                    PD-0661-15                                                  PD-0661-15
                                                              COURT OF CRIMINAL APPEALS
                                                                               AUSTIN, TEXAS
                                                              Transmitted 5/29/2015 3:01:58 PM
                                                                 Accepted 6/1/2015 2:54:53 PM
                                                                                ABEL ACOSTA
                    NO. PD-________-15                                                  CLERK

                       IN THE
            COURT OF CRIMINAL APPEALS
                      OF TEXAS
                     AT AUSTIN
              _________________________

                    RUSSELL STARKS,
                        Petitioner/Appellant

                               v.

                 THE STATE OF TEXAS,
                       Respondent/Appellee
                _________________________

             On Appeal in Cause No. F13-32480-K
            from the Criminal District Court No. 4
                   Of Dallas County, Texas
           And on Petition for Discretionary Review
           from the Fifth District of Texas at Dallas
                In Cause No. 05-14-00191-CR
                _________________________

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
             _________________________

                                Counsel of Record:

  Lynn Richardson                   Kathleen A. Walsh
  Chief Public Defender             Assistant Public Defender
                                    State Bar Number: 20802200
  Katherine A. Drew                 133 N. Riverfront Blvd., LB 2
  Chief, Appellate Division         Dallas, Texas 75207-399
                                    (214) 653-3550 (telephone)
                                    (214) 653-3539 (fax)
                                    kwalsh@dallascounty.org

 June 1, 2015
                              LIST OF PARTIES

TRIAL COURT JUDGE
Dominique Collins, Presiding Judge

APPELLANT
Russell Starks

APPELLANT’S ATTORNEYS
AT TRIAL
Alison Grinter, State Bar No. 24043476
Naomi Green, State Bar No. 24068816

ON APPEAL
Kathleen A. Walsh, State Bar No. 20802200

Assistant Public Defenders

Dallas County Public Defender’s Office
133 N. Riverfront Blvd., LB 2
Dallas, Texas 75207-4399

STATE’S ATTORNEYS
AT TRIAL
George Lewis, State Bar No. 24060167
Hilary Wright, State Bar No. 24056901

ON APPEAL
G. Brian Garrison, State Bar No. 24065276

Assistant District Attorneys
Dallas County District Attorney’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399



                                           ii
                                         TABLE OF CONTENTS

INDEX OF AUTHORITIES.....................................................................................iv
STATEMENT REGARDING ORAL ARGUMENT ............................................... 1
STATEMENT OF THE CASE .................................................................................. 1
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE .................... 1
QUESTION FOR REVIEW ..................................................................................... 1
          Whether the Court of Appeals erred in holding that the jury charge
         did not contain reversible error when Appellant was prosecuted and
         convicted under the law of parties and there was a complete absence
          of any reference to the law of parties in the application paragraph.
ARGUMENT ............................................................................................................. 2
         Pertinent Facts ................................................................................................. 2
         The Court of Appeals’ Opinion ....................................................................... 4
         Conclusion ....................................................................................................... 7
PRAYER FOR RELIEF ............................................................................................ 9
CERTIFICATE OF SERVICE .................................................................................. 9
CERTIFICATE OF COMPLIANCE ....................................................................... 10
APPENDIX




                                                            iii
                                      INDEX OF AUTHORITIES

Cases
Almanza v. State,
  686 S.W.2d 157 (Tex. Crim. App. 1984) (op. on reh'g.) ................................... 2, 4
Brown v. Collins,
  937 F. 2d 175 (5th Cir. 1991) .................................................................................. 8
Cole v. Arkansas,
  333 U.S. 196 (1948) ............................................................................................... 8
Dunn v.United States,
 442 U.S. 100 (1979) ............................................................................................... 8
Malik v. State,
 953 S.W.2d 234 (Tex. Crim. App. 1997) ........................................................... 5, 8
McCormick v. United States,
 443 U.S. 307 (1979) ............................................................................................... 8
Plata v. State,
  926 S.W.2d 300 (Tex. Crim. App. 1996) overruled on other grounds by
  Malik v. State, 953 S.W.2d 234 (Tex. Cim. App. 1997) ................................5, 7, 8
Starks v. State,
  No. 05-14-00191-CR, 2015 Tex. App. LEXIS 4530 (Tex. App.—Dallas
  May 1, 2015) (not designated for publication) .............................................passim
Vasquez v. State,
  389 S.W.3d 361 (Tex. Crim. App. 2012) .......................................................4, 5, 6
Watson v. State,
 693 S.W.2d 938 (Tex. Crim. App. 1985) ............................................................... 6
Statutes
TEX. PENAL CODE § 7.01 ............................................................................................ 3
TEX. PENAL CODE § 7.02 ............................................................................................ 3
Rules
TEX. R. APP. P. 66.3 (c) .............................................................................................. 7
TEX. R. APP. P. 66.3 (f) .............................................................................................. 7

                                                           iv
TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      COMES NOW Russell Starks, Petitioner herein and Appellant before the

Court of Appeals, and respectfully submits this Petition for Discretionary Review.

