OPINION
A jury convicted Malcolm C. Moffett of murdering another prison inmate. The trial
Moffett argues his first two points of error together:
Point of Error One
The jury was not authorized to convict appellant of the offense of murder, in that the application paragraph contained with the trial court’s charge authorizing the jury to convict appellant of the offense of murder was legally insufficient tо support a conviction for the offense of murder, in that the application paragraph failed to incorporate the allegation that appellant committed the offense of murder “on or about August 5, 1994,” as alleged in the indictment.
Point of Error Two
The jury was not authorized to convict appellant of the offense of murder, in that the application paragraph containеd with the trial court’s charge authorizing the jury to convict appellant of the offense of murder was legally insufficient to support a conviction for the offense of murder, in that the application paragraph failed to incorporate the allegation that appellant committed the offense of murder “in Polk County, Texas,” as allеged in the indictment.
The indictment alleged both the county and date of offense, as did the application paragraph of the charge on the lesser included offense, but the application paragraph of the charge on murder omitted the date and county. The statutory elements of an offense must be set out either in the appliсation paragraph or in the definitional portion of the charge. See Lewis v. State,
This case is similar to Dinkins v. State, in which an element omitted from the application paragraph (the mental state for the second murder in a double-homicide capital prosecution) was supplied elsewhere in the charge. Dinkins v. State,
The first paragraph of the charge stated: “The defendant, Malcolm C. Moffett together with nineteen other individuals, stand charged by indictment with the offense of Murder, alleged to have been committed in Polk County, Texas, on or about the 5th day of August, 1994.” The county and offense date were also identified in the paragraphs on the lesser included offenses. The evidence adduced at trial established Moffett
Moffett also combines his next two points of error:
Point of Error Three
The admissible evidence adduced at the trial of the case was legally insufficient to support appellant’s conviction for the offense of murder, in that the evidence adduced at trial failed to prove, beyond a reasonable doubt, that appellant intentionally or knowingly cоmmitted the felony offense of engaging in organized criminal activity, to-wit: participated in a combination, and acting in combination, did commit aggravated assault upon Randy Payne.
Point of Error Four
The admissible evidence adduced at the trial of the case was legally insufficient to support appellant’s conviction for the offense of murder, in that the evidence adduced at trial failed to prove, beyond a reasonable doubt, that appellant intentionally or knowingly committed the felony offense of engaging in organized criminal activity, to-wit: participated in a combination, and acting in combination, did commit aggravated assault upon Randy Payne.
Moffett was charged under the felony murder рrovision of the Penal Code. Act of June 14, 1973, 63rd Leg., R.S., Ch. 426, § 1, sec. 19.02(a)(3), 1973 Tex. Gen. Laws 1123 (amended 1993)(current version at Tex. Pen. Code Ann. § 19.02(b)(3) (Vernon 1994)).
A “combination” means three or more persons who collaborate in carrying on criminal activities, although they may not know each other’s identity, and membership in the combination may change from time to time. Act of June 16, 1991, 72nd Leg., R.S., eh. 555, § 1, sec. 71.01(a), 1991 Tex. Gen. Laws 1968 (amended 1994)(current version at Tex. Pen. Code § 71.01(a) (Vernon 1994)). Appellant argues there is no physical evidence demonstrating the nature of the combination and no evidence of any agreement that appellant participate in a combination including at least two other persons. We disagree with appellant’s assessment of the testimony of his fellow inmates.
Randy Payne, the victim and one of the few white inmates in closed custody
Inmate Demond Stewart testified that in the Texas prison system in general, and the Terrell Unit in particular, a newly arrived inmate is called out
Inmate Bradley Layne Phillips testified Payne told him there were people trying to make him ride. Later that day another inmate told him “It’s going down” and he saw Moffett, Nesbitt and two other black inmates fighting Payne. They knocked Payne to the ground and kicked him while Payne was curled up helpless on the ground. The black inmates walked off. Later, Phillips saw Payne and some black inmates walk into a cell, where other testimony established another beating took place, then saw three or four Hispanic inmates assаult Payne again.
According to Matthew Eugene Ewers, before the attack the black inmates had been discussing the new white boy on the block. The first fight took place when appellant assaulted Payne in the shower on the first level. Nesbitt, Marvin Richardson, and one other inmate were also involved in this attack. The next fight occurred when these same individuals attacked Payne in the third level shower. The third and fourth fights involved the group of Hispanic inmates who attacked Payne on the third level and in the stairwell. Then Moffett, Nesbitt and Richardson kicked and hit Payne once again on the first level. When asked if this attack occurred “[i]n front of God and everybody,” Ewers replied, “Well, if God was present, you know, yes.” At this point the officers arrived and racked up
Keith Block testified Moffett and Angelo Nesbitt were talking after chow
Robert Green also testified he saw appellant and other black inmates beating Payne in the head and jumping up and down on him.
