Anibal Vasquez v. State ( 2011 )

Reversed and Remanded; Majority and Dissenting Opinions of February 15, 2011, Withdrawn and Substitute Majority and Dissenting Opinions filed May 5, 2011.

In The

Fourteenth Court of Appeals

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NO. 14-09-00704-CR

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Anibal Vasquez, Appellant

V.

State of Texas, Appellee

On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Cause No. 50647

SUBSTITUTE DISSENTING OPINION

A jury found appellant, Anibal Vasquez, guilty of aggravated robbery and assessed nineteen years’ confinement in the Texas Department of Criminal Justice, Institutional Division as punishment.  See Tex. Penal Code Ann. § 29.03(a)(2) (West 2010).  Appellant challenged the factual sufficiency of his conviction and the propriety of the jury charge regarding the law of parties.  The majority affirmed the sufficiency of the conviction, but reversed on the basis of the jury charge.  I agree with the majority position on the sufficiency challenge, but dissent today because I believe that the appellant did not properly object to the jury charge, thus waiving the issue on appeal.

I. Did the Trial Court Commit Error in Creation of the Jury Charge?

Appellant contends the trial court erred because it did not properly instruct the jury on the law of parties in the factual application paragraph of the jury charge.

A.     Standard of Review

Jury charge error is reviewed under a two step process.  See Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986).  First this court must decide if there is error in the charge.  Id.  If there is error, we must then decide if there is sufficient harm to the defendant to justify a reversal of the conviction.  Id.

Error in jury instructions occurs if the trial judge fails to create a “written charge distinctly setting forth the law applicable to the case.”  Tex. Code Crim. P. art. 36.05 (West 2010).  In cases when an instruction on the law of parties is warranted, the trial judge must instruct the jury on the law of parties in the abstract portion of the charge.  Campbell v. State, 910 S.W.2d 475, 477 (Tex. Crim. App. 1995).  In addition, the trial judge must also apply the law of parties in the application paragraph.  Id.  In the absence of a defendant’s objection, instructions are sufficient if they instruct the jury on the law of parties in the abstract paragraph and then incorporate those instructions by reference in the application paragraph by stating the jury can convict if the defendant acted “alone or as a party.”[1]  Id.  “If a defendant desires a more explicit application of a particular method of acting as a party, it is his burden to request such or object to the charge.”  Chatman v. State, 846 S.W.2d 329, 332 (Tex. Crim. App. 1993). 

B.      Did the Jury Charge Contain Errors?

Appellant’s only claim is that the trial judge erred because the charge did not apply the law of parties directly to the facts in the application portion of the jury charge.  (AB 20)  Consequently, we must now consider the jury charge.  The abstract paragraph described the law of parties.  (CR 20) The application paragraph followed immediately after the abstract paragraph. It reads:

Now bearing in mind the foregoing instructions, if you find from the evidence beyond a reasonable doubt, that on or about November 14th, 2008, in Fort Bend County, Texas, the defendant, Anibal Vasquez, acting alone or as a party (as herein defined), while in the course of committing theft of property owned by Jenny Funez-Guevara, and with the intent to obtain or maintain control of the property, intentionally or knowingly threatened or placed Jenny Funez-Guevara in fear of imminent bodily injury or death, and the defendant did then and there use or exhibit a deadly weapon, to wit: a firearm, then you will find the defendant “Guilty” of the charge of Aggravated Robbery as alleged in the indictment. (CR 20) (emphasis added)

This language falls within the definition of the “alone or as a party” language approved by the Texas Court of Criminal Appeals.  Marvis v. State, 36 S.W.3d 878, 880 (Tex. Crim. App. 2001); Campbell, 910 S.W.2d at 477. Thus, the jury charge is sufficient unless there is an adequate objection to it.  If there is an adequate objection, we must then consider whether the error created “some harm” to the defendant.  Almanza v. State, 686 S.W.2d 157, 172 (Tex. Crim. App. 1985). 

C.     Did Appellant Properly Object to the Jury Charge?

An objection to a jury charge must either be in writing or on the court’s record.  Tex. Code Crim. P. art. 36.14 (West 2010). The objection should distinctly specify each ground of objection.  Id. 

Appellant did not submit a written objection or proposed instruction to be included in the jury charge.  (RR4, 70)  Thus, we must decide if the oral objection on the record is sufficient.  Appellant’s counsel stated,

I believe — Paragraph Four, I believe the correct application is, first of all, they just have as defined.  I believe the proper one is either the defendant while in the course of committing theft of property, and then or that Alexis Martinez did intentionally and knowingly while in the course of committing theft of property, and that the defendant participating with the intent to promote, assist, acting — whatever that language is in there — did aid, assist, etcetera . . . I’ve always seen them where the defendant intentionally and knowingly and the defendant did act — (RR4, 70)

