the affirmative defense of independent impulse; (E) allowing the jury to find appellant guilty without requiring that Russell be a co-conspirator; and (F) submitting an instruction under penal code section 7.02(b) for co-conspirator liability when it was not raised by the evidence.
A. Definition of “Intentionally”
First, appellant complains that the trial court erred by defining “intentionally” because the trial court failed to limit its application to the result of the conduct. In other words, he contends that the charge should have instructed the jury that appellant specifically intended that death result from his conduct and not that appellant
Appellant requested the following definition of “intentionally“: “A person acts intentionally or with intent with respect to the nature of his conduct when it is his conscious objective or desire to cause the result.” The trial court denied appellant‘s request and charged the jury as follows: “A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.”
There are three “conduct elements” that can be involved in an offense: (1) the nature of the conduct; (2) the result of the conduct; and (3) the circumstances surrounding the conduct. McQueen v. State, 781 S.W.2d 600, 603 (Tex.Crim.App.1989); see also
Capital murder is a “result of conduct” offense that, depending upon the underlying conduct which elevates the intentional murder to capital murder, may also include the elements for the nature of the conduct or the circumstances surrounding the conduct. Id. at 491; Hughes v. State, 897 S.W.2d 285, 295 (Tex.Crim.App.1994), cert. denied, 514 U.S. 1112, 115 S.Ct. 1967, 131 L.Ed.2d 857 (1995). The underlying offense of robbery consists of all three conduct elements: (1) caused bodily injury (result of conduct); (2) the robbery is committed in the course of committing theft (circumstances surrounding conduct); and (3) the unlawful appropriation of property (nature of conduct). Ash v. State, 930 S.W.2d 192, 195 (Tex.App.--Dallas 1996, no pet.). The underlying offense of aggravated sexual assault is comprised either of the nature of conduct or the result of conduct element, and the trial court may include both in its instruction. Murray v. State, 804 S.W.2d 279, 281 (Tex.App.--Fort Worth 1991, pet. ref‘d). Because all three conduct elements are implicated by the underlying offenses in this case, the trial court properly instructed the jury on the statutory definition of “intentionally,” which includes the result of conduct and the nature of conduct elements. See
B. Party to the Offense of Capital Murder
Appellant argues that the trial court erred in charging him under section 7.02(a)(2) of the penal code. Appellant contends that the first paragraph allowed the jury to find him guilty of capital murder even if the jury believed that Russell was not a party to the aggravated sexual assault, and without requiring Russell to be guilty of capital murder.
Now if you find from the evidence beyond a reasonable doubt that on or about the 11th day of October, 1997, in Tarrant County, Texas, Carlis Russell did intentionally cause the death of an individual, [C.H.], by shooting her with a deadly weapon, to-wit: a firearm, and the said [appellant] was then and there in the course of committing or attempting to commit the offense of aggravated sexual assault of [C.H.], and [appellant], acting with the intent to promote or assist the commission of the murder, if any, solicited, encouraged, directed, aided or attempted to aid Carlis Russell in the commission of the murder [then you will find appellant guilty of the offense of capital murder].
This paragraph instructed the jury to determine whether appellant was criminally responsible as a party to C.H.‘s murder in the course of committing or attempting to commit aggravated sexual assault as a principal. Appellant‘s guilt as a principal to aggravated sexual assault, coupled with his guilt as a party to murder in the course of committing the aggravated sexual assault, elevated the offense to capital murder, regardless of whether Russell was a party to the aggravated sexual assault or guilty of capital murder. See
Section 7.01(a) specifically provides for such an occurrence because it states that 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 both.”
Appellant also complains that the third application paragraph erroneously instructed the jury to determine whether appellant aided or attempted to aid Russell in the commission of the offense of murder, instead of the commission of the offense of capital murder. The third application paragraph instructed the jury as follows:
If you find from the evidence beyond a reasonable doubt that on or about the 11th day of October, 1997, in Tarrant County, Texas, Carlis Russell, did intentionally cause the death of an individual, [C.H.], by shooting her with a deadly weapon, to-wit: a firearm, and the said Carlis Russell was then and there in the course of committing or attempting to commit the offense of robbery of [C.H.], and [appellant], acting with the intent to promote or assist the commission of the offense of capital murder, if any, solicited, encouraged, directed, aided or attempted to aid Carlis Russell in the commission of the offense [then you will find appellant guilty of the offense of capital murder]. [Emphases supplied.]
The prepositional phrase “in the commission of the offense” refers to the previous phrase “the offense of capital murder.” Read as a whole, the instruction requires the jury to determine whether appellant “solicited, encouraged, directed, aided or attempted to aid” Russell in the commission of the offense of capital murder. The third application paragraph correctly applies the law of parties to the State‘s theory of capital murder.
