Green, Adrien Dewayne v. State

Reversed and Remanded and Majority and Dissenting Opinions filed July

24, 2007

Reversed and

Remanded and Majority and

Dissenting Opinions filed July 24, 2007.

In The

Fourteenth Court of

Appeals

____________

NO. 14-06-00154-CR

____________

ADRIAN DEWAYNE GREEN , Appellant

V.

THE STATE OF TEXAS , Appellee

On Appeal from the 185th

District Court

Harris County, Texas

Trial Court Cause No. 1021417

M A J O R I T Y O P I N I O N

Appellant Adrian Dewayne Green was convicted by a jury of

murder and his punishment assessed at fifty years = confinement in

the Texas Department of Criminal Justice, Institutional Division, and a $10,000

fine. On appeal, appellant complains of errors in the court = s charge and its

instructions to the jury. Because we find reversible error in the jury charge,

we reverse and remand for a new trial.

I. Factual

and Procedural Background

Appellant and his younger brother, Jermarxian Deandre

Green, were each charged by indictment with the murder of Quinton Kelegon, the

complainant. The two were tried together as co-defendants before the same

jury. The jury found appellant guilty of murder and found Jermarxian guilty of

manslaughter. [1]

A. The

Evidence Presented at Trial

Some time before 2:00 a.m. on March 13, 2005, Kelegon and

three friends, Desonyeigh Dwayne Hooper, Lebroderick Williams, and Christopher

Pope, decided to go to Carrington = s, a nightclub

located in a strip mall on South Main inside Loop 610. They arrived near

closing time in Hooper = s vehicle, a 1990 Chevrolet Caprice

Classic, and parked in the parking lot Carrington = s shares with

other businesses. The group did not go inside Carrington = s, but instead

walked around the parking lot socializing and looking at girls.

Also parked in the same parking lot was an orange or

tangerine colored, customized Ford Expedition owned by appellant. [2]

Appellant, a local rapper, and his younger brother, Jermarxian Deandre Green,

were promoting appellant = s music CDs from the Expedition.

Eventually, as people began leaving the club, Kelegon and

his friends decided to leave the parking lot. Hooper was driving the Caprice

and Kelegon sat in the front passenger seat. Williams and Pope were seated in

the back, with Pope behind Hooper and Williams behind Kelegon.

At this point, the facts developed at trial by the State = s witnesses

Hooper, Williams, and Pope differ in various details and diverge significantly

from those of the defense. The State = s witnesses

testified generally that after they left the club = s parking lot they

stopped at a red light at South Main and Westridge. At that time, they were

playing music in the Caprice from a CD entitled A Tha Boss, @ by rapper Slim

Thug. Thug = s music talked A about rappers @ and some of it

included A very unflattering @ and A negative @ references to

appellant = s rap music.

Appellant, driving the Expedition, with his brother

Jermarxian as passenger, pulled up on the passenger side of the Caprice.

According to the State = s witnesses, appellant could hear the

music and became angry, and he and Kelegon, in the front passenger seat of the

Caprice, exchanged words. Appellant appeared A riled up, @ and A very angry @ toward Kelegon

and Hooper, the driver. Pope testified that appellant said to Kelegon, A Do you know me? = and Kelegon

responded with A No, I don = t know you. Do

you know me?, @ which they repeated back and forth several times. [3]

When Kelegon saw appellant displaying an unloaded semiautomatic pistol, he told

Hooper that appellant had a gun and said, A [L]et = s go. Dude got a

pistol, he show it on the steering wheel, let = s go. @ At the next red

light, the Expedition pulled up next to the group on the driver = s side of the

Caprice, and Hooper saw Jermarxian Green in the passenger seat A bent down low @ and A looking like he

was loading a pistol. @ Hooper ran the red light, and he heard a

shot fired. Hooper, Williams, and Pope all testified that no firearms were in

or fired from the Caprice. [4]

Hooper drove onto the 610 freeway heading north. The Expedition

followed, pulled up alongside the passenger side of the Caprice, and several

shots were fired at the Caprice. A bullet grazed Kelegon = s leg, and he

exclaimed, A My leg is burning; it = s shot. This dude

shot me. @ Then, as the two

cars sped along the freeway, the Expedition pulled up toward the driver = s side of the Caprice,

and more shots were fired. One of the bullets shattered the driver = s side rear door

window of the Caprice and hit Kelegon in the side of the head. Hooper exited

the 610 Loop at Evergreen, and drove Kelegon to a hospital, where Kelegon later

died.

The hospital contacted the Houston Police Department, and

Officer A.G. Riddle of the Homicide division and several others investigated

the incident. Riddle examined the Caprice and determined that there were seven

fresh gunshot strikes in the vehicle, including four to the passenger side and

three to the driver = s side of the vehicle. He also determined

that all of the shots were fired at angles from the rear of the vehicle toward

the front. Riddle found no evidence indicating a firearm had been fired from

inside the Caprice. The police attempted to locate, but never found, the

Expedition.

