Starks, Russell ( 2015 )

PD-0661-15 PD-0661-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 5/29/2015 3:01:58 PM
Accepted 6/1/2015 2:54:53 PM
ABEL ACOSTA
NO. PD-________-15 CLERK
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
AT AUSTIN
_________________________
RUSSELL STARKS,
Petitioner/Appellant
v.
THE STATE OF TEXAS,
Respondent/Appellee
_________________________
On Appeal in Cause No. F13-32480-K
from the Criminal District Court No. 4
Of Dallas County, Texas
And on Petition for Discretionary Review
from the Fifth District of Texas at Dallas
In Cause No. 05-14-00191-CR
_________________________
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
_________________________
Counsel of Record:
Lynn Richardson Kathleen A. Walsh
Chief Public Defender Assistant Public Defender
State Bar Number: 20802200
Katherine A. Drew 133 N. Riverfront Blvd., LB 2
Chief, Appellate Division Dallas, Texas 75207-399
(214) 653-3550 (telephone)
(214) 653-3539 (fax)
kwalsh@dallascounty.org
June 1, 2015
LIST OF PARTIES
TRIAL COURT JUDGE
Dominique Collins, Presiding Judge
APPELLANT
Russell Starks
APPELLANT’S ATTORNEYS
AT TRIAL
Alison Grinter, State Bar No. 24043476
Naomi Green, State Bar No. 24068816
ON APPEAL
Kathleen A. Walsh, State Bar No. 20802200
Assistant Public Defenders
Dallas County Public Defender’s Office
133 N. Riverfront Blvd., LB 2
Dallas, Texas 75207-4399
STATE’S ATTORNEYS
AT TRIAL
George Lewis, State Bar No. 24060167
Hilary Wright, State Bar No. 24056901
ON APPEAL
G. Brian Garrison, State Bar No. 24065276
Assistant District Attorneys
Dallas County District Attorney’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399
ii
TABLE OF CONTENTS
INDEX OF AUTHORITIES.....................................................................................iv
STATEMENT REGARDING ORAL ARGUMENT ............................................... 1
STATEMENT OF THE CASE .................................................................................. 1
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE .................... 1
QUESTION FOR REVIEW ..................................................................................... 1
Whether the Court of Appeals erred in holding that the jury charge
did not contain reversible error when Appellant was prosecuted and
convicted under the law of parties and there was a complete absence
of any reference to the law of parties in the application paragraph.
ARGUMENT ............................................................................................................. 2
Pertinent Facts ................................................................................................. 2
The Court of Appeals’ Opinion ....................................................................... 4
Conclusion ....................................................................................................... 7
PRAYER FOR RELIEF ............................................................................................ 9
CERTIFICATE OF SERVICE .................................................................................. 9
CERTIFICATE OF COMPLIANCE ....................................................................... 10
APPENDIX
iii
INDEX OF AUTHORITIES
Cases
Almanza v. State,
686 S.W.2d 157 (Tex. Crim. App. 1984) (op. on reh'g.) ................................... 2, 4
Brown v. Collins,
937 F.2d 175 (5th Cir. 1991) .................................................................................. 8
Cole v. Arkansas,
333 U.S. 196 (1948) ............................................................................................... 8
Dunn v.United States,
442 U.S. 100 (1979) ............................................................................................... 8
Malik v. State,
953 S.W.2d 234 (Tex. Crim. App. 1997) ........................................................... 5, 8
McCormick v. United States,
443 U.S. 307 (1979) ............................................................................................... 8
Plata v. State,
926 S.W.2d 300 (Tex. Crim. App. 1996) overruled on other grounds by
Malik v. State, 953 S.W.2d 234 (Tex. Cim. App. 1997) ................................5, 7, 8
Starks v. State,
No. 05-14-00191-CR, 2015 Tex. App. LEXIS 4530 (Tex. App.—Dallas
May 1, 2015) (not designated for publication) .............................................passim
Vasquez v. State,
389 S.W.3d 361 (Tex. Crim. App. 2012) .......................................................4, 5, 6
Watson v. State,
693 S.W.2d 938 (Tex. Crim. App. 1985) ............................................................... 6
Statutes
TEX. PENAL CODE § 7.01 ............................................................................................ 3
TEX. PENAL CODE § 7.02 ............................................................................................ 3
Rules
TEX. R. APP. P. 66.3 (c) .............................................................................................. 7
TEX. R. APP. P. 66.3 (f) .............................................................................................. 7
iv
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
COMES NOW Russell Starks, Petitioner herein and Appellant before the
Court of Appeals, and respectfully submits this Petition for Discretionary Review.
