Chatman v. State

637 fеlony lodged against theft was members which had been convicted drug dealing possession drugs. Solomon. Nor- ton also exhibited appeared attitudes which Qualls testified that Solomon tried on sympathy to be out of with the State’s several tes- occasions dissuade her from prosecutor The case. struck Willis because tifying against him expressly threat- poorly groomed, he was uncooperative kill ened to her she became a witness. instructions, the court’s and was inat- points Solomon raises two of error. during presentation tentive the State’s first, he asserts that the evidence is voir dire. Matlock was excused because insufficient because it fails to show that daughter she said her up was mixed Qualls prospective was a witness. Solo- narcotics and she poor opinion had a argument mon’s is based on the fact that persons involved with The narcotics. evi- no trial charge against had been set on the dence showed that the State’s main witness him, Qualls had not been notified were and Solomon both involved illicit the authorities that she would be a witness. Furthermore, narcotics. she said she could that, circumstances, He contends in these give credibility not to the State’s witnesses. Qualls proof pro- there was no that awas prosecutor struck Griffin he spective disagree. witness. We believing stated that he would have trouble “Prospective” is not defined main State’s witness because she was a ordinary however, the statute. usage, it prostitute. “anticipated” “expected means to be.” prosecu- The trial court found that the Dictionary (9th 1985). ed. Webster’s peremptorily challenging tor’s reasons for One who witnesses an offense but who has panel these members were not racial. Un- yet involving testified a trial that record, finding der clearly is not prospective offense is a witness. Benson erroneous. v. Williams (Tex.Crim.App. (Tex.Crim.App.1991). No error 1982). Moreover, prospec whether one is a shown. judged tive witness must be from the judgment is affirmed. standpoint of the one who retaliates. If anticipated Qualls Solomon would be a against

witness him and threatened to

harm her if she did testify, the offense is

complete Qualls though even was not for witness,

mally called as a or even if there

was not at that charge pending time a

against Solomon. The evidence here shows anticipated Qualls that Solomon would CHATMAN,Appellant, Christopher Brice against abe witness him аnd threatened to kill her if she testified. It is thus sufficient to sustain the conviction. Texas, Appellee. The STATE of error, point

In his other con- Solomon peremptorily tends that the State chal- No. 09-91-207 CR. Norton, Willis, Matlock, lenged veniremen Texas, and Griffin for racial reasons in violation of the rule Kentucky, of Batson v. 476 U.S. Beaumont.

79, 1712, (1986), 90 L.Ed.2d 69 S.Ct. April 1992. and Chambers v. (Tex.Crim.App.1989). April Rehearing Denied racially prosecutor testified to striking panel neutral reasons for mem He he struck

bers. said Norton because acquainted family, with a several Beaumont, appel-

Douglas Barlow, lant. Fisher, Maness, Atty.,

Tom R.W. Dist. Beaumont, for Asst. state. Atty., Dist. C.J., WALKER, Before BURGESS, JJ. BROOKSHIRE and OPINION BURGESS, Justice. Christopher