Appellant further alleges that the trial court erred in submitting application paragraphs one and three because they allowed the jury to convict appellant of capital murder without finding that each of the actors specifically intended the death to occur, as required by sections 19.03(a)(2) and 7.02(a)(2) of the penal code.
In a prosecution for capital murder under section 19.03(a)(2), in order to convict the accused as a primary actor the State must prove and the jury must find that he “intentionally commit[ted] the murder” in the course of the underlying felony. Tucker v. State, 771 S.W.2d 523, 530 (Tex.Crim.App.1988), cert. denied, 492 U.S. 912, 109 S.Ct. 3230, 106 L.Ed.2d 578 (1989). Moreover, before the accused may be found criminally responsible for the conduct of another who “intentionally commit[s] the murder,” under the provisions of section 7.02(a)(2), it must be shown the accused harbored a specific “intent to promote or assist the commission of” the intentional murder that the other committed. Lawton v. State, 913 S.W.2d 542, 554 (Tex. Crim.App.1995), cert. denied, 519 U.S. 826, 117 S.Ct. 88, 136 L.Ed.2d 44 (1996). The court of criminal appeals has held that “[o]ne could hardly indulge an intent to promote or assist in the commission of an intentional murder without, at a minimum, intending or contemplating that lethal force would be used.” Tucker, 771 S.W.2d at 530.
Contrary to appellant‘s argument, the charge required the jury to find that both Russell and appellant had the specific intent to kill. As to Russell‘s intent, paragraphs one and three required the jury to find that Russell “did intentionally cause the death of [the victim] by shooting her with a deadly weapon.” As to appellant‘s intent, paragraph one only allowed a conviction if the jury found that appellant “acting with the intent to promote or assist the commission of the murder, if any, solicited, encouraged, directed, aided or attempted to aid Carlis Russell in the commission of the murder.” Similarly, paragraph three commanded the jury to find appellant guilty of capital murder if it determined beyond a reasonable doubt that appellant was “acting with the intent to promote or assist the commission of the offense of capital murder,” and aided or attempted to aid Russell in the commission of the capital murder. These instructions necessarily required the jury to ascertain that appellant and Russell specifically intended the death of the victim. See
D. Independent Impulse
Appellant complains that the trial court erred in denying his requested instruction on independent impulse. A charge on independent impulse is an affirmative defensive instruction allowing the jury to acquit the defendant if it finds, or has a reasonable doubt, that the defendant did not and reasonably could not have anticipated the commission of the actual offense. Fincher v. State, 980 S.W.2d 886, 888 (Tex.App.--Fort Worth 1998, pet. ref‘d).
In order to authorize an instruction on independent impulse there must be evidence that an accused, though he admittedly intended to participate in some wrongful conduct, did not contemplate the extent of criminal conduct committed by his companions, and thus he should not be held vicariously responsible for their conduct. Mayfield v. State, 716 S.W.2d 509, 513 (Tex.Crim.App.1986); Fincher, 980 S.W.2d at 888. An independent impulse instruction is not required, however, when the charge actually given to the jury tracks the language of section 7.02 of the penal code and requires the jury to
Although the trial court did not submit the independent impulse theory to the jury, the instruction required jurors to find the murder of C.H. “was committed in furtherance of the unlawful purpose to commit robbery [or aggravated sexual assault] and was an offense that should have been anticipated as a result of the carrying out of the agreement.” The submitted charge required the jury to acquit appellant if the offense of murder was beyond his contemplation. This adequately set out the defensive theory of independent impulse. See Davis, 651 S.W.2d at 792; Fincher, 980 S.W.2d at 888.
Moreover, the evidence in the record does not support the submission of an independent impulse instruction. The evidence shows that appellant and his co-conspirators discussed “hitting a lick” shortly before the capital murder, and appellant carried a gun with him when the group left the house. Once they arrived at S.R.‘s house, Russell told appellant to “kill the girls,” and appellant shot one girl “in the butt.” Appellant‘s semen was also found at the scene of the capital murder. Based on this record, there is no evidence that appellant did not contemplate the extent of his companions’ criminal conduct in carrying out the agreement to commit robbery or aggravated sexual assault. The trial court did not err by refusing to send the additional instruction to the jury.
E. Russell as Co-Conspirator
Appellant complains that the trial court‘s charge to the jury under section
Paragraph two instructed the jury as follows:
If you believe from the evidence beyond a reasonable doubt that [appellant] entered into a conspiracy with Carlis Russell and/or Christopher Hill, and/or Deangus Wright and/or Michael Schiavo to commit the felony offense of aggravated sexual assault and that on the 11th day of October, 1997, in the County of Tarrant, and State of Texas, in the attempt to carry out this agreement, if any, Carlis Russell did then and there intentionally cause the death of an individual, [C.H.], by shooting her with a deadly weapon, to-wit: a firearm, if he did, and that such offense was committed in furtherance of the unlawful purpose to commit aggravated sexual assault and was an offense that should have been anticipated as a result of the carrying out of the agreement though [appellant] may have had no intent to commit it [then you will find appellant guilty of the offense of capital murder]. [Emphasis supplied.]