STATEMENT REGARDING ORAL ARGUMENT
Appellant believes that the facts of the case and the issues raised are such
that oral argument will not significantly aid this Court’s consideration and
disposition of this Petition.
STATEMENT OF THE CASE
A jury convicted Appellant of aggravated robbery and assessed punishment
at imprisonment for life and a fine of $10,000. (RR5: 52, 78: CR: 87, 93).
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
On May 1, 2015, in a memorandum opinion, the Court of Appeals for the
Fifth District of Texas affirmed Appellant’s conviction. Starks v. State, No. 05-14-
00191-CR, 2015 Tex. App. LEXIS 4530 (Tex. App.—Dallas May 1, 2015) (not
designated for publication). (See Appendix). No motion for rehearing was filed.
This Petition is timely if filed on or before May 31, 2015.
QUESTION FOR REVIEW
Whether the Court of Appeals erred in holding that the jury charge
did not contain reversible error when Appellant was prosecuted and
convicted under the law of parties and there was a complete absence
of any reference to the law of parties in the application paragraph.
ARGUMENT
This Petition presents the question of whether the complete absence of a
parties instruction in the application paragraph of the jury charge may be deemed
harmless error when the law of parties is the only theory under which the
conviction can be supported.
Pertinent Facts.
Appellant was charged with aggravated robbery by using or exhibiting a
firearm. (CR: 9). Based on the testimony presented by the complainant, it was
undisputed that Appellant himself never used or exhibited a firearm in the course
of the robbery. Review of the State’s voir dire, the State’s opening statement,
questions posed to the complainant, and the prosecutor’s closing argument, makes
it clear that the State’s prosecution of Appellant was based upon the theory of party
liability. (RR3: 40-42; RR4: 8-9, 83; RR5: 36-37, 46-47, 50-51). Indeed, the Dallas
Court acknowledged as much in its opinion in its application of the Almanza1
factors. Starks, 2015 Tex. App. LEXIS 4530 at *8-11.
Because the State’s prosecution was based upon the theory of party liability,
the trial court included instructions on the law of parties in the abstract portion of
the charge, as follows:
1
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) (op. on reh’g).
2
All persons are parties to an offense who are guilty of acting
together in the commission of an offense. A person is criminally
responsible as a party to an offense if the offense is committed by his
own conduct, by the conduct of another for which he is criminally
responsible, or by both.
A person is criminally responsible for an offense committed by
the conduct of another if acting with intent to promote or assist the
commission of the offense, he solicits, encourages, direct, aids, or
attempts to aid the other person to commit the offense.
Each party to an offense may be charged with the commission
of the offense. Mere presence alone at the time and the place of the
commission of an offense, or knowledge of an offense, if any was
committed, does not constitute one criminally responsible as a party to
the offense.
(CR: 82-83). See TEX. PENAL CODE §§ 7.01, 7.02.
The application paragraph read as follows:
Now, considering all the law contained in the court’s charge, if you
find and believe from the evidence beyond a reasonable doubt that on
or about January 11, 2013, in Dallas County, Texas, the defendant,
RUSSELL STARKS, did then and there intentionally and knowingly,
while in the course of committing theft of property and with intent to
maintain control of said property, threaten and place THERESA
ZAHN-BURNAM, hereinafter called complainant, in fear of
imminent bodily injury and death, and the defendant did then and
there use or exhibit a deadly weapon, to-wit: a firearm, you shall find
the defendant guilty of aggravated robbery as charged in the
indictment.
Unless you so find and believe from the evidence beyond a
reasonable doubt, or if you have a reasonable doubt thereof, you will
find the defendant not guilty.
(CR: 84). Both parties stated that they had no objections to the charge. (RR4: 135).
3
The Court of Appeals’ Opinion.
In affirming the conviction, the Dallas Court found that although the trial
court erred in failing to directly apply the law of parties to the facts, it was
“inconceivable how the jury could have been misled by the court’s charge”, and
was “unable to determine how appellant was harmed by the charge”. Starks, 2015
Tex. App. LEXIS 4530 at *11-12. The court of appeals based its decision in part
on the fact that the charge contained the abstract definition of the law of parties and
cited this Court’s decision in Vasquez v. State, 389 S.W.3d 361 (Tex. Crim. App.
2012) for the proposition that “a reasonable jury would refer to the abstract
definition of the law of parties without needing to have it repeated again in the
application paragraph.” Starks, 2015 Tex. App. LEXIS 4530 at *9. The Dallas
Court’s reliance on this Court’s decision in Vasquez is clearly misplaced.
