Jones v. State

particulars required final; acknowledged important formed Hansel at trial all became through any by the decree and that omis- “may that he have received those divorce they just left on committed inad- lawyer her and were sions deviations were [the unknowingly. Appellant’s pleadings] vertently and not crossed off.” error is point seventh sustained. History 10. Pictorial “Volume from In accordance with the instructions Civil War” court, supreme have re-evaluated we decree the 10-volume chal- divorce awards of the evidence Encyclopedia point to Hansel for his lenge appellant’s Civil War seventh error. lifetime, grandson, ruling particular point and on death to the on this does not Our Jeffrey may Jeffrey, specifying prior opinion have our of No- otherwise affect enough enjoy 27,1985, them.” is it set “when he is old 699 S.W.2d 717. Nor vember judge trial our intention to advise the undisputed It is that Hansel retrieved upon precluded this case is retrial of he during nine his uninvited of these volumes considering post-divorce conduct from post-divorce entry, Dorothy said that parties, any of the other evi- relevant dropped the tenth on that occasion Hansel may dence that be introduced. original part volume—which was Dorothy there- set and which testified was and the cause reversed valueless, essentially fore but which she aspects. remanded for retrial all acquired point during had some the mar-

riage complete so as to the set.

Dorothy she stated had not included the Encyclopedias in set of Civil War the items Hansel, grand- she boxed for because their mother, Brandy, son’s determined had grandson enough enjoy old now JONES, Appellant, Menard Kevin Brandy these books. was not asked about this statement. Texas, Appellee. The STATE ” opera-type 11. “One set binoculars 05-88-00208-CR. No. Hansel testified that this item in a Texas, Appeals of Court it, leather that had his name on box Dallas. belonged grandmoth- binoculars had to his er. May 1989.

Dorothy indicated she found Discretionary Review Granted pair one of binoculars the house and was 4,Oct. they “opera-type.”

unsure whether put She testified that she these binoculars into Hansel’s boxes.

Conclusion thorough After a review of all the evi- record, great dence in the we find that the weight preponderance of the evidence spe-

supports answer to the an affirmative submitted, jury’s cial issue and that great negative ‍​​​​‌‌‌​‌​​​‌‌‌​‌​‌​‌‌​‌​​​‌​​​​​‌‌‌‌​​​​‌​‌​‌​‌‍finding contrary so weight preponderance of the evidence Herbert, manifestly unjust.

as to be weight great 144. The Dorothy per- shows that Meanwhile, tray.

from the to the counter but continued moved closer looking out the door.

Appellant and Coleman then behind went counter; appellant removed all the tray coins from the cash and Coleman toоk cigarettes. of The men several cartons Appellant departed. then was the last of and, he the three men to leave the store as exited, display he took a of watches. expert positively A fingerprint identified fingerprint a latent taken from the under- register money tray side of the cash as Nation, Dallas, appellant. D. John for appellant’s. Tubbs testified that the money tray two men who touched the Tolle, Dallas, appellee. Teresa for Rhynes appellant. and

I.

OVARD, Justice. that, Appellant first contends when appeals jury charge, Kevin Menard Jones his of convic- viewed aggravated robbery. for support tion Thе court is insufficient to the con evidence that, punishment twenty-seven complains assessed viction. He also due to the $10,000 years’ apply confinement and a fine. trial court’s failure to the law to the facts, points appellant egregiously by three of contends he was harmed (1) sup- charge. that: is paragraph insufficient to of the conviction; (2) port his the trial court’s reads as follows: parties failed to of Now, bearing foregoing in- mind the facts; (3) argu- and the State erred in structions, you if from the evi- believe ing that defense witnesses had fabricated beyond dence a reasonable doubt testimony. affirm We of the defendant, JONES, KEVIN MENARD trial court. Novеmber, day on or the 9th about A.D., 1985, County Dallas and The evidence established that on Novem- Texas, alleged in the indict- State as 9, 1985, working ber as Sandra Tubbs was ment, there, and in the did then while Majek a cashier at the Gulf Market committing property theft of course of Lancaster, approximately Texas. At 8:25 maintain and with intent to obtain and a.m., appel- three males later identified as property control of said of SANDRA lant, Jones, Rhynes, Kevin Clarence TUBBS, money current of the to-wit: Stanley togeth- Coleman entered the store America, United States without Rhynes proceeded er. to the ice cream consent of SANDRA TUBBS effective machine, counter, Coleman went deprive and with intent to the said SAN- appellant stood near the door. Cole- property, then DRA TUBBS of said did package cigarettes man asked for a intentionally knowingly and there or rang up paid a Tubbs sale. Coleman place TUBBS threaten or SANDRA part Rhynes of the cost and asked for the death, bodily injury or fear of imminent gave Rhynes money, balance. Coleman the use the defendant did then and there and then went behind the counter where he deadly weapon, a or exhibit a to-wit: pointed gun directly at Tubbs’ face. firearm, you will find the defendant Coleman and remained at their guilty of the offense of rob- original Rhynes locаtions in the store. bery say by your verdict. and so said, money, me the all of the mon- “Give and, ey” jury charge also contains an abstract attempted as Tubbs to remove the The parties: tray, Rhynes began taking cash instruction on the law bills 10 persons