               STATEMENT REGARDING ORAL ARGUMENT

      Appellant believes that the facts of the case and the issues raised are such

that oral argument will not significantly aid this Court’s consideration and

disposition of this Petition.

                           STATEMENT OF THE CASE

      A jury convicted Appellant of aggravated robbery and assessed punishment

at imprisonment for life and a fine of $10,000. (RR5: 52, 78: CR: 87, 93).

     STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

      On May 1, 2015, in a memorandum opinion, the Court of Appeals for the

Fifth District of Texas affirmed Appellant’s conviction. Starks v. State, No. 05-14-

00191-CR, 2015 Tex. App. LEXIS 4530 (Tex. App.—Dallas May 1, 2015) (not

designated for publication). (See Appendix). No motion for rehearing was filed.

This Petition is timely if filed on or before May 31, 2015.

                            QUESTION FOR REVIEW

        Whether the Court of Appeals erred in holding that the jury charge
       did not contain reversible error when Appellant was prosecuted and
       convicted under the law of parties and there was a complete absence
        of any reference to the law of parties in the application paragraph.
                                         ARGUMENT

         This Petition presents the question of whether the complete absence of a

parties instruction in the application paragraph of the jury charge may be deemed

harmless error when the law of parties is the only theory under which the

conviction can be supported.

Pertinent Facts.

         Appellant was charged with aggravated robbery by using or exhibiting a

firearm. (CR: 9). Based on the testimony presented by the complainant, it was

undisputed that Appellant himself never used or exhibited a firearm in the course

of the robbery. Review of the State’s voir dire, the State’s opening statement,

questions posed to the complainant, and the prosecutor’s closing argument, makes

it clear that the State’s prosecution of Appellant was based upon the theory of party

liability. (RR3: 40-42; RR4: 8-9, 83; RR5: 36-37, 46-47, 50-51). Indeed, the Dallas

Court acknowledged as much in its opinion in its application of the Almanza1

factors. Starks, 2015 Tex. App. LEXIS 4530 at *8-11.

         Because the State’s prosecution was based upon the theory of party liability,

the trial court included instructions on the law of parties in the abstract portion of

the charge, as follows:



1
    Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) (op. on reh’g).

                                                2
            All persons are parties to an offense who are guilty of acting
      together in the commission of an offense. A person is criminally
      responsible as a party to an offense if the offense is committed by his
      own conduct, by the conduct of another for which he is criminally
      responsible, or by both.

            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, direct, aids, or
      attempts to aid the other person to commit the offense.

             Each party to an offense may be charged with the commission
      of the offense. Mere presence alone at the time and the place of the
      commission of an offense, or knowledge of an offense, if any was
      committed, does not constitute one criminally responsible as a party to
      the offense.

(CR: 82-83). See TEX. PENAL CODE §§ 7.01, 7.02.

      The application paragraph read as follows:

      Now, considering all the law contained in the court’s charge, if you
      find and believe from the evidence beyond a reasonable doubt that on
      or about January 11, 2013, in Dallas County, Texas, the defendant,
      RUSSELL STARKS, did then and there intentionally and knowingly,
      while in the course of committing theft of property and with intent to
      maintain control of said property, threaten and place THERESA
      ZAHN-BURNAM, hereinafter called complainant, in fear of
      imminent bodily injury and death, and the defendant did then and
      there use or exhibit a deadly weapon, to-wit: a firearm, you shall find
      the defendant guilty of aggravated robbery as charged in the
      indictment.

             Unless you so find and believe from the evidence beyond a
      reasonable doubt, or if you have a reasonable doubt thereof, you will
      find the defendant not guilty.

(CR: 84). Both parties stated that they had no objections to the charge. (RR4: 135).



                                         3
The Court of Appeals’ Opinion.

        In affirming the conviction, the Dallas Court found that although the trial

court erred in failing to directly apply the law of parties to the facts, it was

“inconceivable how the jury could have been misled by the court’s charge”, and

was “unable to determine how appellant was harmed by the charge”. Starks, 2015

Tex. App. LEXIS 4530 at *11-12. The court of appeals based its decision in part

on the fact that the charge contained the abstract definition of the law of parties and

cited this Court’s decision in Vasquez v. State, 389 S.W.3d 361 (Tex. Crim. App.

2012) for the proposition that “a reasonable jury would refer to the abstract

definition of the law of parties without needing to have it repeated again in the

application paragraph.” Starks, 2015 Tex. App. LEXIS 4530 at *9. The Dallas

Court’s reliance on this Court’s decision in Vasquez is clearly misplaced.