A Chat- Brice convicted punishment man of murder and assessed in the Texas forty-five years’ confinement Justice, Institu- Department of Criminal contain the strike lists for the state and the judgment includes an tional Division. deadly objection, From his can tell finding of the use of a defense. affirmative appellant objected spe- in the commission of the offense on clear and weapon twenty ground, the sentence that appellant per- cumulates cific exercised a attempted Christian, year against sentence for murder emptory strike Mr. appel- address objectionable juror Cause No. We will that an served on the points of error out of order. lant’s three jury. The record does not demonstrate peremp- that exercised all of his challenges the trial Point of error one tory requested strikes. He never an addi- challenge denial of a for cause of court’s peremptory Appellant strike. cannot tional venireperson Walter Christian. Mr. Chris- request show harm absence of a inquired parole and indicated tian about strikes. Point of error one is additional parole inclined to consider that he would be overruled. if assessing punishment. When asked instructions he follow the court’s would urges Point of error three reversible that regarding parole, Mr. Christian stated argued prosecutor occurred when the error the law and would he would follow fright that jury witnesses had been knowledge gained he has from consider Appellant the courtroom. testi ened from urges error Appellant outside the case. attorney gave that his him a list of fied on the trial court’s denial of his based eyewitnesses those possible and of eleven cause. motion to excuse the venireman for Kerry up. During only Williams showed argued closing argument defense counsel find failed to We that as follows: procedural steps necessary to follow Ap present appellate the issue for review. Now, that let’s look at the witnesses (1) pellant must demonstrate that the voir brought I had told weren’t venireperson dire of the individual was re surprise a little of a you it would be bit transcribed; (2) appel corded and at trial begin- you I had told to me. As challenge specific lant asserted a clear and dire, expected I this trial to ning in voir clearly grounds; for cause on articulated giv- long had pretty because we been (3) peremptory he used a strike on the name of 15 witnesses that we en the venireperson who should have been ex has expected testify. to As Mr. Chatman cause; (4) per cused for he exhausted his stated, during our conversations before (5) emptory challenges; requested addi giv- were this trial when those ‍‌​‌​​‌​​‌​‌​​​‌​​​‌‌​​‌​‌​‌​‌‌‌‌​​‌‌‌​‌‌​​​​​‌‌​‍witnesses (6) peremptory challenges; tional him. I gave I them to еn to me went objectionable juror sat on the case. Harris said, guys. There’s “These are the 568, (Tex.Crim. State, 790 S.W.2d said, I “These are people on this list.” App.1989). going say you to are guys that are testify.” guilty, going to Appellant objected to the denial of his that are cause, challenge for as follows: And in this business while. I’ve been [By going are to my opin- Defense We I have been lied to before. Counsel:] Mary object to Burch that we were ion, that I 11 witnesses when saw these peremptory make—use a chal- forced to eyewitness, given me that were were Christian, was num- lenge on Walter who come in here supposed were jury panel, one that we said, 12 on the ber I “Let testify happened, that this cause. requested be removed for had advising you I’m you. me tell Brice. Mary get Burch is to on the And you are people come right if these now peremp- exercised a then we would have guilty. You had bet- going get found challenge on her had the Court not tory your best shot.” plead guilty. That’s ter one on Walter Christian. forced us to use McLemore, do it.” said, I didn’t He “Mr. object on we would If she is on it.” I said, sorry. I didn’t do He “I’m that basis. said, I at these witnesses. looked you want game that “Okay. This is the individual voir the benefit of the We have is to do I’m here for play. Then all The record does not Mr. Christian. dire of my job. people challenges those 12 Point of error two We’ll let decide really happened support what on this.” evidence of the proper appel conviction. standard of Well, trials, funny things happen in whether, viewing late review is all they? don’t If 11 listed witnesses were light most favorable to the they up can come with was best verdict, any Williams, rational could have found Kerry I then think tells beyond all of the elements offense they’ve got kind of case here. what Virginia, Jackson reasonable doubt. Next, argued the prosecutor as follows: 443 U.S. 99 S.Ct. 61 L.Ed.2d 560 You know 11—He said there were 11 (1979). argues Appellant eye they out eyewitnesses Maybe there. testimony identifying appellant as witness’ testify to come in were scared here and contradictory. Appellant the shooter is they today. Maybe were threatened and companion approached the truck oc and Maybe Kerry come. told not to cupied by Joseph and the victim Clarence Williams— drug Leonard. A transaction resulted Objection, your Counsel:] [Defense argument money. Leonard an over Mr. specula- an Honor. That’s invitation to jumped into the back testified that someone tion. fired several into the of the truck and shots THE Overruled. COURT: ap This was identified as vehicle. Maybe they were [Prosecutor:] by eyewitness Kerry The pellant Williams. they Maybe scared to come here. were shattered from the out back window was Maybe or told not threatened to come. Appellant’s companion fired at least side. Kerry only was one Williams who shots outside of three at the decedent from guts enough up had to stand