All are to an offense case. The result is that defendant acting guilty together acquitted in the must jeopardy who are and the double person prohibits of the offense. A is clause a retrial. Burks v. commission United States, 2141, criminally responsible to an 98 S.Ct. 437 U.S. 2149- by (1978); Seymore if the offense committed & offense Thiel- L.Ed.2d conduct, by man, the conduct of another Appellate own Reversal for Insufficient criminally responsible, he is for which Evidence In Criminal Cases: Interac both. Jury Charge, tion Proof Am.J.Crim.L._(1989). criminally person responsible A committed offense the conduct of addressed the issue Several cases have if, acting promote another intent of what must be used define standard offense, commission assist the error Boozer v. solicits, encourages, directs, aids, or he (Tex.Crim.App.1984); 717 S.W.2d 608 Orte attempts person to aid the other to com- ga presence Mere alone mit the offense. 1983) State, (op. reh’g); on Benson v. not constitute one to an will a (Tex.Crim.App.1982) (op. S.W.2d offense. reh’g). of these The earliest cases was of Criminal re- The Texas Code Procedure Benson, in the defendant attacked which jury provided a quires that the with sufficiency the evidence to sustain charge distinctly setting forth the written retaliation. The statute his conviction for applicable to the TEX.CODE law case. charged under which the defendant was (Vernon art. 36.14 CRIM.PROC.ANN. threatening a created an for “wit offense case, appellant’s In this crimi- Supp.1989). ness,” threatening “prospec a but not for the responsibility for rob- nal The court concluded that tive witness.” solely parties, bery was based charge, only the under the authorized ver undisputed appellant did because it is that guilty dict was not because possess weapon a or threat- personally not was proved person that the threatened Therefore, the trial court anyone. en However, the court prospective a witness. the should have included law of charge is “[Wjhen also correct stated: charge. application paragraph of the presented of the case we for The failure to do so was error. in a review the of the evidence by light most to the verdict com decide this was favorable We must now whether paring the to the indictment as charging in “trial er- error ‍​​​​‌‌‌​‌​​​‌‌‌​‌​‌​‌‌​‌​​​‌​​​​​‌‌‌‌​​​​‌​‌​‌​‌‍which resulted charge.” incorporated Benson v. or, in “in- into the the error resulted ror” whether State, (emphasis at 715 omit sufficiency of the evidence.” The answer ted). foundation for upоn we Benson became inquiry depends whether to this subsequent decisions. sufficiency of the evi- must measure the against against charge or dence presented problem A similar was Orte- paragraph. case, charge tracked the In ga. indictment, re- conjunctive languagé of the “trial er If confronted with we are defendant “intention- quiring proof that the on a ror,” appellant’s conviction was based intent fraudu- ally knowingly with nothing do with had defect which State, property service” lently obtain guilt or innocence. Messer v. See exchange presented credit card 699-700 had not clothing knowing the card instruc past, jury In incorrect only labor or him. The bеen issued to as error.” have viewed “trial tions been clerk’s effort the sales State, In service involved was Messer v. there was completing Because error,” the sale. jeop of “trial the double instances the act did with that defendant Id. no evidence preclude a retrial. ardy clause does services, property and intent obtain both “trial is “insuffi Distinguished from error” Ortega insufficient. proof was determi which is a ciency of the evidence” court held State, at 707. S.W.2d prove its State has failed to nation

