




02-09-373-CR Rehearing





















COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
NO. 02-09-00373-CR
 
 



Johnny Ray Waller


 


APPELLANT




 
V.
 




The State of Texas


 


STATE



 
 
----------
FROM Criminal
District Court No. 2 OF Tarrant COUNTY
----------
OPINION
ON REHEARING
----------
On
July 7, 2011, this court issued an opinion reversing the trial court’s judgment
and remanding the case for a new trial.  After due consideration, a majority of
this court agrees to grant the State’s motion for rehearing to delete part IV
of our prior memorandum opinion.  The substance of the remainder of our prior
opinion, authored by Justice Dauphinot, and set forth below, remains unchanged.
We
withdraw our prior memorandum opinion, concurring memorandum opinion, and
judgment dated July 7, 2011, and substitute the following in its place.
A
jury convicted Appellant Johnny Ray Waller of arson causing the death of
Geovany Gustavo Guerra, burglary of a habitation with intent to commit arson,
and felony murder of Guerra in the course of committing arson, all charged in
separate counts of a single indictment, and assessed Appellant’s punishment at forty-five
years’ confinement for each count.  The trial court sentenced him accordingly, ordering
that the sentences run concurrently.
Appellant
brings ten points, arguing that the trial court reversibly erred by denying his
challenges for cause of veniremembers who could not consider the full range of
punishment and by submitting a jury charge that did not require a unanimous
jury verdict or contain an accomplice witness instruction; that the evidence is
factually insufficient to support his convictions for arson as a party and for
felony murder as a party; and that trial counsel rendered ineffective
assistance by failing to request an accomplice witness instruction in the jury
charge.  Because we hold that the trial court reversibly erred by failing to
grant Appellant’s challenges for cause of veniremembers who could not consider
the full range of punishment, we reverse the trial court’s judgment and remand
this case to the trial court for a new trial.
I.  Summary
of the Facts
Appellant
and several other people had gone to James Griggs’s Haltom City apartment one
night because Appellant believed that Griggs owed him money from a drug buy.  At
the time, Griggs was at his girlfriend’s apartment in the same complex.  Around
2:00 or 3:00 a.m., from his girlfriend’s apartment, Griggs saw several people
walking to his apartment.  He also saw two vehicles in the parking lot, one of
which he recognized as Appellant’s girlfriend’s truck.
Griggs’s
neighbor, Tara Daubig, testified that she and a friend were on her balcony when
she saw a black SUV driving around the parking lot.  A black Ford pickup truck
met the SUV in front of her apartment, and one man got out of the truck.  About
three men got out of the SUV.  The group headed toward Griggs’s apartment,
shouting, “Where’s James?” and “We’ll find you.”  She heard them bang on a
door.  When they left, she noted that it was 2:30 a.m.  Around 2:55 a.m.,
Griggs received a text from Appellant’s girlfriend that they were gone from his
apartment.
Melissa
Svec, another neighbor, awoke between 4:00 a.m. and 4:30 a.m. to the smell of
smoke.  She had been awakened briefly about forty-five minutes before by a bang
coming from a nearby apartment.
A
third neighbor, Sandy Bethea, testified that she awoke to the smell of charcoal
lighter fluid around 4:00 a.m.  She went back to sleep and was awakened about
thirty minutes later by someone knocking on her door and informing her of the
fire.
After
receiving a phone call telling him that his apartment was on fire, Griggs
returned to his apartment and saw flames rolling along the ceiling.  He
testified that he saw a can of lighter fluid on the counter.
After
the fire in the three-story apartment building was extinguished by
firefighters, the body of Guerra was discovered in the bathtub of a third-floor
apartment.
While
out on patrol several days later, Hurst Police Officer Amber Hull ran the
license plate of a car in front of her and discovered that the car had been
reported as stolen.  Hull was in North Richland Hills at the time, so she
followed the car until a North Richland Hills police officer could respond.  A
North Richland Hills police vehicle gave chase to the car but terminated the
chase.  The car was later found abandoned in a subdivision.  The police found
Appellant and two women hiding in a nearby drainage ditch.  At trial, the North
Richland Hills officer who had chased the car identified Appellant as its
driver.
A
Haltom City police officer investigating the fire at the apartment complex
obtained a search warrant for the stolen vehicle.  From the vehicle, the
officer recovered a small blow torch, a pistol equipped with a laser sight, a
newspaper clipping about the fire, and a piece of paper with Griggs’s prior
address, his driver’s license number, and his social security number.
In a
videotaped statement to the police, Appellant admitted going to Griggs’s
apartment on the night of the fire “to whip [his] ass” and also that he had instructed
a number of people to meet him in the apartment complex parking lot.  Appellant
also admitted that one of his acquaintances kicked in the door to Griggs’s