to someone police driver’s of the truck. The side that, you buy their like someone don’t .22 spent casings recovered shell both they you. cocaine will shoot Appellant argues that and .25 caliber. Jury arguments confined to must be the victim’s may those shots have caused (1) evidence; the areas summation of the The that the pathologist death. testified evidence; (2) deduction from the reasonаble bleeding internal sec cause death was (3) argument opposing answer to coun on ondary gunshot to wounds to the trunk sel; (4) Ale plea and for law enforcement. four pathologist left The found flank. State, (Tex.Crim. 493 jandro v. S.W.2d 230 Three bullets found gunshot wounds. ap App.1973). point error on Since the left body the trunk on had entered trial, peal must have been raised at we right. A and from left to side travelled argument only as appellant’s it consider through the clear fourth bullet travelled speculate. pertains to a call truck was inside the left arm. The victim agree prosecutor speculated on that the We side, testimo there is no on the driver’s but why potential reason the eleven wit to his within the vehicle ny position While to some ex appear. nesses did not shot fired. each was by spec was invited argument tent this in de The included an abstract unsupported by ulative and comments appli counsel, parties. not in fense defense counsel did struction jury to speculate cation authorized vite the state to where appear if it found why guilty not find they or did witnesses were as that Nevertheless, eye as a light acting "either alone or trial. defined, intentionally or has testimony placing appellant term been witness death_” re- shooting knowingly truck into the caused the pickup back ap- criminal cent cases from the court of appellant’s violent cab and the evidence (Tex. State, 667 nature, beyond peals, Jones v. 815 S.W.2d find that a reasonable we State, 823 Crim.App.1991) v. argument no con and Walker improper made doubt (Tex.Crim.App.1991), did punish or the S.W.2d tribution to the conviction Tex.R.App.P. 81(b)(2). to the law contain reference ment assessed. application paragraph within Point of three overruled. error 12, 1976, Jones January In order to determine if and on or in El Paso about distinguishable prin- Walker aas Texas, Defendant, are from the case County, us, authority must analyze before cipal, under the immediate influ- Jones: Oliver v. cited in 160 Tex. passion, arising ence of sudden from an McCuin (1954); Crim. cause, adequate intentionally knowing- (Tex.Crim.App. (1) ly, either the death of caused Edward Apodaca 1974); vehicle, Figueroa, by driving a motor (Tex.Crim.App.1979). automobile, causing an into wit: it to vehiclе, Oliver decided the distinction before collide with a motor to wit: a principals accomplices truck, between pickup driven the said Edward 7.01(c) abolished (2) Figueroa, § Tex.Penal Code Ann. intended to cause serious (Vernon 1974). The evidence established principal, bodily injury, com- that someone other than was the Oliver clearly dangerous mitted an act to hu- trigger man. contained ab- life, vehicle, man drove a motor wit: principals stract definition of the law of automobile, causing to wit: an into and it apply failed to the law to the facts. The vehicle, to collide a motor wit: court stated: (sic) truck, pcikup driven the said Ed- The circumstances are sufficient death, Figueroa ward that caused his support finding present a that was will in either of such cases find the De- Puckett, Moody and was guilty Voluntary Manslaugh- fendant question the present whether he was added) (emphasis ter. and, knowing that Puckett intended to Apodaca, 589 S.W.2d at 698. Negro, kill encouraged the advised or murder, Apodaca passenger was a in the vehicle Puckett the was not sub- by though driven John Lewis. Even there jury mitted to the an abstract definition the law of Oliver, 268 S.W.2d at 470. parties application paragraph and the au- MeCuin, In which was also decided un- if found thorized the to convict it principals, der the old law of the held: Apodaca party (“principal”), acted as a the upon the evidence introduced the [I]f erroneous nowhere because shows, trial of the cause or raises an required was the to find issue, that the conduct of the defendant committed criminal that John Lewis sufficient, upon then trial is not in and of Apodaca could held re- acts for which be itself, conviction, to sustain the State’s all, sponsible, if at of his encour- upon principals case rests the law of agement of those acts. or assistance dependent, part, is at least in upon the conduct of another. such a distinguish Apodaca. We We cannot principals law of must be submitted and appli- Jones Walker that are conclude applicable made to the facts of the case. charge is insufficient to raise cable. The govern Thus the Oliver rule will this fact jury. We parties the issue of before structure. determine if must review the evidence to McCuin, 505 at 830. support sufficient to a find- the evidence is guilty by virtue of his ing that Apodaca the Oliver rule and re- applied find no evidence which conduct alone. We versed the conviction because the appellant’s explains how a bullet fired from apply failed to law have entered the victim’s position could prosecuted the case. The State on a horizon- on the left side and travelled Apodaca acted as a in that he trunk solicited, directed, right body. of his encouraged, tally aided or at- side gun held tempted to aid the actor. The con- came from the appears the bullets standing tained an abstract definition of the law of the left of the by person parties. application paragraph Thus, stated: appears that it was not it driver. caused the