In Vasquez, this Court reviewed an application paragraph which applied the
law of parties by simply using the phrase, “acting alone or as a party (as herein
defined).” Vasquez, 389 S.W.3d at 364, n. 5. The appellant objected to the trial
judge’s failure to apply the law of parties to the facts in the application paragraph.
Id. at 369. After applying the Almanza analysis, this Court found that the
appellant’s rights were not harmed. Id. at 372. In reaching its decision, this Court
held:
[A] general reference to the law of parties in the application paragraph
is sufficient and is not error when the defendant does not object and
4
request a narrowing of the specific statutory modes of conduct that
constitute party liability—whether he ‘solicited, encouraged, directed,
aided or attempted to aid” another specified person to commit the
offense. But if the defendant does request that the application
paragraph refer only to those specific party-liability acts that are
supported by the evidence, then he is entitled to such a narrowing. The
failure to narrow the specific modes of party-liability conduct when
properly requested is reversible error if the defendant has suffered
actual harm to his rights.
Id. at 368.
In analyzing the charge issue in Vasquez, this Court also referred to its
decision in Plata v. State, 926 S.W.2d 300, 304 (Tex. Crim. App. 1996), overruled
on other grounds by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997). In
Plata, this Court “held that an application paragraph that made no mention of the
law of parties ‘either directly or by reference . . . for an offense committed by the
conduct of his codefendant,’ was erroneous, and the defendant was harmed
because the evidence was insufficient to convict him as a principal.” Vasquez,
389 S.W.3d at 368 (citing Plata, 926 S.W.2d at 304).
The outcome in this case is controlled by this Court’s decision in Plata, not
Vasquez. The facts are identical to those in Plata — the application paragraph
makes no mention of the law of parties either directly or by reference and the
evidence is insufficient to convict Appellant as a principal.
The Dallas Court also based its decision on their review of the record
showing evidence that Appellant was one of two individuals who participated in
5
the aggravated robbery, as well as statements made by the prosecutor during voir
dire, opening statement, and closing arguments which clearly indicated that the
State’s theory of prosecution was based upon party liability. The Dallas Court then
concluded that based upon the record, “it is inconceivable to us how the jury could
have been misled by the court’s charge”, citing this Court’s decision in Watson v.
State, 693 S.W.2d 938, 940 (Tex. Crim. App. 1985). Starks, 2015 Tex. App.
LEXIS 4530 at *11-12. Like Vasquez, the decision in Watson is factually
distinguishable from this case and does not support the opinion from the Dallas
Court. Like Vasquez, the application paragraph in Watson clearly referenced the
law of parties when it used the phrase, “acting either alone or as a party to the
offense”. Watson, 693 S.W.2d at 941. In this case, there is no reference whatsoever
to the law of parties in the application paragraph.
In its opinion, the Dallas Court also cites Watson for the proposition that a
charge requiring the jury to find that defendant acted alone increases the State’s
burden and thus benefits the defendant. Starks, 2015 Tex. App. LEXIS 4530 at
*12. The Dallas Court then states: “Similar to Watson, here the State had to satisfy
a heavier burden in proving to the jury that the appellant acted alone in committing
the aggravated robbery. If anything, appellant was helped by the court’s charge.”
Id. This statement appears to be an admission by the Dallas Court that the jury was
not authorized to convict Appellant under the law of parties and clearly conflicts
6
with the position taken by the court of appeals in most of the opinion’s analysis.
According to the opinion, on the one hand, the jury could not have been misled by
the court’s charge because the abstract definitions pertaining to the law of parties,
together with the evidence and arguments of the State showing that Appellant was
guilty as a party, was adequate to authorize Appellant’s conviction as a party.
While on the other hand, Appellant allegedly benefited from the charge because
the State had to prove that Appellant acted alone in committing the aggravated
robbery despite all of the evidence showing his guilt only as a party. Either the
charge authorizes a conviction under the law of parties, or it does not. Appellant’s
right to due process does not allow the Dallas Court to straddle the fence on this
issue.
Conclusion.
This Court should grant this Petition because the Dallas Court of Appeals
has decided this case in a way that conflicts with this Court’s decisions regarding
the rule of law applicable to jury charges. TEX. R. APP. P. 66.3 (c), (f).