H prove specific State did not charged having Garrett was “know- indictment, allegations in incorporat- as ingly individual, the death of an cаuse[d] charge, ed into the and the defendant’s complainant], by shooting her with a [the conviction reversed and a was gun.” complainant, The facts showed acquittal response ordered. Id. family, neighbor having her and a argument that the word “service” was barbecue at their home. Garrett arrived surplusage, mere the court held that sur- joined with a group. rifle in her car and plusage does not exist in a court’s complainant went inside her mobile Ortega v. at 707 n. 5. argument home An to clean the dishes. Thereafter, erupted neighbor Boozer, Garrett and the the Court Crim- between charge in- regarding dog having inal considered a which Garrett’s been shot jury structed the that a witness was an by neighbor. car, Garrett went to her however, law; accomplice as a matter of rifle, removed the and fired a shot at was erro- evidence showed neighbor. complain- The bullet killed the majority suffi- neous. The wrote: “[T]he ant who was still inside the mobile home. ciency is measured of the evidence There was no evidence that the defendant given.” that was Boozer intentionally knowingly shot the de- there S.W.2d at 610. Because pro- ceased. In the the trial court evidence, opposed insufficient to “trial vided the with an abstract instruction error,” the denied a retrial. State was intent, on the law of transferred failed but it to thе facts.

It is clear these cases that from determining sufficiency, when of Court Criminal held that compared must be charge. the entire charge of law transfer- State, Garrett v. 802-03 bring red intent was not sufficient to (op. (Tex.Crim.App.1986) reh’g). on Ben theory jury. of v. law before Garrett son, and Boozer Ortega, involved factual State, Although at 802. S.W.2d in situations which State was unable to correctly court in Garrett stated that the proof meet its of burden under the entire compared evidence must to the entire be charge. In of cases, each these it was Rather, seemingly it did not do so. impossible prove for the State to it what apparently it measured the evidence pled.1 case, In each the factual deficiency against only application paragraph.2 unchangeable was re evidence Facially, appears provide Garrett di- mained forever insufficient. determining improper rection whether In bar, the case we are bound to jury instruction resulted in trial error or compare the evidence to insufficiency of the evidence. Justice We hold evidence, that the compared when Campbell, writing court, for the acknowl- paragraph and the ab edges despite Garrett, holding stract instruction on the parties, law of was Boozer, Ortega, cases of and Bеnson sufficient prove aggrava offense of require that the of robbery. ted Accordingly, we further hold against must measured be the “entire charging error resulted in “trial charge.” State, Garrett v. error,” and not “insufficiency of the evi rehearing, Campbell 803. On Justice ex- dence.” presses concern as to effect on Garrett’s

We next address subsequent Garrett v. He cautions State which cases. then appellant argues dispositive product of this case. Garrett is the of an “unusual set Benson, Boozer, 1. We note Ortega, that in upon theory Presumably as the the case. this of there was no abstract instruction on the law on was because there is no vehicle in the law that rely. which the State could permits ap- the law of transferred intent to be However, plied to the facts of the case. the law 2. Even if the Garrett court did look to the entire provide of does such a vehicle. See charge decision, arriving apparently at its 7.01(c) (Vernon TEX.PENAL CODE § ANN. intent, found that the law of transferred charged abstract, only in the could not be relied State, of circumstances” and indicates that be scope. should limited its 1984) See Garrett (op. reh’g); on TEX.CODE CRIM. State, Consequent- 749 S.W.2d 802-03. (Vernon 1981). art. PROC.ANN. 36.19 Per ly, holding Garrett, we conclude that the se jury charge error in a no reversible by terms, appears its own to be limited to exists; lоnger instead, appellate courts involving cases transferred intent where case-by-case analysis. must harm the issue of insufficiency concerns the evi- State, Lawrence

