# Jones v. State

> Court of Criminal Appeals of Texas · June 26, 1991 · 815 S.W.2d 667

URL: https://www.frixlaw.com/law-library/cases/9777885

## Case

- **Full name:** Kevin Menard JONES, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** June 26, 1991
- **Citations:** 815 S.W.2d 667; 1991 Tex. Crim. App. LEXIS 162; 1991 WL 111759
- **Precedential status:** Published
- **Opinion:** Dissent by White
- **Judges:** McCormick, White, Miller, State, Benavides
- **Cited by:** 123 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9777885

## How later opinions describe it (automated extraction)

- holding that where law of parties was not properly charged, evidence must be sufficient to show that defendant personally committed all elements of offense
- noting that application paragraph is portion of charge which authorizes jury to act

## Opinion text

WHITE, Judge,
dissenting.
Today an aggressive and assertive majority 1 of this Court indicates that intelligent jurors in Texas cannot read plain English and then use common sense during their deliberations in criminal trials. The majority opinion relies on this Court’s decision in Garrett v. State, 749 S.W.2d 784, at 801-804 (Tex.Cr.App.1986) (opinion on rehearing, 1988), to reverse the decision of the Court of Appeals and the judgment of the trial court. I joined the opinion in Garrett , but only to concur in the result reached in that opinion. Application of the Garrett opinion’s reasoning in the instant case has produced a result which, at best, makes little sense in light of the record before us, and at worst, produces an unjust result.
In the instant case, the majority repeats the holding in Garrett that a jury is only authorized to convict a defendant upon a theory of law that is countenanced within, and authorized by, the application paragraph:
“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.” Id.”
“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 of the case, 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.”
Majority opinion, p. 670.
Under this interpretation, any evidence that proves a theory which is not incorporated into the application paragraph is discounted. In the instant case the majority opinion implies that if the rest of the evi *679 dence admitted at trial is not sufficient to prove up the theories which are included in the application paragraph, a defendant is entitled to a reversal and acquittal.
There are several problems with this approach. First, in terms of the instant case, the majority’s opinion ignores the state of the record, and the fact that in voir dire, oral argument and the charge itself, the jury was urged to apply the law of parties to the evidence before it to determine whether or not appellant was guilty. During the opening state’s argument at the close of evidence in the instant case, the attorney for the state reviewed what had been said in voir dire 2 about the law of parties, and then discussed the jury’s need to apply that law to the facts of the instant case:
“I want to talk to you for just a brief moment about the law of parties. We talked about that on voir dire. And I don’t want you to be confused by the Court’s charge. The Court, on Page Four of the charge, sets forth the elements of the offense, that on or about a certain date that defendant committed an aggravated robbery by using or exhibiting a deadly weapon. 3
“You must consider that instruction in connection with the law of parties. Now, the law of parties is set forth for you on Page Six of the charge. The evidence has been, that this defendant was not the one actually wielding the gun. All right? But he was there, and the evidence has been that he knew about the use of the gun, he knew about the robbery, and he was an affirmative, active, lucid, thinking participant in the commission of the aggravated robbery. All right. He knew about the gun, fully supported the use of the gun, made no effort to stop the use of the gun, participated in the proceeds from the robbery, got part of them himself. He knew what was going on. All right?
“To the extent that he knew about that, he was a participant in the robbery. You answer all those questions yes.
He’s a party to an aggravated robbery, he’s guilty of an aggravated robbery. He is not guilty of robbery, the lesser included offense. All right?”
After the opening State’s argument was concluded, appellant’s attorneys argued the issue of appellant’s guilt as a party to the instant offense, in light of the trial court’s instructions to the jury:
“In order to determine whether he’s guilty of aggravated robbery, you must determine if he, Kevin Jones, solicited, encouraged, directed, or aided, or attempted to aid Clarence, the person with the gun, who put Sandra in fear.
“Now, the question is what did Kevin do? Did he solicit the use of the deadly weapon? Did he encourage it? Did he direct it or did he aid in it? And if he did, in what way?”
[[Image here]]
“Now, if you find that Kevin aided or encouraged or solicited that act then you find that he’s guilty of robbery. If you find that he aided, advised, or encouraged or solicited the use of the deadly weapon, then he’s guilty of aggravated robbery. It’s that clean. It’s right here in the Court’s charge.”
[[Image here]]
“So read the Court’s charge, ladies and gentlemen. On Page Four he tells you. You’ve got to put the aiding and encouraging the use of the weapon onto Kevin Jones beyond a reasonable doubt before you can find him guilty of aggravated robbery. That’s why the other robbery is in there, because if you think he’s guilty of being a party to threatening Sandra and placing her in fear but that he did not encourage or advise the use of the deadly weapon.”
At the closing argument, the attorney for the State added a final word about how the law of parties was critical to the jury’s decision whether appellant was guilty of aggravated robbery:
*680 ... “We got the goodbye. Any other name you want to call him. He participated. My God.
“Read that charge. Read that section dealing with parties. Read it.”
The trial court then gave the jury its last instructions before they retired to their deliberations:
“Ladies and gentlemen, you can now retire to the jury room and consider your verdict. Elect your foreman, and when you have reached a unanimous verdict, knock on the door, and the Bailiff will attend to you. You may retire.”