This Court has uniformly insisted that the State may not support a jury
verdict of guilty upon the theory that an accused was criminally responsible for an
offense committed by the conduct of another person unless the court’s charge
specifically and adequately authorizes the jury to convict the accused upon that
theory. Plata, 926 S.W.2d at 304. A charge is adequate for this purpose only if it
7
either contains an application paragraph specifying all of the conditions to be met
before a conviction under such theory is authorized, or contains an application
paragraph authorizing a conviction under conditions specified by other paragraphs
of the jury charge to which the application paragraph necessarily and
unambiguously refers, or contains some logically consistent combination of such
paragraphs. Id. (and cases cited therein).
In Malik, this Court recognized that due process prevents an appellate court
from affirming a conviction based upon legal and factual grounds that were not
submitted to the jury. Malik v. State, 953 S.W.2d 234, 238 n. 3 (Tex. Crim. App.
1997) (citing McCormick v. United States, 500 U.S. 257, 269-70 & 270 n. 8
(1991); Dunn v. United States, 442 U.S. 100 (1979); Cole v. Arkansas, 333 U.S.
196, 201-02 (1948)). In Malik, this Court also noted the Fifth Circuit’s holding in
Brown v. Collins, 937 F.2d175, 182 (5th Cir. 1991) which implied “that the
complete absence of a parties instruction from the jury charge may present
constitutional problems.” Malik, 953 S.W.2d at 238 n. 3.
8
PRAYER FOR RELIEF
For the reasons herein alleged, Appellant prays this Court grant this petition
and, upon reviewing the judgment entered below, remand the case for a new trial.
Respectfully submitted,
/s/ Kathleen A. Walsh
Kathleen A. Walsh
Lynn Richardson Assistant Public Defender
Chief Public Defender State Bar No. 20802200
Dallas County Dallas County Public Defender’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-2
Dallas, TX. 75207-4399
(214) 653-3550 (telephone)
(214) 653-3539 (fax)
CERTIFICATE OF SERVICE
I hereby certify that on the 29th day of May, 2015, a true copy of the
foregoing petition for discretionary review was served by electronic delivery to G.
Brian Garrison, Assistant District Attorney, at Brian.Garrison@dallascounty.org.;
and was also served by electronic delivery to Lisa C. McMinn, State Prosecuting
Attorney, at Lisa.McMinn@spa.texas.gov.
/s/ Kathleen A. Walsh
Kathleen A. Walsh
9
CERTIFICATE OF COMPLIANCE
I hereby certify that the word count in this document, which is prepared in
Microsoft Word 2010, is 2,592.
/s/ Kathleen A. Walsh
Kathleen A. Walsh
10
APPENDIX
No Shepard’s Signal™
As of: May 28, 2015 3:52 PM EDT
Starks v. State
Court of Appeals of Texas, Fifth District, Dallas
May 1, 2015, Opinion Filed
No. 05-14-00191-CR
Reporter
2015 Tex. App. LEXIS 4530
RUSSELL STARKS, Appellant v. THE STATE OF TEXAS, Judgment affirmed as modified.
Appellee
LexisNexis® Headnotes
Notice: PLEASE CONSULT THE TEXAS RULES OF
APPELLATE PROCEDURE FOR CITATION OF
Criminal Law & Procedure > ... > Robbery > Armed Robbery >
UNPUBLISHED OPINIONS. Elements
Prior History: [*1] On Appeal from the Criminal District HN1 A person commits an offense if he commits robbery as
Court No. 4, Dallas County, Texas. Trial Court Cause No. defined in Section 29.02, and he uses or exhibits a deadly
F-1332480-K. weapon, Tex. Penal Code Ann. § 29.03(a) (2011). Tex. Penal
Code Ann. § 29.02 (2011) states: (a) A person commits an
offense if, in the course of committing theft as defined in
Core Terms
Chapter 31 and with intent to obtain or maintain control of
the property, he: (1) intentionally, knowingly, or recklessly
parties, jury charge, commission of the offense, aggravated causes bodily injury to another; or (2) intentionally or
robbery, gun, criminally responsible, convicted, robbery, knowingly threatens or places another in fear of imminent
modify, purse, talk, deadly weapon, trial court, approached, bodily injury or death.
