# Barnes v. State > Court of Appeals of Texas · July 19, 2001 · 56 S.W.3d 221 URL: https://www.frixlaw.com/law-library/cases/9627208 ## Case - **Full name:** Kevin Allan BARNES, Appellant, v. the STATE of Texas, State - **Court:** Court of Appeals of Texas - **Decided:** July 19, 2001 - **Citations:** 56 S.W.3d 221; 2001 Tex. App. LEXIS 4834; 2001 WL 816454 - **Precedential status:** Published - **Opinion:** Concurrence by Dauphinot - **Judges:** Cayce, Day, Dauphinot - **Cited by:** 73 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Abrogated on other grounds by Hurd v. State, 2010 Tex. App. LEXIS 6864 (2010). - Negative treatments: 2 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9627208 ## How later opinions describe it (automated extraction) - holding imposition of automatic life sentence on juvenile defendant does not violate United States or Texas Constitutions - noting that agreement to act together in a common design is seldom proven by direct evidence, but by circumstantial evidence ## Opinion text DAUPHINOT, Justice, concurring. While I concur in the result the majority reaches, I write separately to address the problem of treating section 7.02(b) of the Texas Penal Code as an alternative law of parties. Section 7.02 is entitled “Criminal Responsibility for Conduct of Another.” 1 Although it is often referred to as “The Law of Parties,” this description is inaccurate. Section 7.02 describes the circumstances under which a person is criminally responsible for the conduct of another. It includes the law of parties in section 7.02(a), but it also includes the law of conspiracy in section 7.02(b). A person is criminally responsible for the conduct of another if he or she acts either as a party or as a co-conspirator. The law of conspiracy is not the law of parties. *241 Two conflicting lines of cases have developed regarding the relation between the law of parties and the law of conspiracy. I believe the majority opinion conflicts with this court’s opinion in Ex parte Brosky. 2 In Brosky, this court held that Brosky could be prosecuted for conspiracy to commit murder after being convicted of murder as a party because conspiracy required an additional element not required by murder. 3 We specifically stated that while criminal conspiracy requires proof of an agreement to commit an offense, murder as a party does not require proof of an agreement. 4 In the case now before us, two of the application paragraphs of the jury charge required the jury to find a conspiracy, that is, an agreement. Yet, Appellant was not accused of entering into a conspiracy. In Brosky, we held that the additional element of an agreement establishes an offense separate and apart from guilt as a party. 5 The State’s position is that section 7.02(b) is distinct from the section 15.02 conspiracy statute because section 15.02 requires only proof that the defendant agreed with one or more persons to engage in conduct that would constitute an offense and that the defendant or another co-conspirator performed an overt act in pursuance of that agreement. 6 In contrast, section 7.02(b) requires proof that, in an attempt to carry out a conspiracy to commit one felony, another felony, which should have been anticipated, is committed in furtherance of the intended felony. 7 Thus, the State believes, the corpus delicti of conspiracy under section 15.02(a) is an agreement and an overt act in furtherance of that agreement, and commission of a substantive offense is not required. On the other hand, the State posits, section 7.02(b) requires proof of the commission of a substantive offense. I cannot disagree with this premise. I do, however, disagree with the logical conclusion. When a person is shown to be guilty of conspiracy under section 15.02, the person is criminally responsible for his or her own acts. That is, the person is guilty of participating in a criminal conspiracy. Similarly, when a person is shown to have committed capital murder, that person is criminally responsible for his or her own acts. When, however, a person is proved guilty of capital murder as a party, that person is held criminally responsible for the acts of another. Likewise, when a person enters into a criminal conspiracy but a different felony is committed by a co-conspirator, he or she is held criminally responsible for the acts of the co-conspirator. The fact that there are procedural differences between prosecuting one as a party and prosecuting one as a co-eonspir-ator, to me, emphasizes the distinction between section 7.02(a) and section 7.02(b). To continue reliance on the line of cases holding that section 7.02(b) conspiracy is merely an “alternative ‘parties’ charge,” 8 not only fosters conflicting lines of cases, but it also undermines the viability of Texas’s capital murder scheme by permitting conviction of capital murder under the guise of the law of parties, without proof of the mens rea required by statute. Under the Montoya line of cases, the jury must *242 find that the primary actor, the shooter, intended to cause the victim’s death in order to satisfy the requisites of capital murder permitting the death penalty. But in order to convict the non-shooter as a party and to impose the death penalty, the jury is not required to find that the non-shooter intended to cause the death or that the shooter intended to cause the death, even though both section 19.03(a)(2) and the indictment require proof of specific intent to cause the death. 9 This interpretation allows conviction on less evidence than required by either the statute or the indictment. The jury charge should contain all of the fundamental elements of the offense and should not allow conviction on less proof than required by the statute. I respectfully urge the court of criminal appeals to revisit this issue, not only in the interest of consistency, but also in the interest of preserving the viability of the Texas capital murder scheme. In any event, this court should either follow Bro-sky or disavow that opinion. . Tex. Penal Code Ann. § 7.02 (Vernon 1994). . 863 S.W.2d 783 (Tex.App. — Fort Worth 1993, no pet.). . Id. at 788 . . Mat 784, 788. . Id. at 788 . . Tex. Penal Code Ann. § 15.02 (a) (Vernon 1994). . Id. § 7.02(b). . Montoya v. State, 810 S.W.2d 160, 165 (Tex.Crim.App.1989), cer t. denied, 502 U.S. 961 , 112 S.Ct. 426 , 116 L.Ed.2d 446 (1991). . Tex. Penal Code Ann. § 19.03 (a)(2) (Vernon 1994). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9627208. Public record. Not legal advice.