Paragraph four was identical to paragraph two, except that it charged the “felony offense of robbery” instead of the “felony offense of aggravated sexual assault.”
The first part of both paragraphs connects the names of the co-conspirators with “and/or,” thus making it hypothetically possible that Russell was not one of the co-conspirators. Nonetheless, in order to
F. Agreement to Commit the Underlying Felony Offenses
Appellant asserts that the trial court erred in submitting paragraphs two and four because there is no evidence to support an agreement to commit a robbery or aggravated sexual assault.
An instruction on the law of parties may be given to the jury whenever there is sufficient evidence to support a jury verdict that the defendant is criminally responsible under the law of parties. Ladd v. State, 3 S.W.3d 547, 564 (Tex. Crim.App.1999), cert. denied, 529 U.S. 1070, 120 S.Ct. 1680, 146 L.Ed.2d 487 (2000). In determining whether a defendant participated as a party in the commission of an offense, the fact finder may look to events that occurred before, during, or after the offense, and may place reliance on acts showing an understanding and common design. Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App.) (op. on reh‘g), cert. denied, 519 U.S. 1030, 117 S.Ct. 587, 136 L.Ed.2d 516 (1996).
An agreement of the parties to act together in a common design seldom can be proven by direct evidence; reliance therefore may be placed upon the actions of the parties, showing either by direct or circumstantial evidence an understanding and common design to do a certain act. Burdine v. State, 719 S.W.2d 309, 315 (Tex.Crim.App.1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1590, 94 L.Ed.2d 779 (1987); Rivera v. State, 990 S.W.2d 882, 887 (Tex. App.--Austin 1999, pet. ref‘d), cert. denied, 528 U.S. 1168, 120 S.Ct. 1191, 145 L.Ed.2d 1096 (2000). Evidence is legally sufficient to convict under the law of parties when the defendant is physically present at the commission of the offense and encourages its commission by acts, words, or other agreement. Ransom, 920 S.W.2d at 302. Moreover, the jury may infer the intent to kill from the use of a deadly weapon. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim.App.1996), cert. denied, 522 U.S. 832, 118 S.Ct. 100, 139 L.Ed.2d 54 (1997).
Contrary to appellant‘s argument, there was ample evidence to support the submission of appellant‘s criminal responsibility as a party under section 7.02(b) of the penal code. The actions of appellant and his accomplices demonstrate an understanding and common design to commit the offense of robbery. Their discussions about “hitting a lick” and “making some money,” coupled with their preparation in securing weapons and masks, show a readiness to commit robbery. Their bursting into S.R.‘s house with drawn guns and masks, and their immediate search of the residence while one of the members of the gang interrogated the first victim, demonstrates not just an agreement, but a certain level of coordination regarding their respective roles in the robbery. One of the assailant‘s complaints to S.R. about the lack of guns or drugs further suggests the conspirators’ agreed aim of committing robbery. In addition, the theft of the .38 revolver and the bracelets, and the “ran-
Likewise, an agreement to commit sexual assault is also established by the evidence. The first assailant‘s sexual assault of S.R., after interrogating her but before the co-conspirators’ search of the apartment was completed, suggests that the conspirators had planned to sexually assault the girls. Similarly, the assailants’ repeated sexual assaults of S.R. and C.H. at gunpoint shows that at least once they had arrived at S.R.‘s house, the members of the conspiracy agreed to sexually assault the girls. In addition, the fact that the conspirators forced S.R. and C.H. to crawl in the nude from one room to another on their hands and knees shows that the members of the gang agreed to sexually assault the victims. Because there was sufficient evidence to support a jury verdict that appellant is criminally responsible under the law of parties, the trial court did not err in submitting paragraphs two and four to the jury. See Ladd, 3 S.W.3d at 564.
Having determined that the trial court did not err in submitting the charge instructions to the jury, we overrule points five through fifteen.
CONSTITUTIONALITY OF AUTOMATIC LIFE SENTENCE
In his sixteenth point, appellant urges that article 37.071, section 1 of the code of criminal procedure and section 12.31 of the penal code are unconstitutional because they mandate that appellant is given an “automatic life” sentence without a hearing on punishment. Appellant states that this automatic sentencing scheme violates the Eighth Amendment of the United States Constitution. He also requests a proportionality review between his offense, Russell‘s offense, and the resulting sentences.
Appellant was under the age of seventeen at the time he committed the capital offense. Under section 8.07(c) of the penal code, the death penalty is not available for a juvenile offender who is younger than seventeen years of age.
