*1 THOMPSON, Ex Parte Robert Lee
Applicant.
No. AP-75151. Appeals of Texas. Criminal
Nov.
rоbbery 7-Evenings at the Food Store jury’s Houston. Based answers special to the issues set out in Article 37.071,1 punishment the trial court set death. This affirmed applicant’s Court conviction appeal.2 and sentence on direct Applicant raises six claims in his habeas corpus application pursuant filed to Article 11.071 of the Texas Code of Criminal Pro- cedure. parties We ordered the to brief two of those claims which we rephrased: 1) factually Whether inno- murder; cent of the offense of 2) deprived Whether the effective assistance of counsel due request to his trial counsel’s failure to charge hinge upon Both of these claims the “new- fact, Butler, ly Sammy ap- available” plicant’s triggerman-accomplice, con- felony-murder victed of after applicant’s trial.
Applicant’s position on the first claim is is no that Applicant per- There evidence sonally complainant. killed the To the contrary, is that But- Moran, Houston, Tom appellant. for Thus, Appli- ler committed the offense. Dulevitz, D.A., Hоuston, Ann Lee Asst. guilt guilt. cant’s is derivative of Butler’s Paul, Austin, Attorney, Matthew State’s stated, Simply Applicant at most for State. guilty of the offense for which Butler is guilty. OPINION claim, applicant Regarding the second COCHRAN, J., opinion delivered the argues that the viable defense strate- MEYERS, PRICE, in which in- gy request in his trial was to WOMACK, KEASLER, HERVEY, and felony-murder strategy struction on —a HOLCOMB, JJ., joined. accomplice’s which succeeded in the trial. mur- Applicant was convicted of Because counsel did not re- felony-murder, for shooting quest ap- der death of Mansor Bhai an instruction on during plicant attorney Rahim Mohammed that his trial contends 73,128, Thompson WL 37.071(b) (e)(1). v. No. 1. TexCode Crim. Proc. art. & 25, 2003) (not (Tex.Crim.App. June designated publication). Nonetheless, register cash drawer. provided ineffective assistance counsel Washington.3 under Strickland Meredia survived. below, reject
For the reasons set out ran out money took remaining for his both of these claims. As of lot- grabbed a stack store. *3 claims, adopt findings we the trial court’s tery appli- he tickets as followed behind of Based upon fact and сonclusions of law. driver’s jumped cant. into the Applicant review, and findings independent those our car, got of into the seat their while Butler deny relief. window, seat, passenger’s rolled down his fired at Mr. had and two shots Rahim who I. run to door. hit Mr. the front One bullet The State’s evidence at trial showed that chest, Rahim in the and died. Sammy and acted applicant togeth- Butler evidence, jury Based con- upon this the robbery er the 7- planning armed the During capital victed of murder. Evenings Applicant Food Store. told But- punishment phase, jury the the heard evi- robbery last ler that this would be their robbery-murder dence that this going big it “a one.” Appli- and was robbery-murder during part spree one of a cant, armed with .25 semiauto- a caliber as the had applicant, triggerman, which weapon, went the matic into convenience murders.5 capital committed two additional exchange purchased a store to beer he had submitted, Based all of the evidence Butler, earlier. armed with a .38 caliber jury pose found revolver, came into the storе with him. danger future and that there were risk of approached Applicant Mubarakali Mere- that would mitigating circumstances counter, dia, tending pointed who was judge call for a life sentence. The sen- Meredia, at Mr. and told pistol his him to tenced him to death. open register the cash and hand over of all Approximately appli- six after months money. Applicant Mr. shot Meredia conviction, Sammy cant's his accomplice, when quick- the abdomen he did not move Butler, tried for murder. The ly enough. He shot at Meredia’s Mr. cous- jury guilty in that' case returned a verdict in, Mohammed, Bhai Mansor Rahim who felony- lesser-included offense at the shop, began also worked when he im- murder to life and sentenced Butler running toward the of the back store.4 prisonment. then Applicant shot Mr. Meredia three lay more times as he on the He floor. get get up
ordered Mr. Meredia to and II. him. money for Mr. Meredia so. did A. Claim of Factual Innocence applicant put to Mr. pistol Then his Mere- factually Applicant contends that he is pulled trigger. and Nothing dia’s neck dif- innocent murder He had run out of because happened. bullets. So jury Sammy guilty ferent found applicant hit Meredia on the head with gun felony-murder.6 argues of his struck him with the He butt pending capital 5. three 466 U.S. 104 S.Ct. L.Ed.2d (1984). charges trial. at the time of trial, According applicant, 4. At Butler’s State offered Butler’s conviction revolver, felony-mur- pulled that Butler out his .38 also lesser-included offense trial, Rahim, finding at Mr. threatened der "is after a full shot several finding binding upon the during customers time. State under other this robbery- for the is committed one of the con- hinges upon murder Mr. Rahim Butler’s spirators, conspirators all guilty are separate conviction in a trial rather than committed, felony actually though the evidence of his and Butler’s conduct it, having no intent to commit if the and mental in applicant’s states own trial. offense was committed furtherance of Applicant argues that “it is the intent of purpose unlawful and was one that the killer which determines whether the should have anticipated been as a result offense is a caрital felony- murder or a carrying out of the conspiracy. If murder. the actual killer intended the in this case was instructed that death, not, a capital If he did it could find applicant guilty of capital it was not murder.” Applicant mis- *4 any murder in of ways: three different as interprets the law. the triggerman; actual as a party to Sam- 7.02(a), Under Section a person is my shooting Butler’s of Mr. Rahim under criminally responsible for a capital-murder 7.02(a)(2); Section or a co-conspirator to by person’s offense committed another aggravated robbery the under Section conduct, if 7.02(b). theories, Under the first two (1) acting with the kind of culpability jury required to find that