Now, therefore, appellant’s sole conduct which you believe from the beyond a death of the victim. reasonable doubt felony prosecution, particular this resulted in a remand because Apodaca important. are The definitions definitions charging error. Garrett v. error was are stressed 784, importance their this (Tex.Crim.App. and 749 S.W.2d reading charge of the court verbatim as 1986) analysis Alman under precludes follows: (Tex.Crim.App. 686 S.W.2d za v.

1985) rehearing). hold that (opinion We can understand So that better insufficient to demonstrate and terms used in the the evidence is some of words non-parties guilty charge, provides following 608, added) (emphasis capacity. v. Boozer definitions: (Tex.Crim.App.1984) invokes 611-12 alia, experienced trial court de- Inter States, 437 doctrines Burks United “intentionally”, correctly fined the words (1978), 2141, 57 L.Ed.2d U.S. S.Ct. “knowingly”, “deadly weapon”, term 19, 98 Massey, 437 U.S. S.Ct. and Greene and, “firearm”, especially term which is (1978) in situations 57 L.Ed.2d 15 appeal, important the instruction great- charge places erroneous where an “parties to an offense”. warranted upon er the state than is burden charged “Parties to an offense” evidence, is insuffi- by the and the evidence follows: upon that support cient to a verdict based responsible A criminally authority in find no increased burden. We if the offense is ‍‌​‌​​‌​​‌​‌​​​‌​​​‌‌​​‌​‌​‌​‌‌‌‌​​‌‌‌​‌‌​​​​​‌‌​‍party to an offense the Texas Court Crimi- the deсisions of conduct, committed his own this harsh nal which will alleviate he is crimi- conduct of another for which result, theory was the state’s even where party to nally responsible, or both. Each on the based law may charged with the com- an offense paragraph attempted to authorize tion mission offense. jury to convict responsible criminally A is person sustained.' Point of error two is offense. by committed the con- an for offense with intent acting are over- duct another of error one and three Points if the the commission promote or assist and Point of error two is sustained ruled. directs, solicits, encourages, offense, he the trial court reversed judgment the person attempts to aid the other aids or entry of an order of and remanded for (emphasis add- offense, to commit the acquittal. ed) AND REMANDED. REVERSED the scene presence alone at Mere any, will not con- alleged offense, the if BROOKSHIRE, Judge, dissenting. (em- offense, party to the one a stitute added) phasis respectfully dissent submits This pro- felony the court of the law to important application meaningfully and dis- ceeding is different reads charge of the court the facts upon cases relied tinguishable from those as follows: The individualistic majority opinion. by the the evidence Now, you if from believe of the court on the unique charge and even that in Jeffer- doubt beyond a reasonable stage proceeding of this guilt or innocence Texas, March on or about County, son metic- examined with should and must be Christopher Brice 25,1991, the defendant in toto the repeating ulous care. Without Chatman, acting alone or as a either court, respectfully I entire defined, has been term party, as appellate court must view that this submit knowingly caused intentionally or required to do under it as the trial individual, namely: Lester an death of mur- Importantly, instructions. the court’s Jr., shooting him a by with Guillory, definition is: der was defined. firearm, you weapon, namely: a deadly guilty of the find the defendant mur- shall offense of A commits the alleged in in- murder as knowingly offense of intentionally or der if he added) (emphasis dictment. of an individual. the death causes find, you you incorporation so a actual inclusion and into the Unless or have thereof, paragraph doubt shall find crucial of the of the reasonable upon if the guilty. may, the defendant not which accused doubt, beyond so finds reasonable importance portion appli- Of charged. Clearly convicted of the offense reading: acting “either cation paragraph, under as it was party, alone or as as that term has been experienced framed and worded trial Above have set out defined". charge below, Gist, judge Larry the Honorable offense, only not an there was more than a or mere abstraction here, juxtaposition there is there also par- instruction on abstract the law of actually application especially incorpo- and case, in in reali- practicality ties. This and very simple inclusion ration and for the and ty, clearly distinguishable meaning charge says reason that obvious fully from different Jones “the Brice Christopher mandates defendant (Tex.Crim.App.1991)and S.W.2d 667 Walk Chatman, acting either alone (Tex.Crim.App. er v. Hence, as that term has been defined.” 1991). Jones, supra, Walker, supra, application paragraph within the itself simply did not contain reference to the language very incorpo- included and parties, appropriately law of or more stat- language: person is rated this crimi- “[a] ed, on the instruction law nally responsible an offense committed application paragraph within of the the conduct of another if promote intent to assist commission offense, solicits, encourages, di- Jones, Simply supra, stated the Court rects, attempts aids or to aid the other position only theory upon took the that the person to commit the offense.” the appellant Jones could have been robbery guilty aggravated found [em- modern, intelligent A certainly can phasis par- is under theirs] instructions, charges, follow the clear defi- ties, charge does con- but the not authorize nitions, application paragraphs given theory. Now, viction note that under that by the trial court. charge, according to the Court of Crim- manner, in another the jury Stated when Appeals, inal the convic- does authorize carefully considered the theory simply tion under that court, especiаlly paragraph and the involv- incorporation of there was no inclusion ing facts, application the the of the law to para- application into the necessarily had they to come across these in the graph the which is not situation “the Brice Christopher words: defendant appeal. instant Chatman, acting either or as a alone significant is that the defined”; But observe how it has I that term been stress theory upon High only “The Court writes: defined, as that term then and has been guilty of thereby which could be found that said definition is included and theory of robbery the incorporated application aggravated into is under para- the authorize graph. jury, following parties, charge the does not instructions but the court, Now, theory.” immedi- and mandates of the trial had to conviction on that immediately necessarily ately Appeals and the shifts consider the of Criminal Court definition, pertinent gears. is: “We part very the next sentence which person criminally responsible is is insufficient reads: conclude the evidence “[a] guilty of the an offense committed conduct demonstrate thаt capaci- promote aggravated robbery non-parties in a another if with intent to apparently offense, the ty.” Jones, supra, the Court assist the commission of directs, State, 608 solicits, encourages, upon v. 717 S.W.2d aids or at- relied Boozer State, and v. the to commit tempts (Tex.Crim.App.1984), to aid other (Tex.Crim.App.1986). the offense.” S.W.2d 784 occasions, Court, on Hence, juxtapo- is mere former High there more than the and actual sition; judge true application there is an and an has held that to actual insufficiency of reviewing the evidence the instruction to the that a witness was charge accomplice court must look to read as a matter of the law. Therein the a Criminal reaffirmed compare whole. See and Garrett v. State, holding the Benson v. 661 S.W.2d supra, (Opinion rehearing). at (Tex.Crim.App.1982), writing Indeed, Jones, that: opin supra, Per Curiam sufficiency “the of the evidence is ion, [to if it can so be] be classified in view the given." measured that was dissent, writes at at 670 in 815 S.W.2d Boozer, supra, case, at In the instant gleaned substance that what can be and given” actually “that incor- Garrett,, Apodaca concluded from porated and included law (Tex.Crim.App.1979), application properly very of the law predecessor case law is that while