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                                  MEMORANDUM OPINION

                                         No. 04-08-00487-CR

                                         Jonathan Ray DEPUE,
                                               Appellant

                                                   v.

                                         The STATE of Texas,
                                               Appellee

                      From the 227th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2006-CR-10950B
                           Honorable Philip A. Kazen, Jr., Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: December 30, 2009

AFFIRMED

           Jonathan Ray Depue was charged with capital murder, and the State sought the death penalty.

A jury found Depue guilty, but at punishment answered the third special issue “no,” resulting in a

life sentence without possibility of parole. Depue appeals, contending (1) the trial court erred in

refusing his request for a renunciation defense instruction in the jury charge, (2) the jury charge was

fundamentally flawed because it permitted the jury to convict him on proof different from, and less
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than, that required to prove the allegation in the indictment, and (3) he was denied the right to a

unanimous verdict because the charge allowed the jury to convict on two separate and distinct

theories. We affirm the trial court’s judgment.

                                           BACKGROUND

       On September 29, 2006, Aleta Rhodes left her friend Susan Royston’s house around 9:30

p.m. Ms. Rhodes was supposed to call Ms. Royston when she got home. When Ms. Royston failed

to hear from Ms. Rhodes and could not reach her by phone, she went over to Ms. Rhodes’s house,

letting herself in with a set of keys she had been given by Ms. Rhodes. Ms. Royston found Ms.

Rhodes, surrounded by blood, on the floor of the kitchen. Ms. Royston went to a neighbor’s house

and called 911.

       EMS and officers from the San Antonio Police Department arrived at Ms. Rhodes’s house.

One of the officers noticed the back glass door of the house had been shattered and the house was

in a state of disarray. The officer called her sergeant, evidence technicians, and night detectives.

Detective John Doyle came to the house and was told Ms. Rhodes was dead and the house appeared

to have been burglarized. Doyle noticed a computer was missing, and it appeared as if someone had

attempted to pull a flat-screen television from the wall. Evidence technicians were able to obtain

a print from the flat-screen television that was later found to match a known print from Depue. It

was later determined Ms. Rhodes died from a gunshot wound to the head.

       At trial, Depue’s brother Eric testified for the State. Eric, a convicted felon at the age of

fifteen, and on parole at the time of the events that are the subject of this appeal, struck a deal with

the State by which he agreed to plead guilty to the aggravated robbery of Ms. Rhodes and testify

against his brother. In exchange, the State agreed that possible punishment for Eric would be capped


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at life imprisonment, meaning Eric would receive a sentence anywhere from fifteen years to life.

Eric testified that on September 29, 2009, he was living at his aunt’s house along with Depue and

two cousins, Joseph and Daniel Montoya. The four men borrowed a car and Daniel was carrying a

handgun. The men decided to commit a burglary, and Eric drove to an alley near Ms. Rhodes’s

house. Eric and Depue knew Ms. Rhodes because they used to live next door to her and did odd jobs

for her on occasion. Eric dropped the other three men off, and drove around until Joseph called him

to come back to the alley to pick them up. According to Eric, when he got to the alley, the three

were jumping over a fence. Eric testified Depue had the gun, and when asked what happened, Depue

said “he just shot.” Later, Depue told Eric that Daniel had handed him the gun after telling him

someone was coming, and thereafter he “just shot” when he heard a noise. When he got to the car,

Daniel had a laptop computer with him and put it in the trunk. The men also had several rifles and

put those into the trunk as well. Eric then drove back to his aunt’s house and unloaded the rifles and

the computer from the trunk. Later, Eric sold the laptop for $200.00 and drugs, and sold the rifles

for $400.00-$500.00.

       Eric stated the men found out the police were looking for Daniel. They planned to raise

money and leave town. However, Eric was arrested for a parole violation. While in custody, Eric

gave a statement about the events at the Rhodes house.

       Depue also testified at trial. He corroborated Eric’s testimony that Eric was the driver of the

car, Eric dropped the other men off in the alley, and the plan was to break into a house to obtain

money. Depue also admitted he knew Daniel took a handgun into the house. In his videotaped

statement to police, which was admitted during trial, Depue admitted he was at the scene to commit

a burglary and knew about the handgun. However, in his statement he said he left the house before


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the murder because he did not want to commit a burglary at Ms. Rhodes’s home.

