Calamaco v. State , 1983 Tex. App. LEXIS 4270 ( 1983 )

TIJERINA, Justice,

dissenting.

I dissent. Appellant’s ground of error number one contends the trial court erroneously denied his written objection to the court’s charge on the law of parties. Because I believe this question disposes of the entire appeal, the pertinent parts of the charge are set out.

The definitional portion of the charge defines and sets out the essential elements of the law of parties as follows:

Our law provides a person is criminally responsible as a party to an offense if the offense is committed by his own conduct, or by the conduct of another for which he is criminally responsible, or by both. Each party to an offense may be charged with commission of the offense.

Mere presence alone will not make a person a party to an offense. 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, directs, aids or attempts to aid the other person to commit the offense.

In applying the law to the facts, the court charged,

Therefore, if you believe from the evidence beyond a reasonable doubt that the defendant, Carlos Calamaco, did, either acting alone or together with another as a party, in Bexar County, Texas, on or about the 8th day of February A.D., 1980, intentionally or knowingly cause the death of an individual, to wit: David Valdez, by shooting the said David Valdez with a gun, you will find the defendant guilty of the offense of murder as alleged in the indictment in Cause No. 80-CR-0984-B. If you do not so believe, or if you have a reasonable doubt thereof, you will find the defendant not guilty. (Emphasis added.)

Appellant contends that the court failed to properly apply the law to the facts and that the omission in the charge of the essential elements of the law of parties was funda-' mental error. Appellant filed written objections to the court’s charge on the issue of parties and again challenged that submission in his motion for new trial.

Tex.Penal Code Ann. art. 7.02(a)(2) (Vernon 1974) states:

(A) A person is criminally responsible for an offense committed by the conduct of another if:

(2) Acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids or attempts to aid the other person to commit the offense.

It is apparent that the trial court, in applying the law to the facts, failed to include the essential elements of the law of parties. The jury was not instructed to find that appellant was criminally responsible for the act of another if, acting with intent to promote or assist in the commission of the offense, he solicited, encouraged, directed, aided or attempted to aid the other person to commit the offense. See 1 Branch’s Texas Annotated Penal Statutes 257 (3d ed. 1974). The essential elements prescribed by Tex.Penal Code Ann. art. 7.02(a)(2) (Vernon 1974) establish the criminal responsibility for conduct as a party. A submission incorporating these elements would have shown the jury in an understandable way precisely what facts they had to find in order to be authorized to sustain the State’s theory of defendant’s guilt as a party. See Foreman & Jones, Submitting the Law of Parties in a Texas Criminal Prosecution, 33 Baylor L.Rev. 267, 270 (1981). It appears that the court’s charge failed to focus the jury’s deliberation on the essential elements of the law of parties. “[I]f the evidence introduced upon the trial of the case shows, or raises an issue, that the conduct of the defendant then upon trial is not sufficient, in and of itself, to sustain a conviction, the State’s case rests upon the law of principals and is dependent, at least in part, upon the conduct of another. In such a case, the law of principals must be submitted and made applicable to the facts of the case.” McCuin v. State, 505 S.W.2d 827, 830 (Tex.Cr.App.1974). (Emphasis added).

A jury charge is fundamentally defective if it omits an essential element of the offense. See Cumbie v. State, 578 S.W.2d 732 (Tex.Cr.App.1979); Bradley v. State, 560 S.W.2d 650 (Tex.Cr.App.1978). This case, however, is controlled by the authoritative opinion in Doyle v. State, 631 S.W.2d 732 (Tex.Cr.App.1982). “We believe that it logically follows that when a trial court omits from the application paragraph of the charge required elements of an offense, this also will render a conviction fatally defective. To rule otherwise, we believe, would permit and allow our trial courts to state in a jury charge abstract definitions of legal terms and principles of law, without the necessity of applying those principles and terms to the very facts of the case ... abstract definitions of legal terms ... in a jury charge ... are like words found in a dictionary. They are useless unless correctly used in a sentence.” Id. at 735. The Court further stated the general rule that a charge should be read as a whole did apply, but stated, “[t]he general rule is not applicable, however, when an entire element of the offense is omitted from the application paragraph.” Id. at 738. Cf. Antunez v. State, 647 S.W.2d 649 (Tex.Cr.App.1983) (court’s charge on robbery left jury to speculate about which acts on part of defendant would constitute robbery).

I would hold that the omission of the essential elements of the law of parties in the application of the law to facts paragraph of the jury charge was fundamental error and that the failure of the trial court to apply the law to the facts denied appellant a fair and impartial trial. The judgment should be reversed.