it is paragraph Jones, to the facts itself. correct view the evi- specifically quoted at 674 the Court supra, against charge,’ dence as the ‘entire Gar Garrett, supra, and recited from that: rett, 802-803, charge 749 S.W.2d at a be misapplication This would apply theory fails to to the facts of law [Boozer, Ortega rule announced convic the case insufficient to authorize These hold that suffi- Benson. cases] theory, tion on that even where ciency of evidence be measured abstractly charge. of law defined against jury charge, which we inter- Id., 789, at 749 S.W.2d n. 6. And the Court pret to mean the entire Gar- quotation: requoted juxtaposi- “Mere rett, (citations 749 S.W.2d at 802-803 tion does amount to authorization.” omitted; added). emphasis footnote Ibid. Hence, it is correct to look to the entire But, here, submit, practicality, I charge, especially in the instant case at juxtaposition plus plus have authorization entirety of appellate level to the plus incorporation inclusion in this case. Indeed, application itself. paragraph application paragraph, And since the that is entirety charge must be treated its para- application the law to the facts con- regard given must be properly graph, actually by incorpo- inclusion and interdependence nection and the sev- applies the parties, ration law of then this parts. eral Nickerson compare See and not deprived defendant of a fair and (Tex.Crim.App. 782 S.W.2d impartial Judge trial. Under Gist’s 1990). whether the approach, Under either fail tion does not reviewing court look to should apply does it state nor fail to law under entirety of the as a whole or look to the actually prosecuted. accused which the paragraph, the The Jones Per record, my opinion, a convic- authorizes thing there can such a Curiam — if upholds the verdict tion of the accused and two concurrences and with two dissents— of the district judgment and the states: then, jury’s finding Obviously court. the required are meаsure the evidence We support necessary, of sufficient evidence Garrett, against jury charge. the the satisfies the elements of the offense 784; 701; Ar Ortega, Virgi v. constitutional dictates of Jackson (Tex. ceneaux nia, 61 L.Ed.2d 443 U.S. 99 S.Ct. Cr.App.1990). (1979), is satis as Jackson inasmuch respectfully This writer would submit that could “any rational trier of fact fied if required to we are measure evidence elements have the essential of found against entirety parts, dik- and all doubt.” beyond a reasonable crime in the tats and definitions included Also, here, 319, 99 S.Ct. at 2789. U.S. at doing certainly paragraph; in so tion and by the authorized the conviction was Chatman, here, deprived is of a fair not and by the especially charge as a whole and impartial trial. the court’s application paragraph of finding Therefore, jury’s supra, jury. the Court Boozer correct. containing guilt and an abstract of is both authorized considered a summary Jones, holding supra. in of in conformity theory is with the State’s holding as case and with a whole The was as follows: indeed, application and with the actual held that in order for the to be [W]e White, Judge as written. in his one as a authorized convict noble, Jones, in inspired supra, dissent parties in law of must included wrote: application paragraph of the Today aggressive major- an and assertive practical by an purposes For all and ex- ity intelligent indicates that this Court reference, the law press mandatory and jurors plain English in cannot read Texas parties application was included during and then use common sense their Therefore, paragraph. the Chatman trials, in deliberations criminal [footnote charge certainly language satisfies the and omitted] rationale the Court of Criminal Judge White concludes: Jones, charge given supra. in I think the ag- I respectfully dissent because the meaningfully in the Chatman case is differ- gressive majority and assertive turns distinguishable ent and from the rationale jury system upside down. Walker, Jones, supra. in and supra, Curiam, or majority, opin- But even the Per Walker, opinion the Per Curiam states that Jones, supra, ion states: parties since the law of the was not includ- long line is one of cases application paragraph, then the ed prоposition which for the that the stand must look to whether application paragraph jury charge of a guilty sufficient to find if the conviction, authorizes an convicted of his own conduct rather than theory on a abstract law which case, But his party. in our own conduct applied to the facts is insufficient specifically referred to bring jury. before the incorporated and clearly thereby included Gist, Judge In the appli- instant his application paragraph. in the actual Here paragraph, required cation forced given crucial is the statute jury by very words thereof to consider by Judge Larry Gist: apply the facts CHARGE: very application paragraph. case in the Now, you if from the evidence believe insufficiency it really Is an of the evidence? Jeffer- beyond a reasonable doubt No, it charge spelled not. Had the out Texas, County, son on or about March respelled out the law of in ac- 25,1991, Christopher Brice the defendant form, suggested cordance with then Chatman, par- or as a alone either undoubtedly the conviction would have defined, inten- ty, as that has been appeal. term upheld been the instant knowingly caused the death of tionally or interesting It is to note that in the case individual, Guillory, namely: Lester (Tex. Walker v. S.W.2d 247 Jr., deadly weap- by shooting him with a Ap- Crim.App.1991), Court Criminal firearm, on, you shall find the namely: a peals opinion in a Per Curiam writes this the offense mur- guilty defendant important sentence: alleged der as in the indictment. application paragraph tracked the find, you have a Unless so language of the indictment but failed to thereof, you shall find reasonable doubt immediately any reference to the include guilty. the defendant not parties preceding general instruction. Chatman, all in But is not the case at this judge in the trial the Bear in mind that bar, simply the because the trial case at charged application actual incorporated and judge actually included acting party as that or as either alone parties the the law of the within entire thereby incorporat- term has been defined— application paragraph itself. ing parties into Hence, under the entire record Walker, paragraрh. Indeed, supra, in in Court is sufficient I find that the evidence opinion Per made an excellent its Curiam Appeals The is Court of addressing sustain conviction. Criminal cases abundant. This is correct because the trial the issue. judge phrase: used “or party, as a as motion, argues In its the State the fol- term has been The trial defined”. lowing: definition of parties court included its to an It is noted that it is nowhere men- application paragraph. offense within the majority tioned in opinion either the unequivocal The charge clear and on the dissent, court, this inor that there offense, given, law of to an is as objection parties charge was no to the in follows: bar, requested case at nor criminally person responsible A is as a Appellant. by on that issue if party to an offense the offense is point, (record record is clear on this conduct, by committed his own omitted). reference It is respectfully conduct of another for which he is crimi- that the noted submitted omission of an responsible, or both. nally party Each objection requested change or a moots charged may offense with any question of the sufficiency of the commission of- convicted party the issue of to submit liabil- fense. ity. criminally person responsible A appears majority this an offense committed the conduct of primarily court did held as it promote if with another intent to the decision of the Texas Court of Crimi- offense, or assist the commission of the Apodaca nal in solicits, directs, encourages, aids or (1979). overlooked, Either attempts the other to com- to aid in at least not mentioned this court’s mit the offense. opinion, language Apodaca is this presence alone at of an Mere the scene 698: offense, alleged any, if will not constitute defendant, “In where circumstances one a to an offense. all, guilty guilty at