porch
Criminal Law & Procedure > Appeals > Reversible Error > Jury
Instructions
Case Summary
HN2 The appellate court reviews complaints of jury charge
Overview error by first determining whether error exists. If error
HOLDINGS: [1]-In the absence of a request or objection, exists, the appellate court must determine whether the error
the trial court’s charge was adequate to authorize defendant’s caused sufficient harm to warrant reversal. When the error
was not objected to, the error must be fundamental and
conviction as a party and the court’s failure to directly apply
requires reversal only if it was so egregious and created
the law of parties to the facts was not fundamental error, and
such harm that the defendant has not had a fair and impartial
a reasonable jury would refer to the abstract definition of the
trial. Egregious harm consists of error affecting the very
law of parties without needing to have it repeated again in
basis of the case or depriving the defendant of a valuable
the application paragraph; [2]-A reasonable jury could have
right. Egregious harm exists when a defendant has suffered
concluded that defendant was acting with intent to promote
actual, rather than merely theoretical, harm from jury-charge
or assist the commission of the offense; [3]-Defendant was error. The appellate court assesses harm in light of the entire
not harmed by the charge as the State had a heavier burden jury charge, the state of the evidence (including the contested
in proving to the jury that defendant acted alone in issues and the weight of probative evidence), the arguments
committing the aggravated robbery; [4]-The judgment was of counsel, and any other relevant information revealed by
modified to reflect that defendant was convicted under the the record of the trial as a whole.
Penal Code.
Criminal Law & Procedure > ... > Jury Instructions > Particular
Outcome Instructions > Elements of Offense
2015 Tex. App. LEXIS 4530, *1
HN3 A jury charge must distinctly set forth the law Opinion
applicable to the case and set out all of the essential
elements of the offense, Tex. Code Crim. Proc. Ann. art.
36.14 (2007). The meaning of a jury instruction must be MEMORANDUM OPINION
taken from the whole charge, and jurors are not authorized Opinion by Justice Brown
to return a verdict except under those conditions given by
the application paragraph of the charge. A jury charge is Appellant Russell Starks appeals his jury conviction for
adequate if it either contains an application paragraph aggravated robbery. After finding appellant guilty, the jury
specifying all of the conditions to be met before a conviction assessed his punishment at life imprisonment and a $10,000
under such theory is authorized, or contains an application fine. On appeal, appellant raises a single point of error
paragraph authorizing a conviction under conditions complaining he was convicted on legal and factual grounds
specified by other paragraphs of the jury charge to which that were not submitted to the jury. As modified, we affirm
the application paragraph necessarily and unambiguously the trial court’s judgment. Because all dispositive issues are
refers, or contains some logically consistent combination of settled in law, we issue this memorandum opinion. TEX. R.
such paragraphs. APP. P. 47.2(a), 47.4.
Criminal Law & Procedure > Appeals > Reversible Error > Jury On January 11, 2013, complainant Theresa Zahn-Burnam
Instructions returned to her home around 8:00 p.m. As she inserted her
house key into her front door lock, a black man wearing a
HN4 The appellate court assesses harm in light of the entire gray hoodie approached her on her porch and ordered her to
jury charge, the state of the evidence (including the contested open the door. Knowing her two sons were alone inside the
issues and the weight of probative evidence), the arguments house, she dropped to the ground and curled up into a fetal
of counsel, and any other relevant information revealed by position. As she lay on the ground, she became aware that
the record of the trial as a whole. the man was holding a gun. The man holding the gun said,
″If you say a word, I will just shoot [*2] you now.″ She
Criminal Law & Procedure > ... > Jury Instructions > Particular
began to scream for help and then a second black man
Instructions > Elements of Offense
wearing a striped polo shirt approached her on the porch. At
HN5 A charge on the law of parties enlarges a defendant’s first, she thought the second man heard her screams and had
criminal responsibility. Likewise in the converse, a charge come to help her. However, when the second man
requiring the jury to find that a defendant acted alone approached the porch, he asked, ″Where is your purse?
increases the State’s burden and thus benefits the defendant. Where is your purse?″ Ms. Zahn-Burnam handed over her
purse and the two men ran away. After they were out of
Criminal Law & Procedure > Sentencing > Corrections, sight, she went inside her house, called the police and
Modifications & Reductions > Court’s Authority provided a description of the suspects.
HN6 The appellate court has the power to modify an Sergeant Rodell Byrd testified he was off duty at a local
incorrect judgment and make the record speak the truth shopping center at the time of the robbery. He received a
when it has the necessary data and information to do so, Tex. call about the robbery because he was approximately one
R. App. P. 43.2(b). The appellate court’s authority to reform block from the location. Byrd responded in his personal,
incorrect judgments is not dependent on the request of any un-marked vehicle and began searching the area for the
party, nor does it turn on a question of whether a party has suspects. He saw two males matching the provided
or has not objected in trial court; the appellate court may act description in a vehicle and called for marked patrol units to
sua sponte and may have a duty to do so. respond. He continued to follow the suspects until the patrol
units arrived. Byrd dropped back and let the patrol units
Counsel: For appellants: Kathleen Walsh, Katherine Drew, approach the vehicle. When the lights and sirens were
Lynn Richardson, Dallas, TX. activated by the police, the suspects fled at a high rate of
speed, and the officers gave chase. Byrd testified Charles
For appellees: G. Brian Garrison, Susan Hawk, Dallas, TX.