required offense, for the he causes Rahim; himself intended the death of Mr. or aids an innocent or nonresponsi- theory jury the third was re- person engage ble to pro- conduct quired to find that applicant should have by hibited the definition of the of- anticipated Mr. Rahim’s death as a conse- fense; [or] quence agreement of his and Butler’s (2) acting promote with intent to or as- aggravated robbery commit and Mr. Ra- offense,
sist the commission of the him’s death occurred furtherance of that solicits, directs, aids, encourages, he crime. or attempts person aid the other If found that to commit the offense[.] Sammy conspired to commit an ag- Thus, applicant guilty could be found of gravated robbery, and either of one them 7.02(a) capital murder under Section if he (intentionally shot and killed Mr. Rahim or during
had the intent to kill someone this unintentionally), either or both of them (1) aggravated robbery, and he caused or may capital be convicted of murder if Mr. totally person aided a innocent to shoot Rahim was killed in furtherance of the (2) Rahim, solicited, and kill Mr. or aggravated robbery and his murder was directed, encouraged, Sammy or aided one that anticipated should have been as a Butler to commit murder.7 part aggravated robbery. of this Furthermore, 7.02(b), under Section person may guilty be found mur- nothing There is Texas law der if the following conditions are met: responsibili limits criminal
[I]f, in attempt carry ty accomplice, out a con- for the conduct of his Sam Butler, spiracy felony, my to commit one another to only specific those crimes for principles way, estoppel. of collateral Both But- 7. Put another the evidence must show that, offense, parties acquittal the time of the ler’s murder and his avail- acting together, contributing were each some ability testify are facts which were unavail- part toward the execution of their common Applicant’s able at the time of trial.” State, 288, purpose. Ransom v. 920 S.W.2d (Tex.Crim.App.1994). 302 fact, type or class or of a different In ent offense jury has convicted Butler. which offense, prosecu- or is immune from exactly Section opposite. law is Texas 7.03(2) it is tion.8 the Penal states Code
no defense accomplice that one It is well-established different, more guilty conduct be found person for whose accomplices.9 than other criminally has been serious offense responsible
actor is
Indeed,
does
acquittal
principal
has not
acquitted,
prosecuted
beеn
accomplice.10
convicted,
conviction of his
prevent
has been convicted of a differ-
7.03(2); see,
accomplice). The
e.g., Singletary
the trial or conviction
8. Tex.
Pen.Code
572,
(Tex.Crim.App.
Supreme
has traced
Carolina
v.
509 S.W.2d
North
1974)
years (noting
accomplice
principle
is not enti
back three hundred
"an
this
Whitt,
Case,
just
a new trial or reversal
because
1 Salk. 334. See State
tled to
Wallis’
(1893).
acquit
subsequently
principal
tried
has been
S.E.
113 N.C.
acquitted
adopts
position.
ted. The fact
another
Code also
this
Model Penal
(ac
2.06(7) (2001)
principal
subsequent
in a
trial does not
See Model
Code
Penal
entitle an
to the same of
"though
per
itself
complice
be convicted
can
many
to a new trial.
In
instances dif
fense
to have
the offense
claimed
committed
son
juries
opposite
reach
on the
ferent
results
acquitted”).
... has been
*5
evidence.”) (citations omitted); Reece v.
same
State,
633,
(Tex.Crim.App.
521 S.W.2d
634-35
controlling case
this issue is Stan-
10. The
1975) (either
two
be
of
co-defendants could
Statеs,
10, 100 S.Ct.
v. United
447 U.S.
defer
aggravated robbery although
of
one
convicted
1999,
(1980),
689
which Stan-
64 L.Ed.2d
"simple”
of them was convicted
of
rob
abetting
aiding
of
and
a
was accused
defer
support
bery;
“the
was sufficient
official, Cyril Niederberger,
ac-
revenue
aggravated robbery
a conviction of
for either
compensation beyond that authorized
cepting
defendant”);
Zupa
generally,
see
M.
Donald
Niederberger
acquitted of ac-
by
was
law.
nec, Acquittal
Principal, or His Conviction
of
payments.
Niederber-
cepting unlawful
After
Offense,
Degree
Affecting Prose
Lesser
trial,
of
of
cution
ger’s
before his
Standefer
trial and
own
Abettor,
Accessory,
9
or Aider and
of
charges
argued that
dismiss the
and
moved to
(1981
Supp.).
&
A.L.R.4th 972
2005
aiding and abet-
could not be convicted of
he
principal had
ting
principal
the
when the
generally,
1
9. See
Charles E.
Torcia,
Wharton’s
denied,
acquitted. His
motion was
been
(15th
Supp.);
34
& 2004
ed.
Law
Criminal
affirmed,
convicted,
appeals
the court
of
Rollin M. Perkins
N.
Boyce,
&
Criminal
Ronald
Supreme
granted
certiorari.
and the
Gаrcia,
(1957); see, e.g., People
v.
28
582
Law,
Su-
two
before the
Standefer raised
issues
1166,
464,
Cal.Rptr.2d
P.3d
Cal.4th
124
52
(1)
aiding
the
and abet-
preme Court:
federal
648,
(2002)
"[bjecause
(noting
an
652
to authorize
ting
was not intended
statute
may
guilty
potentially
abettor
be
of
aider and
prosecution
an aider
abettor after
and
...
serious
the shooter
more
offense than
(2)
acquitted;
principal had been
and
of a
is not
the absence
shooter’s conviction
estoppel
doctrine of nonmutual collateral
dispositive
exposure
of the
abettor’s
aider and
government
prosecuting him
from
barred
382,
liability”);
Kaplan,
State v.