dence.3 (Tex.Crim.App.1985). strengthened Our conclusion further In Judge Almanza v. Clinton’s by the parties. codification of the law sagacious regard words with to the Court The Texas Penal Code provides that: “All Appeals’ prior policy Criminal of discern- traditional distinctions accomplices between ing reversing error “fundamental” section, principals are this abolished regard without to harm is instructive: and each may an offense judicial pronounce- Those kinds of charged аnd alleging convicted without engender disrespect ments for the courts that he principal accomplice.” acted as a and the law. As a court last resort we 7.01(c) (Ver- TEX. PENAL CODE ANN. § reali- should not be so far removed from 1974) added). Thus, non (emphasis the law ty common that we cannot see when authorizes alleging par- conviction without sense coincides with the fair administra- ticipation principal accomplice.4 as a such justice. see tion When we do provides The indictment the defendant with duty coincidence our seems clear. offense, however, notice it is the determine As a statement on how to charge that convicts. See Benson v. in the severity any egregious error 661 S.W.2d at 715. In of the fore- improve cannot on the follow- we going, we conclude that under this record appeals in 1890: ing from the court parties, the abstract determining the error “But whether conjunction applica- considered ‍​​​​‌‌‌​‌​​​‌‌‌​‌​‌​‌‌​‌​​​‌​​​​​‌‌‌‌​​​​‌​‌​‌​‌‍in with the ... we are to look to the paragraph, place tion is material sufficient bearing upon subject. jury. record before whole testimony the nature of What summary, we hold that when viewed cogent it supporting the verdict? Was charge, of entire is the the overwhelming? was What and support sufficient to the verdict. Conse- testimony presenting of character the quently, wе conclude that the defective theory or omitted phase the case resulted in as trial distin- charge, upon to be noticed in the guished insufficiency from the of evidence. assigned? error which omission it it at reasonable? Did II. Was all theory a which a reasonable present failure of to The the trial court entertain, sup- or mind could was apply parties the of to the facts result law testimony re- was ported such as in charge ed a that was not correct for the motely destroy to calculated theory presented. of the case v. See Fain in con- case State’s when considered State, 725 202 S.W.2d in the testimony with the other nection 1986). However, appellant failed because case, whole? as a as well as the object to to the a reversal will simply an phase the case Was the of egregious result if the error was by the as made created addition to case appellant such harm that was de therewith, was or impartial nied a fair and trial. Almanza State consistent us, overrule, appellant distinguished, 3. The not the case before court but did that in now State, prior holding objection. its Romo v. S.W.2d to an also failed make (Tex.Crim.App.1978) where in the absence objection, of an omission of law of language no similar 4. Penal Code includes parties application paragraph from the not convicting individual an regarding charging or though parties reversible even of error the law intent. law of transferred under the given only had been in the abstract. noteWe aggra- date committed conflict the State’s that defendant an direct with important by using exhibiting theory? robbery These are all mat- or a vated passing upon to considered in weapon. ters must that deadly You consider [degree omission of in the or harm] connection with the law instruction error....” Now, parties is set parties. you page forth six (citation for omitted). S.W.2d at 173-74 * * # * * * considering charging When whether parties egregious, was error on law robbery. aggravated He’s to a determining not to whether are limited we argued theory. the same Defense counsel guilt sufficient to find as the evidence was guilty determine he’s order to whether party; we must principal rather than a aggravated robbery, you deter- must proceed record of the consider entire he, Jones, solicited, mine Kevin if encour- ings Black below. See aged, attempted or or directed aided (Tex.App. 640-41 — Dallas Clarence, gun, person aid with the (on remand). pet.) no put who in fear. Sandra presented case under was that appellant was guilty as a ^{[*] [*] [*] [*] [*] [*]} principal. Although not “party,” as a voir Now, or you if find that Kevin аided recorded, prosecutor, not with- dire was act, encouraged you then solicited objection, par- recalled the law of out guilty robbery. you find If find he’s explained during dire: “I voir ties aided, encouraged that he advised or you just to talk moment want a brief deadly weapon, solicited the use of the parties. talked about about We robbery. guilty then he’s dire_” that on voir right It’s clear. It’s here in the present in the The evidence case showed charge.... Court’s two co-defendants charge begins, Error in a court’s but simultaneously entered the convenience end, inquiry does into the harm not Rhynes point- store. While Clarence analysis. must the record as We then view gun taking ing a at the store clerk and “actual, just not a whole to determine the register money tray, appel- from cash theoretical, harm the accused.” Alman said, “Why Appel- take all the lant bills?” is no za v. There then counter and re- lant went around the apparent “stan reason different register moved the from the cash coins assessing charging from a dard in harm Appellant’s fingerprints tray. were found applies than error on law of Upon fleeing the tray. on the bottom of in as charging generally. errors Relevant store, he filled display took a case charging harm of error is sessing the watches. emphasis and the evidence but charge jury The court’s instructed interpretation of the evidence under parties. also The court included closing argument, as well following instruction: shall re- “[Y]ou State, 739 S.W.2d entire record.” Black v. instructions ceive these written [the law] State, 700 also v. at 641. See Lawrence you governed thereby.” In and must be so 212-13. S.W.2d at doing, required jury the Court to con- charge during its delibera- sider the entire record have We reviewed tions. inquiry The reveals that this case. jury with the appellant was discussed parties Both the and based their law State arguments solely theory evidentiary review shows jury at voir dire. Our argument, solely as closing responsibility, “parties.” appellant’s The State’s criminal objection, beyond reads in rea proven which was made without party, clearly was pertinent part as follows: parties The law sonable doubt. in jury was was in the and forth elements of sets