                                             DISCUSSION

        In three points of error, Depue raises claims of charge error. More specifically, Depue

contends: (1) the trial court erred in refusing his request for an instruction on the affirmative defense

of renunciation, (2) the charge permitted his conviction on proof different from, and less than, that

required to prove the allegation in the indictment, and (3) he was denied his right to a unanimous

verdict because of charge error.

                                            Renunciation

        Depue first contends the trial court erred when it refused his request for a defensive

instruction on renunciation. A trial court is required to give a jury instruction on every defensive

theory raised by the evidence whether it is strong, feeble, impeached, or contradicted, and even if the

trial court believes the testimony is not credible. Brown v. State, 955 S.W.2d 276, 279 (Tex. Crim.

App. 1997). A charge on a defensive issue is required if the accused presents affirmative evidence

that would constitute a defense to the crime charged and a jury charge is properly requested.

McGarity v. State, 5 S.W.3d 223, 226 (Tex. App.—San Antonio 1999, no pet.). If the defendant

produces evidence on each element of a requested defense, he is entitled to an instruction. Id.; see

TEX . PENAL CODE ANN . § 2.04(c) (Vernon 2003) (stating that issue of existence of affirmative

defense is not submitted to jury unless evidence is admitted to support it). In fact, a charge on a

defensive issue is required if it is raised by the defendant’s testimony alone or otherwise. McGarity,

5 S.W.3d at 226. The refusal to submit a requested defensive instruction is reviewed under the abuse

of discretion standard. Id. When the defendant fails to present evidence on each element of the

requested defensive issue, there is no error in refusing to submit the defensive issue. Id. at 227.


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        If the appellate court determines the trial court erred regarding the jury charge, it must then

evaluate the harm caused by the error. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.

1985) If there was no objection in the trial court and the alleged error is raised for the first time on

appeal, the appellant must show egregious harm to obtain relief. Id. If error is preserved in the trial

court, the appellant need only show some harm. Id. Harm is determined by reviewing the entire

charge, the state of the evidence, arguments of counsel, and any other relevant information shown

by the record. Id.

        Depue concedes renunciation does not apply to offenses outside of Chapter 15 of the Texas

Penal Code. See Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000); TEX . PENAL CODE

ANN . § 15.04(b) (stating renunciation is affirmative defense to prosecution for conspiracy and

criminal solicitation). And, admittedly he was charged was capital murder under Chapter 19 of the

Penal Code. He argues, however, he was nevertheless entitled to a renunciation instruction because

the jury charge included a definition of conspiracy from section 15.02 of the Penal Code, and the

application portion of the charge states:

                Or, if you find from the evidence beyond a reasonable doubt that Jonathan
        Depue entered into a conspiracy with Eric Depue, Joseph Montoya, Jesse Martinez,
        Jr., and/or Ruben Montoya to commit the felony offense of burglary and that on or
        about the 29th day of September, 2006, in Bexar County, Texas, in an attempt to
        carry out this conspiracy to commit burglary, Jonathan Depue intentionally caused
        the death of an individual, namely: Aleta Rhodes, by shooting Aleta Rhodes with a
        deadly weapon, namely: a firearm, and Jonathan Depue was in the course of
        committing or attempting to commit the offense of burglary of a habitation upon
        Aleta Rhodes, and that such offense was committed in furtherance of the unlawful
        purpose to commit burglary and was an offense that should have been anticipated as
        a result of carrying out the conspiracy to commit burglary;

               Then you will find the defendant guilty of capital murder as charged in the
        indictment.



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       The State counters by citing Wesbrook, and arguing Depue was indicted for capital murder,

not conspiracy, and therefore Depue was not entitled to a renunciation instruction. The State argues

alternatively that even if renunciation was legally available to Depue, he was not entitled to have the

defense submitted because he did not submit evidence entitling him to the defense.

       Assuming without deciding that the defense of renunciation was legally available to Depue

under the circumstances of this case, we must determine if he presented evidence entitling him to

the submission. To determine if the defensive issue of renunciation was raised, we view the

evidence in light of the statutory provision. McGarity, 5 S.W.3d at 227. The Texas Penal Code

provides that with regard to conspiracy, the defense of renunciation is available when there is

evidence to show the defendant voluntarily and completely renunciated his criminal objective by

withdrawing from the conspiracy “before commission of the object offense and took further

affirmative action that prevented the commission of the object offense.” TEX . PENAL CODE ANN .