N.H.
124
Niederberger’s acquittal.
after
1354,
(conviction
(1983)
A.2d
1355
origins of
Supreme Court
pleaded guilty
accomplice role in
traced
wife who
abetting
English common
aiding
husband
be reversed
and
back
murder of
would not
early
law all
though principal,
alleged
and noted that
common
even
an
contract
law
"
killer,
felony
penally;
parties
received the death
acquitted,
noting
'con
and
therefore,
procedural
were de-
premised
certain
rules
accomplice
an
thus
viction of
is
such severe
veloped to shield accessories from
upon proof of the
of the criminal
commission
15,
act,
princi
punishment.
The notion that the
degree
because first
re-
convicted, on an accomplice liability
quires
the-
premeditated
deliberate
ory, only for those crimes as to which he
killing,
guilty
is not
of this
personally
requisite
has
degree
mental
of murder unless he acted with
state,
applicable
variety
And,
is
in a
of cir-
premeditation
and deliberation.
means,
cumstances.
It
for example,
killing
because a
in a
passion
heat of
is
murder,
one
not be held as an accom-
manslaughter
and not
an ac-
plice to the crime of assault with intent
complice who aids while in such a state
to kill if that
intent was not shared
is guilty only
manslaughter
even
the accomplice.
though
But this limitation has
guilty
the killer is himself
proved
significant
Likewise,
most
in the homicide
equally possible
it is
area,
precise
wherе the
guilty only
state of mind of
the killer
man-
(8th
1892)).
pro-
estoppel against
ed.
This
nal law make nonmutual
Criminal Law
government
applied only
prosecution
principal
acquitted
cedural bar
when a
to the
in-
21-22,
cases,
appropriate.
Id. at
100 S.Ct.
accessories in
not in misdemean-
discovery rights,
pro-
These include limited
accessory
prose-
or cases where an
could be
*6
against a
hibition
directed verdict on behalf of
principal
acquitted.
cuted after the
was
Id. at
government,
against
government
the
a bar
the
15-16,
1848,
ports finding, a reasonable applicant’s From obvious this evidence Mr. Rahim that he intended the death of repeated intent to kill Meredia and his Mr. Sammy he and that assisted so, juror аny attempts to do reasonable causing that death.14 could also intended conclude Butler, kill accomplice, Sammy that his intent to kill The evidence Rahim. sufficient, merely overwhelming: not
* that, Applicant argues though even came to the convenience Applicant may aplenty with malice have acted store armed with a semiautomatic kill, the attempted to kill intended pistol; com- offense of murder was never * that Butler came to Applicant knew by anyone mitted because a different armed convenience store with kill intentionally found that Butler did revolver; .38 relies the first sen- Mr. Rahim. He * intentionally pointed Applicant which tence of Section 7.03 reads: pistol at Mr. and demanded Meredia In a which an actor’s prosecution money; on the responsibility criminal is based * Applicant intentionally shot Mr. another, the actor conduct of abdomen; Meredia proof commission convicted on * Applicant intentionally shot Mr. he was to its party and that offense lay Meredia three mоre times as he .15 commission... ground; on the subsequent argues Butler’s * Applicant intentionally shot at Mr. that, acquittal proves murder Rahim to the fleeing who was back of 7.03, Section *7 store; Applicant ever misreads Sec- committed. * provision his tion That to the Applicant intentionally put applies sem- 7.03. trial, pistol not the against proof applicant’s iautomatic Mr. Mere- offered at It in some trial. trigger; neck evidence offered other pulled dia’s in trial bore applicant’s reason Meredia did not die was that the State Mr. offering “proof of commis- from that act was because the burden of intentional was out of bul- sion of the offense” applicant’s revolver lets; it did. is evidence And indeed There instructed, during the jury R. 14. The was not 12. 2 Wayne LaFave, Substantive Criminal 2003). 13.2(c) (2d guilt ed. intent stage, on the law transferred Law 6.04(b). Thus, charge re- under Section disposition 13. of our of this first Because quired jury applicant intended find 7.02(a)(2), not claim under Section need Rahim, some rather than death of applicability applicant’s con- addrеss 7.02(a)(2). person under Section other 7.02(b) spiracy under Section which proof require applicant’s does not intent added). (emphasis Tex 7.03 Pen.Code Rahim's death. cause Mr. * aplenty Sammy Butler, as well as One of those shots hit Mr. Rahim in applicant, intended to cause Mr. the chest and him. Rahim’s killed * death: police during told his oral
* “kept confession that Butler shoot- Butler came the convenience store ing. He unloaded and I unloaded.”16 revolver;
armed awith .38 * might possible It to conclude applicant Butler knew that came to that Butler did aim at Mr. Rahim or
the convenience store armed with a intend to him in shoot the chest. But semiautomatic pistol; applicant’s jury certainly was entitled to * Butler that applicant knew shot Mr. believe that Butler’s two shots were not a times; Meredia several accident, sheer and that Mr. Rahim’s death * Butler shot at Mr. Rahim and anoth- was not the result of a wayward bullet that er customer applicant while fortuitously up striking ended unlucky Meredia; shooting at Mr. man.17 It was entitled to conclude that * Butler threаtened to shoot other cus- Butler precisely intended what occurred— applicant tomers grabbing while Mr. Rahim’s death.18 And it was also enti money from register; the cash tled to conclude that intended * Butler did shoot in the direction of that Butler just shoot and kill Mr. Rahim Mr. Rahim a second applicant surely time while both would have killed Mr. store; robbers were still Meredia if he had not first run out of * bullets. After applicant got and Butler into car, their getaway rolled sum, In ample there was evi passenger-side down window and dence offered at trial that Sam shot Mr. Rahim who run to the my Butler committed the offense of store; door of the murder and that applicant assisted or en