Again, charge meaningfully the Chatman properly apply the law of should different from the as set out facts of the opinion Walker, supra, footnote 6 so is not reversible error failure to do concurring opinion by Justice Sam timely and there is a sufficient unless Houston Clinton. Walker objection_” reads as follows: argument per set out State’s above therе, appellant “did then in- [TJhat misunderstanding fectly usual frames the knowingly, tentionally and without concepts legal involved Walker consent owner effective [named] (Tex.Crim.App.1991), thereof, building not then and enter — U.S.-, denied, cert. S.Ct. open public, intent to there (1992); and 117 L.Ed.2d 624 Jones v. commit theft[.]” (Tex.Crim.App.1991); and giv- I respectfully dissent for the reasons Although extremely their progenitors. en. blush, argu first ‍‌​‌​​‌​​‌​‌​​​‌​​​‌‌​​‌​‌​‌​‌‌‌‌​​‌‌‌​‌‌​​​​​‌‌​‍the State’s compelling at misplaced. understandably ment OPINION ON MOTION attempting mistaken in The State is FOR REHEARING characterize the issue before

PER CURIAM. error. involving charging one None complained of error appellant’s points of Texas filed a Motion for The State charging appellant’s We sustained Rehearing denied this Court error. which was solely point upon denying second of error based April the State’s motion, hopes complaint evidence. set forth our reasons in subtle, stark legal concept very There is distinction clarifying very of a difficult a rely upon in which we with complex the line of the case law even more made State, (1979) Almanza v. com- L.Ed.2d 560 regard appellate to the treatment of (Tex.Crim.App.1984) (oрin- charging error plaints grounded in 686 S.W.2d Rehearing). Motion for sufficiency the evi- To grounded in ion on State’s those of point, rely analy- on dence. underscore contained Garrett v. sis of Romo pointing is correct in out our State (Tex.Crim.App.1988) (opin- 749 S.W.2d However, upon Apodaca, supra. reliance Rehearing).1 Responding of ion on Denial Apodaca clearly limit- our reliance on was identical to in the the State’s complaint to a in the final language ed to the contained II the Garrett Court respond- instant pp. opinion, 698-699 of the paragraph on ed: quoted as follows: the State’s observation is well While contends that The State nevertheless taken, it fails because it relies on the charged on the since the that abstract conclusion parties (although of refer- abstract law law of transferred intent was suffi- “principals” ence was made to rather put theory jury. that to before the cient “parties”), and since was than I, of Garrett cursory reading Even a appellant instructed to find whether supra, belies this point: princi- the deceased’s death “аs a caused A on transferred intent is do not pal,” this was sufficient. We to and detri- nature favorable the State par- agree. This reference to the law mental to the defendant. With the ties, paragraph applying contained 6.04(b)(2) of Sec. omitted provisions facts, was not to the law sufficient charge, prosecution from the Lew- require jury to whether to find presented greater with the burden is, vehicle, the driver caused “knowing” proving a act which deceased’s death and whether her conduct defendant was aware that criminally responsible was those for reasonably cause the certain to acts Lewis. Nowhere merely the actual result rather than jury required to find that Lewis com- seem result.... would desired acts, appel- criminal mitted might quite possible that a defendant all, responsible, held if at lant could be object a intentionally fail to encouragement, of his assist- acts, proper charge which omits ours) ance, etc., (emphasis of those in order to intent tion of transferred Apodaca quoted portion con greater to meet this require the Statе page tained on the second State’s burden. taken from Romo v. actually motion I, supra at 781. (emphasis Garrett 298, (Tex.Crim.App. 568 S.W.2d theirs). 1978) Re (opinion on State’s Motion for II, supra Apo Garrett hearing). It should be noted daca, timely ob did make a then II went Garrett jury charge to the regard to jection with they made in the explain glaring mistake Thus, improper application paragraph. in Romo Romo case. recognized that They language Romo using the the Court was “misapplied or non- they refused to label charging er grounded decide an issue paragraph which applied” ror. burden the State’s would have increased This was proof error. as fundamental separate there exists two The fact could a defendant done on the appellate review and distinct standards have the law right to elect to waive his appellate complaints regard forcing facts, thus parties applied to the charging error opposed grounded bur- onerous meeting a more the State into the evidence should be as right to have waiving his proof. den of Jackson as the distinctions obvious properly applied charge submitted 61 a Virginia, 443 U.S. 99 S.Ct. 1982), referred to (Tex.Crim.App. hereafter II só as to referred to as Garrett 1. Hereafter I. distinguish it from Garrett complain sufficiency could not later review the record jury, appellant However, has, went charging point fact, error. evidence because the in glaring in point on to out its mistake Romo appellant. been raised it Romo’s sufficiency when addressed Rehearing The State’s Motion for DE- complaint: the evidence NIED. the suffi- When this Court examined support ciency of the evidence to BROOKSHIRE, Judge, dissenting. Romo, mea- defendant’s conviction in we respectfully This further filed. dissent in terms of the defen- sured the evidence Court, opinion in on the Motion for culpability party. as a This treat- dant’s being Rehearing, the State’s Motion for sufficiency point renders the ment of the Rehearing, cites and relies on Walker legal mere fiction. “election” rationale a (Tex.Crim.App.1991) adopt implicit I does not Garrett — denied, U.S.-, 1481, 112 S.Ct. cert. sufficiency “test” for used Romo. (1992). per curiam 117 L.Ed.2d patently and irrational unfair language: opinion contains Walker charging error harmless be- find proof cause it raises the burden granted review to determine whether We ignore then that raised burden when the evidence was sufficient to sustain the evi- measuring charge.... light conviction ours). (emphasis dence. alleged ap- The indictment in this case II, supra at 802. pri- Garrett pellant committed this offense as a charge included mary actor. The court’s It seems clear that Romo instruction on the law of an abstract separate ap Apodaca both contained the application paragraph parties. pellate charging issues of error suffi language the indictment tracked the Aided ciency the evidence. Garrett any to include analysis, nothing find inconsistent II’s we failed reference general par- immediately preceding charg holding unobjected added) (Emphasis ties instruction. ing not fundamental error deficiency is holding time that a suffi while at the same Hence, clear the Ninth Court it is analysis, requiring no ciency of evidence per opinion impliedly curiam rea- Appeals’ issue, results objeсtion preserve trial application paragraph soned that the failed acquittal application if the in reversal and to the instruction to include reference applies specific paragraph improperly importance parties. Significant and of on of the case to the State’s facts application that shows the is the record prosection. While it is true that “when reads as fol- paragraph in the case at bar sufficiency, must determining the evidence lows: compared charge,” be to the entire Garrett CHARGE: 802-03, II, application supra at it is the Now, you from the evidence if believe jury charge autho paragraph of the Jeffer- beyond a doubt reasonable Jones, supra at 669. rizes conviction. Texas, March County, or about son placed imme definition is That an abstract Christopher 25,1991, Brice the defendant para application diately before or after Chatman, acting alone or either graph casually referred within defined, been party, as that term has consequence. paragraph is of nо knowingly caused intentionally or II, juxtaposi “Mere As stated Garrett individual, namely: Lester death of an authorization.” not amount to tion does him Jr., shooting Guillory, 789, II, (opinion n. 6 supra firearm, you namely: a deadly weapon, submission). Should the State original guilty of the shall the defendant find some other form point to treat this seek alleged in the in- offense of murder error,” respectfully refer the “trial dictment. State, 717 S.W.2d 608 to Boozer v. State find, you have a Unless so footnote (Tex.Crim.App.1984)at thereof, find you shall compelled to doubt reasonable that we would nevertheless guilty. (Emphasis paragraph tion defendant not in a succinct manner and in added) part relevant reads: “The Brice defendant Christopher Chatman, acting either alone Thus, there a definite and clear refer- is party, or as a as that term has been de- parties the in- ence to the law of and to un- fined, jury ...”. And the found that parties structions on to an offense which charge given der the as that the incorporated application para- are into the guilty offense of murder as a Hence, distin- graph itself. our case is pаrty. Walker, See Boozer v. guishable supra, because the from. 608, 610, judge, failing (Tex.Crim.App.1984).

trial instead of to include in- parties Boozer, reference to the definition and seems to deduce from reasonable structions, actually specifically include did phrase that once a or an instruction is a reference to definition incorporated into the court’s instructions or instructions. The instruction reads jury way to the in such a that the as follows: it, jury cognizance will take then the here, jury, PARTIES TO AN OFFENSE: as must have found the essen- support tial facts to Further- verdict. person criminally responsible A more, is no it has been decided that there party to an offense the offense conduct, thing surplusage part as mere in that by the such by committed his own jury court’s conduct of another for which he is crimi- of the Hence, nally responsible, party lan- both. Each authorizes a conviction. may charged an offense with and guage acting “either alone or as a of the of the of- convicted commission cannot be real- that term has been defined” fense. istically upon surplusage. as mere looked Boozer, case person criminally responsible supra.

