Prystash v. State

KELLER, J.,

filed a concurring opinion in which KEASLER, J., joined.

Appellant was convicted of capital murder under the “murder for remuneration” provision. See Texas Penal Code § 19.03(a)(3). Although the law of parties was contained in the guilt/innocence charge, the punishment charge did not contain the anti-parties special issue required by law. The question presented is whether the death sentence must be reversed as a result of this omission.

A similar but not identical situation was addressed in Powell v. State, 897 S.W.2d 307 (Tex.Crim.App.1994). That case involved the trial court’s failure to submit the “deliberateness” special issue, submission of which was required by the law in effect at the time. Id. at 314-315 . The deliberateness special issue asked:

whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with *538 reasonable expectation that the death of the deceased or another would result.

Id. at 315 (quoting 1978 version of Texas Code of Criminal Procedure, Article 37.07(b)(1)). 1 We held that a “sentence of death could not be pronounced without an affirmative answer to the ‘deliberateness’ question.” Id. at 315 (plurality opinion); see also Id. at 318 (Clinton, J. concurring). We followed Powell in another case involving the failure to submit the deliberateness special issue. Smith v. State, 907 S.W.2d 522, 534 (Tex.Crim.App.1995). In Smith , we stated: “By failing to give this question at trial, the court received an incomplete verdict and thus was without authority to sentence appellant to death.” Id.

Neither Powell nor Smith conducted a harm analysis; in fact, neither of the opinions in those cases even raised the issue of whether a harm analysis would apply. So, those cases implicitly held either (1) that the error was not subject to a harm analysis or (2) that the error was necessarily harmful. To the extent that Powell and Smith could be interpreted to hold that the failure to submit a deliberateness instruction is immune from a harmless error analysis, those cases have been overruled by our subsequent decision in Cain v. State, 947 S.W.2d 262 (Tex.Crim.App.1997) and undercut by the United States Supreme Court’s recent decision in Neder v. United States, —U.S.-, 119 S.Ct. 1827 , 144 L.Ed.2d 35 (1999). To the extent that Powell and Smith could be interpreted to hold that the failure to submit a deliberateness instruction is necessarily harmful, that holding has been undercut by Neder and, at any rate, can be distinguished from the case at bar.

1. Harm analysis applies

In Cain , this Court held:

Except for certain federal constitutional errors labeled by the Supreme Court as “structural,” no error, whether it relates to jurisdiction, voluntariness of a plea, or any other mandatory requirement, is categorically immune to a harmless error analysis.

Id. at 264 (footnote omitted). The error at issue here is not of federal constitutional origin. Neither Powell nor Smith relied upon federal constitutional law for their holdings; both relied merely upon the text of Article 37.071. See Powell, 897 S.W.2d at 314-318 ; Smith, 907 S.W.2d at 534 . And no constitutional error is apparent. When an element of an offense is not submitted to the jury, the federal constitution is involved because of the defendant’s Sixth Amendment right to a jury trial. United States v. Gaudin, 515 U.S. 506, 510-511 , 115 S.Ct. 2310 , 132 L.Ed.2d 444 (1995); Neder, at -, 119 S.Ct. 1827 . However, there is no Sixth Amendment right to a jury trial at the punishment stage of a death penalty case. Clemons v. Mississippi, 494 U.S. 738 , 110 S.Ct. 1441 , 108 L.Ed.2d 725 (1990). And although the Eighth Amendment requires a finding of personal culpability for a murder before the death sentence may be imposed, Tison v. Arizona, 481 U.S. 137, 157-158 , 107 S.Ct. 1676 , 95 L.Ed.2d 127 (1987), the parties instruction in the present case satisfies that requirement, as will be discussed below. And while Due Process may require a trial court to submit a special issue to which a defendant is entitled under state law, see Gaudin, 515 U.S. at 509-510 , 115 S.Ct. 2310 , an express waiver of the issue negates any generalized due process violation. See Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702-705 , 102 S.Ct. 2099 , 72 L.Ed.2d 492 (1982). 2 Because the error *539 in the present case is not of federal constitutional origin, Cain dictates that it must be subjected to a harm analysis. To the extent thatPowell and SmithconSict with Cain’s holding, they were overruled by Cain. See Cain, 947 S.W.2d at 264 .