* twice; Butler shot at Mr. Rahim couraged him in that endeavor his own Applicant’s apparently confession was admissible at in Butler’s trial be- statement, his own trial but not at Butler’s trial. appli- lieved that while the cant's trial did not believe that Butler unin- claim, part 17. As a of this contends tentionally killed Mr. Rahim. We cannot "newly that he has available” evidence from dispute right juries of two different testify Butler who would that he did not in- two different trials reach two different newly tend to kill Mr. Rahim. But this is not concerning verdicts two different defendants Butler, applicant, gave like a writ- available— based two different sets of admissible shortly Appli- ten confession after his arrest. evidence. trial cant’s counsel stated that he was familiar with the confession which Butler admitted 18.It is both a common-sense inference and participation robbery in the at the 7- *8 appellate presumption person an that a in Evenings store and that he shot and killed Mr. acts, consequences tends the natural of his (and Rahim. presumably Butler stated then State, 594, 600, v. Whitlock 146 Tex.Crim. 177 now) would state that he did not intend to kill 205, (1943), S.W.2d 208 and that the act of Applicant’s Mr. Rahim. trial counsel was pointing gun a loaded at someone and shoot aware of Butler’s confession at the time of ing person range it toward that at close dem trial and Butler’s assertion that he did not State, onstrates an intent to kill. v. Jones 944 applicant’s intend to kill Mr. Rahim matched 642, (Tex.Crim.App.1996); S.W.2d Flana same assertion about Butler’s conduсt in his State, 734, (Tex. gan v. 675 S.W.2d Applicant’s confession. counsel stated that Crim.App.1984) (op. reh'g); Womble v. nothing there was in Butler's confession that 59, change change— (Tex.Crim.App. 618 S.W.2d caused him to want to —or 1981). strategy. his overall trial of apply to the offense charge as it would attempting capital to commit the acts of rejected that claim This Court fact that the murder.”21 murder of Mr. Meredia. The contain record did not suffi- because the trial to convict jury Butler’s declined concerning trial counsel’s cient information does not affect thé capital him of murder It does now. strategy. murder con- validity applicant’s capital of viction.19 affidavit, applicant’s trial counsel In his strategy that he that the defense stated
Thus, although the verdict in Butler’s decided and his co-counsel evidence,” it “newly available trial Butler’s mur- anticipate did not (or that shows even tends is not evidence Rahim: der of Mr. show) innocence of cross-examination, Therefore, trial The basis of our adopt strategy Thomp- was that Mr. fact defensive findings court’s and conclusions participate of and intended to concerning applicant’s claim of factual son knew law way in no robbery, but innocence. anticipate know or did he either B. of Ineffective Assistance killed, Claim un- especially someone would be Counsel complain- der the circumstances of This was the ing witness’ death.... tri Applicant also contends that his during jury that I made to the argument provided constitutionally al defi counsel However, trial. guilt phase to re cient assistance because he failed confessions, and the actions based on quest an instruction on the lesser-included store, Thompson of Mr. while inside felony-murder.20 Applicant offense of fur someone, who Thompson i.e. shot ther contends that his counsel’s deficient die, Mr. and I conclud- did not Williams performance probably caused the included request that a for a lesser ed return a murder rather verdict murder was instruction felony-murder. Applicant than raised this shown the evidence.22 ap claim ineffective assistance on direсt Thus, that trial have trial counsel made the reasoned peal, arguing should counsel strongest ar- strategic offense decision that their “request[ed] lesser-included Applicant argues appeal, applicant contended that that his "factual inno- 21. On direct cognizable Schlup requested cence" claim is under have an in- trial counsel should Delo, 513 U.S. 115 S.Ct. simple murder because the struction on (1995), involving L.Ed.2d 808 as one both a might have believed that "gateway” inno- constitutional violation and "knowingly" victim. caused the death of the Applicant cence claim. But it is not. makes showing no that he is innocent of appointed, 22. At the time defense counsel was murder or that the State violated his constitu- pending capital applicant had three by trying rights him before his accom- tional aggravated robbery charges and three plice, Sammy Butler. Applicant given confes- charges. oral admitting in all of those sions his involvement asserts this claim under both the pending Concern about the admissibil- cases. Sixth Amendment to the United States Consti- surely Constitution, ity have extraneous offenses arti- tution and under Texas I, counsel’s separate at the forefront of defense provides been cle 10. Because Constitution, analysis strategy guilt planned the Texas we will for the mind as he *9 applicant's position presume that is that the phase of this trial. provisions purposes of two are identical for Heitman v. 815 S.W.2d his claim. See (Tex.Crim.App.1991). 