The trial court overruled this objection without stating a reason and requested a written submission, which the appellant did not present.  (RR4, 71)  The majority contends appellant’s oral statement is sufficient to create an objection requiring an instruction applying the law of parties in the application paragraph.  The majority states that appellant “noted that the application paragraph referred to the general statement of the law of parties in the abstract portion of the jury charge” and requested a law of parties instruction in the application paragraph.  The majority claims to understand the appellant’s request, but I cannot see how without making many assumptions.  There is no reference to the law of parties, nor is there a clear statement of what the appellant requested.  Appellant is required to provide a “clear objection or request,” and failed to do so.  Tex. Code Crim. P. art. 36.14 (West 2010).  For that reason, I conclude that appellant did not make a request for a jury instruction on the law of parties in the application paragraph.[2]

The majority relies on three cases in making their argument.  I think this reliance is in error.  In two of these cases, the trial court did not give any instruction on the law of parties at all, and for that reason the jury instructions were overturned.  Johnson v. State, 739 S.W.2d 299, 300 (Tex. Crim. App. 1987); Ruiz v. State, 766 S.W.2d 324, 326 (Tex. App.—Houston [14th Dist.] 1989, no pet.).  In the third case, the defendant made a far more explicit objection regarding the law of parties and application to the facts, which was overruled by the trial court.[3]  Black v. State, 723 S.W.3d 674, 674-75 (Tex. Crim. App. 1986).  These cases are qualitatively different from the instant case — two received no jury charge on the law of parties, which is not the case here, and the third specifically requested an application of law of parties to the specific facts of the case. 

Even more importantly, this court is bound by its own precedent.  This court addressed a similar situation in Villareal v. State, 116 S.W.3d 74 (Tex. App.—Houston [14th Dist.] 2001, no pet.).  In that case, Villareal argued that the trial court had failed to apply the law of parties to the facts in the jury instructions, stating “I’m asking that the application paragraph, as far as my client is concerned, be more specific to the facts that have been alleged-or evidence that has been presented as it relates to the indictment.”[4] Id. at 82.  Villareal’s objection was not precise, but did manage to state that Villareal wanted the charge to “be more specific to the facts that have been alleged.”  Id. at 82.   This court found there was not a clear objection or request, and thus the issue was not preserved at trial.  Id.; Tex. R. App. P. 33.1(a).  Despite the majority’s attempts to distinguish this case, it remains on point to appellant’s issue; we are bound by our precedent to follow Villareal.

I believe Villareal’s articulation was more clear and distinctly specified than appellant’s statement.  In Villareal, there was an indication the appellant was requesting a law of parties instruction.  Villareal, 116 S.W.3d at 83.  In this case, the appellant never mentioned the law of parties, nor did he articulate any clear statement of what changes he requested. Tex. Code Crim. P. art. 36.14.  I further note that the majority’s decision is at odds with our legislative mandate.  The legislature has informed us that it is the parties’ burden to state grounds to the trial court “with sufficient specificity to make the trial court aware of the complaint” or waive the issue on appeal.  Tex. R. App. P. 33.1(a)(1)(A).  It appears from this decision that as long as some objection to a jury charge is made, regardless of how unclear or imprecisely made to the trial court, we intend to entertain the issue on the merits.  See id.

Therefore, I would rule that the error is not preserved and thus the issue is waived on appeal.  Tex. R. App. P. 33.1(a), Campbell, 910 S.W.2d at 477. 

                                                                        /s/        John S. Anderson

                                                                                    Justice

Panel consists of Justices Anderson, Frost, and Seymore. (Frost, J., majority).

Publish — Tex. R. App. P. 47.2(b).

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[1] “A perfect charge is not necessary . . . as long as the charge adequately applies the law of parties to the facts.”  Ramirez v. State, No. 14-02-00321-CR, 2003 WL 548600, at *2 (Tex. App.—Houston [14th Dist.] Feb. 27, 2003, no pet.) (mem. op. not designated for publication). 

[2] I note the majority’s discussion of the evolution of the rules regarding law of parties.  I believe appellant failed to make a request for a more specific instruction on the law of parties.  Consequently, I express no opinion on the majority’s interpretation of case law.

[3] The defendant in that case specifically stated “The defendant objects in that the Court’s charge fails to apply the law to the specific facts as the definitions pertaining to ‘knowing possession,’ the definition of ‘possession’ itself, as to the circumstantial evidence definition, as to the law of parties, and as to the ‘mere presence’ law.”  Black, 723 S.W.3d at 674-75. 

[4] Villareal’s counsel stated, “On the charge on the parties, we would ask that it be more specifically affixed to the facts; and we would object to it as it is stated in the — . . . What I’m saying, Your Honor, is simply that the charge that I got today is the first time that the charge had law of parties on it . . . I’m merely objecting to the Court’s charge as it is stated.  And I’m asking that the application paragraph, as far as my client is concerned, be more specific to the facts that have been alleged-or evidence that has been presented as it relates to the indictment . . . We’re going to object to the-to the name of Officer Fernando Salvadar being part of the charge as far as parties is concerned . . . [because he was] [n]ot charged or indicted.”  Villareal at 82-83.