§ 15.04(b).

       Contrary to Depue’s assertion, the jury charge refers to a conspiracy to commit burglary, not

capital murder. Accordingly for purposes of renunciation, burglary is the criminal objective from

which Depue must have withdrawn and taken affirmative action to prevent. See id. To establish he

presented evidence to support the submission of renunciation, Depue points to the videotaped

statement he gave to police, which was admitted as State’s exhibit thirteen. We have reviewed the

videotaped statement, and Depue made the following admissions:

       1. He was part of a group of men who agreed to burglarize a house to “make some
       fast cash.”


       2. The group drove around, saw a house that looked empty, and picked it for the


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        burglary. Depue denied they picked the house because he knew Ms. Rhodes was an
        elderly woman living alone.

        3. Three of the men, including Depue, were dropped off down the street from the
        Rhodes house, entered the alley behind the house, jumped the fence into the
        backyard, and broke the glass door at the back of the house to gain entry.

        4. Although he initially denied knowing anyone had a gun, Depue ultimately
        admitted he knew Daniel Montoya had the gun when they were in the car and saw
        Daniel take the gun inside the house.

        5. All three men entered the house. Depue “touched stuff,” “grabbed stuff here and
        there,” and moved the bed.

        6. He got scared and left. He said he could not go through with it. He claimed he
        left before Ms. Rhodes came home.

        The issue before this court is not whether Depue’s testimony is true, but rather whether, if

the testimony is believed, an issue of renunciation has been raised. See Dyson v. State, 672 S.W.2d

460, 463 (Tex. Crim. App. 1984). Depue’s statement, even if taken as true, does not raise evidence

entitling him to renunciation with regard to the burglary. “Burglary” is defined in the Penal Code

as entering a habitation or building without the owner’s consent with the intent to commit a felony,

theft, or assault. TEX . PENAL CODE ANN . § 30.02. Based on Depue’s statement, by the time he “got

scared” and left the Rhodes home, the burglary was complete. See id. Thus, his statement does not

show renunciation with regard to burglary or conspiracy to commit burglary.

        Even if we accept Depue’s contention that the object offense was the murder as opposed to

the burglary, there is nothing in Depue’s statement to show he took affirmative action to prevent its

commission – by his own admission, he merely left the scene, nothing more. See Wesbrook, 29

S.W.3d at 122; TEX . PENAL CODE ANN . § 15.04(b). Accordingly, we overrule Depue’s first point

of error.



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        Conviction of Proof Different From, and Less Than, That Required by Indictment

         In his second point, Depue claims the trial court’s charge was “fatally and fundamentally

flawed” because it allowed the jury to convict him on proof different from, and less than, that

authorized by the indictment. This argument, as the one asserted in his first point, relates to the trial

court’s inclusion of conspiracy language in the jury charge.

         The indictment, by which Depue was charged with capital murder, stated:

         [O]n or about the 29th Day of September, 2006, JONATHAN DEPUE, hereinafter
         referred to as defendant, did intentionally cause the death of an individual, namely:
         Aleta Rhodes, by SHOOTING ALETA RHODES WITH A DEADLY WEAPON,
         NAMELY: A FIREARM, and the defendant was in the course of committing and
         attempting to commit the offense of BURGLARY OF A HABITATION upon Aleta
         Rhodes[.]

See TEX . PENAL CODE ANN . § 19.03(a)(2) (Vernon Supp. 2009). Capital murder, in the context of

this case, is defined as follows:

         (a) A person commits an offense if he commits murder as defined under Section
         19.02(b)(1)1 and:

                                                       *    *     *

                 (2) the person intentionally commits the murder in the course of committing
         or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault,
         arson, obstruction or retaliation, or terroristic threat . . .

Id.

         The application paragraph of the jury charge for the guilt/innocence phase of the trial stated:

                  Now, if you find from the evidence beyond a reasonable doubt that on or


         1
          … A person commits the offense of murder as defined by section 19.02(b)(1) of the Penal Code if he
“intentionally or knowingly causes the death of an individual.” T EX . P EN AL C O D E A N N . § 19.02(b)(1) (Vernon 2003).