690 n. 22 kill applicant’s attempts and facts Mr. gument applicant [of was that did not anticipated not that Butler Mr. no one Rahim] could have Meredia and shoot depart- Rahim the two plausibly argue Applicant would shoot Mr. as could argu- That ed from the convenience store. reasonably anticipated should not have strong strong- as not violence, ment was least in in- might engage that Butler —if not argument that Butler did er—than shooting person.” a strate- cluding Such kill Rahim and that his act of intend to Mr. “laughable.” gy, argues applicant, shooting at him was an unforesee- twice in notes that Solomon Applicant accident, clearly danger- аn act able albeit State,24 person held that a this Court Applicant’s human life. attorney ous to capital murder is not entitled charged with position was car- noted that this defensive on aggra- lesser-included instruction punishment phase con- through ried robbery vated unless there is evidence “anti-parties” special issue:23 cerning (1) there was- showing things: one of three regard Special Issue the ar- With (2) murder; not com- the murder was fact that gument was centered on 1. The conspiracy; of a or mitted in furtherance Thompson was not the shooter. Mr. (3) the murder should not have been antici- complain- That the manner which case, candidly pated.25 In this killed, away, they i.e. as drove ant was (1) admits, ample there is evidence Butler shot the dark and Mr. (2) murder; was there was at the door. complainant standing was conspiracy; of a committed furtherance way responsi- in no Thompson was (3) antic- the murder should have been and Rahim, of Mr. ble for the death Thus, it was error to ipated. argues, that Butler anticipated could not have included jury on this lesser charge the away they driving would shoot as were so, certainly it did Perhaps but offense. Thomp- 3. That Mr. and it was dark. gave and at applicant, not harm least aggravat- intent to commit an son’s argue attorneys something solid defense more, robbery nothing which he ed during closing arguments. did. around and then turns Applicant noted, strategy this applicant’s As counsel request should have contends that counsel unsuccessful, ultimately perhaps be- felony- on ed a lesser-included instruction two cause of the evidence felony-murder But submission But counsel did other murders. is evidence unless is not warranted there those facts. create that shows: that he was not argues now (1) liability under party purposes on the lesser-includ- any charge entitled to 7.02(a)(2), himself Section robbery, but he ed offense of Ra- of Mr. not intend the death did charge felony-murder. was entitled to a another; that, him or undisputed those “given He states another, anticipated or that he special follows: hammed 23.That issue read as would be taken? that a human life beyond you Do find from the guilt stage, charge, unlike -the one at the This Thomp- Lee doubt that Robert reasonable son, incorporate doctrine of transferred himself, did actually caused the defendant intent. Mo- Mansor Bhai Rahim the death of hammed, question, or if on the occasion (Tex.Crim.App.2001). 24. 49 S.W.3d death of Man- actually cause the he did not Mohammed, that he in- Rahim sor Bhai Id. at 369. Bhai Rahim Mo- tended to kill Mansor *10 just to (2) basically at the window liability just shot purposes conspiracy for 7.02(b), run in the store go make the man back Butler’s act under Section away. got as we shooting Mr. Rahim was not commit- conspiracy; in furtherance of a ted and of Butler’s actions description This or af- intent, however, not evidence that is (3) purposes conspiracy applicant that had firmatively shows 7.02(b), applicant
under Section And, the law intent to kill.26 that But- anticipated should not have de- intent that is parties, shoot Mr. Rahim. ler would guilt of his for either terminative felony-murder. murder or to a arguing In that he was not entitled robbery, charge applicant clearly sufficient The evidence was support- evidence agrees that there is no applicant participated that to establish (2) (3). ing prong point or And he fails to of Mr. Rahim and intended the murder any affirmatively that shows to evidence concerning an enti question death. The himself did not intend the felony- to the lesser-included of tlement Rahim or death of Mr. another. per the evidence would murder is whether relies, instead, his oral contrary jury mit a rational to make police confession to the which he de- evidence, is, upon the finding: based Butler’s action and surmises scribes about jury that Butler could a rational conclude Butler’s intent: entirely shooting alone in the death acted
Well, And, Rahim, not the man of Mr. and that did he [Butler] shoots — That anticipate or this murder?27 coming up going and was back. He intend clearly to estab- v. 741- The evidence was sufficient See Salinas 163 S.W.3d Salinas, (Tex.Crim.App.2005). Aguilar participated In another lish that Leo, involving par- question murder case the law of Sr. The is whether ties, rejected permit the contention that defense tо evidence would reasonable Quiroz failing request contrary finding: counsel was ineffective for acted make There, felony-murder. encourage- an instruction on Id. Leo's murder without alone in here, question Aguilar. critical is whether the participation by "[t]he Af- ment or other (as record, appellant princi- evidence showed that reviewing the we are satisfied it ter pal party) or had the intent to rob or to permit not a rational to find kidnap, guilty, only guilty and he did not have the intent kill.” Aguilar if he is Id. at 742. We in Salinas murdering noted As district court Annette. Quiroz-had out, appellant actual actor or