Chapter 7
Law of Parties
7.2 Instruction—Party Liability
LAW SPECIFIC TO THIS CASE
[Insert relevant instructions for specific offense. The following example is for when the underlying offense is murder under Texas Penal Code section 19.02(b)(1).]
The state accuses the defendant of having committed the offense of murder. Specifically, the accusation is that [name of primary actor] committed murder and the defendant is criminally responsible for this offense because the defendant solicited, encouraged, directed, aided, or attempted to aid [name of primary actor] in committing it].
Relevant Statutes
[Insert relevant statutes and definitions units from charged offense. The following example is for a Texas Penal Code section 19.02(b)(1) charge.]
A person commits the offense of murder if the person intentionally or knowingly causes the death of an individual.
Responsibility for Conduct of Another as Party
A person who does not by his own conduct commit an offense may nonetheless be criminally responsible for the conduct of another person.
A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.
A defendant acts with intent to promote or assist in the commission of an offense when it is his conscious objective or desire to promote or assist in the commission of the offense.
A defendant’s mere presence alone will not make him responsible for an offense. A defendant’s mere knowledge of a crime or failure to disclose a crime also is not sufficient.
[Include the following if raised by the facts.]
A defendant is guilty of an offense committed by another under the law set out here even if that other person has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense or of a different type or class of offense, or is immune from prosecution.
Definitions
Intentionally Causing the Death of an Individual
The primary actor acts intentionally as required by this offense if it is his conscious objective or desire to cause the result of death.
Knowingly Causing the Death of an Individual
The primary actor acts knowingly as required by this offense if he is aware that his conduct is reasonably certain to cause the result of death.
Application of Law to Facts
[Include relevant application of law to facts unit from charged offense. The following example is for a Texas Penal Code section 19.02(b)(1) charge.]
You must determine whether the state has proved, beyond a reasonable doubt, that the defendant is guilty of murder as a party because he is criminally responsible for the commission of a crime committed by the conduct of another person. This is the case if the state has proved, beyond a reasonable doubt, four elements. The elements are that—
- in [county] County, Texas, on or about [date], [name of primary actor] caused the death of an individual, [name of victim], by [insert specific allegations, e.g., shooting [name of victim] with a firearm]; and
- [name of primary actor] did this intentionally or knowingly; and
- the defendant [include one or more of the following as applicable: solicited, encouraged, directed, aided, or attempted to aid] [name of primary actor] to commit the offense of murder; and
- the defendant acted with the intent to promote or assist the commission of the offense of murder by [name of primary actor].
You must all agree on elements 1, 2, 3, and 4 listed above.
If you all agree the state has failed to prove, beyond a reasonable doubt, one or more of elements 1, 2, 3, and 4 listed above, you must find the defendant “not guilty.”
If you all agree the state has proved, beyond a reasonable doubt, each of the four elements listed above, you must find the defendant “guilty.”
[Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC 2.1, the general charge.]
Comment
The law of parties is defined in Tex. Penal Code § 7.01. The above instruction is based on an indictment for a murder charged under Tex. Penal Code § 19.02(b)(1). The court will need to modify the instruction depending on what the accusation charges.
This instruction is appropriate when the evidence supports liability only as a party under Penal Code section 7.02(a)(2). The instruction at CPJC 7.3 is for use when the evidence supports liability as the primary actor or as a party under Penal Code section 7.02(a)(2). The instruction at CPJC 7.4 is for use when the evidence supports liability only as a coconspirator under Penal Code section 7.02(b). Finally, the instruction at CPJC 7.5 is for use when the evidence supports liability as either the primary actor, a party under Penal Code section 7.02(a)(2), or a coconspirator under Penal Code section 7.02(b). The instruction selected should be based on the evidence presented.
The instructions may permit conviction as a party rather than, or as an alternative to, conviction as the primary actor, even if the charging instrument makes no reference to liability as a party. Marable v. State, 85 S.W.3d 287, 287–88 (Tex. Crim. App. 2002); accord, e.g., Sorto v. State, 173 S.W.3d 469, 476 (Tex. Crim. App. 2005) (“[I]t is well-settled that the law of parties need not be pled in the indictment.”).
In 1999, Judge Womack stated, “I am doubtful of the rule that the law of parties is available without any allegation in the indictment of conduct that would make one a party.” Planter v. State, 9 S.W.3d 156, 162 (Tex. Crim. App. 1999) (Womack, J., dissenting). Subsequently, in Marable, 85 S.W.3d at 295–300, Judge Womack reiterated this position and was joined in his dissent by Judges Meyers and Johnson. They believe that an indictment must generally allege “that the defendant is criminally responsible for the conduct of another person who is named.” Marable, 85 S.W.3d at 299.
If the defendant properly objects, it might be error for a trial judge to fail to inform the jury which specific modes of conduct enumerated in Penal Code section 7.02(a)(2) (soliciting, encouraging, directing, aiding, or attempting to aid) form the basis for the conviction. Ransom v. State, 920 S.W.2d 288, 303 (Tex. Crim. App. 1994); Johnson v. State, 739 S.W.2d 299, 305 n.4 (Tex. Crim. App. 1987).
General practice is to name the person who, under the state’s theory, is the primary actor. But the court of criminal appeals has suggested this is not always necessary. Wooley v. State, 273 S.W.3d 260, 263 (Tex. Crim. App. 2008) (citing with approval Wooley v. State, 223 S.W.3d 732, 735 n.2 (Tex. App.—Houston [14th Dist.] 2007)) (disagreeing with 43 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 36.20 n.6 (2d ed. 2001)).