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       about the 29th day of September, 2006, in Bexar County, Texas, the defendant,
       Jonathan Depue, either acting alone or together with Eric Depue, Joseph Montoya,
       Jesse Martinez, Jr., and/or Ruben Montoya as a party, did intentionally cause the
       death of an individual, namely: Aleta Rhodes, by shooting Aleta Rhodes with a
       deadly weapon, namely: a firearm, and Jonathan Depue, either acting alone or
       together with Eric Depue, Joseph Montoya, Jesse Martinez, Jr., and/or Ruben
       Montoya as a party, was in the course of committing or attempting to commit the
       offense of burglary of a habitation upon Aleta Rhodes;


               Or, if you find from the evidence beyond a reasonable doubt that Jonathan
       Depue entered into a conspiracy with Eric Depue, Joseph Montoya, Jesse Martinez,
       Jr., and/or Ruben Montoya to commit the felony offense of burglary and that on or
       about the 29th day of September, 2006, in Bexar County, Texas, in an attempt to
       carry out this conspiracy to commit burglary, Jonathan Depue intentionally caused
       the death of an individual, namely: Aleta Rhodes, by shooting Aleta Rhodes with a
       deadly weapon, namely: a firearm, and Jonathan Depue was in the course of
       committing or attempting to commit the offense of burglary of a habitation upon
       Aleta Rhodes, and that such offense was committed in furtherance of the unlawful
       purpose to commit burglary and was an offense that should have been anticipated as
       a result of the carrying out of the conspiracy to commit burglary;

              Then you will find the defendant guilty of capital murder as charged in the
       indictment.

              If you do not so find beyond a reasonable doubt, or if you have a reasonable
       doubt thereof, you will find the defendant not guilty of capital murder and next
       consider whether he is guilty of the lesser included offense of murder.

       Based on the language in the indictment, section 19.03(a)(2), and the application paragraph,

Depue argues that although the application paragraph correctly contained information concerning

Depue’s actions as a party to the charged offense pursuant to section 7.01 of the Penal Code, it also

contained improper conspiracy language, allowing the jury to convict Depue for capital murder based

on the offense of conspiracy as defined in section 15.02 of the Penal Code, a crime for which he was

not indicted. See TEX . PENAL CODE ANN . § 7.01 (Vernon 2003) (stating person is criminally

responsible as party to offense if offense is committed by his own conduct, conduct of another for



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which he is criminally responsible, or both). Depue recognizes that under section 7.02 of the Penal

Code, a person can be criminally responsible for the conduct of another, but contends the charge in

this case went beyond that and improperly charged a separate offense, i.e., conspiracy under section

15.02 of the Penal Code, which allowed the jury to convict Depue on proof different from, and less

than, that authorized by the indictment. Depue contends that by defining “conspiracy” as it is

defined in section 15.02, the trial court went beyond a mere parties charge. We hold Depue is

incorrect.

       Section 7.02 of the Penal Code is entitled “Criminal Responsibility for Conduct of Another.”

See id. § 7.02. Subsection (b) of section 7.02 provides:

       If, in the attempt to carry out a conspiracy to commit one felony, another felony is
       committed by one of the conspirators, all conspirators are guilty of the felony actually
       committed, though having no intent to commit it, if the offense was committed in
       furtherance of the unlawful purpose and was one that should have been anticipated
       as a result of carrying out the conspiracy.

Id. § 7.02(b). The State argued, in response to Depue’s objection to the conspiracy language in the

application paragraph of the charge, that the language was proper because it tracked section 7.02(b)

and was a proper parties charge. The State makes the same argument here.

       Montoya v. State is dispositive of this point. 810 S.W.2d 160 (Tex. Crim. App. 1989) (en

banc). In that case, the indictment alleged Montoya and another man “unlawfully, intentionally, and

knowingly cause[d] the death of John E. Kilheffer, the deceased, by stabbing the deceased with a

knife, . . . and the said defendants were then and there in the course of committing and attempting

to commit the offense of robbery of John E. Kilheffer, . . .” Id. at 164. The indictment said nothing

about a conspiracy. See id. Nevertheless, the application portion of the court’s jury charge tracked

the language of section 7.02(b) and contained the definition of conspiracy from section 15.02 of the


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Penal Code. Id. After he was convicted of capital murder, Montoya asserted the same argument

made by Depue in this case – “the inclusion of the theory of conspiracy in the court’s charge over

his objection constituted fundamental error because the offense of conspiracy had not been alleged

in the indictment.” Id. at 165.