An autopsy was performed on Kelegon = s body by Dr. Morna

Gonsoulin, an assistant medical examiner with the Harris County Medical

Examiner = s Office.

Gonsoulin determined that the cause of Kelegon = s death was a

gunshot wound to the head. The bullet entered behind and slightly above the

left ear, and exited on the right side of the temple. The bullet traveled from

left to right, slightly back to front, and slightly downward. [5]

She also found a superficial abrasion on Kelegon = s right leg.

Gonsoulin testified that Kelegon was pronounced dead at 1:30 p.m. on March 13,

2005.

Herbert Thompson, Jr., a friend of Jermarxian Green who was

called by the State, testified that he saw Jermarxian some time after the

incident and spoke to him about it. Thompson testified that Jermarxian told

him that he and appellant had been to Carrington = s that night and

that they were in the Expedition when the shooting occurred. Thompson could

not remember whether the reason Jermarxian gave for the incident was that he

and his brother were being robbed or whether it was that they were being

carjacked. Thompson testified that Jermarxian believed he had fired the fatal

shot, and appeared remorseful.

Appellant did not testify at trial, but Jermarxian

testified in his defense. Jermarxian = s version of

events differed significantly from those of the other witnesses to the

incident, particularly concerning who were the aggressors. Jermarxian was with

appellant, his older brother, on March 13, 2005, to help appellant promote his

CD. Appellant was a local celebrity and owned the Expedition. Appellant drove

the Expedition that night.

When Jermarxian and appellant got to the traffic light at

South Main and Westridge, the Caprice pulled up to the driver = s side of the

Expedition and Kelegon twice said to appellant, A Do you know me?, @ and appellant

responded, A I don = t know you. @ Kelegon then said,

A Well, you know

what time it is, @ but appellant did not say anything in

response. As they were still waiting at the light, Kelegon then got out of the

Caprice, and Jermarxian saw that Kelegon had a gun. Jermarxian interpreted

Kelegon = s statements and

actions to mean that the occupants of the Caprice were attempting to carjack

them. Appellant then sped towards the 610 Freeway, but the Caprice caught up

to the Expedition. Appellant told Jermarxian to hand appellant his gun, which

appellant said was in the console of the Expedition. Jermarxian handed the gun

to appellant, who told Jermarxian to get down.

As the Caprice pulled up to the Expedition, appellant began

shooting. Then, as the Caprice came around to the passenger side of the

Expedition, Jermarxian told appellant to give him the gun. Jermarxian shot

twice at the Caprice, not aiming at anyone or intending to kill anyone, but

just A to get those guys

off of us. @ He saw one of the bullets shatter the back driver = s side rear

window. Jermarxian believed that this shot killed Kelegon.

Jermarxian admitted that four people rode in the Caprice

because he could see them. He acknowledged that firing a loaded weapon at a car

full of people was an act clearly dangerous to human life. Although Jermarxian

acknowledged that seven bullet holes were found in the Caprice, he claimed he

had done nothing wrong because Kelegon and the others were trying to rob him

and he was trying to protect himself. He agreed that the forensic testimony

showed the bullets traveled from the rear of the Caprice toward the front, but

he would not agree that he and appellant were behind the Caprice when the shots

were fired into it. Instead, he claimed he shot twice when the Caprice pulled

alongside the Expedition and was dead even with it. After the incident, he

inspected the Expedition and found no bullet holes.

B. The Court = s Charge at the

Guilt-Innocence Stage

Appellant = s complaints only concern the charge. As

a result, we will review it in detail.

The indictment in relevant part alleged in separate

paragraphs that appellant (1) intentionally and knowingly caused the

complainant = s death by shooting him with a deadly weapon, namely a

firearm, and (2) intended to cause serious bodily injury to the complainant and

caused his death by intentionally and knowingly committing an act clearly

dangerous to human life by shooting him with a deadly weapon, namely a

firearm. See Tex. Penal Code

'' 19.02(b)(1) &

19.02(b)(2). The trial court conducted a charge conference at the conclusion

of the evidence at the guilt-innocence stage of the trial. Appellant = s trial counsel

objected to the charge only on the basis that it did not include the offense of

manslaughter as a lesser-included offense of murder. The trial court agreed to

include this instruction in the charge.

As finalized, the charge included several standard

definitions and instructions to the jury, including the following instructions

on the law of parties:

All persons are parties to an offense who are guilty

of acting together in the commission of the 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, directs, aids, or attempts to aid the other person to

commit the offense. Mere presence alone will not constitute one a party to an

offense.

These

instructions are consistent with the language of sections 7.01(a)(1) and

7.02(a)(2) of the Penal Code addressing parties to an offense.

