Jones v. State

*668 OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

Appellant was convicted of aggravated robbery Tex.Penal Code Ann. § 29.03. A divided Court of Appeals affirmed appellant’s conviction. Jones v. State, 774 S.W.2d 7 (Tex.App.—Dallas 1989). We granted appellant’s petition for discretionary review to examine whether the Court of Appeals erred in concluding the evidence was sufficient to support appellant’s conviction. We will reverse.

The record reflects that Sandra Tubbs was working as a cashier at the Gulf Majek Market in Lancaster. Around 8:30 a.m. on November 9, 1985, three males, later identified as appellant, Clarence Rhynes and Stanley Coleman, entered the store. Coleman went to the counter, Rhynes went to the ice cream machine and appellant stood near the only door. Coleman asked Tubbs for a package of cigarettes. Tubbs complied and rang up the sale. Coleman paid part of the amount owed and asked Rhynes for the balance. Rhynes gave Coleman the money and then went behind the counter. Rhynes pointed a gun at Tubb’s face and demanded that she give him all of the money. Coleman and appellant remained in their original locations within the store. Appellant remained the lookout, but moved closer to the counter when Coleman began grabbing the money in the register. After-wards, Coleman and appellant went behind the counter. Appellant removed all the coins from the cash tray, and Coleman took several cartons of cigarettes. As the three left the store appellant grabbed a display of watches, and fled. Appellant’s fingerprint was positively identified on the underside of the cash register.

The jury convicted appellant of aggravated robbery. On direct appeal, he challenged the sufficiency of the evidence by asserting that the jury charge did not authorize the jury to convict him as a party to the aggravated robbery because the application paragraph authorized his conviction only as the primary actor. The Court of Appeals affirmed, holding “that when determining sufficiency, the evidence must be compared to the entire charge.’’ Jones, 774 S.W.2d at 11-12 (emphasis in original), citing Garrett v. State, 749 S.W.2d 784, 802-03 (Tex.Cr.App.1983) (opinion on reh’g).

The Court’s charge authorized punishment on the theory of aggravated robbery and robbery. After the application paragraphs, the charge subsequently tracked the statutory language regarding conviction as a party. Tex.Penal Code Ann. §§ 7.01(a) and 7.02(a)(2). The charge failed to apply the abstract theory of parties to the facts of the case. 1

In Garrett v. State, 749 S.W.2d at 802-03 (Tex.Cr.App.1986) (opinion on reh’g), we reiterated that the sufficiency of the evidence must be measured against the jury charge, which we interpreted to mean as “the entire charge.” See Boozer v. State, 717 S.W.2d 608 (Tex.Cr.App.1986); Ortega v. State, 668 S.W.2d 701 (Tex.Cr.App.1983); Benson v. State, 661 S.W.2d 708 (Tex.Cr.App.1983). However, Garrett, 749 S.W.2d at 802-03 , also held that the mere inclusion of an abstract definition of the theory of transferred intent was not sufficient to bring that theory before the jury.

In Garrett , the defendant was charged with “knowingly” causing the deceased’s death. The evidence showed that the deceased, her family and a neighbor were eating barbecue outside the deceased’s home when Garrett arrived. Garrett and the neighbor began arguing over the neighbor shooting Garrett’s dog. Garrett retrieved a shotgun from her car and fired a shot at the neighbor. The bullet missed the neighbor but killed the deceased who was inside her mobile home. Because there was no evidence that Garrett knowingly killed the deceased, the State proceeded on a theory of transferred intent. See Tex.Penal Code Ann. § 6.04(b)(2). 2 The *669 charge included an abstract instruction on the law of transferred intent, but failed to apply this law to the facts of the case in the application paragraph. On original submission, this Court held that the abstract instruction on the law of transferred intent was not sufficient to bring that theory before the jury. Specifically, we held:

We are not persuaded that because the court’s charge abstractly defined transferred intent in a paragraph (designated ‘3-A’) appearing immediately after the paragraph applying the law of murder to the facts of the case (designated ‘3’) the jury was therefore authorized to convict appellant upon that theory. In no way can the application paragraph (which begins, incidentally: ‘Now bearing in mind the foregoing instruction ...’) be construed to refer to the abstract definition, so even ‘reading the charge as a whole,’ see Brown v. State, 716 S.W.2d 939 (Tex.Cr.App.1986); Doyle v. State, 631 S.W.2d 732 (Tex.Cr.App.1982) (Opinion on rehearing), would not inform the jury that it could convict appellant on that theory. Mere juxtaposition does not amount to authorization.