       On petition for discretionary review, the court of criminal appeals held Montoya was

mistaken in his argument because the charge did not instruct the jury to consider whether he was

guilty of the separate offense of criminal conspiracy found in section 15.02 of the Penal Code. Id.

Rather, the charge “merely contained an alternative ‘parties’ charge” as provided in section 7.02(b).

Id. The court held it was “well accepted” that the law of parties can be applied to a case even if there

is no allegation in the indictment regarding parties. Id. (citing English v. State, 592 S.W.2d 949

(Tex. Crim. App. 1980); Pitts v. State, 569 S.W.2d 898 (Tex. Crim. App. 1978)). This rule applies

to the law of parties as found in section 7.02(a) and 7.02(b) of the Penal Code. Montoya, 810

S.W.2d at 165. The court then noted that the evidence as demonstrated by Montoya’s confession

supported a charge on criminal responsibility as set forth in section 7.02(b), and overruled Montoya’s

point of error. Id.

       The indictment and application charge are nearly identical to that discussed by the court in

Montoya. Depue, like Montoya, was indicted for capital murder. Although Depue’s indictment said

nothing about a conspiracy, the application portion of the charge included a parties charge from

section 7.02(b) of the Penal Code and a definition of criminal conspiracy from section 15.02 of the

Penal Code, just as Montoya did. See id. at 164-65. Moreover, Depue’s statement, which was

introduced into evidence by the State, supported the submission of a charge on criminal

responsibility. Depue admitted that he and the others agreed to burglarize a home, jumped a fence


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to enter the backyard of Rhodes’s home, and entered her home by breaking in. He admitted he saw

Daniel with the gun in the car, and admitted Daniel had the gun in his hand when they entered the

house. This was sufficient to authorize a 7.02(b) parties charge. Accordingly, we overrule Depue’s

second point of error.

                                        Unanimous Verdict

       Lastly, Depue contends the court’s charge allowed the jury to “render a general verdict on

capital murder without unanimously agreeing to which act the defendant was guilty of committing.”

Depue’s argument is based on the fact that the indictment contained a general parties charge under

section 7.02(a) and a conspiracy parties charge under section 7.02(b). Depue contends that because

the jury was charged this way, it was improperly permitted to find the defendant guilty of capital

murder as charged in the indictment, or guilty of conspiracy to commit capital murder, which was

not charged in the indictment.

       Unanimity is required under the Texas Constitution in felony cases and under the Texas Code

of Criminal Procedure in all criminal cases. Jefferson v. State, 189 S.W.3d 305, 311 (Tex. Crim.

App. 2006) (quoting Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005)); see also TEX .

CONST . art. V, § 13; TEX . CODE CRIM . PROC. ANN . arts. 36.29(a), 37.02, 37.03, 45.034-.036 (Vernon

2006 & Supp. 2009). In this context, unanimity means “each and every juror agrees that the

defendant committed the same, single, specific criminal act.” Ngo, 175 S.W.3d at 745. In

determining unanimity, the question is whether the jury charge submitted different offenses or simply

alternate methods of committing the same offense. See Huffman v. State, 267 S.W.3d 902, 905 (Tex.

Crim. App. 2008). To answer this question, the court of criminal appeals has advised that we

determine the focus or gravamen of the offense. Id. at 907.


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       In this case, Depue was charged with the offense of capital murder. See TEX . PENAL CODE

ANN . § 19.03(a)(2). The gravamen or focus of the offense was the murder of Ms. Rhodes during the

commission of a burglary. See Huffman, 267 S.W.3d at 907. The jury charge simply authorized the

jury to find Depue guilty of this single offense either personally or as a party under sections

7.02(a)(2) and 7.02(b). See Garza Vega v. State, 267 S.W.3d 912, 915-16 (Tex. Crim. App. 2008)

(noting that hypothetically correct jury charge authorized jury to convict defendant of capital murder

as party under section 7.02(a)(2) or section 7.02(b)). Thus, the charge permitted the jury to find

alternative theories of party liability for the commission of the single criminal offense of capital

murder. The jury charge did not authorize or permit the jury to return anything less than a

unanimous verdict. We therefore overrule Depue’s third point of error.

                                           CONCLUSION

       Based on the foregoing, we hold Depue’s points of error are without merit, and affirm the

trial court’s judgment.



                                                        Marialyn Barnard, Justice

Do Not Publish




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