However, in the application paragraphs, which immediately

followed the above instructions on the law of parties, the trial court

submitted the offense of murder to the jury as follows:

Now, if you find from the evidence beyond a

reasonable doubt that on or about the 13th day of March, 2005, in Harris

County, Texas, the defendant, Adrian Dewayne Green, did then and there

unlawfully, intentionally or knowingly cause the death of Quinton Kelegon, by

shooting Quinton Kelegon with a deadly weapon, namely, a firearm; or if you

find from the evidence beyond a reasonable doubt that on or about the 13th day

of March, 2005, in Harris County, Texas, Jermarxian Deandre Green, did then and

there unlawfully, intentionally or knowingly cause the death of Quinton

Kelegon, by shooting Quinton Kelegon with a deadly weapon, namely, a firearm;

or

If you find from

the evidence beyond a reasonable doubt that on or about the 13th day of March,

2005, in Harris County, Texas, the defendant, Adrian Dewayne Green, did then

and there unlawfully intend to cause serious bodily injury to Quinton Kelegon,

and did cause the death of Quinton Kelegon by intentionally or knowingly

committing an act clearly dangerous to human life, namely by shooting Quinton

Kelegon with a deadly weapon, namely, a firearm; or if you find from the

evidence beyond a reasonable doubt that on or about the 13th day of march 2005,

in Harris County, Texas, Jermarxian Deandre Green, did then and there

unlawfully intend to cause serious bodily injury to Quinton Kelegon, and did

cause the death of Quinton Kelegon by intentionally or knowingly committing an

act clearly dangerous to human life, namely by shooting Quinton Kelegon with a

deadly weapon, namely, a firearm, and that the defendant, Adrian Dewayne Green,

with the intent to promote or assist the commission of the offense, if any,

solicited, encouraged, directed, aided or attempted to aid Jermarxian Deandre

Green to commit the offense, if he did, then you will find the defendant guilty

of murder, as charged in the indictment.

Following

these application paragraphs, the charge provided the following:

You are further

instructed that before a person can be guilty of murder he must have

intentionally or knowingly caused the death, or he must have intended to cause

serious bodily injury and have intentionally or knowingly committed an act

clearly dangerous to human life that caused the death of the deceased. Unless

you find beyond a reasonable doubt that the defendant is guilty of murder, or

if you have a reasonable doubt thereof, you will acquit the defendant of

murder and next consider whether the defendant is guilty of manslaughter.

The

jury was also charged on manslaughter, both as a principal and as a party, and

on self-defense. The jury returned a general verdict finding appellant guilty

of murder.

II. Analysis

of Appellant = s Issues

A. Appellant = s Issues

Appellant does not challenge the legal or factual

sufficiency of the evidence supporting his conviction; all of his issues are

directed to the trial court = s charge as submitted to the jury. As

briefed, appellant contends the trial court reversibly erred by (1) submitting

the question of his criminal liability for murder as a principal on

insufficient evidence; (2) allowing the jury to convict him for the murder

committed by his brother, Jermarxian Deandre Green; (3) failing to instruct the

jury that it must agree on the specific criminal conduct appellant committed

that justified a guilty verdict of murder; and (4) failing to instruct the jury

that it must agree on the predicate offense of Jermarxian Green that justified

finding appellant a party to his crime.

B. Standard of

Review

In reviewing jury charge error, we undertake a two‑step

process. See Hutch v. State , 922 S.W.2d 166 , 170 B 71 (Tex. Crim.

App. 1996). First, we must determine whether error exists in the charge. See

id. at 171 . Second, we review the record to determine whether sufficient

harm was caused by the error to require reversal of the conviction. See id.

The degree of harm necessary for reversal depends on whether

the error was preserved. Id. An error properly preserved by an

objection must be reversed unless it is harmless. Almanza v. State , 686

S.W.2d 157, 171 (Tex. Crim. App. 1984). However, when the charging error is

not preserved, reversal is not required unless the harm is egregious. Id.

In determining whether error is egregious, we consider the

following factors: (1) the entirety of the jury charge; (2) the state of the

evidence; (3) the arguments of counsel; and (4) any other relevant information

revealed by the trial record as a whole. See Sanchez v. State , 209

S.W.3d 117, 121 (Tex. Crim. App. 2006); Almanza , 686 S.W.2d at 171 .

Errors which result in egregious harm are those which affect the very basis of

the case, deprive the defendant of a valuable right, or vitally affect a

defense theory. Sanchez , 209 S.W.3d at 121 ; Almanza , 686 S.W.2d

at 172 . In other words, the error must have been so harmful that the defendant

was effectively denied a fair and impartial trial. See Almanza ,

686 S.W.2d at 172 . Egregious harm is a difficult standard to prove and must be

determined on a case‑by‑case basis. See Hutch , 922 S.W.2d

at 171 .

C. The Trial

Court Reversibly Erred by Instructing the Jury that It Could Convict Appellant

of Murder If It Found that Appellant = s Brother Committed

Murder.