        In Vasquez, this Court reviewed an application paragraph which applied the

law of parties by simply using the phrase, “acting alone or as a party (as herein

defined).” Vasquez, 389 S.W.3d at 364, n. 5. The appellant objected to the trial

judge’s failure to apply the law of parties to the facts in the application paragraph.

Id. at 369. After applying the Almanza analysis, this Court found that the

appellant’s rights were not harmed. Id. at 372. In reaching its decision, this Court

held:

        [A] general reference to the law of parties in the application paragraph
        is sufficient and is not error when the defendant does not object and
                                           4
      request a narrowing of the specific statutory modes of conduct that
      constitute party liability—whether he ‘solicited, encouraged, directed,
      aided or attempted to aid” another specified person to commit the
      offense. But if the defendant does request that the application
      paragraph refer only to those specific party-liability acts that are
      supported by the evidence, then he is entitled to such a narrowing. The
      failure to narrow the specific modes of party-liability conduct when
      properly requested is reversible error if the defendant has suffered
      actual harm to his rights.

Id. at 368.

      In analyzing the charge issue in Vasquez, this Court also referred to its

decision in 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 (Tex. Crim. App. 1997). In

Plata, this Court “held that an application paragraph that made no mention of the

law of parties ‘either directly or by reference . . . for an offense committed by the

conduct of his codefendant,’ was erroneous, and the defendant was harmed

because the evidence was insufficient to convict him as a principal.” Vasquez,

389 S.W.3d at 368 (citing Plata, 926 S.W.2d at 304).

      The outcome in this case is controlled by this Court’s decision in Plata, not

Vasquez. The facts are identical to those in Plata — the application paragraph

makes no mention of the law of parties either directly or by reference and the

evidence is insufficient to convict Appellant as a principal.

      The Dallas Court also based its decision on their review of the record

showing evidence that Appellant was one of two individuals who participated in

                                          5
the aggravated robbery, as well as statements made by the prosecutor during voir

dire, opening statement, and closing arguments which clearly indicated that the

State’s theory of prosecution was based upon party liability. The Dallas Court then

concluded that based upon the record, “it is inconceivable to us how the jury could

have been misled by the court’s charge”, citing this Court’s decision in Watson v.

State, 693 S.W.2d 938, 940 (Tex. Crim. App. 1985). Starks, 2015 Tex. App.

LEXIS 4530 at *11-12.        Like Vasquez, the decision in Watson is factually

distinguishable from this case and does not support the opinion from the Dallas

Court. Like Vasquez, the application paragraph in Watson clearly referenced the

law of parties when it used the phrase, “acting either alone or as a party to the

offense”. Watson, 693 S.W.2d at 941. In this case, there is no reference whatsoever

to the law of parties in the application paragraph.

      In its opinion, the Dallas Court also cites Watson for the proposition that a

charge requiring the jury to find that defendant acted alone increases the State’s

burden and thus benefits the defendant. Starks, 2015 Tex. App. LEXIS 4530 at

*12. The Dallas Court then states: “Similar to Watson, here the State had to satisfy

a heavier burden in proving to the jury that the appellant acted alone in committing

the aggravated robbery. If anything, appellant was helped by the court’s charge.”

Id. This statement appears to be an admission by the Dallas Court that the jury was

not authorized to convict Appellant under the law of parties and clearly conflicts

                                          6
with the position taken by the court of appeals in most of the opinion’s analysis.

According to the opinion, on the one hand, the jury could not have been misled by

the court’s charge because the abstract definitions pertaining to the law of parties,

together with the evidence and arguments of the State showing that Appellant was

guilty as a party, was adequate to authorize Appellant’s conviction as a party.

While on the other hand, Appellant allegedly benefited from the charge because

the State had to prove that Appellant acted alone in committing the aggravated

robbery despite all of the evidence showing his guilt only as a party. Either the

charge authorizes a conviction under the law of parties, or it does not. Appellant’s

right to due process does not allow the Dallas Court to straddle the fence on this

issue.

Conclusion.

         This Court should grant this Petition because the Dallas Court of Appeals

has decided this case in a way that conflicts with this Court’s decisions regarding

the rule of law applicable to jury charges. TEX. R. APP. P. 66.3 (c), (f).

         This Court has uniformly insisted 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. Plata, 926 S.W.2d at 304. A charge is adequate for this purpose only if it

                                           7
either contains an application paragraph specifying all of the conditions to be met

before a conviction under such theory is authorized, or contains 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, or contains some logically consistent combination of such

paragraphs. Id. (and cases cited therein).

      In Malik, this Court recognized that due process prevents an appellate court

from affirming a conviction based upon legal and factual grounds that were not

submitted to the jury. Malik v. State, 953 S.W.2d 234, 238 n. 3 (Tex. Crim. App.