[The] governed by all of the writ- to be on or a certain structed the offense that about 934, (Tex.Crim.App.1972). objec- ten instructions contained If an sustained, arguments, appellant In their both tion is an instruction to dis- parties Id. regard requested. Appellant State relied on the law of as the must be Thus, theory of the case. this requested disregard, an instruction to not a ends jury. inquiry before the Our Consequently, mistrial. he received all of jury conclusion that understood and sought. the relief he applied the law of to the facts. It The Court of Criminal has apparent appellant from the record that reviewed extreme cases where a corrective impartial and was afforded a fair and trial suffice, regardless instruction would not egregious did not suffer harm due to the preserved. Bray v. whether the error was court’s to the facts. failure State, (Tex.Crim.App. 478 S.W.2d Appellant’s points second of error first and 1972). prosecutor’s argu In order for the are overruled. “incurable,” toment mandate reversal as it clearly must be calculated to inflame the III. minds and be of such a charac point third con suggest impossibility ter as to of with tends that his conviction should be reversed drawing impression argu made argument. prosecutor’s jury due State, Campos ment. argument permissible pur Jury has four (Tex.Crim.App.1979). The trial court’s evidence; (2) (1) poses: summation of the comment that there was no evidence to evidence; from the reasonable deduction argument the State’s was suf substantiate counsel; (4) (3) opposing an answer any injected. harm The ficient remove Alejandro plea for law enforcement. argument does not amount to incur State’s requiring Appellant’s able error reversal. point final of error is overruled. argument complained The is affirmed. as follows: Thе bottom line of their State] [The ENOCH, C.J., HOWELL, testimony. Each testified in direct con- STEWART, ROWE, LAGARDE, gave. they to statements tradiction KINKEADE, BURNETT and got Rhynes up there and Even Clarence JJ., WHITTINGTON, agree with the impeached testimony of the other majority opinion. keep their They co-defendant. can’t even straight they have had an stories after BAKER, J., opinion. dissents with opportunity to review discuss WHITHAM, McCLUNG and cell sitting back there the holdover BAKER’S, JJ., THOMAS, agree with together. J., dissent. Objection, Honor. Your [Defense] keep their They just can’t [The State] BAKER, Justice, dissenting. straight. stories respectfully dissent. I Objection. There’s no testi- [Defense] view, my has failed in its majority, any testimony that mony, hasn’t been Garrett v. distinguish attempt togеther. I they’re in the cell haven’t (plu- (Tex.Crim.App.1988) 749 S.W.2d 784 them, I don’t think Ms. Good- seen III). reh’g) (Garrett Simply rality op. on has seen them. man misreads Garrett stated, in its majority the I going I’m to sustain that. [The Court] in order attempt distinguish to it strained any testimony is about don’t think there majority desires. the result the to reach that. refusal to justification of its argument partial re- improper jury will Generally, Garrett, the majority states that follow the only specific objection if a sult in reversal compare Appeals did not ruling of Criminal was ob- Court made and an adverse charge in jury the evidence to Powell v. tained. Garrett, para- facts, application to the whereas the but the law stated, This conclu- Yet, refеrring provide such a vehicle. graph. that court does (Garrett patently the law III 749 S.W.2d sion is baseless because Garrett applying provide (Tex.Crim.App.1986)): does indeed a vehicle for facts of the of transferred intent to the law blush, require this first case seems to At TEX.PENAL CODE ANN. a case. See sufficiency measurement that a (Vernon 1974); 6.04(b)(2) Searcy & Pat- § be sole the evidence limited to a consider- terson, TEX.PE- Commentary, Practice application paragraph ation of the (Vernon ANN. NAL CODE 6.04 § jury charge. misapplica- This would be majority in its at- Again, the has failed rule tion of the enunciated in Boozer v. tempt distinguishing Garrett. ...; ..Ortega and Ben- State State Boozer, Ortеga, son v. State.... Judge majority suggests also that The sufficiency hold that the evi- Benson III, in con- Campbell, expressed Garrett against jury dence be measured cern effect on later cases. about Garrett’s charge, interpret which we to mean the majority Judge Campbell states The charge. entire product of cautioned that is the Garrett unusual circumstances and indicated that III, (citations 749 S.W.2d at 802-03 Garrett scope. majori- limited should be its added). omitted) (emphasis and footnote ty holding concludes then Gar- Moreover, II, in Garrett stated: the court involving appears to be limited to cases rett persuaded are not We that because intent transferred where the issue concerns charge abstractly court’s defined trans- sufficiency of the evidence. (designated in paragraph ferred intent “3-A”) ‍​​​​‌‌‌​‌​​​‌‌‌​‌​‌​‌‌​‌​​​‌​​​​​‌‌‌‌​​​​‌​‌​‌​‌‍appearing immediately after the This conclusion as the means serves sup- paragraph applying majority’s to the of murder to end and without “3”) port (designated facts of the case when statements are considered full, Quoted Judge Campbell context. jury was therefore to convict authorized said: appellant theory. way on that In no can (which begins, paragraph by A different concern raised Garrett