apartment.  Appellant stated that the apartment was empty, and he left.  As he
was leaving, Appellant saw brothers K.C. and Jaime Sifuentes in the street
outside the complex.  The brothers were among the people that Appellant had
called to meet him at the apartment complex.  Appellant stated that they had a
gas container and wanted a ride, claiming that their car was out of gas. 
Appellant said that he told the brothers the purpose of his visit and that they
told him something like, “Don’t worry about it,” “It’ll get taken care of,” and
“We got it taken care of,” but they did not say anything about starting a fire.
Alan
LeMaster, who was also charged with arson for the fire, testified for the State
at Appellant’s trial.  LeMaster testified that he and the Sifuentes brothers
were at his godmother’s apartment on the night of the fire.  K.C. received a
phone call from Appellant and went outside to talk.  When K.C. came back
inside, he told his brother that “it was time to go.”  The brothers invited
LeMaster to go with them.  K.C. said that they were going to collect some money
owed to Appellant.  They stopped at a gas station on the way; LeMaster
testified that he went inside to use the restroom while the brothers “were
supposedly getting gas for [their] car.”  Appellant called K.C., who told him
that they were on their way.
LeMaster
stated that when they arrived at the complex, the brothers went into Griggs’s
apartment and told LeMaster to wait at the top of the stairs.  LeMaster went
into the apartment at one point and saw K.C. holding a cup of liquid in his
hand and asking Jaime about a good spot.  LeMaster did not smell gas fumes,
lighter fluid, or anything of that sort.  The brothers told LeMaster to go back
to the stairs.  About a minute later, the brothers ran out of the apartment,
and all three ran back to the car.  K.C. drove around the parking lot until
flames could be seen coming out of the building.  The brothers dropped LeMaster
back off at his godmother’s apartment, where K.C. made a telephone call and
told someone that the brothers “did what [they] were supposed to and [that they
would] be on [their] way to handle business.”  The brothers then left but
returned about an hour later with some methamphetamine and some money.
LeMaster’s
godmother testified that LeMaster had told her that he had gone into the
apartment with the brothers and had started a fire to take care of a problem
for Appellant.
In
the jury charge, the trial court charged the separate paragraphs of each of the
three counts in the disjunctive.  There was a separate verdict form for each
count.  The jury charge did not state that the jury had to be unanimous on any
single theory of the alternative manners and means of committing the offense in
each count.
The jury
charge also contained special issues relating to a deadly weapon finding.  The
jury did not find that Appellant had exhibited a deadly weapon in the form of a
combustible or flammable liquid or material or “carbon monoxide and/or smoke”
or that he knew that such deadly weapon would be used.
The jury
charge did not contain an accomplice witness instruction regarding LeMaster’s
testimony, and Appellant did not request such an instruction or object to the
trial court’s failure to include one.
II. 
Sufficiency of the Evidence
Appellant
argues in his seventh and eighth points that the evidence is factually
insufficient to support his convictions for arson as a party and for felony
murder as a party.  The State argues that “[b]y attacking only the factual
sufficiency of the evidence, Appellant has implicitly conceded that the
evidence is factually sufficient.  His seventh and eighth points of error
should therefore be overruled.”
After
Appellant filed his brief, the Texas Court of Criminal Appeals held that there
is no meaningful distinction between the legal sufficiency standard and the
factual sufficiency standard.[1]  Thus, the Jackson
standard, which is explained below, is the “only standard that a reviewing
court should apply in determining whether the evidence is sufficient to support
each element of a criminal offense that the State is required to prove beyond a
reasonable doubt.”[2]  We therefore apply the Jackson
standard to Appellant’s seventh and eighth points.
In
our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the
prosecution to determine whether any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.[3]  The jury is the sole judge of
the credibility of the evidence and the weight to be given to each piece of
evidence.[4]
The
sufficiency of the evidence in a criminal case is not determined by a
no-evidence standard.[5] 
Instead, we must look at all the evidence to determine whether a rational jury
could have found that the State proved every element of the offenses of arson
and felony murder beyond a reasonable doubt.
As
the Texas Court of Criminal Appeals has explained,
[T]he
law in Texas allows individuals to be charged as a party to an offense and to
be held criminally responsible for the conduct of another when that individual
acts in concert with another person in committing an offense.  Circumstantial
evidence alone may be used to prove that a person is a party to an offense.[6]
Appellant
argues, and the record reflects, that he was not present when LeMaster or the