But even if we were to hold the error to be of federal constitutional origin, under Supreme Court precedent such an error would not be structural. In Neder , the Supreme Court addressed a trial court’s complete failure to submit an element of the offense to the jury. The Supreme Court held that such an error “differs markedly from the constitutional violations we have found to defy harmless error review.” 119 S.Ct. at 1833-34 . The Supreme Court concluded that the complete omission of an element of an offense was not structural error but was subject to harmless error review. Id. 119 S.Ct. at 1833-37 . If the omission of an element of an offense is not structural, the omission of a punishment issue would not seem to be structural error either. And, more to the point, the Supreme Court has not labeled it as structural. Hence, Cain would control, and the error would be subject to a harm analysis.

2. Error is harmless

Because the error in question is non-constitutional and relates to the jury charge, the standard of harm is found in Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984). Having failed to object to the absence of the special issue, appellant must show “egregious harm,” that is, that he “has not had a fair and impartial trial.” Id. at 171 .

The Supreme Court’s discussion of harm in Neder is helpful in evaluating whether harm occurred. In determining whether the omission of an offense element was harmless, the Supreme Court considered two competing harm tests: (1) the functional equivalence test and (2) the uncontested issue/overwhelming evidence test. Both tests were considered within the framework of the “beyond a reasonable doubt harmless” standard announced in Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967). The defendant in Neder advocated the use of the functional equivalence test to evaluate whether the omission of an element was harmful. As articulated by the defendant, that test would find the omission harmless “where other facts necessarily found by the jury are the ‘functional equivalent’ of the ... omitted element.” Neder, 119 S.Ct. at 1835-36 (ellipsis inserted). The Supreme Court postulated the possibility of a broader functional equivalence test: that the omission of an offense element would be harmless “where other facts found by the jury are ‘so closely related’ to the omitted element ‘that no rational jury could find those facts without also finding’ the omitted element.” Neder, 119 S.Ct. at 1836 . (quoting from Sullivan v. Louisiana, 508 U.S. 275, 281 , 113 S.Ct. 2078 , 124 L.Ed.2d 182 (1993)).

However, the majority opinion in Neder rejected the functional equivalence test as the sole test for harm on the ground that such a test was too narrow, and held that error could also be rendered harmless under an uncontested issue/overwhelming evidence test. Id. 119 S.Ct. at 1836-38 . The latter test would hold an error harmless “where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error.” Id. 119 S.Ct. at 1837-38 .

In a dissenting opinion, Justice Scalia advocated the functional equivalence test as the sole test for harm, believing that an error in omitting an offense element could be harmless only “if the elements of guilt that the jury did find necessarily embraced the one omitted.” Id. 119 S.Ct. at 1846 ^47 *540 (Scalia, J. dissenting). “Where the facts necessarily found by the jury (and not merely discerned by the appellate court) support the existence of the element omitted ... the omission ... is harmless.” Id. (ellipsis inserted).

We have yet to decide whether the method articulated by the Supreme Court majority or by Justice Scalia’s dissent is the correct method for evaluating harm under Almanza in a case such as this. 3 At any rate, the most favorable (to a defendant) method for determining whether the error is harmful is the narrow form of the functional equivalence test advocated by Justice Scalia. The application of the functional equivalence test to the present case shows the error to be harmless.

The anti-parties issue requires a jury to find that the accused caused the victim’s death, intended to kill a person, or anticipated that a human life would be taken:

in cases in which the jury charge at the guilt or innocence stage permitted the jury to find the defendant guilty as a party under Sections 7.01 and 7.02, Penal Code, whether the defendant actually caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken.

Article 37.071 § 2(b)(2). If a defendant were convicted as the primary actor, he would have necessarily caused the death of the deceased. However, if the accused were convicted under a parties liability theory, then the possibility is raised that the accused did not actually cause the deceased’s death. The anti-parties issue ensures that a defendant is not given the death penalty after being convicted on the basis of a parties liability theory unless the jury also finds that the defendant intended death or anticipated that a human life would be taken. In the present case, that function is fulfilled by appellant’s conviction.

The theory of parties liability contained in the jury charge on guilt/innocence required the State to show that appellant intended the victim’s death. The charge instructed on the “intent to promote or assist” theory of party liability, which was set out as follows:

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.