pointed Aguilar-and "[w]hether criminally responsible family for the acts of his co- Esparza or his mem- motive to kill parties, Aguilar horts virtue of the law of evidence established that bers. The evidence shows not an intent to commit on several been to the trailer home had offense, occasions, robbery a lesser included but also threatening Esparza, earlier (emphasis original). the intent to kill.” Id. Cha- previously discussed with Annette case; present appli- Esparza. Aguilar same is true in the vez the whereabouts affirmatively points eigh- Esparzas’ cant no evidence that with his entered the trailer (Quiroz), nephew demonstrates his lack of intent to kill. teen-year-old who had no Esparza or connection to the Chavezes or Dretke, Aguilar's marijuana trafficking. The Aguilar 27. See 428 F.3d with (5th Cir.2005) (holding the trailer with a firearm that Texas two entered severely charge proceeded beat the Chavezes. murder defendant was not entitled Then, style” couple was shot "execution of murder when co- on lesser-included offense each There is no but within minutes of other. defendant caused death of second victim Aguilar’s supporting in the record motive to kill victim or his defendant had members). not have intent to kill ex- contention that he did family As the Fifth Circuit Quiroz Annette when he and both Leo and plained:
560 attorney’s conduct in judging more than a mere When
evidence need be scintilla, or con- impeached and it be his retrospect, we cannot assume that sufficient, tradicted, if be- but must might conduct have been- different. We lieved, jury a ratiоnal to permit to at least that, game, in a if a must assume chess of- return a verdict on the lesser-included a different strate- hypothesizes defendant standard, applicant fense.28 this Under by pawn queen, or gy or move his felony- charge not entitled to a strategy have altered its and State would his counsel was not murder and therefore made a different move with its chess to failing request ineffective for such case, In pieces as well. this charge.29 guilt phase might case at the have been
Applicant argues that there was no attempted he considerably worsened an instruction on asking downside to to concerning to raise an issue his intent felony-mur- offense of the lesser-included Therefore, kill. that we cannot conclude might der. But there well have been forego an strategy counsel’s chosen his —to very downside had of- serious concerning case upon attack the State’s any of lack of intent or had fered evidence kill and instead concentrate own intent to engaged any cross-examination (albeit argument largely un- plausible on a might concerning an issue his lack raise evidence) supported applicant opens kill. intent Once anticipated Butler’s act of could not have intent, issue of murderous door a constitutional- shooting Mr. Rahim —was right walk presumably State would one. ly ineffective through that door with the evidence the trial court’s find- adopt therefore We appli- two extraneous murders law, ings of fact and conclusions that he prove cant himself committed to findings and our own upon based those on this occasion had a murderous intent review, deny relief on all independent occa- just as he had on those two other claims. sions.30 742; Salinas, see also jury, 163 S.W.3d A reasonable entered the residence. State, 267, 272-73 Fuentes v. 991 S.W.2d Aguilar was the second who would find that 1999) (counsel murder, (Tex.Crim.App. mur could not shooter in this double request failing to trial not ineffective for encourage der otherwise find that he did not Leo, felony-murder in offense of lesser-included shooting We participate in the Sr. becausе "there is no evidence struction that the district court therefore conclude jury rationally which a could have found rejecting Aguilar’s Beck [v. did err in he shot 2382, appellant did not intend to kill when
Alabama, 625, U.S. 100 S.Ct. 65 deceased."). (1980) claim. ] L.Ed.2d 392 Id. at 531-32. State, 795, See, e.g., 154 S.W.3d Navarro 666, State, 2004, 672-73 28. Rousseau v. 855 S.W.2d (Tex.App.-Houston [14th Dist.] ("some (Tex.Crim.App.1993) ref'd) (evidence must evidence other acts to- pet. violent permit a in the record that would exist admissible under his intended victim ward 404(b) rationally prove if the defendant trial to murder Rule find offense”) guilty, guilty only of the lesser absence of he is intent to kill and both defendant’s original); Cordova v. vic- (emphasis attempting see also to kill his intended mistake in 296, (5th Cir.1988) tim); 302- 932 S.W.2d Lynaugh, 838 F.2d Johnson v. (in ref'd) capi- pet. (holding (Tex.App.-Austin offense instruc that a lesser included trial, of extraneous of- given the evidence would tion should be "if tal prove culpable rationally was admissible permit [a defendant] to find fense when the accused acquit state of intent to kill him of mental guilty of the lesser offense intent). dispute that presented evidence to greater”). thé (b) If, аttempt carry out KELLER, P.J., in the concurring filed a felony, anoth- to commit one conspiracy opinion. *12 by one felony is committed of er JOHNSON, J., dissented. conspirators guilty are conspirators, all committed, KELLER, Presiding Judge, concurring. actually though felony of it, commit if the having no intent argues: in furtherance of offense was committed which is the intent of the killer [I]t one that purpose and was the unlawful cap- the offense is a determines whether anticipated as a result should have been If felony-murder. ital murder or a conspiracy.3 out of the carrying death, it is a actual killer intended not, If capital he did it was Liability Conspiracy B.