1997) (citing McCormick v. United States, 500 U.S. 257, 269-70 & 270 n. 8

(1991); Dunn v. United States, 442 U.S. 100 (1979); Cole v. Arkansas, 333 U.S.

196, 201-02 (1948)). In Malik, this Court also noted the Fifth Circuit’s holding in

Brown v. Collins, 937 F.2d175, 182 (5th Cir. 1991) which implied “that the

complete absence of a parties instruction from the jury charge may present

constitutional problems.” Malik, 953 S.W.2d at 238 n. 3.




                                             8
                            PRAYER FOR RELIEF

      For the reasons herein alleged, Appellant prays this Court grant this petition

and, upon reviewing the judgment entered below, remand the case for a new trial.

                                      Respectfully submitted,

                                      /s/ Kathleen A. Walsh
                                      Kathleen A. Walsh
Lynn Richardson                       Assistant Public Defender
Chief Public Defender                 State Bar No. 20802200
Dallas County                         Dallas County Public Defender’s Office
                                      Frank Crowley Courts Building
                                      133 N. Riverfront Blvd., LB-2
                                      Dallas, TX. 75207-4399
                                      (214) 653-3550 (telephone)
                                      (214) 653-3539 (fax)


                         CERTIFICATE OF SERVICE

      I hereby certify that on the 29th day of May, 2015, a true copy of the

foregoing petition for discretionary review was served by electronic delivery to G.

Brian Garrison, Assistant District Attorney, at Brian.Garrison@dallascounty.org.;

and was also served by electronic delivery to Lisa C. McMinn, State Prosecuting

Attorney, at Lisa.McMinn@spa.texas.gov.



                                      /s/ Kathleen A. Walsh
                                      Kathleen A. Walsh




                                         9
                     CERTIFICATE OF COMPLIANCE


      I hereby certify that the word count in this document, which is prepared in

Microsoft Word 2010, is 2,592.

                                     /s/ Kathleen A. Walsh
                                     Kathleen A. Walsh




                                       10
APPENDIX
No Shepard’s Signal™
As of: May 28, 2015 3:52 PM EDT


                                                     Starks v. State
                                      Court of Appeals of Texas, Fifth District, Dallas
                                                 May 1, 2015, Opinion Filed
                                                     No. 05-14-00191-CR

Reporter
2015 Tex. App. LEXIS 4530

RUSSELL STARKS, Appellant v. THE STATE OF TEXAS,                  Judgment affirmed as modified.
Appellee
                                                                  LexisNexis® Headnotes
Notice: PLEASE CONSULT THE TEXAS RULES OF
APPELLATE PROCEDURE FOR CITATION OF
                                                                     Criminal Law & Procedure > ... > Robbery > Armed Robbery >
UNPUBLISHED OPINIONS.                                                Elements

Prior History: [*1] On Appeal from the Criminal District          HN1 A person commits an offense if he commits robbery as
Court No. 4, Dallas County, Texas. Trial Court Cause No.          defined in Section 29.02, and he uses or exhibits a deadly
F-1332480-K.                                                      weapon, Tex. Penal Code Ann. § 29.03(a) (2011). Tex. Penal
                                                                  Code Ann. § 29.02 (2011) states: (a) A person commits an
                                                                  offense if, in the course of committing theft as defined in
Core Terms
                                                                  Chapter 31 and with intent to obtain or maintain control of
                                                                  the property, he: (1) intentionally, knowingly, or recklessly
parties, jury charge, commission of the offense, aggravated       causes bodily injury to another; or (2) intentionally or
robbery, gun, criminally responsible, convicted, robbery,         knowingly threatens or places another in fear of imminent
modify, purse, talk, deadly weapon, trial court, approached,      bodily injury or death.
porch
                                                                     Criminal Law & Procedure > Appeals > Reversible Error > Jury
                                                                     Instructions
Case Summary
                                                                  HN2 The appellate court reviews complaints of jury charge
Overview                                                          error by first determining whether error exists. If error
HOLDINGS: [1]-In the absence of a request or objection,           exists, the appellate court must determine whether the error
the trial court’s charge was adequate to authorize defendant’s    caused sufficient harm to warrant reversal. When the error
                                                                  was not objected to, the error must be fundamental and
conviction as a party and the court’s failure to directly apply
                                                                  requires reversal only if it was so egregious and created
the law of parties to the facts was not fundamental error, and
                                                                  such harm that the defendant has not had a fair and impartial
a reasonable jury would refer to the abstract definition of the
                                                                  trial. Egregious harm consists of error affecting the very
law of parties without needing to have it repeated again in
                                                                  basis of the case or depriving the defendant of a valuable
the application paragraph; [2]-A reasonable jury could have
                                                                  right. Egregious harm exists when a defendant has suffered
concluded that defendant was acting with intent to promote
                                                                  actual, rather than merely theoretical, harm from jury-charge
or assist the commission of the offense; [3]-Defendant was        error. The appellate court assesses harm in light of the entire
not harmed by the charge as the State had a heavier burden        jury charge, the state of the evidence (including the contested
in proving to the jury that defendant acted alone in              issues and the weight of probative evidence), the arguments
committing the aggravated robbery; [4]-The judgment was           of counsel, and any other relevant information revealed by
modified to reflect that defendant was convicted under the        the record of the trial as a whole.
Penal Code.
                                                                     Criminal Law & Procedure > ... > Jury Instructions > Particular
Outcome                                                              Instructions > Elements of Offense
                                                 2015 Tex. App. LEXIS 4530, *1