incidentally: bearing “Now II, in mind the although it is mentioned in the not ”) foregoing rehearing, possi- instructions ... be construed motion for State’s is its definition, refer to the subsequent so A close ble effect cases. whole,” “reading inspection even as a II that it is Garrett reveals jury would not inform product ... unusual set of circum- theory. stances, illustrating could convict on that tension between juxtaposition pre- post-Almanza analysis, Mere does not amount to which appears authorization. have created a to be result blush, something it is this not. At first II, (citations Garrett at 789 n. require case seems to that a measure- omitted). In view of these clear state- sufficiency ment of the evidence Appeals, the Court of I ments Criminal limited to a sole consideration of the be agree the majority’s cannot conclusion charge. application paragraph jury compare the court did not misapplication This of the rule would to the entire It there- Garrett. ...; ...; Ortega enunciated Boozer alleged fore follows that its failure to do so Boozer, Ortega, and and Benson.... justify majority’s ap- cannot refusal hold that of the evi- Benson ply Garrett instant case. against measured dence be majority also indicates that Garrett mean the interpret which we applicable even if court the Garrett entire jury charge to the entire in reach- did look (citations III, 749 802-03 Garrett S.W.2d at ing The majority its decision. concludes omitted). footnotes does not apply that Garrett here because First, Judge majority states is no vehicle it should be noted that that there applying Campbell’s intent remarks directed at Gar- of transferred 16 II, II,

