Criminal liability for the conduct of another
is addressed in Tex. Penal Code §§ 7.01–.03. Traditional aiding and abetting
liability, the subject of this chapter, is defined in Penal Code
section 7.02(a)(2). A series of court of criminal appeals cases enforced
a rule that “the State may not support a jury verdict of guilty
upon the theory that an accused was criminally responsible for an
offense committed by the conduct of another person unless the court’s
charge specifically and adequately authorizes the jury to convict
the accused upon that theory.” Applying this rule, the court held
that an instruction must contain at least “an application paragraph
authorizing a conviction under conditions specified by other paragraphs
of the jury charge to which the application paragraph necessarily
and unambiguously refers.” Plata
v. State, 926
S.W.2d 300, 304 (Tex. Crim. App. 1996), overruled
on other grounds by Malik
v. State, 953
S.W.2d 234, 239 (Tex. Crim. App. 1997). Under this approach,
and when the defendant had not objected in the trial court, an application
paragraph was sufficient when it told jurors to convict—
if you believe from the evidence
beyond a reasonable doubt that in Jefferson County, Texas, on or
about March 25, 1991, the defendant Brice Christopher Chatman, either
acting alone or as a party, as that term has been defined, intentionally
or knowingly caused the death of an individual, namely: Lester Guillory,
Jr., by shooting him with a deadly weapon, namely: a firearm . .
. .
Another line of cases, however, held that a defendant is entitled
on proper request or objection in the trial court to—in Plata’s
terms—“an application paragraph specifying all of the conditions
to be met before a conviction under such theory is authorized” (Plata, 926
S.W.2d at 304). Johnson
v. State, 739
S.W.2d 299 (Tex. Crim. App. 1987) (plurality opinion); accord Scott v. State, 768
S.W.2d 308, 309–10 (Tex. Crim. App. 1989).
Johnson and Scott require
that on request the trial court specify in the application paragraph
that the state must prove all the following:
The specified elements of the guilt of the primary actor;
That the defendant solicited, encouraged, directed, aided,
or attempted to aid the primary actor’s commission of the offense;
and
That the defendant did this “with intent to promote or assist
the commission of the offense” by the primary actor.
Several Texas courts have refused to find error in the rejection
of defendants’ requests for more specific or elaborate instructions
on parties. E.g., Roberts
v. State, 319
S.W.3d 37, 51–52 (Tex. App.—San Antonio 2010, pet. ref’d)
(rejecting contention that instructions should have required proof
defendant “acted with the intent to promote or assist in the commission
[of what] she knew to be a criminal offense”); Guevara v. State, 297
S.W.3d 350, 365–67 (Tex. App.—San Antonio 2009, pet.
ref’d) (rejecting contentions that instructions should have provided
that, “in addition to the illegal conduct of the primary actor,
it must be shown that the accused harbored the specific intent to
promote or assist the commission of the offense” and “[t]he accused must
know that he was assisting in the offense’s commission”); Cunningham v. State, 848
S.W.2d 898, 906 (Tex. App.—Corpus Christi–Edinburg 1993,
pet. ref’d) (rejecting contention that “the charge should have stated
the manner and means or specific acts by which appellant was guilty
as an accomplice”).
Instructions similar to those suggested in this chapter were
approved in Taylor v. State, 148
S.W.3d 592, 594–96 (Tex. App.—Fort Worth 2004, pet.
ref’d), and Guevara, 297
S.W.3d at 365–67. These instructions are also consistent
with the discussion of party liability in Ex parte Thompson, 179
S.W.3d 549 (Tex. Crim. App. 2005).
The underlying offense used as the example in the instructions
in this chapter is murder under Tex. Penal Code § 19.02(b)(1). Guidance for drafting
instructions on murder may be found in chapter 19.
Element 2 of the application of law to facts unit of the instructions
requires that the primary actor and the defendant have the same
mental state. This does not address the possibility that a defendant
prosecuted as a party might be guilty of a more or less serious
offense than the primary actor. The court of criminal appeals has
not addressed this issue in the context of appropriate jury instructions.
However, the court has discussed the extent to which the liability
of a party is actually derivative of that of the primary actor in
a habeas corpus action that rejected the defendant’s claim of actual innocence
of capital murder, based on the conviction of the primary actor
for only felony murder. In Ex parte Thompson, applicant
Thompson was convicted of capital murder and sentenced to death
based on the fatal shooting of Rahim by the applicant’s codefendant,
Butler, during the aggravated robbery of a convenience store in
Houston. The court of criminal appeals affirmed the conviction and
sentence, finding that the jury in this case was properly—
instructed that it could find
applicant guilty of capital murder in any of three different ways:
as the actual triggerman, as a party to Sammy Butler’s shooting
of Mr. Rahim under Section 7.02(a)(2); or as a co-conspirator to the
aggravated robbery under Section 7.02(b). Under the first two theories, the
jury was required to find that applicant himself intended the death
of Mr. Rahim; under the third theory the jury was required to find
that applicant should have anticipated Mr. Rahim’s death as a consequence
of his and Butler’s agreement to commit aggravated robbery and Mr.
Rahim’s death occurred in furtherance of that crime.
Ex parte Thompson, 179
S.W.3d at 552. The court rejected the applicant’s
claim that his conviction must be reversed because Butler was acquitted
of capital murder and convicted in a later trial only of felony
murder, because there was ample evidence at Thompson’s trial that
both he and Butler intended to commit capital murder. There was
some language in Thompson supporting the proposition
that the accomplice can be convicted of capital murder even if the
perpetrator did not intend such a murder. In her concurrence, Presiding
Judge Keller made clear that she would require that the government
prove at Thompson’s trial that Butler and Thompson both intended
to kill or knowingly killed the victim. We have drafted the instructions
to require both.