Garrett, 749 S.W.2d at 789 n. 6 (opinion on original submission) (emphasis in original). 3

Garrett is one in a long line of cases which stand for the proposition that the application paragraph of a jury charge is that which authorizes conviction, and an abstract charge on a theory of law which is not applied to the facts is insufficient to bring that theory before the jury. McCuin v. State, 505 S.W.2d 827 (Tex.Cr.App.1974); Oliver v. State, 160 Tex.Crim. 222 , 268 S.W.2d 467, 469 (1954) (Opinion on rehearing); Barnes v. State, 145 Tex.Crim. 163 , 166 S.W.2d 708 (1942); Crisp v. State, 125 Tex.Crim. 603 , 69 S.W.2d 772 (1934). See also, Apodaca v. State, 589 S.W.2d 696 (Tex.Cr.App.1979); and Harris v. State, 522 S.W.2d 199, 202 (Tex.Cr.App.1975) and cases cited therein.

This line of cases has been referred to as the Oliver line of cases. McCuin, 505 S.W.2d at 830 . In Oliver, 268 S.W.2d at 469 , the evidence demonstrated that Oliver, if guilty at all, was guilty only as a “principal” to a killing, and not as the one who actually fired the deadly shot. 4 Another had confessed to shooting the deceased. The court’s charge contained an abstract definition on the law of principals, but failed to apply the law to the facts. This Court held:

The jury was authorized by the charge to convict appellant upon a finding that he committed the murder, but the evidence is not such as would sustain such a finding.

The jury was not instructed to the effect that if [another individual] voluntarily killed the deceased and appellant acted with him as a principal, in one or more of the ways stated in the definition of that term, he should be convicted.

The trial court should have made application of the law of principals to the facts, the jury, under the facts here, not *670 being warranted in convicting him unless they found that knowing [the other indi-viduales unlawful intent, he agreed to or aided or encouraged him in the commission of the offense.

Oliver, 268 S.W.2d at 470 .

In McCuin, 505 S.W.2d at 830 , another case dealing with the law of principals, the Court explained the Oliver rule as follows:

if the evidence introduced upon the trial of the cause shows, or raises an issue, that the conduct of the defendant then upon trial is not sufficient, in and of itself, to sustain a conviction, the State’s case rests upon the law of principals and is dependent, at least in part, upon the conduct of another. In such a case, the law of principals must be submitted and made applicable to the facts of the case. Thus, the Oliver rule will govern this fact structure.

In Apodaca, 589 S.W.2d 696 , this Court applied the “Oliver” rule and reversed a conviction because the jury charge failed to apply the law of parties to the facts. Apo-daca and his companion were pursuing the deceased in a high speed highway chase. Apodaca’s companion was driving, and at times during the pursuit Apodaca leaned out of the car and beat on the deceased’s truck with a tire tool. The car eventually hit the truck, knocking it into a guard rail. The deceased was killed in the crash.

The State’s theory was that Apodaca’s companion, as the driver of the car, was the primary actor and that appellant was guilty, if at all, as a party because he solicited, encouraged, directed, aided or attempted to aid the driver. The court abstractly charged the jury on the law of parties, but did not apply the law to the facts. 5 Apodaca contended on appeal that because the charge failed to apply the law to the facts, the charge was insufficient. This Court agreed. Id. 6

What can be gleaned from Garrett, Apodaca and predecessor case law is that while we view sufficiency of the evidence against an “entire charge,” Garrett, 749 S.W.2d at 802-803 , a charge which fails to apply a theory of law to the facts of the case is insufficient to authorize conviction on that theory, even where the theory of law is abstractly defined in the charge. Id., 749 S.W.2d at 789 n. 6. “Mere juxtaposition does not amount to authorization.” Ibid.

