Chapter 7
Law of Parties
7.4 Instruction—Coconspirator 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) based on conspiracy to commit robbery under Texas Penal Code section 29.02.]
The state accuses the defendant of having committed the offense of murder. Specifically, the accusation is that [name of coconspirator] committed murder and the defendant is criminally responsible for this offense as a coconspirator.
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 based on conspiracy to commit robbery under Texas Penal Code section 29.02.]
A person commits the offense of murder if the person intentionally or knowingly causes the death of an individual.
A person acts intentionally as required by this offense if it is his conscious objective or desire to cause the result of death.
A person acts knowingly as required by this offense if he is aware that his conduct is reasonably certain to cause the result of death.
Responsibility for Felony Committed by Coconspirator
The defendant may be responsible for a murder committed by someone else, even though the defendant himself did not knowingly or intentionally cause the death of an individual, because the defendant joined an unlawful conspiracy. At least one member of the unlawful conspiracy must have intentionally or knowingly caused the death of an individual before the defendant can be responsible for murder.
A member of a conspiracy to commit one felony offense is guilty of another felony offense committed by one of his coconspirators when that other felony offense was committed in furtherance of the original unlawful conspiracy and was one that should have been anticipated as a result of the unlawful conspiracy. Under those circumstances, all coconspirators are guilty of the felony offense actually committed by one member of the conspiracy, though the rest of them had no intent to commit it.
Murder and robbery are felony offenses.
Definitions
Conspiring with Others to Commit a Felony Offense
A defendant conspires with others to commit a felony offense if—
- the defendant intends that a felony offense be committed;
- the defendant agrees with one or more persons that one or more of them engage in conduct that would constitute the felony offense; and
- one or more of them performs an overt act in pursuance of the agreement.
Intent That a Felony Offense Be Committed
A person intends that a felony offense be committed when it is his conscious objective or desire that the felony offense be committed.
Robbery
The felony offense of robbery occurs if—
- a person intentionally, knowingly, or recklessly causes bodily injury to another or he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death;
- during the course of committing a theft;
- and with the intent to obtain or maintain control of the property stolen.
[Additional definitions may be helpful, such as “course of committing theft” (Texas Penal Code section 29.01); “theft” (Texas Penal Code section 31.03(a)); and the culpable mental states (Texas Penal Code section 6.03).]
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 based on conspiracy to commit robbery under Texas Penal Code section 29.02.]
You must determine whether the state has proved, beyond a reasonable doubt, four elements. The elements are that—
- in [county] County, Texas, on or about [date], the defendant joined a conspiracy to commit robbery; and
- in an attempt to carry out this conspiracy, [name of coconspirator] [insert specific allegations, e.g., intentionally or knowingly caused the death of an individual, [name of victim], by shooting [name of victim] with a firearm]; and
- the murder was committed by [name of coconspirator] in furtherance of the unlawful conspiracy to rob [name of victim]; and
- the murder should have been anticipated as a result of this conspiracy.
If you all agree the state has failed to prove, beyond a reasonable doubt, one or more of elements 1, 2, 3, and 4 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 to be used when the evidence does not tend to show that the defendant is the primary actor and there is no evidence of party liability under Tex. Penal Code § 7.02(a)(2). It is for use in the rare situation in which the defendant can be liable for the offense only as a coconspirator under Tex. Penal Code § 7.02(b).
The instruction at CPJC 7.2 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). 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.
Conspiracy liability is defined in Penal Code section 7.02(b). This instruction is based on an indictment for a murder charged under Penal Code section 19.02(b)(1), in which the conspiracy is one to commit robbery, in violation of Penal Code section 29.02. The court will need to modify the instruction depending on what the accusation charges for the substantive offense and what the object of the conspiracy was. If the defendant is also charged as the direct perpetrator or as a party, the instruction at CPJC 7.5 should be used instead.
Similar instructions regarding coconspirator liability were approved in Ex parte Thompson, 179 S.W.3d 549 (Tex. Crim. App. 2005). The court of criminal appeals has held that a defendant in a capital murder case may be convicted solely on the conspiracy theory contained in the jury charge. Fuller v. State, 827 S.W.2d 919, 932–33 (Tex. Crim. App. 1992). See also Valle v. State, 109 S.W.3d 500, 503–04 (Tex. Crim. App. 2003) (“A defendant can be convicted of capital murder solely on a conspiracy theory under Texas Penal Code section 7.02(b) without having the intent or actual anticipation that a human life would be taken that is required for an affirmative answer to the anti-parties issue.”).
The holding in Mayfield v. State, 716 S.W.2d 509, 515 (Tex. Crim. App. 1986), that a defendant was entitled to an “independent impulse” instruction in a conspiracy liability case when raised by the evidence, is no longer viable. Solomon v. State, 49 S.W.3d 356, 368 (Tex. Crim. App. 2001).
The Committee could find no court of criminal appeals case discussing the issue of the effect, if any, that an alleged withdrawal from a conspiracy has on a case brought under a section 7.02(b) theory of liability. One court has held that a capital murder defendant convicted solely on a conspiracy theory is not entitled to a jury charge on the renunciation defense, because “Penal Code section 15.04(b) only applies to an offense of criminal conspiracy under section 15.02.” Love v. State, 199 S.W.3d 447, 457 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (trial court did not err in denying Love’s requested jury charge based on his alleged communication to his fellow restaurant employees before the robbery that they should “be careful because his friend might try to commit robbery at the restaurant”). One Committee member believes that some form of withdrawal instruction must apply in an appropriate situation, though perhaps it would have common-law, not statutory, roots.