HN3 A jury charge must distinctly set forth the law                  Opinion
applicable to the case and set out all of the essential
elements of the offense, Tex. Code Crim. Proc. Ann. art.
36.14 (2007). The meaning of a jury instruction must be              MEMORANDUM OPINION
taken from the whole charge, and jurors are not authorized           Opinion by Justice Brown
to return a verdict except under those conditions given by
the application paragraph of the charge. A jury charge is            Appellant Russell Starks appeals his jury conviction for
adequate if it either contains an application paragraph              aggravated robbery. After finding appellant guilty, the jury
specifying all of the conditions to be met before a conviction       assessed his punishment at life imprisonment and a $10,000
under such theory is authorized, or contains an application          fine. On appeal, appellant raises a single point of error
paragraph authorizing a conviction under conditions                  complaining he was convicted on legal and factual grounds
specified by other paragraphs of the jury charge to which            that were not submitted to the jury. As modified, we affirm
the application paragraph necessarily and unambiguously              the trial court’s judgment. Because all dispositive issues are
refers, or contains some logically consistent combination of         settled in law, we issue this memorandum opinion. TEX. R.
such paragraphs.                                                     APP. P. 47.2(a), 47.4.

   Criminal Law & Procedure > Appeals > Reversible Error > Jury      On January 11, 2013, complainant Theresa Zahn-Burnam
   Instructions                                                      returned to her home around 8:00 p.m. As she inserted her
                                                                     house key into her front door lock, a black man wearing a
HN4 The appellate court assesses harm in light of the entire         gray hoodie approached her on her porch and ordered her to
jury charge, the state of the evidence (including the contested      open the door. Knowing her two sons were alone inside the
issues and the weight of probative evidence), the arguments          house, she dropped to the ground and curled up into a fetal
of counsel, and any other relevant information revealed by           position. As she lay on the ground, she became aware that
the record of the trial as a whole.                                  the man was holding a gun. The man holding the gun said,
                                                                     ″If you say a word, I will just shoot [*2] you now.″ She
   Criminal Law & Procedure > ... > Jury Instructions > Particular
                                                                     began to scream for help and then a second black man
   Instructions > Elements of Offense
                                                                     wearing a striped polo shirt approached her on the porch. At
HN5 A charge on the law of parties enlarges a defendant’s            first, she thought the second man heard her screams and had
criminal responsibility. Likewise in the converse, a charge          come to help her. However, when the second man
requiring the jury to find that a defendant acted alone              approached the porch, he asked, ″Where is your purse?
increases the State’s burden and thus benefits the defendant.        Where is your purse?″ Ms. Zahn-Burnam handed over her
                                                                     purse and the two men ran away. After they were out of
   Criminal Law & Procedure > Sentencing > Corrections,              sight, she went inside her house, called the police and
   Modifications & Reductions > Court’s Authority                    provided a description of the suspects.
HN6 The appellate court has the power to modify an                   Sergeant Rodell Byrd testified he was off duty at a local
incorrect judgment and make the record speak the truth               shopping center at the time of the robbery. He received a
when it has the necessary data and information to do so, Tex.        call about the robbery because he was approximately one
R. App. P. 43.2(b). The appellate court’s authority to reform        block from the location. Byrd responded in his personal,
incorrect judgments is not dependent on the request of any           un-marked vehicle and began searching the area for the
party, nor does it turn on a question of whether a party has         suspects. He saw two males matching the provided
or has not objected in trial court; the appellate court may act      description in a vehicle and called for marked patrol units to
sua sponte and may have a duty to do so.                             respond. He continued to follow the suspects until the patrol
                                                                     units arrived. Byrd dropped back and let the patrol units
Counsel: For appellants: Kathleen Walsh, Katherine Drew,             approach the vehicle. When the lights and sirens were
Lynn Richardson, Dallas, TX.                                         activated by the police, the suspects fled at a high rate of
                                                                     speed, and the officers gave chase. Byrd testified Charles
For appellees: G. Brian Garrison, Susan Hawk, Dallas, TX.
                                                                     Polk was apprehended, [*3] and they found his hooded
                                                                     sweatshirt in the vehicle with a cell phone, a Target receipt,
Judges: Before Justices Myers, Evans, and Brown. Opinion
                                                                     and small caliber ammunition.
by Justice Brown.
                                                                     Officer Jason Peacock testified he was in one of the patrol
Opinion by: ADA BROWN                                                units that approached the suspects’ vehicle. Peacock chased

