Belyeu v. State

CLINTON, Judge,

dissenting.

As in Webb v. State, 760 S.W.2d 263 (Tex.Cr.App.1988), appellant in this cause could have been convicted, on the evidence as summarized by the majority opinion today, either as a primary actor or as a party to the intentional killing of the deceased. Since the Court’s opinion in Green v. State, 682 S.W.2d 271, 287 (Tex.Cr.App.1984), adopted the concurring opinion in Meanes v. State, 668 S.W.2d 366 (Tex.Cr.App.1983), it has been held that the law of parties does not apply at the punishment phase of a capital murder prosecution. What this means is that a jury that believes the accused acted as a party to the commission of the actual killing, under V.T.C.A. Penal Code, § 7.02(a)(2), may not focus upon the conduct of the primary actor as circumstantial evidence to establish that Article 37.-071, (b)(1), Y.A.C.C.P., ought to be answered affirmatively as to the accused. In assessing whether it believes beyond a reasonable doubt he acted “deliberately and with the reasonable expectation that ... death ... would result[,]” a jury that found the accused acted as a party must focus, instead, upon the accused’s own conduct by which he “solicited, encouraged, directed, aided or attempted to aid” perpetration of the intentional murder. Webb v. State, supra at 267; Meanes v. State, supra at 375-76; Martinez v. State, 763 S.W.2d 413, 420, n. 5 (Tex.Cr.App.1988). Unfortunately, because the jury’s verdict at the guilt phase of a capital murder trial is general, by operation of Article 37.07, § 1(a), Y.A.C. C.P., it is impossible to discern upon which theory of guilt, primary actor or party, a jury that has been instructed it may convict the accused under either, has actually proceeded.

Article 37.071(b)(1), supra, requires the jury to find deliberateness, vel non, of “the conduct of the defendant that caused the death of the deceased....” On its face this language appears to mandate a finding that the defendant’s own conduct directly caused the death of the deceased. Under this Court’s construction of the statute, however, it is not necessary that the defendant’s conduct have been the direct cause of the death in order to support an affirmative answer to special issue one. It need only be found that the conduct by which he solicited, encouraged, directed, aided or attempted to aid another in commission of the killing was “committed deliberately and with the reasonable expectation that ... death ... would result.” Webb v. State, supra; Meanes v. State, supra. Unfortunately, with only the facial language of the statute before it, a jury might well believe it must find the accused’s own conduct literally “caused the death.” A jury that earlier found the accused guilty only vicariously of the conduct that directly caused the death may believe the only way it can answer special issue one affirmatively is likewise to find “deliberateness” of the accused vicariously, through his accomplice.

Under these circumstances it would be useful, to say the least, to inform the jury for purposes of its punishment deliberations that if it found it was the accused’s accomplice who committed the act directly causing death, it must not rely on that act to establish deliberateness of the accused. This is what the so-called “anti-parties” charge is designed to do. While failure of the trial court sua sponte to include the “anti-parties” charge has been held not to amount to fundamental constitutional error, e.g., Nichols v. State, 754 S.W.2d 185, 199 (Tex.Cr.App.1988); Skillern v. Estelle, 720 F.2d 839, 847-49 (CA5 1983), surely inclusion of such a charge facilitates a proper understanding of how to measure an accused found guilty as a party against the standard of Article 37.071(b)(1), supra. This but accomplishes the legislative objective that the court’s charge “distinctly set[ ] forth the law applicable to the case[.]” Article 36.14, V.A.C.C.P. Upon request, such an instruction should be given, as the Court has suggested, if not held, on a number of occasions. Green v. State, *79 supra at 287, n. 4; Marquez v. State, 725 S.W.2d 217, 225 (Tex.Cr.App.1987); Nichols v. State, supra, at 198-99.