We begin with appellant = s second issue

because that issue disposes of the appeal. In his second issue, appellant

contends the trial court reversibly erred by instructing the jury that it could

find appellant guilty of murder if it found beyond a reasonable doubt

that A Jermarxian Deandre

Green [] did then and there unlawfully, intentionally or knowingly cause the

death of Quenton Kelgon with a deadly weapon, namely a firearm. @ (emphasis added)

Appellant contends that this language, lacking the party language that usually

accompanies this type of instruction, charged the jury that it could convict

appellant of murder if it found that his brother committed murder. Among other

things, appellant contends this portion of the charge allowed him to be

convicted for conduct that is not an offense and without requiring the jury to

find the elements of party responsibility. We agree. We also find that the

error caused appellant egregious harm.

1. The Charge

Error

The charge as submitted authorized the jury to convict

appellant of murder if it found beyond a reasonable doubt that

$

Adrian Dewayne

Green, did then and there unlawfully, intentionally or knowingly cause the

death of Quinton Kelegon, by shooting Quinton Kelegon with a deadly weapon,

namely, a firearm; or

$

Jermarxian

Deandre Green, did then and there unlawfully, intentionally or knowingly cause

the death of Quinton Kelegon, by shooting Quinton Kelegon with a deadly weapon,

namely, a firearm ;

or

$

Adrian Dewayne

Green, did then and there unlawfully intend to cause serious bodily injury to

Quinton Kelegon, and did cause the death of Quinton Kelegon by intentionally or

knowingly committing an act clearly dangerous to human life, namely by shooting

Quinton Kelegon with a deadly weapon, namely, a firearm; or

$

Jermarxian

Deandre Green, did then and there unlawfully intend to cause serious bodily

injury to Quinton Kelegon, and did cause the death of Quinton Kelegon by

intentionally or knowingly committing an act clearly dangerous to human life,

namely by shooting Quinton Kelegon with a deadly weapon, namely, a firearm, and

that the defendant, Adrian Dewayne Green, with the intent to promote or assist

the commission of the offense, if any, solicited, encouraged, directed, aided

or attempted to aid Jermarxian Deandre Green to commit the offense.

The

instruction italicized above was intended to offer the jury the option of

convicting appellant of murder as a party, but the party language was omitted

from that particular instruction (although it was included in the serious

bodily injury instruction). Consequently, the jury was not instructed that, to

find appellant guilty as a party to the murder Jermarxian committed, it had to

find that appellant A with the intent to promote or assist @ in the commission

of the offense, A solicited, encouraged, directed, aided or

attempted to aid @ Jermarxian in committing murder. See

Tex. Penal Code ' 7.02(a)(2). [6]

Thus, as the charge was presented, appellant could be found guilty of murder

based solely on his brother = s conduct. Because the charge is the

instrument by which the jury convicts, the charge must contain an accurate

statement of the law and must set out all the essential elements of the

offense. Dinkins v. State , 894 S.W.2d 330, 339 (Tex. Crim. App. 1995).

A jury charge is fundamentally defective if it omits an essential element of

the offense or authorizes conviction on a set of facts that do not constitute

an offense. Zuckerman v. State , 591 SW.2d 495, 496 (Tex. Crim. App.

1979).

This case is like Zuckerman v. State , in which

separately-indicted codefendants were tried together for the offense of

burglary of a habitation. See id. at 496 . The charge authorized the

jury to convict the appellant for burglary if it found that his co-defendant

was the guilty party, without a finding that the appellant was guilty as a

party to the offense. Id. As the Court explained:

It is essential to

a conviction for any offense that the accused be criminally responsible either

because it is committed by his own conduct or by the conduct of another for

whom he is criminally responsible. . . . In this case the jury was authorized

to convict appellant on a finding that his co-defendant committed the offense,

without a finding that appellant personally committed the offense, or that he

was criminally responsible for the acts of his co-defendant. It thus

authorized conviction on a set of facts that would not constitute an offense for

which he was criminally responsible. As such, the jury charge is fundamentally

defective.

Id. Similarly, the

jury here was authorized to convict appellant of a murder committed by someone

else without a finding that he was guilty as a party to the offense. That was

error. See id .

The State concedes only that the charge A could have been

better worded, @ and argues that when read as a whole the charge A conveys the

message @ that the jury

must apply the law of parties before it would be authorized to convict

appellant for the offense of murder as a party to Jermarxian Green = s conduct. For

this proposition, the State relies on Reyes v. State , 741 S.W.2d 414

(Tex. Crim. App. 1987).

However, Reyes is distinguishable. There, the

defendant contended the trial court erred in refusing to include a requested charge

applying the law of parties to the facts of the case. Id. at 423 B 24. Although the

application paragraph of the court = s charge did not

include a parties instruction, the charge did include, at the defendant = s request, an

abstract instruction on the law of parties that also applied the law to the

facts of the case. Id. at 423 . Based on this, the Court of Criminal

Appeals held that, when read as a whole, the trial court = s instructions A encompass[ed] the

substance @ of the defendant = s request and was

therefore sufficient to charge the jury on the law of parties and apply the law

to the facts. Id. at 424 .