                                                               Page 2 of 5
                                              2015 Tex. App. LEXIS 4530, *3



the vehicle until it ran across a median and became disabled.        intent to promote or assist the commission of the
Peacock saw appellant, wearing a striped polo shirt, exit the        offense, he solicits, encourages, directs, aids, or attempts
vehicle and run. He chased the appellant until appellant             to aid the other person to commit the offense.
gave up, at which time appellant was apprehended by
                                                                     ...
Peacock.
                                                                     Now, considering all the law contained in the court’s
The police escorted Ms. Zahn-Burnam to the location of the           charge, if you find and believe from the evidence
apprehension where she was one hundred percent certain of            beyond a reasonable doubt that on or about January 11,
the identification of Charles Polk. Due to the lighting in the       2013, in Dallas County, Texas, the defendant, RUSSELL
street, she was not completely certain about the identity of         STARKS, did then and there intentionally and
appellant, even though he was wearing a striped polo shirt           knowingly, while in the course of committing theft of
as she had described to the police during her 9-1-1 call.            property and with intent to obtain and maintain control
                                                                     of said property, threaten and place THERESA
Evidence was introduced of surveillance video from a local           ZAHN-BURNAM, hereinafter called complainant, in
Target store that showed appellant and Polk shopping
                                                                     fear of imminent bodily injury and death, and the
together approximately one hour before the robbery occurred.
                                                                     defendant did then and there use or exhibit a deadly
The police department also investigated the disabled vehicle
                                                                     weapon, to-wit: a firearm, you shall find the defendant
and found the owner, who reported loaning the vehicle to
                                                                     guilty of aggravated robbery as charged in the
her boyfriend, who in turn loaned the vehicle to appellant on
                                                                     indictment.
the night of [*4] the robbery. And finally, evidence was
introduced of appellant speaking to a third party during a       The language of the application paragraph tracked [*6] the
jail telephone call when appellant stated, ″Hey, your            language of the indictment. At trial, both parties stated that
girlfriend did good by reporting the vehicle stolen,″ and        they had no objections to the charge.
when discussing whether or not they ″got away safe,″
appellant stated, ″It all come from him not doing what I told    Appellant was charged under section 29.03, which states,
him to do, put her to sleep. It would have never happened,       HN1 ″A person commits an offense if he commits robbery
all that hollering and screaming and shit wouldn’t never         as defined in Section 29.02, and he . . . uses or exhibits a
happened.″                                                       deadly weapon.″ TEX. PENAL CODE ANN. § 29.03(a) (West
                                                                 2011). Section 29.02 states:
Appellant was indicted for aggravated robbery and entered
a plea of ″not guilty.″ A jury found appellant guilty of the         (a) A person commits an offense if, in the course of
offense charged. Appellant entered a plea of ″not true″ to the       committing theft as defined in Chapter 31 and with
enhancement paragraph alleged in the indictment. The jury            intent to obtain or maintain control of the property, he:
found the allegation of a prior offense for burglary of a
habitation to be true and assessed appellant’s punishment at         (1) intentionally, knowingly, or recklessly causes bodily
life imprisonment and a fine of $10,000.                             injury to another; or
                                                                     (2) intentionally or knowingly threatens or places
In a single point of error, appellant argues the application
                                                                     another in fear of imminent bodily injury or death.
paragraph failed to authorize a conviction under the law of
the parties and appellant was therefore convicted on legal
                                                                 TEX. PENAL CODE ANN. § 29.02(a) (West 2011).
and factual grounds that were not submitted to the jury.
                                                                 HN2 We review complaints of jury charge error by first
The jury charge read, in relevant part:
                                                                 determining whether error exists. Kirsch v. State, 357
                                                                 S.W.3d 645, 649 (Tex. Crim. App. 2012). If error exists, we
    All persons are parties to an offense who are guilty of
                                                                 must determine whether the error caused sufficient harm to
    acting together in [*5] the commission of an offense. A
                                                                 warrant reversal. Ngo v. State, 175 S.W.3d 738, 743-44 (Tex.
    person is criminally responsible as a party to an offense
                                                                 Crim. App. 2005). When, as here, the error was not objected
    if the offense is committed by his own conduct, by the
                                                                 to, the error must be fundamental and requires reversal
    conduct of another for which he is criminally
                                                                 ″only if it was so egregious and created such harm that the
    responsible, or by both.
                                                                 defendant has not had a fair and impartial trial.″ Barrios v.
    A person is criminally responsible for an offense            State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (citing
    committed by the conduct of another if acting with           Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.

