Horn v. State

DUNN, Justice,

concurring.

I abhor having to reverse this case. Although the jury found that appellant had committed aggravated robbery, the application paragraph of the charge did not charge the jury on the law of parties. It charged appellant as the primary actor. Inasmuch as the evidence supports the fact that appellant did not personally use or exhibit the weapon, and this being an element of the offense of aggravated robbery, we are unable to find that the evidence is sufficient to support appellant’s conviction for aggravated robbery.

The prosecutor did not object to the charge nor did he ask the court to include the law of parties in the application paragraph. Nevertheless, he argued the law of parties to the jury. If he had requested that the application paragraph contain the law of parties, the evidence would have been sufficient to support a conviction under the law of parties. However, we are constrained to follow the Court of Criminal Appeals and acquit appellant according to Jones v. State, 815 S.W.2d 667, 671 (Tex.Crim.App.1991). Until the Court of Criminal Appeals chooses to address the issue otherwise, as an intermediate court, we can do no other than follow the higher court’s dictates.