capital murder.1 says applicant wrong, is The Court a Boykin interpret Under intent, is not the and that plain with the mean- statute accordance actor, that deter- primary intent of the language unless the is ing language of its applicant guilty mines whether meaning ambiguous plain or the murder or murder under the law of Legislature results that the lead absurd I parties.2 think the Court is mistaken intended.4 possibly could not have this. 7.02(b) unambiguously imposes § vicarious conspiracy for liability on all members of a A. The Statute of its mem- by the crime committed one provides: § 7.02 bers, if certain conditions are met. Con- (a) A person criminally responsible spirators personally who did not commit by an committed the conduct for offense are rendered liable for “the the offense another if: felony actually by primary committed” (1) acting culpability with the kind of if the offense was in furtherance of actor offense, required for the he causes or conspiracy and should have been antic- nonresponsible per- aids an innocent or they if had no intent to com- ipated, even engage prohibited by son to in conduct liability The focus of is on mit that crime. offense; the definition of the primary the crime the actor committed (2) acting promote state) with intent to or (and thus, mental culpable on his offense, assist the commission of the conspir- to the other imputed which is then solicits, directs, aids, encourages, or at- ators. tempts person to aid the othеr to com- section, the In the “factual innocence” offense; mit the or could have con- suggests that (3) having legal duty prevent murder under victed acting of the offense and commission regard- conspiracy theory parties, promote
with intent to or its com- assist intent: less of Butler’s mission, he fails to make a reasonable If the found that prevent effort to commission of- Sammy conspired to commit fense. added). (emphasis § All op. at 7.02 1. Court’s 3. Tex Pen.Code Texas Penal references to sections are Code unless otherwise indicated. Id. at 559. (Tex.Crim.App.1991). S.W.2d 4. 818 Liability aggravated robbery, and either one of Accomplice C. (inten- Mr. Rahim them shot and killed 7.02(a)(2) wording strongly tionally unintentionally), either or suggests that it also is vicarious of them both be convicted provision: imposing on an lia- if murder Mr. Rahim was killed bility pri- the crime committed aggravated robbery furtherance of the 7.02(a)(2), mary actor. the ac- Under one that should his murder was intent, complice, requisite with the assists part of this anticipated have been *13 primary the actor “to commit the offense.” robbery.5 to assume that the language This seems 7.02(b) But, above, imposes § as discussed in fact commit the primary actor does liability non-triggerman conspirators approach offense. A similar is taken “felony actually for committed.” If 7.02(a)(3), § which extends to killing victim and that killed the duty to act fails to someone with who accident, “felony actually was an then the prevent “commission of the offense.” murder, felony would be committed” contrast, 7.02(a)(1), By involving liability § conspirator, guilty as a applicant, be conduct, person’s for an innocent includes felony. paragraph of that This also seems ac- special language to establish that the dispense entirely culpable to with the men- an for complice guilty can be offense But required tal state for is not. Instead of re- principal which the murder,- someone commit the must offense, of the that ferring to commission which, in this theory alleged under the prohibited by “conduct provision refers to case, is an intentional murder. explicitly the definition of the offense” and I treat- disagree also with the Court’s that the defendant act “with the requires claim. ment of the ineffective assistance required for the of- culpability kind of addressing In contention that applicant’s fense.” there was some evidence that Butler did say that for The Court is correct kill, not intend to the Court holds that this murder applicant to be convicted appli- to whether evidence was irrelevant 7.02(a)(2), § party as a under he must have an on the cant was entitled to instruction for requisite culpable cap- mental state
lesser-included offense of murder,6 above, ital but as discussed because the evidence did not demonstrate provision suggests that language of kill, lacked the intent req- primary actor must also have Court, intent according to the culpable mental state uisite to kill what matters under the law of pas- cites a charged offense. The Court parties. regard conspiracy liabili- With treatise to sage from Professor LaFave’s- ty, position I think this is incorrect. But- otherwise, in a homicide suggest indicating importance is of paramount ler’s intent with lesser or example accomplices determining “felony actually commit- than the culpable mental states greater ted,” imputed is to be convicted of lesser 7.02(b). 7.02(b) primary actor could be fact, § § ex- under In application But greater or offenses.7 intent pressly non-triggerman’s makes the Texas law reasoning passage in this irrelevant. added). op. (quoting 2 R. at 554 op. (emphasis 7.See Court's Wayne 5. Court’s at 552 13.2(c) at LaFave, Criminal Law Substantive (2d 2003)). ed. op. at 552. 6. See Court’s shotgun him in the head with shooting LaFave ac- problematic. Professor merely “not in acts range that his comments are close were not knowledges jurisdic- applicable every respects clearly dangerous all to human life among Likewise, tion” because of subtle differences placing in a death. resulted “in- child, formulation of the jurisdictions Ann, Leslie a 21-^monthr-old standard.8 With promote tent to assist” seat, grass car in tall strapped into her offenses, Profes- regard to lesser-included outside a road and feet from fifteen might given LaFave’s statements sor town, clearly merely an act was not meaning plain effect ap to human Whether dangerous life. 7.02(a)(2): of an offense guilt because criminally actual actor or pellant was the necessarily guilt entails of all lesser-includ- for the acts of his cohorts responsible offenses, a lesser with ed parties, of the law of virtue culpable primary mental state than the rob only an intent to commit shows not in the shoes could still be said to be actor offense, but bery or a lesser included actor, but as to the primary intent to kill.11 also the *14 state, so, a culpable mental lesser shows that what The italicized material by that required offense lesser-included primary was the critical Salinas 7.02(a)(2) § using state. But mental Moreover, citation to actor’s intent. guilty greater a of- accomplice find an of appar- it is an noting, is worth as Santana principal fense than the could have com- following paragraph: ent reference to the the stat- questionable mitted seems under utory language.9 shows that the deceased The evidence from the Purola- shot as he walked quotes excerpts