This charge does not do that. This charge contains an

abstract instruction on the law of parties, but does not contain any

instruction applying this law to Jermarxian = s conduct in the

complained-of paragraph. Thus, unlike the Reyes jury, this jury was

given no guidance whatsoever concerning how it should apply the law of parties

to Jermarxian = s conduct. This was error. But before we can

reverse, we must determine if the error caused appellant egregious harm

requiring reversal and remand for a new trial. [7]

2. Egregious

Harm Review

To determine egregious harm, Almanza and its progeny

instruct that we may consider not only the erroneous portion of the charge, but

also other relevant aspects of the trial. See Sanchez , 209 S.W.3d at

121 ; Hutch , 922 S.W.2d at 171 ; Almanza , 686 S.W.2d at 171 . As

noted above, these relevant aspects include: (1) the entirety of the charge

itself; (2) the state of the evidence including contested issues and the weight

of the probative evidence; (3) the arguments of counsel; and (4) any other

relevant information revealed by the trial record as a whole. See Sanchez ,

209 S.W.3d at 121 .

a. The

Charge

We first consider the entirety of the jury charge. See

Sanchez , 209 S.W.3d at 121 . Absent evidence to the contrary, we must

presume that the jury understood and followed the court = s charge. See

Hutch , 922 S.W.2d at 172 . The jury was instructed that A [y]ou are the

exclusive judges of the facts proved, of the credibility of the witnesses and

the weight to be given their testimony, but the law you shall receive in

these written instructions, and you must be governed thereby. @ (emphasis added)

In short, the jury was expressly instructed to follow the law as presented in

the charge.

The jury was abstractly charged on the law of parties,

meaning that the charge generally instructed the jury that a person can be

criminally responsible for the actions of another if the person solicits,

encourages, directs, aids, or attempts to aid another in committing an

offense. But, of utmost importance here, the application paragraph C the paragraph that

authorizes the jury to accept or reject a specifically alleged offense C for murder as a

party omitted the party language. Taken together, these instructions were

inadequate, for, between the abstract instruction and the application paragraph

on murder as a party, neither specifically explained to the jury which facts it

could properly consider to convict appellant as a party. In fact, the

instructions were worse than that because, rather than merely withholding

information from the jury, the application paragraph affirmatively misled the

jury by telling the jury it could convict appellant for a murder committed by

Jermarxian Green C even if appellant was not a party to the

murder. This was a legally incorrect instruction that completely misstated the

law, and to worsen matters, we cannot tell if the jury convicted appellant as a

party based on the legally incorrect instruction or as a principal. See id.

at 171 B 73; Guevara v.

State , 191 S.W.3d 203, 207 (Tex. App. C San Antonio 2005,

pet. ref = d) (holding that

instructing the jury on a legal duty theory when appellant had no legal duty to

prevent the commission of the offense was error); see also Campbell v. State ,

910 S.W.2d 475, 477 (Tex. Crim. App. 1995) (stating it is error for a trial

judge to refer to the law of parties in the abstract portion of the jury charge

and not to apply that law or to refer to that law in the application paragraph

of the charge). We cannot assume the jury realized that the parties language

was erroneously omitted, inserted appropriate language, and then applied it

correctly.

b. The

Evidence

Next, we consider the evidence, including the contested

issues and the weight of the probative evidence. See Sanchez , 209

S.W.3d at 121 . The State offered the accounts of Kelegon = s companions,

Hooper, Williams, and Pope, to demonstrate that the group of young men were out

for a night of socializing by going to the parking lot of a nightclub to hang

out and look at girls. Appellant and his brother happened to be promoting

appellant = s rap CDs in the same parking lot, and as the group

was leaving in their Caprice, appellant heard rap music coming from the car

that referred to appellant = s rap music in a derogatory way.

Appellant then became angry and confrontational, and when he presented a gun,

the group tried to speed away as appellant and his brother chased them in

appellant = s Expedition. The evidence showed that the Caprice

sustained numerous bullet holes, while there was no evidence that anyone in the

Caprice had a weapon or fired it at appellant and his brother.

In contrast to the State = s account of the

incident, appellant = s brother Jermarxian testified he saw

Kelegon get out of the car with a gun, and, based on Kelegon = s threatening

statements and conduct, he believed the group was attempting to carjack the

Expedition. According to Jermarxian, he and appellant tried to drive away from

the Caprice, but the Caprice chased the Expedition and eventually pulled up

next to it. He admitted that both he and appellant fired appellant = s gun at the

Caprice, but he testified that he was shooting at the Caprice only to A get them off @ of them. He also

testified that he believed he fired the shot that killed Kelegon.

Thus, the contested issues included whether appellant or

Jermarxian fired the fatal shot and whether the conduct was intentional or

knowing, or merely reckless. The jury could have believed that Jermarxian

murdered Kelegon and that appellant was a party to Jermarxian = s conduct.

Conversely, the jury could have believed that appellant fired the fatal shot

and Jermarxian was a party to appellant = s conduct.

Alternatively, if the jury believed Jermarxian = s testimony and

disbelieved the State = s witnesses, it could have determined that

appellant and his brother acted only in self-defense. Thus, the parties fully

joined the contested issue of appellant = s guilt as either

a primary actor or as a party to murder.