(Emphasis added); see also Texas Penal Code § 7.02(a)(2). A subsequent explanation paragraph in the charge required even more explicitly that appellant must have intended the victim’s death in order to be convicted:

Before you would be warranted in finding the defendant guilty of capital murder, you must find from the evidence beyond a reasonable doubt that on the occasion in question ... the defendant, Joseph Andrew Prystash, with intent to promote or assist the commission of the offense of murder of Farah Fratta, solicited, directed, aided or attempted to aid Robert Alan Fratta and/or Howard Gui-dry in shooting Farah Fratta with the specific intention of thereby killing Fa-rah Fratta.

(Ellipsis inserted and emphasis added). The “intent to promote or assist” theory of parties liability was also incorporated into a separate application paragraph of the charge.

As a result, when the jury convicted appellant of capital murder, it necessarily found that appellant was guilty either (1) as a primary actor, or (2) as a party who *541 intended the victim’s death. So the jury-found everything that was required by the anti-parties charge. Because the guilty verdict ensured that the jury actually made a factual determination that necessarily embraces an affirmative answer to the anti-parties issue, appellant was not deprived of a fair and impartial trial. 4

And to the extent that Powell held that the error in its case (the omission of the deliberateness issue) was necessarily harmful, Powell is distinguishable. We have held repeatedly that the term “deliberately” means something beyond “intentionally” or “knowingly.” Ramirez v. State, 815 S.W.2d 636, 653-654 (Tex.Crim.App.1991); Tucker v. State, 771 S.W.2d 523, 537 (Tex.Crim.App.1988), cert. denied, 492 U.S. 912 , 109 S.Ct. 3230 , 106 L.Ed.2d 578 (1989); Heckert v. State, 612 S.W.2d 549, 552-553 (Tex.Crim.App.1981). So, a jury finding of guilt would not itself constitute a finding of deliberateness.

But while the Legislature may have intended, when it formulated the deliberateness special issue, to require something in addition to intent or knowledge for assessment of the death penalty, the anti-parties issue appears to be included in the statute merely to require that the defendant be found to bear personal moral culpability for the victim’s death. Although the deliberateness charge was required in every case, the anti-parties charge is required only when the jury charge permits conviction upon the law of parties. And while the word “deliberately,” in common usage, appears to encompass more than mere intentional conduct, the words “intended” and “anticipated” (in the anti-parties issue) appear to encompass the same or less culpability than the culpable mental states required for establishing the offense of capital murder. So, in some cases, a jury’s finding of guilt will be the functional equivalent of an affirmative answer to the anti-parties special issue. 5 Such is the case before us.

With these comments, I join the Court’s opinion.

. All further references to Articles are to the Texas Code of Criminal Procedure unless otherwise indicated.

. Appellant concedes that defense counsel requested that the anti-parties special issue not be given. Under Powell , such a waiver was ineffective. Judge Clinton opined that waiver was ineffective because a statute prevents a capital murder defendant facing the death penalty from waiving a jury trial. 897 S.W.2d at 318 (Clinton, J. concurring); see also Article 1.13(a) & (b), 1.14(a). As ex *539 plained above, however, the right to a jury trial at punishment is not a federal constitutional right.

. While the Chapman standard appears to be more favorable to criminal defendants than the standard announced in Almanza , this Court does have the power to interpret the Almanza standard more favorably to criminal defendants if we decide that a subsequent Supreme Court case interpreting the federal harmless error standard does not reflect the Legislature’s intent in enacting Article 36.19, from which Almanza was derived.

. There is a theory of parties liability under Texas law that is not the functional equivalent of the anti-parties special issue. “Conspiracy liability” under Texas Penal Code § 7.02(b) does not require that the actor intend or even anticipate the object crime:

If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.

(Emphasis added). That theory, however, was not submitted in the jury charge in the instant case.

. In her dissent, Judge Holland contends that my reliance upon the parties charge in the guilt phase to show a lack of harm is faulty because the punishment charge instructed the jury not to consider the parties instructions given in the guilt phase. She misses my point. The parties instructions in the guilt phase incorporated the essential elements of the anti-parties special issue. When the jury returned a verdict of guilt then, it necessarily answered the anti-parties issue affirmatively in the guilt phase of the trial. For the same reason, Judge Holland’s "incomplete verdict” contention also misses the mark: the anti-parties issue was submitted, and that issue was answered affirmatively by the jury. But the issue was submitted at the wrong time (the guilt phase of trial) and in the wrong form (as a component of the guilt determination).