rett 788, Garrett III. Secondly, not In Garrett S.W.2d at 802. the Gar- clearly Appeals’ statements do not indicate that court affirmed the of Court hold evidence, rett III should be limited in its scope. ing light that the viewed in of the adhering Thirdly, by jury charge, support to the rule that evi- insufficient to the against sufficiency “knowingly” dence is measured the that verdict Garrett caused 788-89, jury thereby eliminating entire the victim’s death. S.W.2d at III, III, misreading Garrett Garrеtt any potential of 790. In the court denied the Judge Campbell problem rehearing the though has eliminated State’s motion for even Garrett II’s possible sufficiency that he identifies as of the stated that evidence subsequent against jury effect on cases. must measured be charge. 749 words, Judge Campbell In other identi- II III controls this problem view, Garrett Garrett potential my fied a In meaningful principled that resulted from the fact that it was “the case. no There is or product of an unusual set of circumstanc- distinction that the in- between case and problem, parties es.” He then resolved the thus stant case. of Both the law eliminating any artificially expand need to limit the intent law transferred serve Therefore, of Garrett III. scope liability. major- the criminal TEX.PENAL CODE 6.04, 7.01, (Vernon following 1974). ity’s justification other for not ANN. 7.02 In §§ case, Garrett III both Garrett and this inadequate. jury the charges apply respective failed to the theo- point In the his first expanded liability ries of criminal to the evidence, has that when asserted III, In Garrett facts. the Court of Crimi- light charge that viewed of the Appeals nal held such that failure meant given jury, to the was insufficient to sus- theory of transferred intent was robbery. aggravated tain his conviction for adequately jury. not before majority acknowledges, jury As the reason, good I S.W.2d at 802. see no chargе erroneously failed my opinion majority supplied has not Al- to the facts of the case. one, reaching in this a different result though charge contained an abstract regarding parties. case the law of parties, it is clear instruction foregoing Gar- application portion jury analysis of the Based on the rett, charge charge only upon jury I hold that authorized conviction would finding appellant “knowingly present adequately or inten- case did not submit appellant’s liability tionally placefd] or SANDRA the as a threatened] bodily injury robbery. of imminent or to the offense of TUBBS fear Therefore, of the death” or that he “use[d] exhibit[ed] light must measured in theo- deadly weapon, to-wit: a firearm.” Six later, available, ry namely appellant’s liability as paragraphs pages jury two If does charge primary instruction actor. contained the abstract given, conform to the insuf- parties. on the law of support the ficient as a matter of law to necessarily “guilty” Since a verdict “guilty” autho- only verdict of which was means that the found evidence of Boozer, at 610-11. rized. convict, suffi on which it was authorized evidence, examining it must be by the In ciency of the evidence is measured Boozer, light most to the given jury. viewed favorable charge that was any if rational (Tex.Crim.App. prosecution to detеrmine III, ele- II of fact could find the essential Garrett the Court of trier beyond crime a reasonable rejected argument ments of the Criminal State, Dickey charge on the law of trans doubt. that an abstract case, the (Tex.Crim.App.1984). In this place ferred intent was sufficient crime, though essential elements of the jury, even theory before the given jury, immediately that was instruction followed “knowingly intentionally threat- included portion of the

17 en[ing] placing] TUBBS or SANDRA injury or death” or bodily of imminent HUNDRED

fear THOUSAND FOUR ONE weapon, deadly “us[ing] exhibiting] IN UNITED DOLLARS SIXTY-TWO firearm.” in the to-wit: a Viewed AND ONE CURRENCY STATES the evi- prosecution, BUICK, Appellant, most favorable simply does not show that dence Therefore, is insuffi- did that. Texas, Appellee. STATE support appellant’s conviction cient to No. 05-88-01370-CV. robbery actor. primary as charge, the Under the trial court’s Texas, Appeals Court of the evidence verdict authorized view Dallas. Boozer, guilty.” “not See June 1989. at 611. Rehearing July Denied point first appellant’s I sustain would judgment of the trial reverse the court, acquittal. and render a States, 437 U.S. Burks v. United

See 2141, 2146-2147, 10-11, L.Ed.2d S.Ct. result, (1978). However undesirable the may must One this Court follow the law. law, argue that but it is Garrett bad law, binding and it is on nevertheless sug- Court. Some commentators have this gested ways arguably to avoid undesir- acquittal result of in cases like this

able See, Thielman, Seymore Ap- e.g., one. & pellate Reversal Evidence for Insufficient in Criminal Casеs: The Interaction of Charge, 16 AM.J. Jury

Proof _ However, (1989). I CRIM.L. view dispositive III as this case until Garrett changed adequately ‍​​​​‌‌‌​‌​​​‌‌‌​‌​‌​‌‌​‌​​​‌​​​​​‌‌‌‌​​​​‌​‌​‌​‌‍it is either distin- guished.1 17,1987, refd); Aug. pet. unpublished App. Reeves prior opinions, Court

1. In this two —Dallas (Tex.App. substantially judgments acquittal No. 05-86-00770-CR rendered —Dallas 8, 1987, ref'd). pet. cite these jury charges I do not June cases. Both cases involved similar 90(i). authority. I as TEX.R.APP.P. contained instructions cases do, however, refusing petitions note that parties. The did law of evidence in both cases review, discretionary findings the Court of Criminal support were that the defendants tell occasions to primary has declined on two guilty Both convictions actors. wrongly applied in II authority Garrett vies of Garrett II. this Court that based reversed (Tex. made. to which reference is the two cases See Staten v. No. 05-86-00903-CR

Case Details

Case Name: Jones v. State

Court Name: Court of Appeals of Texas

Date Published: Oct 4, 1989

Citation: 774 S.W.2d 7

Docket Number: 05-88-00208-CR

Court Abbreviation: Tex. App.