Polk was apprehended, [*3] and they found his hooded
sweatshirt in the vehicle with a cell phone, a Target receipt,
Judges: Before Justices Myers, Evans, and Brown. Opinion
and small caliber ammunition.
by Justice Brown.
Officer Jason Peacock testified he was in one of the patrol
Opinion by: ADA BROWN units that approached the suspects’ vehicle. Peacock chased
Page 2 of 5
2015 Tex. App. LEXIS 4530, *3
the vehicle until it ran across a median and became disabled. intent to promote or assist the commission of the
Peacock saw appellant, wearing a striped polo shirt, exit the offense, he solicits, encourages, directs, aids, or attempts
vehicle and run. He chased the appellant until appellant to aid the other person to commit the offense.
gave up, at which time appellant was apprehended by
...
Peacock.
Now, considering all the law contained in the court’s
The police escorted Ms. Zahn-Burnam to the location of the charge, if you find and believe from the evidence
apprehension where she was one hundred percent certain of beyond a reasonable doubt that on or about January 11,
the identification of Charles Polk. Due to the lighting in the 2013, in Dallas County, Texas, the defendant, RUSSELL
street, she was not completely certain about the identity of STARKS, did then and there intentionally and
appellant, even though he was wearing a striped polo shirt knowingly, while in the course of committing theft of
as she had described to the police during her 9-1-1 call. property and with intent to obtain and maintain control
of said property, threaten and place THERESA
Evidence was introduced of surveillance video from a local ZAHN-BURNAM, hereinafter called complainant, in
Target store that showed appellant and Polk shopping
fear of imminent bodily injury and death, and the
together approximately one hour before the robbery occurred.
defendant did then and there use or exhibit a deadly
The police department also investigated the disabled vehicle
weapon, to-wit: a firearm, you shall find the defendant
and found the owner, who reported loaning the vehicle to
guilty of aggravated robbery as charged in the
her boyfriend, who in turn loaned the vehicle to appellant on
indictment.
the night of [*4] the robbery. And finally, evidence was
introduced of appellant speaking to a third party during a The language of the application paragraph tracked [*6] the
jail telephone call when appellant stated, ″Hey, your language of the indictment. At trial, both parties stated that
girlfriend did good by reporting the vehicle stolen,″ and they had no objections to the charge.
when discussing whether or not they ″got away safe,″
appellant stated, ″It all come from him not doing what I told Appellant was charged under section 29.03, which states,
him to do, put her to sleep. It would have never happened, HN1 ″A person commits an offense if he commits robbery
all that hollering and screaming and shit wouldn’t never as defined in Section 29.02, and he . . . uses or exhibits a
happened.″ deadly weapon.″ TEX. PENAL CODE ANN. § 29.03(a) (West
2011). Section 29.02 states:
Appellant was indicted for aggravated robbery and entered
a plea of ″not guilty.″ A jury found appellant guilty of the (a) A person commits an offense if, in the course of
offense charged. Appellant entered a plea of ″not true″ to the committing theft as defined in Chapter 31 and with
enhancement paragraph alleged in the indictment. The jury intent to obtain or maintain control of the property, he:
found the allegation of a prior offense for burglary of a
habitation to be true and assessed appellant’s punishment at (1) intentionally, knowingly, or recklessly causes bodily
life imprisonment and a fine of $10,000. injury to another; or
(2) intentionally or knowingly threatens or places
In a single point of error, appellant argues the application
another in fear of imminent bodily injury or death.
paragraph failed to authorize a conviction under the law of
the parties and appellant was therefore convicted on legal
TEX. PENAL CODE ANN. § 29.02(a) (West 2011).
and factual grounds that were not submitted to the jury.
HN2 We review complaints of jury charge error by first
The jury charge read, in relevant part:
determining whether error exists. Kirsch v. State, 357
S.W.3d 645, 649 (Tex. Crim. App. 2012). If error exists, we
All persons are parties to an offense who are guilty of
must determine whether the error caused sufficient harm to
acting together in [*5] the commission of an offense. A
warrant reversal. Ngo v. State, 175 S.W.3d 738, 743-44 (Tex.
person is criminally responsible as a party to an offense
Crim. App. 2005). When, as here, the error was not objected
if the offense is committed by his own conduct, by the
to, the error must be fundamental and requires reversal
conduct of another for which he is criminally
″only if it was so egregious and created such harm that the
responsible, or by both.
defendant has not had a fair and impartial trial.″ Barrios v.
