Chapter 7
Law of Parties
7.5 Instruction—Primary Actor, Party, or 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), when an alternative theory is 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 the defendant is guilty of murder under three alternative theories.
Primary Actor Liability
First, the state contends that the defendant, by his own conduct as a primary actor, committed murder.
Party Liability
Second, the state contends that [name of primary actor] committed murder and the defendant is criminally responsible for this offense as a party because the defendant solicited, encouraged, directed, aided, or attempted to aid [name of primary actor] in committing it].
Coconspirator Liability
Third, the state contends 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, when the murder was committed in furtherance of a conspiracy to commit robbery.]
Liability as Primary Actor
A person commits the offense of murder if the person intentionally or knowingly causes the death of an individual.
The defendant acts intentionally as required by this offense if it is his conscious objective or desire to cause the result of death.
The defendant 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 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 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.
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.]
You must determine whether the state has proved, beyond a reasonable doubt, that the defendant is guilty of murder, either as the primary actor, as a party, or as a coconspirator.
Liability as Primary Actor
You must determine whether the state has proved the defendant committed the crime by his own conduct. To prove this, the state must prove, beyond a reasonable doubt, two elements. The elements are that—
- in [county] County, Texas, on or about [date], the defendant [insert specific allegations, e.g., caused the death of an individual, [name of victim], by shooting [name of victim] with a firearm]; and
- the defendant did this intentionally or knowingly.
If you all agree the state has proved, beyond a reasonable doubt, both elements 1 and 2 listed above, you must find the defendant “guilty.”
Liability as Party
If any of you fail to agree the state has proved, beyond a reasonable doubt, both elements 1 and 2 listed above, you must next decide whether the state has proved, beyond a reasonable doubt, that the defendant is guilty 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] [insert specific allegations, e.g., caused the death of an individual, [name of victim], by 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].
If all of you who did not find the defendant guilty as the primary actor agree that the state has proved, beyond a reasonable doubt, each of the four elements listed above, you must find the defendant “guilty.”
Liability as Coconspirator
If any of you fail to agree the state has proved, beyond a reasonable doubt, either elements 1 and 2 of primary liability or elements 1 through 4 of party liability listed above, you must next decide whether the state has proved, beyond a reasonable doubt, that the defendant is guilty because he is criminally responsible for the conduct of a coconspirator. 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], 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 all of you who did not find the defendant guilty as the primary actor or as a party agree that the state has proved, beyond a reasonable doubt, each of the four elements of coconspiracy liability listed above, you must find the defendant “guilty.”
If you all agree the state has failed to prove, beyond a reasonable doubt, either element 1 or 2 listed above establishing the defendant’s guilt as the primary actor; has failed to prove, beyond a reasonable doubt, one or more of elements 1 through 4 listed above establishing the defendant’s guilt as a party; and has failed to prove, beyond a reasonable doubt, one or more of elements 1 through 4 listed above establishing the defendant’s guilt as a coconspirator, then you must find the defendant “not guilty.”
You need not be unanimous about the theory underlying either your “guilty” or “not guilty” verdict. If you all agree the defendant is guilty either as the primary actor (because the state has proved elements 1 and 2 of primary actor liability beyond a reasonable doubt), or as a party (because the state has proved elements 1 through 4 of party liability beyond a reasonable doubt), or as a coconspirator (because the state has proved elements 1 through 4 of coconspirator liability beyond a reasonable doubt), then you must find the defendant “guilty.” If you all agree the state has failed to prove, beyond a reasonable doubt, either element 1 or 2 of primary actor liability has failed to prove, beyond a reasonable doubt, one or more of elements 1 through 4 of party liability; and has failed to prove, beyond a reasonable doubt, one or more of elements 1 through 4 of coconspirator liability, you must find the defendant “not 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) that occurred in furtherance of a conspiracy to commit robbery as defined under Penal Code section 29.02. The court will need to modify the instruction depending on what the accusation charges.
This instruction is appropriate when the evidence supports liability as either the primary actor or as a party under Penal Code section 7.02(a)(2) or as a coconspirator under Penal Code section 7.02(b). The instruction at CPJC 7.2 is for use 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 7.4 is for use when the evidence supports liability only as 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)).
Under current case law, in which a jury is permitted to convict on either commission of the offense as a primary actor or as a party, the instructions need not require unanimity on the theory. Randall v. State, 232 S.W.3d 285, 294 (Tex. App.—Beaumont 2007, pet. ref’d) (rejecting argument that “the jury must unanimously agree upon whether Randall acted alone, as a party, or as a co-conspirator.”); Hanson v. State, 55 S.W.3d 681 (Tex. App.—Austin 2001, pet. ref’d) (where supported by evidence, defendant may be convicted on jury instruction charging under alternative theories that defendant was liable as party under section 7.02(a)(2) and as coconspirator under section 7.02(b), jury unanimity not required on theory of party liability); Washington v. State, No. 14-98-00211-CR, 2000 WL 145088, at *1 (Tex. App.—Houston [14th Dist.] Feb. 10, 2000, no pet.) (not designated for publication) (no error in state’s argument that jury did not have to be unanimous about which of two defendants was primary actor and which was party to offense); Mills v. State, 717 S.W.2d 409, 414 (Tex. App.—Texarkana 1986, no pet.).
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.