A The facts this by an abundantly satisfy Virginia, offense committed the conduct Jackson acting promote another if with intent to 61 L.Ed.2d 560 443 U.S. 99 S.Ct. offense, or assist the commission of the (1979). solicits, directs, encourages, aids or Indeed, statutory of an of- elements attempts person to aid the other to com- either in the fense must be set out mit the offense. portion paragraph or in the definitional tion presence Mere an alone at the scene of charge. judge trial accom- ‍‌​‌​​‌​​‌​‌​​​‌​​​‌‌​​‌​‌​‌​‌‌‌‌​​‌‌‌​‌‌​​​​​‌‌​‍offense, alleged if any, will not constitute requirements. Benson v. plished both party one a to an offense. (Tex.Crim.App.1982). Hence, had before it in the cru- Benson, quote from at 714: We paragraph cial and the same was called to “in matters of states that attention, i.e., jury’s the entire instruc- governed by the instruc- law must be

tion on “Parties to an Offense”. Of tions, definitions, rulings of the and the especial importance was the instruction evidence evaluates the Court.” criminally responsible for an that a applies it to the instructions of anoth- offеnse committed the conduct charge. juryA given in the definitions promote or er if with the intent to upon guilt or innocence based determines offense, he assist the commission guilty charge. A defendant is found directs, solicits, or at- encourages, aids jury, upon the guilty based or not tempts the other to commit to aid light adduced as viewed the offense. theirs) (Emphasis necessarily guilty Here the verdict charged in properly Here jury found evidence of mandates that the containing spe- application authorized to convict that on which it was Thus, the unequivocal reference. cific and mea- of that evidence is parties to an instructions of definitions and given. charge that was sured para- in the said offense were very significant, opine, I Again, it is Hence, correctly in- jury was graph. important applica- appeal instant that the formed of the application paragraph essential elements cause the authorized offense. his conviction only primary actor. simply That is challenge not the made to us objections When the were by Brice Christopher aрpel- Chatman. Our taken, judge we find the trial that ac- challenge lant here does sufficiency not the quiesced appellant’s request in the to leave appeal by of the evidence in asserting this pages charge requested certain as application the paragraph that is deficient. appellant. example, the For an instruction I would submit there are that decisional affecting prior left in credibility on was the Ap- authorities the of Court Criminal Also, appellant's charge request. at the a peals of Texas not been that have over- voluntary charge manslaughter on was re- ruled, which stand for rule that the suffi- acceptable moved. This was the to trial ciency of the evidence must be measured appellant. attorney for the removal of The charge jury. of the view entire to the on the the instruction definitions sudden Appeals of Criminal has Court written that adequate passion cause was accom- sufficiency the of the evidence must be pursuant to a plished request by appel- the against charge jury measured the lant. Then the was re-tendered and has interpreted that court to mean the en- appellant stated the that “We have no oth- State, supra; tire Boozer v. Ben- Hence, objections charge.” er to the there State, supra. v. son objection any infirmity no leveled at was Jones, error the itself. But the court recited that in State, (Tex. v. 749 S.W.2d appellant point a advances error Crim.App.1986), that a the court held mere insufficiency support on the the to convic- theory abstract of the of the definition tion, briefing point but the of this reveals transferred not sufficient to intent was challenges really that the the suf- bring jury. that the before the But ficiency question of the the evidence on pointed application para- court out that the identity appellant. A of this witness for graph began: bearing in mind the “Now State, example, for the was asked whether instructions_” foregoing at Id. n. he believed the occurrence was an bearing in phrase mind the “[n]ow testified, accident. That “I witness can’t held, foregoing the court instructions” say.” This witness had been convicted a could not be construed manner to felony and this witness testified that the This foot- refer to the abstract definition. light poor conditions were on the occasion apply to holding note and do not question. Appellant argues that there application paragraph in this appeal. The testimony only contradicted from the spelled appeal different meaningfully purported ap- identify witness that above, set out out For reasons above. pellant per- as a and as a involved dissent from respectfully I must file this words, In firing shots. the brief- son other opinion State’s of the Court ing appellant’s point of the of error number Rehearing. Motion for two, evidence, insufficiency based Furthermore, Ap- comport holding of of Criminal does not to the State, appellant’s peals 589 S.W.2d 696 Apodaca No where brief Court. State, as follows: (Tex.Crim.App.1979) are the cases Jones v. stated (Tex.Crim.App.1991) or Walker v. defendant, In where circumstances (Tex.Crim.App.1991) 823 S.W.2d 247 all, guilty guilty argued. cited or referred to or apply the law properly should case, parties to the of the but the facts Indeed, Jones, supra it is clear reversible failure to do so error distinguishable from our different timely and unless there is a Jones, sufficient In on a record. direct added) objection (Emphasis .:. appeal, challenged asserting quotation from Romo v. that the This (Tex.Crim.App.1978). Our did not authorize to convict Jones objection. Chatman, no robbery appellant, made aggravated to the be- Romo, The court cited supra, Judge Dally wrote that alone. Jackson (Tex.Crim.App. 824-825 objection in the absence of an when 1979). An unanimous Court of Criminal apply the law of trial court fails as follows: Selvage, supra, held in no fundamental to the facts Judge Dally as fol- error results. wrote Appellant next contends lows: was fundamen- court’s failing apply the tally defective on the law a case where the facts of the case. law applicable, usually it is parties is