The State argues that any error in charging on the law of

parties was A necessarily @ harmless because

the evidence A clearly supported a finding that appellant was

responsible for the complainant = s murder as a primary actor. @ See Cathey v.

State , 992 S.W.2d 460, 466 (Tex. Crim. App. 1999) ( A Even where proper

objection is made at trial, we have held that where, as in the instant case,

the evidence clearly supports a defendant = s guilt as the

primary actor, error in charging on the law of parties was harmless. @ ); see also

West v. State , Nos. 03-05-00206-CR, 03-05-00207-CR & 03-05-00208-CR,

2006 WL 2449856 , at *10 (Tex. App. C Austin Aug. 25,

2006, pet. ref = d); Evans v. State , No. 14-98-0705-CR, 2000 WL

854859 , at *2 (Tex. App. C Houston [14th Dist.] June 29, 2000, pet.

ref = d). However, none

of these cases involved a situation, as we have here, in which an application

paragraph authorized the defendant = s conviction based

on the conduct of the co-defendant. And, in any event, whether appellant or

his brother were guilty of murder was disputed, and appellant = s brother,

Jermarxian, was

convicted of a lesser offense even though he testified that he believed he fired the

shot that killed the complainant. Therefore, we do not consider these cases

dispositive of the question whether egregious harm was shown.

c. The

Jury Arguments

Finally, we consider the arguments of counsel. See

Sanchez , 209 S.W.3d at 121 . At closing, Mr. Leitner, Jermarxian = s defense counsel,

spoke first. He began by emphasizing the jury = s duty to apply

the law to the evidence. Among other things, he stated that A [t]he Court = s Charge is the

law @ and that it is A based on exactly

what the statutes say and the Judge has set those forth in the charge. @ He then went

through the charge, explaining the various paragraphs, but he did not mention

the erroneous paragraph specifically. Counsel then discussed the perceived

inconsistencies in the State = s witnesses = testimony, and

urged the jury to consider Jermarxian Green = s testimony.

Appellant = s defense counsel, Mr. Barr, then made his

closing statement. Like Mr. Leitner, Mr. Barr also urged the jury to consider

the perceived inconsistencies and weaknesses in the State = s witnesses = testimony,

Jermarxian = s testimony, and the law of self-defense. He also

questioned the evidence concerning the positions of the vehicles and the

trajectory of the bullets, and argued that the bullets fired from the

Expedition could have gone into the Caprice A from various

angles. @ Although it is

unclear from the context, this argument could have been directed either to

whether it was appellant or Jermarxian who fired the shot that killed Kelegon,

or whether the Expedition was chasing the Caprice or the Caprice was chasing

the Expedition. Finally, Mr. Barr urged that the evidence did not support a

finding of guilt.

The prosecutor, Ms. Bennett, spoke last. She discussed the

evidence presented by the State = s witnesses. Significant to our analysis,

she then argued that A [appellant] was only able to hit [Kelegon]

in the leg and the medical examiner confirmed that. @ Continuing, she

stated, A Jermarxian hit the

jackpot. He fired the gun through the back window and he killed [Kelegon]. @ Later, when

discussing the physical evidence, Ms. Bennett stated,

Then there = s the shot that Jermarxian took,

the one that killed [Kelegon], fired through the back window, that went

directly through the passenger compartment and struck the victim in the head.

Dr. Gonsoulin confirmed that = s the angle it had taken.

* * *

They are both

equally guilty. Jermarxian may have fired the killing bullet, but [appellant]

here certainly did his part. He chased them down. He tried to kill them,

tried to shoot them, tried to commit serious bodily injury. He just wasn = t as good a shot

as his brother. He can only hit him in the leg.

Thus, during her closing argument, the prosecutor urged

that the evidence supported a finding that Jermarxian was guilty of murder for

firing the fatal shot and that appellant was equally guilty because he gave

Jermarxian the chance to shoot and kill. The charge for its part did not

clarify the prosecutor = s comments for the jury and, instead,

misled the jury into believing it could find appellant guilty of murder if

Jermarxian committed the murder.

3. The Error

Resulted in Egregious Harm

The jury found appellant guilty of murder and found

Jermarxian, who testified he believed he fired the fatal bullet, guilty of

manslaughter. Although the jury = s verdict may

indicate that the jury believed that appellant, rather than Jermarxian, was

guilty as a primary actor and that Jermarxian was merely reckless, we cannot

know whether the jury found appellant guilty of murder based on an erroneous

legal theory. But we do know one important fact: the jury was told in the

application paragraph in the charge that it could convict appellant on an

invalid legal theory. We cannot tell from the verdict or record whether or not

the jury convicted on that basis, which would be error, but we can tell that

neither the rest of the charge, nor the evidence, nor the jury arguments set the

record right and that the jury was affirmatively told it must follow the law

given to it in the charge. These points factor heavily in our analysis and tip

the scales toward egregious harm.