                                                           Page 3 of 5
                                               2015 Tex. App. LEXIS 4530, *6



1985) (op. on reh’g)). Egregious harm consists of error           With respect to the entire jury charge, in this case the charge
affecting the very basis of the case or depriving the             contained the correct abstract definition of party liability.
defendant of [*7] a valuable right. Nava v. State, 415 S.W.3d     However, the application paragraph did not explicitly apply
289, 298 (Tex. Crim. App. 2013). Egregious harm exists            the abstract law of parties to the facts of the case. [*9]
when a defendant has suffered actual, rather than merely          Instead, it instructed the jury should find appellant guilty if,
theoretical, harm from jury-charge error. Id. We assess harm      ″considering all the law contained in the court’s charge,″
in light of ″the entire jury charge, the state of the evidence    they found appellant committed the offense. The jury
(including the contested issues and the weight of probative       needed only to refer to the previous section, which defined
evidence), the arguments of counsel, and any other relevant       criminal responsibility as a party. In the absence of a request
information revealed by the record of the trial as a whole.″      or objection, however, the trial court’s charge was adequate
Id.                                                               to authorize appellant’s conviction as a party and the court’s
                                                                  failure to directly apply the law of parties to the facts was
Appellant argues that the application paragraph in the jury
                                                                  not fundamental error. Greene v. State, 240 S.W.3d 7, 15-16
charge failed to include the language for a finding of party
                                                                  (Tex. App.—Austin 2007, pet. ref’d). We conclude that ″a
liability and there was no evidence that appellant ever used
                                                                  reasonable jury would refer to the abstract definition of the
or exhibited a firearm in the course of the robbery. Appellant
                                                                  law of parties without needing to have it repeated again in
complains he was convicted on legal and factual grounds
                                                                  the application paragraph.″ Vasquez v. State, 389 S.W.3d
that were not submitted to the jury and was denied his right
                                                                  361, 371 (Tex. Crim. App. 2012).
to due process. The State concedes that the trial court erred
in charging the jury but contends appellant failed to establish   The next Almanza factor for this Court to consider is the
he was egregiously harmed by the error.                           state of the evidence. Nava, 415 S.W.3d at 298. The record
                                                                  shows appellant was one of two individuals who participated
HN3 ″A jury charge must distinctly set forth the law
                                                                  in the aggravated robbery. The evidence that appellant,
applicable to the case and set out all of the essential
                                                                  approached Ms. Zahn-Burnam and demanded her purse,
elements of the offense.″ Martin v. State, 200 S.W.3d 635,
                                                                  after Polk pointed a gun at her, was uncontroverted. Ms.
639 (Tex. Crim. App. 2006); see TEX. CODE CRIM. PROC. ANN.
                                                                  Zahn-Burnam testified it was clear to her that the two men
art. 36.14 (West 2007). ″The meaning of a jury instruction
                                                                  were working together. A reasonable jury certainly could
must be taken from the whole charge, and jurors are not [*8]
                                                                  have concluded that appellant was ″acting with intent to
authorized to return a verdict except under those conditions
                                                                  promote or assist the commission [*10] of the offense.″
given by the application paragraph of the charge.″ Delapaz
v. State, 228 S.W.3d 183, 212 (Tex. App.—Dallas 2007, pet.        Lastly, we must consider the arguments of counsel, and any
ref’d). A jury charge is adequate                                 other relevant information revealed by the record of the trial
    if it either contains an application paragraph specifying     as a whole. Nava, 415 S.W.3d at 298. The record shows that
    all of the conditions to be met before a conviction under     during voir dire, the State’s attorney stated the following:
    such theory is authorized, or contains an application
    paragraph authorizing a conviction under conditions               Now, I want to talk to you guys about some more legal
    specified by other paragraphs of the jury charge to               stuff. This is called a law of parties. Now, the law of
    which the application paragraph necessarily and                   parties has got this big mumbled legal thing again. I’m
    unambiguously refers, or contains some logically                  going to read it to you, and talk about what it is.
    consistent combination of such paragraphs.                        ″A person is criminally responsible for the conduct of
                                                                      another, if acting with the intent to promote or assist the
Plata v. State, 926 S.W.2d 300, 304 (Tex. Crim. App. 1996),
                                                                      commission of the crime. He solicits, encourages,
overruled on other grounds by Malik v. State, 953 S.W.2d
                                                                      directs, aids, or attempts to aid the other person to
234, 239 (Tex. Crim. App. 1997).
                                                                      commit the offense.″
Because the State concedes the trial court likely erred, we
conduct a harm analysis using the Almanza factors. Nava,          And then during the State’s opening statement, the attorney
415 S.W.3d at 298. HN4 We assess harm in light of ″the            elaborated,
entire jury charge, the state of the evidence (including the
contested issues and the weight of probative evidence), the           After you hear all the evidence, the overwhelming
arguments of counsel, and any other relevant information              evidence in this case, ladies and gentlemen, there will
revealed by the record of the trial as a whole.″ Id.                  be no doubt that on January 11, 2013, this defendant,