Sifuentes brothers, or both LeMaster and the Sifuentes brothers, set the fire
that destroyed Griggs’s apartment and caused Guerra’s death.  Appellant also
points out that the jury specifically found in Special Issues One and Two that he
did not use or know that any type of accelerant would be used to start a fire.
Nevertheless,
there was evidence from which the jury could conclude that Appellant had instructed
LeMaster and the Sifuentes brothers to act as enforcers to punish Griggs for
failing to pay Appellant what was owed.  There was also evidence from which the
jury could conclude that when Appellant left Griggs’s apartment, he knew that
the Sifuentes brothers would stay behind to inflict that punishment when the
apartment was empty.
By not
answering the deadly weapon special issue in the affirmative, the jury expressed
its belief that Appellant did not anticipate that an accelerant would be used. 
Although there was evidence of a gas can, Griggs saw a can of lighter fluid,
and a neighbor smelled lighter fluid.  There was also evidence that one of the
Sifuentes brothers called someone and reported that “[they had done] what [they]
were supposed to.”  There was also evidence of a blow torch in the car that Appellant
was seen driving immediately before his capture.  We therefore conclude that the
jury’s verdict regarding the special issues was not necessarily inconsistent
with a finding of guilt.
Applying
the appropriate standard of review, we hold that, as Appellant phrased his seventh
and eighth points, the evidence is sufficient to support Appellant’s guilt as a
party to both arson and felony murder.  We overrule Appellant’s seventh and eighth
points.
III. 
Jury Selection
In
his first, second, and third points, Appellant argues that the trial court
reversibly erred by denying his challenges for cause to three members of the
venire, numbers 13, 14, and 20.  Appellant properly preserved his complaints by
striking the three veniremembers, requesting additional strikes, and showing
that he was forced to accept at least three specific objectionable jurors.[7]
The
indictment charges in both paragraphs of the first count that Appellant
committed arson of a habitation within the limits of an incorporated city or
town, “and/or knowing that the said habitation[] was located on property
belonging to another, and death was suffered by Geovany Gustavo Guerra by
reason of the commission of said arson.”  The first count of the indictment,
then, charges commission of first-degree arson.[8]
Both
paragraphs of Count Three charge that Appellant intentionally or knowingly
committed or attempted to commit an act clearly dangerous to human life, arson,
that caused the death of Guerra and that Appellant was in the course of or
immediate flight from the commission or attempted commission of a felony (arson
in the first paragraph and burglary of a habitation in the second paragraph). 
That is, Count Three of the indictment charges that Appellant committed felony
murder of Guerra.[9]
During
voir dire, defense counsel asked the venire, “If the facts justify it and the
law allows it, could you—where you found somebody guilty beyond a reasonable
doubt of arson where somebody had died, could you consider the minimal range of
punishment?”  Then he explained the possible minimum punishments of five or
fifteen years.
Venireperson
Number 14, Kelly Koreneck, stated, 
If we found whoever
guilty beyond a reasonable doubt, why would we go for the minimum?  That just
seems like a slap on the wrist, if someone died.  If someone has died, then
you—someone needs to be held accountable for that and somebody should.
.
. . .
[KORENEK]: 
So I would go to the maximum.
[DEFENSE]: 
And—and you would always go to the maximum?
[KORENEK]: 
If we found them guilty beyond a reasonable doubt, why would we go for the
minimum?
The
jurors indicated that death justified maximum punishment.  But death of an
individual was an essential element of two counts of the indictment.  The jury
would reach the issue of punishment only if they found the defendant guilty
beyond a reasonable doubt, that is, only if they found all the elements,
including death, beyond a reasonable doubt.[10]  Had there been no
death, Appellant would have been acquitted of the charged offenses.
Venireperson
Number 12, Sasidara Manne said, in discussing the range of punishment and
intoxication as mitigation of punishment,
When a person’s drunk
beyond the limit— . . . —that means he’s already guilty.  So whether it’s
involuntary or voluntary, it’s not a question in my mind.  Drinking beyond the
limit itself he is—he—he committed a big mistake.  Therefore, you know, he is
treated like a normal person.  He should be punished to the maximum.
[DEFENSE]: 
To the maximum?
[MANNE]: 
Yes.
[DEFENSE]: 
You could never consider the minimum?
[MANNE]: 
No, sir.
Venireperson
Number 13, Ms. Collins, volunteered that she agreed with the “people that are
sitting here with me,” immediately after Manne spoke.  Defense counsel
clarified that Collins was speaking of Manne when she referred to the people
that were sitting there with her.
Venireperson
Number 20, Benjamin Hatcher, firmly stated that he could not “go for the
minimum punishment if someone died.”  Hatcher was recalled and insisted that he
could not consider the minimum punishment.  After the trial judge intervened,