The Court two from Sa- main entrance of the tor van towards the proposition linas v. State10 for the that that the testified Sage store. Witnesses only under the applicant’s intent matters deceased was only warning given parties determining law of whether be halt or else he would that he should felony offense of murder is lesser-included im- that shot. The witnesses testified by I think that raised the evidence. de- they warning, this mediately after heard Salinas, language the case spite fired, were one of which two shots proposition. does not stand for that This Evi- the deceased. struck and killed passage: is the entire although the de- dence also showed question The critical is whether evi holster wearing gun, his ceased was (as princi dence appellant showed unfastened. We snap had never been only to rob pal party) the intent only a cold- evidence raised find that the not have the kidnap, оr to and he did blooded, killing. The shoot- unprovoked intent to kill. See Santana v. was, er, gave opportunity whoever he (Tex.Crim.App.1986). S.W.2d cooperate the deceased to Dragging Morales the car and whatsoever for from eliminated, 13.2(b) 344, passion” issue LaFave, § and the "sudden voluntary manslaughter distinguished gave ex- 9. While Professor LaFave numerous pun- incorporated as a murder has been from offenses, amples of lesser-included he cites Tex. the murder statute. See ishment issue in greater only example offense that he one of 19.02(d). § Pen.Code imposed accomplice: believed could be on an murder, guilty principal be where the could (Tex.Crim.App.2005). 10. 163 S.W.3d only voluntary manslaughter. Under Texas concern, law, example longer is no added). (italics 11. Id. at 742 voluntary manslaughter offense has been liability Clearly, gun negating think that evidence any way. .for' fired 7.02(a)(2) § under at the deceased with one intent-the to an instruction on intent to kill. Whether deceased not entitle a defendant (sic) or criminal- also was the actual shooter the lesser offense there were unless 7.02(b). ly responsible the acts shooter negating evidence parties, virtue the law theory party liability independent Each find the intent to shows raising for in the less- must be accounted robbery, but also the intent commit er-included offense. find that the evidence did kill. Thus we prob- But there a more serious felony not raise the issue of murder.12 all three of questionable lem: it is whether Thus, that an suggests Santana likewise conditions, together, taken could ever accomplice’s entitlement to a lesser-includ- offense of raise a lesser-included ed offense instruction turns the evi- earlier, murder. As discussed Professor primary culpable actor’s men- dence accomplice suggested LaFave that an tal state. guilty could be deemed of a lesser-included of- regard With to the lesser-included promote under “intent to or assist” offense
fense, says: also 7.02(a)(2), liability, i.e. if the felony-murder is not But submission of than the culpable had a lesser mental state warranted unless there is evidence typе reasoning had. This ob- principal shows: liabil- viously conspiracy does not work for *15 (1) un- purpose party liability for the 7.02(b), legal § that ity, under because 7.02(a)(2), him- applicant
der Section that the co- theory necessarily assumes self did not intend the death of Mr. primary ac- conspirators do not have the another; Rahim or state. So greater culpable tor’s mental (2) liability party liability theories purposes conspiracy for when both of these 7.02(b), entitled to a play,
under Section Butler’s act are in in order to be Rahim not commit- shooting felony was murder instruction the defendánt conspira- ted the furtherance of that dem- provide would have to evidence cy; or state culpable onstrated a lesser mental offense under giving rise to a lesser (3) purposes conspiracy for 7.02(a)(2) § would have and the defendant 7.02(b), applicant under Section entirely negated that provide to evidence But- that anticipated should not have 7.02(b). §of applicability Rahim.13 ler would shoot Mr. above, felo- As discussed submission of whеther an accom- questionable But it is ny-murder supported by would be evi- mental state plice’s culpable lesser raising option: a fourth that Butler dence 7.02(a)(2) felony raise § could ever murder, which could committed Felony mur- as a lesser-included offense. law imputed applicant
then be to under the to culpable mental state der attaches parties. 7.02(a)(2) itself, requires § but killing have the “intent that the defendant that the Court’s And seems me the commission of promote or assist” cou- listing problematic for a three-point the intent If lacked difficulty is offense. My first ple of other reasons. kill, to commit the merely intended I disjunctive with the use of the “or.” added). (emphasis op. at 13. Court’s at 9. 12. 714 S.W.2d offenses. of extraneous that the introduction felony, then it would seem underlying hand, advocating both pro- But on the other only felony applicant intended to frag- underlying might have or assist would be the offenses mote lesser-ineluded eyes applying A the case in the felony. prior decision defense of mented the 7.02(a)(2) may suggest manslaughter validly have and counsel could jury, of the statute,14 of the expansive reading a more their efforts to one limiting that concluded to be seen but it remains whether stronger result in a offense would lesser enough to in- reading expansive be that with the Court agree I presentation. for a promote an “intent to or assist” fer Butler’s actions were argument that offense, a culpable where result-of-conduct if not strong, at least as unforeseeable was completely for the result is mental state Butler argument than the stronger, absent. victim, kill the not intend to did the benefit of continu- strategy former D. Alternative Grounds on the anti- ity position the defense with Denying Relief issue. While the Court parties special above, the Court never- spite In aggravat- at his word takes the correct result. The theless reaches evidence, robbery not raised ed correctly observes 7.03 Court such, and more I am not convinced acquittal principal makes irrelevant attorneys trial importantly, applicant’s can convicted to whether the reasоnably could have believed parties.15 law of All that under the in- support was sufficient evidence applicant’s at required is that the evidence apparently trial court struction. The support proposition prin- trial that the robbery sub- agreed, since charged. the offense cipal committed offense in the as a lesser-ineluded mitted correctly prosecu- observes that the jury charge. a substantial amount of tion introduced reasons, in the I concur For these trial judgment. Court’s and, thus, intentionally killed the victim *16 committed agree
I also with the Court that the lesser-ineluded of- request
failure felony part murder was of a valid
fense
strategy
pursuing
trial
the lesser-includ-
McKINNEY, Appellant,
Gerry Don
robbery, although
ed offense of
v.
reasoning differs somewhat from the
my
hand,
liabili-
Court’s. On the one
because
Texas.
STATE
(as opposed
ty
PD-1508-04.
No.
murder)
parties could
under the law of
intent,
pursuing
turned
Butler’s
have
Appeals of Texas.
of Criminal
felony mur-
offense of
the lesser-ineluded
16, 2005.
Nov.
required applicant to
der would not have
issue,
thus,
own intent
place his
exposure
not have increased
552-53,
(Tex.Crim.
op. at
555-56.
15. Court’s