                                                            Page 4 of 5
                                              2015 Tex. App. LEXIS 4530, *10



    Mr. Russell Starks and codefendant, Charles Polk,            had to satisfy a heavier burden in proving to the jury that the
    committed aggravated robbery with a deadly weapon,           appellant acted alone in committing the aggravated robbery.
    and we would ask that you find him guilty.                   If anything, appellant was helped by the court’s charge. We
                                                                 find the error to have been harmless.
During the trial, when the trial court asked if anyone
objected to the proposed jury charge, neither party had any      However, we do take a sua sponte action in regard to this
objections. And then [*11] during the closing argument, the      case. The judgment incorrectly states that appellant was
State argued:                                                    convicted under the ″Statute for Offense: 29.03 Tax Code.″
                                                                 HN6 This Court has the power to modify an incorrect
    I want to talk to you also about the law of parties,         judgment and make the record speak the [*13] truth when
    something that we talked about earlier. We talked about      we have the necessary data and information to do so. TEX. R.
    the law of parties. And so I just want to highlight for      APP. P. 43.2(b); see Woods v. State, 398 S.W.3d 396, 406
    you why both of the people on that front porch was [sic]     (Tex. App.—Dallas 2013, pet. ref’d). ″Our authority to
    responsible for the aggravated robbery. We obviously         reform incorrect judgments is not dependent on the request
    know that one person had the gun. And that person was        of any party, nor does it turn on a question of whether a
    identified immediately. That person had the gun and he       party has or has not objected in trial court; we may act sua
    had it out so that she could see it. He had the gun and      sponte and may have a duty to do so.″ Woods, 398 S.W.3d at
    he pointed it, but he also had it down. But it was visible   406 (citing Asberry v. State, 813 S.W.2d 526, 531 (Tex.
    the entire time. Remember we talked about using or           App.—Dallas 1991, pet. ref’d)). The record shows appellant
    exhibiting that deadly weapon. That gun was the              was convicted for aggravated robbery with a deadly weapon
    enforcement. That gun was letting them do whatever           under section 29.03 of the ″Penal″ Code and not the ″Tax″
    they wanted to do on that porch, including having Mr.        Code. Accordingly, we modify the trial court’s judgment to
    Starks come up and take her purse. And he didn’t have        remove ″Tax Code″ as ″Statute for Offense″ and in its place
    to grab it from her because that enforcer was there. All     to reflect ″Penal Code″ as ″Statute for Offense.″
    he had to do was ask and she gave it to him. Both of
                                                                 In conclusion, we modify the trial court’s judgment to
    those people had a plan. And she knew that they were
                                                                 reflect appellant was convicted under the Penal Code. As
    together once they came up and said, give me your
                                                                 modified, we affirm the trial court’s judgment.
    purse. So they are both guilty of aggravated robbery.
                                                                 /Ada Brown/
After a careful review of the entire record, ″it is
inconceivable to us how the jury could have been misled by       ADA BROWN
the court’s charge.″ [*12] Watson v. State, 693 S.W.2d 938,
                                                                 JUSTICE
940 (Tex. Crim. App. 1985) (jury application paragraph that
authorized conviction if the jury found that the defendant       DO NOT PUBLISH
″acting either alone or as a party to the offense″ committed
burglary was harmless under Almanza analysis when there          TEX. R. APP. P. 47.2(b).
was no evidence to support conviction as a principal; jury
must have found defendant guilty as a party).                    JUDGMENT

Further, we are unable to determine how appellant was            Based on the Court’s opinion of this date, the judgment of
harmed by the charge. The Court of Criminal Appeals has          the trial court is MODIFIED as follows:
explained, HN5 ″A charge on the law of parties enlarges a
                                                                     Tax Code will be removed as the Statute for Offense
defendant’s criminal responsibility. Romo v. State, 568
                                                                     and Penal Code will be replaced in its stead.
S.W.2d 298 (Tex. Crim. App. 1978) (op. on reh’g). Likewise
in the converse, a charge requiring the jury to find that a
                                                                 As REFORMED, the judgment is AFFIRMED.
defendant acted alone increases the State’s burden and thus
benefits the defendant. Watson v. State, 693 S.W.2d 938, 942     Judgment entered this 1st day of May, 2015.
(Tex. Crim. App. 1985). Similar to Watson, here the State




                                                           Page 5 of 5