We find the State established the existence of the organized criminal activity without the benefit of the testimony of any of the conspirators. The agreement may be inferred from the conversations between the inmates about whore cheeking, and from their actions in acting in concert in the series of attacks. Appellant implies there is insufficient evidence of a combination of persons becausе groups associated only with members of their own race. Most of the inmate witnesses
We hold a rational trier of fact could have found all of the elements of the offense to have been proven beyond a reasonable doubt. Jackson v. Virginia,
Although appellant discusses the standard of review for factual sufficiency, he makes no attempt to illustrate for this Court how the evidence adduced at trial so overwhelmingly preponderates in appellant’s favor as to make a finding of guilt so against the great weight and preponderance of the evidence as to shock the conscience. Some of the inmate witnesses were shown through cross-examination to have not actually seen all of the attacks, but they understood what was occurring and who the actors were. Some inmates werе shown to be on medication for psychological disorders. All were convicted felons whose credibility was suspect. The record reflects only minor inconsistencies between the testimony of the different inmates. Considering all of the evidence equally, we do not find the jury’s finding of guilt to be so contrary to the overwhelming weight of the evidence as to bе clearly wrong and unjust. Clewis v. State,
Point of error five urges:
The jury was not authorized to convict appellant of the offense of murder, in that the trial court’s charge did not contain an application paragraph authorizing the jury to convict appellant of the offense of murder.
Moffett argues the application paragraph in question describes the offense оf engaging in organized criminal activity, not murder. We disagree. Moffett refers us to the first two. means of committing murder, intentionally or knowingly causing the death of an individual, and intending to cause serious bodily injury and committing an act clearly dangerous to human life, but ignores the means of commission which appears in the indictment and in the jury charge. Appellant was conviсted under the “felony murder” provisions of the Penal Code, at the time of the offense located at Penal Code Section 19.02(a)(3), which authorizes a conviction for murder if the defendant commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual. The underlying felony described in both the indictment and the jury charge is engaging in organized criminal activity, a felony under Penal Code Section 71.02(a)(1). The jury could convict Moffett of murder under these circumstances.
Moffett groups his remaining points of error in a single argument:
Point of Error Six
The triаl court erred, in that the trial court, over appellant’s objection, clearly abused its discretion by improperly excusing a juror sua sponte, after the jury had been selected, sworn and impaneled, and after the indictment was read to the jury in open court, and after appellant entered his plea of not guilty, but prior to any*783 evidence being heard, in viоlation of Tex. Code Crim. Prog. Ann. art. 36.29(a) (Vernon Supp.1994) and Tex. Const. Art. V, sec. [sic] 13.
Point of Error Seven
The trial court reversibly erred, in that after the tidal court, over appellant’s objection, improperly excused a juror sua sponte, the trial court ordered, over appellant’s objection, and without appellant’s written waiver of his right to a trial by jury, that trial on the merits continue with elеven (11) jurors, thereby violating appellant's right to trial by jury, pursuant to Tex.Code Crim. Proc. Ann. art. 33.01 (Vernon 1989), to-wit: the jury shall consist of twelve (12) qualified jurors.
One of the jurors advised the trial court she had been up all night long, she and her husband had a lot of personal family problems, and said, “I feel like that I can’t be what I should be sitting in there.” She stated the stress might be so severe that her mental capacity to participate in the trial would be diminished, and she would possibly be physically sick. She stated she could not concentrate on the trial in order to render a fair and impartial verdict. She was taking Librax. The trial court noted on the record that the juror was “obviously very upset.” There was no evidence to the contrary, although thе juror admitted she was neither mentally ill nor mentally retarded, nor was she a completely physically disabled person. Moffett relies upon Marquez v. State, a case where the trial court declared a witness to be disabled when the juror only stated someone had talked to him in the hall about a burglary and that he thought it would “in a way” affect how he listened to the testimоny. Marquez v. State,
One Court of Appeals case held a written jury waiver was required where a disabled juror was excused. Hanley v. State,
AFFIRMED.
Notes
. The offense was committed before the effective date of the amendment.
. That part of the institution composed of inmates who have been removed from the general prison population for committing infractions or for other disciplinary reasons.
. Exchange sex or commissary privileges for protection from other inmates.
. Fight to determine if the inmate will ride.
. Physically confronted.
. Be strong enough to fight.
. To have your possessions taken from you in your presence.
. A person who does not have to fight in order to avoid being assaulted or hogged.
. "Esc,” meaning "you” or "that,” a reference to an Hispanic person.
. Attacked by a group.
. Returned to the prison cells.
. Mealtime.
. Had the offense been committed 27 days later, appellant might have faced a capital murder indictment. Tex. Pen.Code Ann. § 19.03(a)(5)(B) (Vernon 1994).