One

might argue that the jury could not have relied on the improper jury charge to

find appellant guilty of murder because the jury did not find Jermarxian guilty

of murder. However, as a reviewing court, we cannot adopt this argument.

A jury

may render logically inconsistent verdicts as to different co-defendants, and A it is not our duty to unravel the

rationcinations of the jury = s collective logic. @ See Odom v. United States ,

377 F.2d 853, 857 (5th Cir. 1967) (and cases cited therein); see also Ruiz

v. State , 641 S.W.2d 364, 366 (Tex. App. C Corpus Christi 1982, no pet) ( A [C]onsistency is not necessary in

criminal verdicts where the verdicts are returned in a joint trial of two or

more indictments. @ ). Moreover, the trial court = s charge included the following

instruction to the jury: A Your sole duty at this time is to determine the guilt or

innocence of the defendant under the indictment in this cause and restrict your

deliberations solely to the issue of guilt or innocence of the defendant. @ As a result of this instruction, we

cannot speculate that the jury considered and applied the law consistently to

both co-defendants. A [A]n individualized assessment of the reason for the

inconsistency would be based on either pure speculation, or would require

inquiries into the jury = s deliberations that courts generally do not undertake. @ United States v. Powell , 469

U.S. 57, 66 (1984). Although much of this body of law is federal, we have

found no state case law that contradicts it. See Jackson v. State , 3

S.W.3d 58 , 61 B 62 (Tex. App. C Dallas 1999, no pet.); Moranza v. State , 913 S.W.2d

718, 724 (Tex. App. C Waco 1995, pet.ref = d); Ruiz , 641 S.W.2d at 366 .

Appellant = s charge incorporates the idea set

forth in the above case law that we review the viability of a verdict as it

relates to an individual defendant, not as it relates to the group of

defendants, requiring harmony among the defendants = verdicts. The court instructed the

jury to consider the two charges before it C one for Adrian and one for Jermarxian C separately, thereby requiring the

jury to focus first on one of the brothers = individual guilt or innocence and

then on the other = s guilt or innocence. While looking at a particular charge,

the jury was required to consider the merits of that charge alone, and none

other.

As the

federal case law cited above reflects, juries frequently treat co-defendants

differently, and that appears to have happened here. Focusing on Adrian only,

as ordered by the court, the jury apparently believed Adrian was highly

culpable, finding him guilty of murder as a principal or as a result of the

improper party charge. But, when the jury considered Jermarxian = s charge, the jury apparently decided

to be more lenient or believed that Jermarxian was less culpable C possibly believing that Adrian

started the fatal events in motion and was primarily responsible for the death

that ultimately transpired C and chose to find Jermarxian guilty only of manslaughter. [8]

Thus,

having been told to review each charge separately, but not having been told to

harmonize its findings, the jury was not to consider any potential

inconsistency in its verdicts. Because of this, we cannot say that the jury

did not rely on the improper party offense to find Appellant guilty of murder

based on an improper party offense. As we have already noted, such A an individualized assessment of the

reason for the inconsistency would be based on either pure speculation, or

would require inquiries into the jury = s deliberations that courts generally

do not undertake. @ Powell , 469 U.S. at 66 . We can do neither.

For these reasons, looking only to appellant = s charge without

considering Jermarxian = s charge or verdict, we hold that the

charge error affected the very basis of the case and deprived appellant of a

valuable right; it authorized the jury to convict him of a murder committed by

someone else without requiring the jury to find the elements of party

responsibility beyond a reasonable doubt; this is not an offense under the laws

of our state. This error was so harmful that appellant was effectively denied

a fair and impartial trial. See Sanchez , 209 S.W.3d at 121 (holding

charge error, which authorized jury to convict without finding every requisite

element of the offense beyond a reasonable doubt, was egregious based on the

entirety of the charge, the contested evidence, and the arguments of counsel); Hammock

v. State , 211 S.W.3d 874 , 879 Tex. App. C Texarkana 2006, no

pet.) (concluding egregious harm shown when some of alternative theories in

charge permitted conviction for conduct not defined as an offense); Guevara ,

191 S.W.3d at 210 (holding egregious harm resulted from erroneous jury

instruction authorizing conviction based on legally inadequate theory). [9]

We therefore sustain appellant = s second issue.

III. Conclusion

In summary, the jury was given four legal theories by which

it could convict appellant of murder and one of those theories was invalid. We

cannot tell which ground the jury relied on to convict appellant of murder.

Nothing in the charge or trial corrected the misdirection the jury was given,

and it resulted in egregious harm. Consequently, we reverse the trial court = s judgment and

remand for a new trial.

/s/ Wanda McKee Fowler

Justice

Judgment rendered

and Majority Opinion filed July 24, 2007.

Panel consists of Chief Justice Hedges and Justices Fowler

and Edelman. (Edelman, J. Dissenting.)

Publish C Tex. R. App. P. 47.2(b).

[1] Jermarxian Deandre Green was indicted Cause No.