This rationale is founded upon the notion that a charge which contains an abstract paragraph on a theory of law, but does not apply the law to the facts, deprives the defendant of “a fair and impartial trial.” Harris v. State, 522 S.W.2d 199, 202 (Tex.Cr.App.1975), citing Fennell v. State, 424 S.W.2d 631 (Tex.Cr.App.1968). This type of error “in the charge goes to the very basis of the case so that the charge fails to state and apply the law under which the accused is prosecuted.” Harris, 522 S.W.2d at 202 , and cases cited therein.

Turning to the case at bar, the evidence establishes that Rhynes, not appellant, used or exhibited a deadly weapon during the robbery. We are required to measure the evidence against the jury charge. Garrett, 749 S.W.2d 784 ; Ortega, 668 S.W.2d 701 ; Arceneaux v. State, 803 *671 S.W.2d 267 (Tex.Cr.App.1990). The only theory upon which appellant could be found guilty of aggravated robbery is under the theory of parties, but the charge does not authorize conviction on that theory. We conclude that the evidence is insufficient to demonstrate that appellant was guilty of aggravated robbery in a non-parties capacity. Boozer, 717 S.W.2d at 610 . Garrett, 749 S.W.2d 784 .

The judgment of the Court of Appeals is reversed, and the cause is remanded to the trial court for the entry of a judgment of acquittal.

MILLER, J., concurs with note: Since this case is factually indistinguishable from Garrett v. State, 749 S.W.2d 784 (Tex.Cr.App.1986), I concur.

BENAVIDES, J., concurs in the result.

. There was no objection to the charge by either the State or the defense.

. Tex.Penal Code Ann. § 6.04(b)(2) provides that a "person is nevertheless criminally respon *669 sible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that ... a different person or property was injured, harmed or otherwise affected.”

. The opinion on rehearing agreed that the abstract instruction on the law transferred intent was not sufficient to bring that theory before the jury. Garrett, 749 S.W.2d at 802 . The Court of Appeals distinguished Garrett by concluding that the law provides no vehicle "that permits the law of transferred intent to be applied to the facts of the case. However, the law of parties does provide such a vehicle. See Tex.Penal Code Ann. § 7.01(c).” Jones, 774 S.W.2d at 7 n. 2. Section 7.01(c) abolishes the distinction between accomplices and principals, and provides that “each party to an offense may be charged and convicted without alleging that he acted as a principal or accomplice.”

The Court of Appeals’ reasoning is that the law of parties, in and of itself, authorizes the jury to find guilt on that theory. This reasoning is in direct conflict with the above-quoted portion of Garrett which states that mere juxtaposition of a theory of law in a charge "does not amount to authorization.” Garrett, 749 S.W.2d at 789 n. 6 (citations omitted).

. Under current law, the distinction between accomplices and principals has been abolished. Tex.Penal Code Ann. § 7.01(c) expressly states: “All traditional distinctions between accomplices and principals are abolished by this section, and each party to an offense may be charged and convicted without alleging that he acted as a principal or accomplice.”

. The trial court charged the jury on the abstract law of parties; however, the charge made reference to “principals” instead of "parties.” Although the miswording was the subject of one of Apodaca's points of error, the Court hinged its ruling on the fact that the charge’s failure to apply the law to the facts made it insufficient to require the jury to find whether Apodaca was criminally responsible for the acts of his companion. Apodaca, 589 S.W.2d at 697 n. 1, and 698-99.

. This Court has also applied the Oliver rule where the charge applied the law of principals to the facts, but also permitted the jury to find the defendant guilty on a theory unsupported by the evidence. In Savant v. State, 544 S.W.2d 408 (Tex.Cr.App.1977), there was no evidence that Savant was guilty of shooting the victim, although there was evidence that he attacked the victim shortly before another man shot the victim. The charge authorized punishment for Savant "either acting alone or together with some other person or persons as a principle.” This Court held that the attempt to apply the law of principals to the facts was erroneous because it permitted the jury to find Savant guilty if he alone committed the offense, a theory unsupported by the evidence. Id., 544 S.W.2d at 409 .