It is well settled that a mandatory life sentence for the offense of capital murder is not unconstitutional. Harmelin v. Michigan, 501 U.S. 957, 994-95, 111 S.Ct. 2680, 2701, 115 L.Ed.2d 836 (1991); Prater, 903 S.W.2d at 60; see also Pondexter v. State, 942 S.W.2d 577, 587 (Tex.Crim. App.1996), cert. denied, 522 U.S. 825, 118 S.Ct. 85, 139 L.Ed.2d 42 (1997). We, therefore, overrule appellant‘s sixteenth point.
DEADLY WEAPON FINDING
In his seventeenth point, appellant complains that the trial court erred in including an affirmative deadly weapon finding in the judgment. He specifically asserts that because the jury trial only addressed his guilt as a party, there was no jury issue submitted as to whether appellant used or exhibited a deadly weapon.
The jury in this case was not given a special issue on the use of a deadly weapon. Because appellant was charged as a party, we have no way of knowing from this record if the jury would have found that appellant knew that a deadly weapon would be used or exhibited or that he used one himself. The reviewing court has the authority to reform the judgment to delete the affirmative finding entered by the trial court if warranted. Bruton v. State, 921 S.W.2d 531, 538 (Tex.App.--Fort Worth 1996, pet. ref‘d). However, such a reformation is unnecessary here because we conclude that the erroneous entry of a deadly weapon finding was harmless in this case. See Upson v. State, 949 S.W.2d 531, 533 (Tex.App.--Houston [14th Dist.] 1997, no pet.).
An error is harmless when an appellate court determines beyond a reasonable doubt that it has made no contribution to the conviction or punishment. See
CONCLUSION
Having overruled each of appellant‘s points, we affirm the trial court‘s judgment.
DAUPHINOT, J. filed a concurring opinion.
DAUPHINOT, Justice, concurring.
While I concur in the result the majority reaches, I write separately to address the problem of treating section 7.02(b) of the Texas Penal Code as an alternative law of parties. Section 7.02 is entitled “Criminal Responsibility for Conduct of Another.”1 Although it is often referred to as “The Law of Parties,” this description is inaccurate. Section 7.02 describes the circumstances under which a person is criminally responsible for the conduct of another. It includes the law of parties in section 7.02(a), but it also includes the law of conspiracy in section 7.02(b). A person is criminally responsible for the conduct of another if he or she acts either as a party or as a co-conspirator. The law of conspiracy is not the law of parties.
In the case now before us, two of the application paragraphs of the jury charge required the jury to find a conspiracy, that is, an agreement. Yet, Appellant was not accused of entering into a conspiracy. In Brosky, we held that the additional element of an agreement establishes an offense separate and apart from guilt as a party.5 The State‘s position is that section 7.02(b) is distinct from the section 15.02 conspiracy statute because section 15.02 requires only proof that the defendant agreed with one or more persons to engage in conduct that would constitute an offense and that the defendant or another co-conspirator performed an overt act in pursuance of that agreement.6 In contrast, section 7.02(b) requires proof that, in an attempt to carry out a conspiracy to commit one felony, another felony, which should have been anticipated, is committed in furtherance of the intended felony.7 Thus, the State believes, the corpus delicti of conspiracy under section 15.02(a) is an agreement and an overt act in furtherance of that agreement, and commission of a substantive offense is not required. On the other hand, the State posits, section 7.02(b) requires proof of the commission of a substantive offense. I cannot disagree with this premise. I do, however, disagree with the logical conclusion.
When a person is shown to be guilty of conspiracy under section 15.02, the person is criminally responsible for his or her own acts. That is, the person is guilty of participating in a criminal conspiracy. Similarly, when a person is shown to have committed capital murder, that person is criminally responsible for his or her own acts. When, however, a person is proved guilty of capital murder as a party, that person is held criminally responsible for the acts of another. Likewise, when a person enters into a criminal conspiracy but a different felony is committed by a co-conspirator, he or she is held criminally responsible for the acts of the co-conspirator. The fact that there are procedural differences between prosecuting one as a party and prosecuting one as a co-conspirator, to me, emphasizes the distinction between section 7.02(a) and section 7.02(b).
To continue reliance on the line of cases holding that section 7.02(b) conspiracy is merely an “alternative ‘parties’ charge,”8 not only fosters conflicting lines of cases, but it also undermines the viability of Texas‘s capital murder scheme by permitting conviction of capital murder under the guise of the law of parties, without proof of the mens rea required by statute. Under the Montoya line of cases, the jury must
I respectfully urge the court of criminal appeals to revisit this issue, not only in the interest of consistency, but also in the interest of preserving the viability of the Texas capital murder scheme. In any event, this court should either follow Brosky or disavow that opinion.