A person is criminally responsible for an offense State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (citing
committed by the conduct of another if acting with Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.
Page 3 of 5
2015 Tex. App. LEXIS 4530, *6
1985) (op. on reh’g)). Egregious harm consists of error With respect to the entire jury charge, in this case the charge
affecting the very basis of the case or depriving the contained the correct abstract definition of party liability.
defendant of [*7] a valuable right. Nava v. State, 415 S.W.3d However, the application paragraph did not explicitly apply
289, 298 (Tex. Crim. App. 2013). Egregious harm exists the abstract law of parties to the facts of the case. [*9]
when a defendant has suffered actual, rather than merely Instead, it instructed the jury should find appellant guilty if,
theoretical, harm from jury-charge error. Id. We assess harm ″considering all the law contained in the court’s charge,″
in light of ″the entire jury charge, the state of the evidence they found appellant committed the offense. The jury
(including the contested issues and the weight of probative needed only to refer to the previous section, which defined
evidence), the arguments of counsel, and any other relevant criminal responsibility as a party. In the absence of a request
information revealed by the record of the trial as a whole.″ or objection, however, the trial court’s charge was adequate
Id. to authorize appellant’s conviction as a party and the court’s
failure to directly apply the law of parties to the facts was
Appellant argues that the application paragraph in the jury
not fundamental error. Greene v. State, 240 S.W.3d 7, 15-16
charge failed to include the language for a finding of party
(Tex. App.—Austin 2007, pet. ref’d). We conclude that ″a
liability and there was no evidence that appellant ever used
reasonable jury would refer to the abstract definition of the
or exhibited a firearm in the course of the robbery. Appellant
law of parties without needing to have it repeated again in
complains he was convicted on legal and factual grounds
the application paragraph.″ Vasquez v. State, 389 S.W.3d
that were not submitted to the jury and was denied his right
361, 371 (Tex. Crim. App. 2012).
to due process. The State concedes that the trial court erred
in charging the jury but contends appellant failed to establish The next Almanza factor for this Court to consider is the
he was egregiously harmed by the error. state of the evidence. Nava, 415 S.W.3d at 298. The record
shows appellant was one of two individuals who participated
HN3 ″A jury charge must distinctly set forth the law
in the aggravated robbery. The evidence that appellant,
applicable to the case and set out all of the essential
approached Ms. Zahn-Burnam and demanded her purse,
elements of the offense.″ Martin v. State, 200 S.W.3d 635,
after Polk pointed a gun at her, was uncontroverted. Ms.
639 (Tex. Crim. App. 2006); see TEX. CODE CRIM. PROC. ANN.
Zahn-Burnam testified it was clear to her that the two men
art. 36.14 (West 2007). ″The meaning of a jury instruction
were working together. A reasonable jury certainly could
must be taken from the whole charge, and jurors are not [*8]
have concluded that appellant was ″acting with intent to
authorized to return a verdict except under those conditions
promote or assist the commission [*10] of the offense.″
given by the application paragraph of the charge.″ Delapaz
v. State, 228 S.W.3d 183, 212 (Tex. App.—Dallas 2007, pet. Lastly, we must consider the arguments of counsel, and any
ref’d). A jury charge is adequate other relevant information revealed by the record of the trial
if it either contains an application paragraph specifying as a whole. Nava, 415 S.W.3d at 298. The record shows that
all of the conditions to be met before a conviction under during voir dire, the State’s attorney stated the following:
such theory is authorized, or contains an application
paragraph authorizing a conviction under conditions Now, I want to talk to you guys about some more legal
specified by other paragraphs of the jury charge to stuff. This is called a law of parties. Now, the law of
which the application paragraph necessarily and parties has got this big mumbled legal thing again. I’m
unambiguously refers, or contains some logically going to read it to you, and talk about what it is.
consistent combination of such paragraphs. ″A person is criminally responsible for the conduct of
another, if acting with the intent to promote or assist the
Plata v. State, 926 S.W.2d 300, 304 (Tex. Crim. App. 1996),
commission of the crime. He solicits, encourages,
overruled on other grounds by Malik v. State, 953 S.W.2d
directs, aids, or attempts to aid the other person to
234, 239 (Tex. Crim. App. 1997).