reflects that the abstract that insists on and is entitled The record State charge defined the law of charge, including portion have such a 7.01; 7.02(a)(2); facts, pursuant to parties to Sec. tion of the law to the submitted 7.02(b), Penal The charge and V.T.C.A. Code. jury. Such a fits State’s facts, when, case, to the charge, applying a the law theory of a case as this pertinent part as follows: principal is the actor and stated in co-defendant all, guilty, if at the defendant Therefore, find from the evi- solicited, encouraged, because defendant, that John dence ... directed, aided, attempted to aid the Selvage, acting alone or as Henry ... However, if the court fails co-defendant. been de- party as that term has a parties to the facts of apply to the law [Emphasis fined, ... added] strategy might better trial it be a request not that Appellant did counsel not to ask for for the defense applying the law of charge be submitted might very charge. such a It well be the court’s parties, object and did not such a defendant not to the benefit of apply it failed to the law charge because theory clearly so blue- have the State’s Rather, facts in detail. parties to the charge apply- printed and delineated a requested that no instruction appellant ing parties the facts. the law given. parties on be permit the would defendant to make high court affirmed the conviction The argument stronger jury that the State Selvage also contended that Selvage. proved its case since the evi- had not Nevertheless, was insufficient. clearly appellant did dence showed that charge given, the as even view not shoot the deceased. ample. the evidence was court found that Here, request did not that a fact, challenged the verdict Selvage applying be submitted the law insufficiency of grounds of three different facts, and the did parties to the rejected evidence; challenge was each object to the court’s not in a unanimous and the court overruled apply parties to the it failed to the law controlling is the Governing opinion. and circumstances, fact. In these the court of Criminal following holding of the Court in fail- commit fundamental error did not Selvage: Appeals in parties to the ing apply evi- that the next contends Appellant facts of the case. was insufficient at trial dence adduced cited and on the For the reasons above under the support his cоnviction I vote to af- above cited would authorities 7.02(a),supra. to Sec. parties pursuant verdict, conviction, judgment and firm the applying argues Appellant sentence below. case the facts of the parties law of law of wholly on the court relied respectfully further that But I submit 7.01, 7.02(a), and in Sec. reflected clear, holding compelling is a Sel there as re- apply the law did not (Tex.Crim. State, 680 vage v. 7.02(b), the evi- and that in Sec. flected specifically Selvage The App.1984). pur- a conviction supported at best dence must be viewed held that 7.02(b). to Sec. suant fundamental to determine whether whole charge in- portion of should The abstract appellate An review error exists. 7.02(a)(2), 7.01, Sec. charge standing structed parts of a limited to 7.02(b). applying the law to the tion of the rule enunciated in Boozer v. facts, State, referred back to the 717 S.W.2d 608 (Tex.Cr.App.1986); charge, definitional as noted Ortega (Tex.Cr. ante. ground of App.1983); error is overruled. and Benson v. (Tex.Cr.App.1983). Boozer, S.W.2d 708 Especially under this horrendous instant Ortega, and Benson hold that record, guided the Ninth Court should be against еvidence be measured Selvage, supra. and should follow jury charge, interpret which we to mean opinion holding in Selvage should be the entire dispositive appeal; Selvage has not been overruled. Judge Campbell expressed opin further no ion Garrett II as to whether Garrett carefully application para- worded could be tried for some lesser included of graphs as set forth in 8 Michael J. McCoR- Campbell opinion fense. The also held that mick & Thomas D. Blackwell, Texas CRIMI- prior opinion Court’s I 84.01 [Gar § NAL FORMS and Trial Manual (Tex.Crim. rett v. (Texas Practice, ed., 1985) S.W.2d 779 9th App.1982)] prior to the extent (be- specifically, charges more the court’s opinion ing jeopardy discussed double application paragraphs) as set out was ad visory only. page 303 were The denial of the motion for tracked case at rehearing 20, 1988, application paragraphs April bar. Nor are these was dated about charges year in any opinion court’s modified manner one and ten months after the Edition, pocket part the 1992 to the 9th of June 1986. 84.01. § event, Ap- Court of Criminal should, submit, peals respectfully I affirm ‍‌​‌​​‌​​‌​‌​​​‌​​​‌‌​​‌​‌​‌​‌‌‌‌​​‌‌‌​‌‌​​​​​‌‌​‍conclusion, applica- I submit that the conviction view of the heinous facts paragraph containing tion the words: “or procedural in this case as well as the record as that term has been defined” appeal. I must reference; and the briefs this re- is more than a casual the words spectfully, earnestly, just quoted consequence dissent. jury. are of this crucial clause Since

tion the clause cannot be mere

juxtaposition. definitely The clause calls to jury’s attention the definition and in- concerning parties

structions to an offense. pointedly

The clause calls the attention of concerning when one criminally responsible for an of- GOSCH, Appellant, Donald D. fense committed the conduct of another. Especially important significant SHRIMP, INC., Appellee. B D& part opinion Judge Campbell that recites that II reveals that Garrett No. 01-91-00169-CV. II, itself, product is the un Texas, illustrating of circumstances usual set (1st Dist.). Houston pre-Almanza tension and strain' between analysis. post-Almanza Almanza v. April (Tex.Crim.App.1985). Rehearing 14, 1992. May Denied importance and momentous paramount Of holding by Judge following is the written

Campbell: blush, require case seems to

At first

that a measurement consider- evidence be limited to a sole application paragraph of the

ation of the misapplica- This would be

Case Details

Case Name: Chatman v. State

Court Name: Court of Appeals of Texas

Date Published: Apr 8, 1992

Citation: 830 S.W.2d 637

Docket Number: 09-91-207 CR

Court Abbreviation: Tex. App.