Walker v. State

MILLER, Judge, dissenting.

I dissent to the majority’s holding that the sufficiency of the evidence in the case at bar will be judged solely by the contents of the application paragraph of the court’s charge and not by the contents of the charge as a whole.

*255 Boozer v. State, 717 S.W.2d 608 (Tex.Cr. App.1986), Benson v. State, 661 S.W.2d 708 (Tex.Cr.App.1983), Ortega v. State, 668 S.W.2d 701 (Tex.Cr.App.1983), Garrett v. State, 749 S.W.2d 784 (Tex.Cr.App.1986) (opinion on rehearing), Arceneaux v. State, 803 S.W.2d 267 (Tex.Cr.App.1990), and Nickerson v. State, 782 S.W.2d 887 (Tex.Cr.App.1990), stand for the proposition that sufficiency of the evidence “be measured against the jury charge, which we interpret to mean the entire charge, [footnote omitted]” Garrett, 749 S.W.2d at 802 .

True, we did measure sufficiency solely from the application paragraph in Garrett, 749 S.W.2d 784 , and Nickerson, 782 S.W.2d 887 , but, as explained in those cases and others cited in Nickerson , this is the proper analytical procedure when the application paragraph increases or heightens the States burden of proof and the State, either silently of overtly, acquiesces in that heightenment. In Garrett this occurred when the State’s theory of guilt rested entirely on the doctrine of transferred intent, the application paragraph did not mention or allude to the doctrine of transferred intent, the charge instructed the jury on that theory after the application paragraph, but the application paragraph instructed the jury to base its verdict only on the law given before the application paragraph. Thus the State accepted the burden of proving the defendant’s guilt without the benefit of the law of transferred intent, since the jury was specifically instructed to reach a verdict without considering the law of transferred intent. In Nickerson the State’s theory of guilt rested entirely on the law of parties, the charge instructed the jury on the law of parties in the abstract portion of the charge, the first of two application paragraphs did not mention or allude to the doctrine of parties and facially required that the defendant be convicted as a principal, the second/alternative application paragraph misapplied the law of parties and required that the defendant be convicted as a principal. While we could have silently applied the law of parties to the first application paragraph and found the evidence sufficient, we instead found that the attempted application of the law of parties in the second application paragraph demonstrated that the first application paragraph stood alone and offered the State’s theory of the case that the defendant was guilty as a primary actor. Thus the State accepted the burden of proving the defendant’s guilt without the benefit of the law of parties in either application paragraph.

Thus Garrett and Nickerson , upon closer scrutiny, are not meant to support the proposition that in all cases we will look solely to the application paragraph in determining sufficiency.

This cause sub judice is factually different from Garrett, Nickerson, and Jones v. State, 815 S.W.2d 667 (Tex.Cr.App. MRH denied this day). Here the law of parties is contained in the abstract portion of the charge and thus, along with the rest of the contents of the abstract portion of the charge, is presumed considered by the jury when they follow the instructions in the application paragraph since there is nothing in the charge to suggest otherwise (such as wording in the application paragraph that heightens the State’s burden as in Garrett and Nickerson ). 1 Moreover, in both Garrett and Jones , the abstract charges on the theories of transferred intent and the law of parties came after the application paragraph which had specifically directed the jury’s attention to the preceding instructions in the charge when ap *256 plying the law to the facts. There was “no way [ ] the application paragraph ... [could] be construed to refer to the abstract definition, ... even ‘reading the charge as a whole’ ...” Garrett, 749 S.W.2d at 789, n. 6 . In this cause, there is no language in the jury charge limiting the jury’s consideration of abstract definitions to only the “preceding” or “foregoing” instructions in the charge. Thus I would hold the evidence sufficient considering the charge as a whole. Because the majority holds otherwise, I dissent.

. If the majority’s idea is that an application paragraph that facially contains a State’s theory of guilt as a primary actor holds the State to a higher burden of proof than an application paragraph that facially contains a State’s theory of guilt as a party, then at least we are closer to a meeting of the minds in this matter. Still, because of the nature and character of the court’s charge I believe the majority would be wrong in that idea. The jury is supposed to consider the charge as a whole unless misin-structed to do otherwise, and thus, from a sufficiency standpoint, unless the state otherwise evidenced an intent that the application paragraph have a particular or narrowed meaning, we too should consider the charge as a whole in considering whether the jury's verdict was a rational one. Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979).