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Comment
Criminal liability for the conduct of another is addressed in Tex. Penal Code §§ 7.01–.03. Traditional aiding and abetting liability, the subject of this chapter, is defined in Penal Code section 7.02(a)(2). A series of court of criminal appeals cases enforced a rule that “the State may not support a jury verdict of guilty upon the theory that an accused was criminally responsible for an offense committed by the conduct of another person unless the court’s charge specifically and adequately authorizes the jury to convict the accused upon that theory.” Applying this rule, the court held that an instruction must contain at least “an application paragraph authorizing a conviction under conditions specified by other paragraphs of the jury charge to which the application paragraph necessarily and unambiguously refers.” Plata v. State, 926 S.W.2d 300, 304 (Tex. Crim. App. 1996), overruled on other grounds by Malik v. State, 953 S.W.2d 234, 239 (Tex. Crim. App. 1997). Under this approach, and when the defendant had not objected in the trial court, an application paragraph was sufficient when it told jurors to convict—
if you believe from the evidence beyond a reasonable doubt that in Jefferson County, Texas, on or about March 25, 1991, the defendant Brice Christopher Chatman, either acting alone or as a party, as that term has been defined, intentionally or knowingly caused the death of an individual, namely: Lester Guillory, Jr., by shooting him with a deadly weapon, namely: a firearm . . . .
Chatman v. State, 846 S.W.2d 329, 330 (Tex. Crim. App. 1993); accord Ransom v. State, 920 S.W.2d 288, 303 (Tex. Crim. App. 1994).
Another line of cases, however, held that a defendant is entitled on proper request or objection in the trial court to—in Plata’s terms—“an application paragraph specifying all of the conditions to be met before a conviction under such theory is authorized” (Plata, 926 S.W.2d at 304). Johnson v. State, 739 S.W.2d 299 (Tex. Crim. App. 1987) (plurality opinion); accord Scott v. State, 768 S.W.2d 308, 309–10 (Tex. Crim. App. 1989).
Johnson and Scott require that on request the trial court specify in the application paragraph that the state must prove all the following:
Several Texas courts have refused to find error in the rejection of defendants’ requests for more specific or elaborate instructions on parties. E.g., Roberts v. State, 319 S.W.3d 37, 51–52 (Tex. App.—San Antonio 2010, pet. ref’d) (rejecting contention that instructions should have required proof defendant “acted with the intent to promote or assist in the commission [of what] she knew to be a criminal offense”); Guevara v. State, 297 S.W.3d 350, 365–67 (Tex. App.—San Antonio 2009, pet. ref’d) (rejecting contentions that instructions should have provided that, “in addition to the illegal conduct of the primary actor, it must be shown that the accused harbored the specific intent to promote or assist the commission of the offense” and “[t]he accused must know that he was assisting in the offense’s commission”); Cunningham v. State, 848 S.W.2d 898, 906 (Tex. App.—Corpus Christi–Edinburg 1993, pet. ref’d) (rejecting contention that “the charge should have stated the manner and means or specific acts by which appellant was guilty as an accomplice”).
Instructions similar to those suggested in this chapter were approved in Taylor v. State, 148 S.W.3d 592, 594–96 (Tex. App.—Fort Worth 2004, pet. ref’d), and Guevara, 297 S.W.3d at 365–67. These instructions are also consistent with the discussion of party liability in Ex parte Thompson, 179 S.W.3d 549 (Tex. Crim. App. 2005).
The underlying offense used as the example in the instructions in this chapter is murder under Tex. Penal Code § 19.02(b)(1). Guidance for drafting instructions on murder may be found in chapter 19.
Element 2 of the application of law to facts unit of the instructions requires that the primary actor and the defendant have the same mental state. This does not address the possibility that a defendant prosecuted as a party might be guilty of a more or less serious offense than the primary actor. The court of criminal appeals has not addressed this issue in the context of appropriate jury instructions. However, the court has discussed the extent to which the liability of a party is actually derivative of that of the primary actor in a habeas corpus action that rejected the defendant’s claim of actual innocence of capital murder, based on the conviction of the primary actor for only felony murder. In Ex parte Thompson, applicant Thompson was convicted of capital murder and sentenced to death based on the fatal shooting of Rahim by the applicant’s codefendant, Butler, during the aggravated robbery of a convenience store in Houston. The court of criminal appeals affirmed the conviction and sentence, finding that the jury in this case was properly—
instructed that it could find applicant guilty of capital murder in any of three different ways: as the actual triggerman, as a party to Sammy Butler’s shooting of Mr. Rahim under Section 7.02(a)(2); or as a co-conspirator to the aggravated robbery under Section 7.02(b). Under the first two theories, the jury was required to find that applicant himself intended the death of Mr. Rahim; under the third theory the jury was required to find that applicant should have anticipated Mr. Rahim’s death as a consequence of his and Butler’s agreement to commit aggravated robbery and Mr. Rahim’s death occurred in furtherance of that crime.
Ex parte Thompson, 179 S.W.3d at 552. The court rejected the applicant’s claim that his conviction must be reversed because Butler was acquitted of capital murder and convicted in a later trial only of felony murder, because there was ample evidence at Thompson’s trial that both he and Butler intended to commit capital murder. There was some language in Thompson supporting the proposition that the accomplice can be convicted of capital murder even if the perpetrator did not intend such a murder. In her concurrence, Presiding Judge Keller made clear that she would require that the government prove at Thompson’s trial that Butler and Thompson both intended to kill or knowingly killed the victim. We have drafted the instructions to require both.