commit the offense.″
Because the State concedes the trial court likely erred, we
conduct a harm analysis using the Almanza factors. Nava, And then during the State’s opening statement, the attorney
415 S.W.3d at 298. HN4 We assess harm in light of ″the elaborated,
entire jury charge, the state of the evidence (including the
contested issues and the weight of probative evidence), the After you hear all the evidence, the overwhelming
arguments of counsel, and any other relevant information evidence in this case, ladies and gentlemen, there will
revealed by the record of the trial as a whole.″ Id. be no doubt that on January 11, 2013, this defendant,
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2015 Tex. App. LEXIS 4530, *10
Mr. Russell Starks and codefendant, Charles Polk, had to satisfy a heavier burden in proving to the jury that the
committed aggravated robbery with a deadly weapon, appellant acted alone in committing the aggravated robbery.
and we would ask that you find him guilty. If anything, appellant was helped by the court’s charge. We
find the error to have been harmless.
During the trial, when the trial court asked if anyone
objected to the proposed jury charge, neither party had any However, we do take a sua sponte action in regard to this
objections. And then [*11] during the closing argument, the case. The judgment incorrectly states that appellant was
State argued: convicted under the ″Statute for Offense: 29.03 Tax Code.″
HN6 This Court has the power to modify an incorrect
I want to talk to you also about the law of parties, judgment and make the record speak the [*13] truth when
something that we talked about earlier. We talked about we have the necessary data and information to do so. TEX. R.
the law of parties. And so I just want to highlight for APP. P. 43.2(b); see Woods v. State, 398 S.W.3d 396, 406
you why both of the people on that front porch was [sic] (Tex. App.—Dallas 2013, pet. ref’d). ″Our authority to
responsible for the aggravated robbery. We obviously reform incorrect judgments is not dependent on the request
know that one person had the gun. And that person was of any party, nor does it turn on a question of whether a
identified immediately. That person had the gun and he party has or has not objected in trial court; we may act sua
had it out so that she could see it. He had the gun and sponte and may have a duty to do so.″ Woods, 398 S.W.3d at
he pointed it, but he also had it down. But it was visible 406 (citing Asberry v. State, 813 S.W.2d 526, 531 (Tex.
the entire time. Remember we talked about using or App.—Dallas 1991, pet. ref’d)). The record shows appellant
exhibiting that deadly weapon. That gun was the was convicted for aggravated robbery with a deadly weapon
enforcement. That gun was letting them do whatever under section 29.03 of the ″Penal″ Code and not the ″Tax″
they wanted to do on that porch, including having Mr. Code. Accordingly, we modify the trial court’s judgment to
Starks come up and take her purse. And he didn’t have remove ″Tax Code″ as ″Statute for Offense″ and in its place
to grab it from her because that enforcer was there. All to reflect ″Penal Code″ as ″Statute for Offense.″
he had to do was ask and she gave it to him. Both of
In conclusion, we modify the trial court’s judgment to
those people had a plan. And she knew that they were
reflect appellant was convicted under the Penal Code. As
together once they came up and said, give me your
modified, we affirm the trial court’s judgment.
purse. So they are both guilty of aggravated robbery.
/Ada Brown/
After a careful review of the entire record, ″it is
inconceivable to us how the jury could have been misled by ADA BROWN
the court’s charge.″ [*12] Watson v. State, 693 S.W.2d 938,
JUSTICE
940 (Tex. Crim. App. 1985) (jury application paragraph that
authorized conviction if the jury found that the defendant DO NOT PUBLISH
″acting either alone or as a party to the offense″ committed
burglary was harmless under Almanza analysis when there TEX. R. APP. P. 47.2(b).
was no evidence to support conviction as a principal; jury
must have found defendant guilty as a party). JUDGMENT
Further, we are unable to determine how appellant was Based on the Court’s opinion of this date, the judgment of
harmed by the charge. The Court of Criminal Appeals has the trial court is MODIFIED as follows:
explained, HN5 ″A charge on the law of parties enlarges a
Tax Code will be removed as the Statute for Offense
defendant’s criminal responsibility. Romo v. State, 568
and Penal Code will be replaced in its stead.
S.W.2d 298 (Tex. Crim. App. 1978) (op. on reh’g). Likewise
in the converse, a charge requiring the jury to find that a
As REFORMED, the judgment is AFFIRMED.
defendant acted alone increases the State’s burden and thus
benefits the defendant. Watson v. State, 693 S.W.2d 938, 942 Judgment entered this 1st day of May, 2015.
(Tex. Crim. App. 1985). Similar to Watson, here the State
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