finding ―the following combined evidence was sufficient to permit a rational jury to infer that [the witness] was a party to the crime, and hence, raise[d] a fact issue as to [the witness’s] accomplice status: (1) [the witness’s] presence in the car with appellant when the crime occurred, (2) evidence that the crime was a gang-motivated crime, (3) [the witness’s] membership in the same gang as appellant, and (4) [the witness’s] efforts to cover up the crime‖
How later courts described this case
- finding ―the following combined evidence was sufficient to permit a rational jury to infer that [the witness] was a party to the crime, and hence, raise[d] a fact issue as to [the witness’s] accomplice status: (1) [the witness’s] presence in the car with appellant when the crime occurred, (2) evidence that the crime was a gang-motivated crime, (3) [the witness’s] membership in the same gang as appellant, and (4) [the witness’s] efforts to cover up the crime‖
- stating that for “knowing murders, the distinction between result of conduct and nature of conduct blurs because awareness of the result of the conduct necessarily entails awareness of the nature of the conduct as well. . . . To be aware that his conduct is reasonably certain to result in death, the actor must also be aware of the lethal nature of his conduct”
- explaining that when the evidence is sufficient to support a conviction under at least one theory of the offense, the harmfulness of error in the charge is measured against the likelihood the jury’s verdict is based on a theory not affected by the erroneous parts of the charge
- concluding defendant was not entitled to lesser-included offense instruction where evidence showed that defendant intentionally fired into crowd, and finding lack of intent to kill any particular person was insufficient to warrant instruction on lesser- included offense
Written by the judges who cited it.
The opinion
WOMACK, J.,
filed a concurring opinion in which JOHNSON, J., joined.
I join the judgment of the Court and, except as to Point of Error Ten, its opinion. I agree that the trial court erred when it defined “knowingly” in terms of the nature of conduct, and that the error was not objected to, and that it does not require reversal. I do not subscribe to the statement that “a knowing murder under 19.02(b)(1) is a result-of-conduct offense which by definition is also a nature-of-conduct offense” (ante at 640). And I think we should decide the question of *645 harm by doing more than looking at the statutes. See Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1984). *
As a statement on how to determine the severity of any egregious error in the charge we cannot improve on the following from the court of appeals in 1890:
'But in determining whether the error is material ... we are to look to the whole record bearing upon the subject. What was the nature of the testimony supporting the verdict? Was it cogent and overwhelming? What was the character of the testimony presenting the phase or theory of the case omitted to be noticed in the charge, and upon which omission error is assigned? Was it all reasonable? Did it present a theory which a reasonable mind could entertain, or was it supported by such testimony as was remotely calculated to destroy the State’s case when considered in connection with the other testimony in the case, as well as the charge as a whole? Was the phase of the case simply an addition to the case as made by the State and consistent therewith, or was it in direct conflict with the State’s theory? These are all important matters to be considered in passing upon the (degree of harm) in the omission or error.
Davis v. State, 28 Tex.Ct.App. 542, 13 S.W. 994, 995 (1890), writ of error dism’d, 139 U.S. 651 , 11 S.Ct. 675 , 35 L.Ed. 300 (1891).” Al-manza v. State, 686 S.W.2d at 172 (footnote omitted).