1033352, in the 185th District Court of Harris County. Upon finding Jermarxian

guilty of manslaughter, the jury assessed his punishment at eighteen years = confinement in the Texas Department of Criminal

Justice, Institutional Division. This Court considered his appeal in Cause No.

14-06-00155-CR.

[2] The Expedition was described as having

Lamborghini-style doors that opened upward and spinning rims, among other

things.

[3] Hooper testified that appellant said to Kelegon, A Do y = all got a

problem with me?, @ to which Kelegon responded, A Man, I don = t

even know you @ and A Who are you? @

[4] When the police examined the Caprice, they found a

box containing several .25 caliber bullets in the glove compartment. Also

found was a gun case, and inside the case was a clip containing 9 millimeter

bullets, which Hooper testified was locked and in the trunk of his car along

with other possessions because he had recently moved. In addition, the police

found a lockbox containing a box of ammunition for a .22 caliber rifle.

[5] Darrell Stein, a firearms examiner, compared the bullet obtained from

Kelegon = s head to the six bullet fragments

recovered from the Caprice by Officer Riddle. Although he could not determine

with certainty that they were all fired from the same gun, all had sufficient

characteristics to enable him to testify that they could have been fired from

the same type of firearm, which would have included the 9 millimeter

semiautomatic pistol.

[6] Properly stated, that part of the charge should have authorized the

jury that it could find appellant guilty of murder if it found beyond a

reasonable doubt that A Jermarxian Deandre Green, did then

and there unlawfully, intentionally or knowingly cause the death of Quinton

Kelegon, by shooting Quinton Kelegon with a deadly weapon, namely, a firearm,

and that the defendant, Adrian Dewayne Green, with the intent to promote or

assist the commission of the offense, if any, solicited, encouraged, directed,

aided or attempted to aid Jermarxian Deandre Green to commit the offense. @

[7] In the federal system, when a general verdict is

entered after the jury was presented with one valid legal theory and one

invalid and it is impossible to tell which ground the jury selected, the case

would ordinarily be reversed without further inquiry. See Griffin v. United

States , 502 U.S. 46, 52 (1991); United States v. Tomblin , 46 F.3d

1369, 1385 (5th Cir. 1995). Our set of facts is slightly different in that we

have several valid legal theories and only one invalid theory, but we have

found no case stating that this would make a difference. Regardless, although

a federal court would reverse on this set of facts, in Texas, our inquiry must

continue so that we can fully apply Almanza to determine if the error

resulted in egregious harm. See Guevara v. State , 152 S.W.3d 45 , 52 B 53 (Tex. Crim. App. 2004).

[8] We do not know in what order the jury considered the

two charges.

[9] The dissent acknowledges that the jury charge was

erroneous, but posits that no egregious harm resulted because the evidence was

sufficient to convict appellant on a correctly instructed alternative theory of

culpability. However, courts have distinguished between a charge that

correctly states the law but erroneously charges on a theory of guilt unsupported

by the evidence and a charge that contains a misleading statement about the law C as we have here. The courts have rejected using the

same analysis in the two situations . See, e.g., Hammock, 211 S.W.3d at

879 (distinguishing charge error in which several alternative theories were not

offenses under the law as one that A presents

a situation that has ramifications far beyond the typical possibility that a

person was convicted of committing an offense one way instead of another way @ and finding reversible error); Guevara , 191

S.W.3d at 206 B 07 (refusing to presume evidence was sufficient to

support guilty verdict under alternative theory when charge included legally

invalid theory); see also Payne v. State , 194 S.W.3d 689 , 696 n.2 (Tex.

App. C Houston [14th Dist.] 2006, pet. ref = d) (acknowledging distinction between alleged

misstatement of the law and alleged error in charging the jury on a theory of

guilt not raised by the evidence and noting appeal before it was one involving

sufficiency of the evidence). The reason for this distinction is that

[J]urors are not generally equipped to determine

whether a particular theory of conviction submitted to them is contrary to law C whether, for example, the action in question is

protected by the Constitution, is time barred, or fails to come within the

statutory definition of the crime. When, therefore, jurors have been left the

option of relying upon a legally inadequate theory, there is no reason to think

that their own intelligence and expertise will save them from that error.

Guevara , 191 S.W.3d at 208 (quoting Griffin v. United

States , 502 U.S. 46, 59 (1991)). Additionally, the dissent contends that

language in the charge instructing the jury on the requisite mental state a

person must have before being found guilty of murder effectively cured the

charge error so that the jury would know not to find appellant guilty of murder

based solely on Jermarxian = s conduct.

However, the language the dissent points to is not included in the paragraphs

applying the law to the facts, and so it does not instruct the jury on what

facts it must find to convict appellant under a correct statement of the law.

Moreover, the language merely restates the intent required of a principal

actor, which under the erroneous instruction would have been Jermarxian rather

than appellant, and so it does not cure the erroneous omission of the parties

instruction in the application paragraph. We cannot assume that the jury would

have deduced and applied the law correctly based on this separate instruction.