The majority opinion assumes, in effect, that the instant jury not only ignored everything in the charge after the application paragraph, but also that they paid no attention to either the trial court’s reading of the entire charge to them, or to the entreaties of every one of the lawyers when they explained the charge to them.
This benign neglect of the record by the majority produced the only unfair and unjust result in the instant case. Appellant, however, received a full measure of justice by virtue of the efforts of the attorneys and trial court during his trial to ensure that the jury would only convict him of aggravated robbery if they first found that he was a party to the instant offense. Now, the majority opinion provides him with far more than the justice and fairness that he was entitled to as a citizen of this state. He has been granted a free ride through the criminal justice system.
There are also problems at law which arise from the majority opinion’s end run around a principle set out in Benson v. State, 661 S.W.2d 708 (Tex.Cr.App.1982) (on rehearing), and in Boozer v. State, 717 S.W.2d 608 (Tex.Cr.App.1984). In Benson and Boozer , this Court explained the principle that sufficiency of the evidence is to be measured against the jury charge, “which we interpret to mean the entire charge.” See Garrett, 749 S.W.2d, at 803 (on rehearing). While the language of the majority opinion attempts to reconcile Benson and Boozer with Garrett , it is effectively overruling Benson and Boozer by placing a de facto limit upon appellate consideration of the evidence admitted at trial to only that evidence which supports the theories set out in the application paragraph. The majority opinion accomplishes this by not treating the flawed application paragraph as a trial error which would require, at most, a reversal and remand for a new trial under a corrected charge. Instead, the majority opinion moves from holding there was error in the charge to deciding to exclude from a self-generated sufficiency review all evidence affected by the error in the application paragraph.
Prom now on, any evidence which supports the verdict of the finder of fact, but which applies to theories explained outside the application paragraph is to be ignored on appellate review. Prom the majority’s opinion, it is apparent that sufficiency of the evidence will be measured only against those theories of law which are included within the application paragraph, or the pages immediately preceding it.
To assume that a jury, during its determination of the sufficiency of the evidence, can not apply a theory of law which is not included within an application paragraph because it is in “juxtaposition” to that paragraph, as opposed to “authorization” by that paragraph, and that they must then have also ignored all the evidence they have heard at trial in support of that theory because of this rhetoric subtlety, is absurd in the extreme. This becomes very apparent in a case such as the instant, where all of the attorneys on both sides of the lawsuit not only extensively argued the law of parties, but actually referred to the exact pages in the charge where that theory of law was explained. This Court has, in the past, believed that sufficiency of the evidence must be measured against an entire charge in order to avoid results such as in the instant case.
Another problem at law exists with the majority opinion’s assumption that the jury is bound to comply with only those instructions which come within, and before, the application paragraph. The majority’s decision to implicitly confer an interpretation of exclusivity upon the preamble to the application paragraph (“Now, bearing in mind *681 the foregoing instructions,”) is without precedent. It can serve no purpose other than to subvert our prior decisions that a jury relies upon an entire charge in deciding the question of a defendant’s guilt or innocence.
The majority also errs when it assumes that the jury was incapable of working with the entire charge throughout its deliberations to carry out all the duties assigned to it. There are no false lines of demarcation within the jury charge to interfere with the jury carrying out its assignment. For example, the first duty of the jury in the instant case, as it was instructed by the trial court before it retired to begin its deliberations, was to elect its foreman. This instruction was part of the last page of the charge. The jury had to read through the charge to get to that instruction, before it could start any of its deliberations.
Also, during the course of its deliberations on the question of appellant’s guilt or innocence, the jury was instructed to not consider, or hold against appellant, that he did not testify in the instant case. This fact was not to be taken into consideration by the jury “for any purpose whatsoever.” This instruction appears on page seven of the charge, after the instruction on the theory of the law of parties on page six. This instruction is important to a jury’s deliberations on the sufficiency of the evidence in that an appellant’s decision to not testify is not an element of evidence to be weighed against appellant in the favor of the state. Yet, we have never held that a jury has disregarded this important instruction merely because it is not in the pages “foregoing” the application paragraph.
One of a jury’s duties is to consider the charge in its entirety throughout its deliberations, a duty which this Court should not simplistically presume they are incapable of handling solely on the basis of the numbering of the pages of the charge, or in the manner in which the district judge’s secretary stapled the pages of the charge together.
After today’s ruling, all trial judges in this State should begin their charge to the jury with “every word following this sentence is included and made a part of the application paragraph of this charge.”
I respectfully dissent because the aggressive and assertive majority turns the jury system upside down.
. Judge Marvin Teague, Words and Phrases.
. In the instant case, appellant waived the recording of voir dire by the court reporter.
. This was the application paragraph section of the trial court's instructions.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9777885. Public record. Not legal advice.