Squarely confronted with the issue in Cuevas v. State, 742 S.W.2d 331, 351 (Tex.Cr.App.1987), the Court dodged the question of whether error was presented by concluding that any error was harmless, under Arline v. State, 721 S.W.2d 348 (Tex.Cr.App.1986) and Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985). Today the Court does address the question of whether error is presented. (However it incorrectly characterizes this charge as “in all ways like the charge given in Cuevas,” at p. 74; compare pattern charge under § 7.02(a)(2) with basic emphasis on “conspiracy” under § 7.02(b) in Cuevas, supra, at 352 .) For reasons reminiscent of those upon which the Court in Cuevas found no harm, the majority finds no error in the denial of appellant’s requested instruction. I cannot join in such legerdemain.

The majority opines, first, that whether to give a requested “anti-parties” charge will constitute error “must be decided on a case by case basis, considering, among other things, the entire charge and the facts of the case.” At p. 73. This sounds not so vaguely like the criteria expressed in Almanza v. State, supra, at 171, for determining both “egregious” and “any,” nee “some” harm, see Arline v. State, supra, wrought by established error in the court’s charge. Indeed, the very criteria the majority now says should inform our decision whether error has occurred were essentially those utilized by the Court in Cuevas to avoid the question whether error has occurred! Id., at 351 .

When it comes to applying these criteria, the majority next observes that “the special issues submitted to the jury at punishment and the entire charge at punishment focused only on the ‘conduct of the defendant,’ whereas the charge at guilt/innocence applied the law of parties to the facts of the case, specifically naming appellant and his cohort_” At p. 74. On this basis the majority finds the “anti-parties” charge was “not necessary.” Id. This is no more than to say, however, that as long as the instruction given at the guilt phase of trial on the law of parties, under § 7.02, supra, and the submission of the first special issue in the punishment charge, were both proper, there is no need for an “anti-parties” charge. In other words, as long as the jury charge otherwise adequately sets out “the law applicable to the case[,]” an “anti-parties” charge is redundant. This analysis begs the question and effectively denies any utility of an “anti-parties” charge altogether. Moreover, it is completely at odds with the majority’s purported case by case approach. Most cases will present charges that properly apply the law of parties to the facts at the guilt phase, and that track the language of Article 37.071(b)(1), supra, at the punishment phase. But the whole problem is that the plain language of Article 37.-071(b)(1), supra, does not explicitly disabuse the jury of the notion of vicarious responsibility that has been endorsed and commended to it in the guilt charge.

After thus finding no error was committed, the majority nevertheless duplicates its efforts by inquiring whether appellant was harmed. * A familiar epithet, “cold blooded execution,” is invoked to characterize the offense, as if severity of the crime had some bearing on the question. At p. 76. We are told it was “dually carried out by appellant and his cohort.” Id. Of course it is that circumstance, aggravated by the fact that the evidence “was inconclusive as to who pulled the trigger,” id., that creates the need for an “anti-parties” charge in the first place. It is true that neither counsel for the State nor for appellant affirmatively misled the jury in punishment argument, and that appellant’s counsel was allowed to argue unmolested that the law of parties does not apply to the punishment phase of trial. On this state of the record I could *80 agree that “egregious” harm did not accrue. But to hold in a case such as this that jury argument may effectively replace a requested instruction of law from the trial court that the jury must focus on appellant’s own conduct in assessing his deliberateness is once again to deny the utility of an “anti-parties” instruction at all. Such a conclusion further blurs whatever distinction remains between “egregious” harm and “some” harm under Al-manza v. State, supra.

I respectfully dissent.

In gratuitous dicta the majority would substitute a harm analysis under Rule 81(b)(2) for one under Almanza where charge error "implicates rights flowing from the United States Constitution," at 75. That notion is contrary to teachings of Rose v. State, 752 S.W.2d 529, at 537, n. 9 , and 553 (Tex.Cr.App.1987); it also introduces serious questions concerning authority granted this Court by predecessor to Government Code § 22.108.