Hatcher finally said, “[T]he answer is yes, I can consider the minimum.”  And
then the trial court clarified,
[COURT]: 
And the maximum?
[HATCHER]: 
Yes, and the maximum.
While
the State is correct in stating that a juror who could not consider the full
range of punishment under certain circumstances is not disqualified, the
circumstance cannot be an essential element of the offense.[11] 
A juror must be able to consider the full range of punishment in a murder case[12]
but is not disqualified if he or she could not consider the full range under
certain circumstances,[13] for example, if torture
was involved, or in a mercy killing, or if a child was killed.  But here, the
circumstance that precluded considering the full range of punishment was
finding guilt beyond a reasonable doubt if there was a death; that is,
conviction.
The
State argues that Hatcher was a vacillating juror.  He appears, rather, to be
an acquiescing juror.  But Korenek and Collins were neither vacillating nor
confused.  They were adamant.
The
State relies on Davis v. State to argue that Appellant did not
sufficiently instruct Korenek and Collins on the law that would govern them as
jurors:
To
preserve error for a trial court’s erroneous denial of a challenge for cause,
appellant must show that: (1) he asserted a clear and specific challenge for
cause; (2) he used a peremptory challenge on the complained-of venire member;
(3) his peremptory challenges were exhausted; (4) his request for additional
strikes was denied; and (5) an objectionable juror sat on the jury.  Appellant
has properly preserved error with respect to each of the challenged venire
members.
If
a trial judge errs in overruling a challenge for cause against a venire member,
then a defendant is harmed if he uses a peremptory strike to remove the venire
member and thereafter suffers a detriment from the loss of the strike. 
Appellant was denied any additional peremptory strikes.  To demonstrate harm,
appellant must show that the trial court erroneously denied one challenge for
cause.
When
reviewing a trial court’s decision to deny a challenge for cause, we look at
the entire record to determine if there is sufficient evidence to support the
ruling.  The test is whether a bias or prejudice would substantially impair the
venire member’s ability to carry out the juror’s oath and judicial instructions
in accordance with the law.  Before venire members may be excused for cause,
the law must be explained to them, and they must be asked whether they can
follow that law, regardless of their personal views.  The proponent of a
challenge for cause has the burden of establishing that the challenge is
proper.  The proponent does not meet this burden until he has shown that the
venire member understood the requirements of the law and could not overcome his
or her prejudice well enough to follow the law.
We
review a trial court’s ruling on a challenge for cause with considerable
deference because the trial judge is in the best position to evaluate a venire
member’s demeanor and responses.  A trial judge’s ruling on a challenge for
cause may be reversed only for a clear abuse of discretion.  When a venire
member’s answers are vacillating, unclear, or contradictory, we accord
particular deference to the trial court’s decision.[14]
The trial
court, not the lawyers, bears the obligation of instructing the jurors on the
law.[15]  Davis instructs
us that the proponent of the challenge bears the burden not of instructing the
jurors but of showing that the challenged “venire member understood the
requirements of the law and could not overcome his or her prejudice well enough
to follow the law.”[16]  The distinction is
subtle, but it is significant.  The attorneys do not bear the burden of
instructing the venire on the law.  The attorneys do bear the burden of
providing a sufficient record showing that the venire has been instructed and
understands the law.  Presumably, if the trial court fails to provide adequate
instruction, the lawyers may provide the missing information to the venire or
may ask the trial court to do so.  In either case, the record must reflect that
the challenged veniremembers could not follow the law even though they had been
adequately instructed in the requirements of the law.
The
trial court thoroughly instructed the venire on the burden of proof and the
meaning of beyond a reasonable doubt.  The lawyers thoroughly discussed the
obligations of jurors to consider the entire range of punishment.  The lawyers
dealt with at least one veniremember who had trouble understanding why the
death penalty was not available.  The veniremembers were told repeatedly what
the range of punishment was and that they had to be able to consider the full range
of punishment.  They were repeatedly instructed that if the facts justified it
and the law allowed it, they were required to be able to give full and fair
consideration to the full range of punishment.  Only then would they be
qualified to serve as jurors.  They were told that they had only to consider
the entire range and that there was a difference between considering the entire
range and assessing a particular punishment.
Members
of the venire announced that they believed that Appellant was guilty because he
had been arrested and that nothing could change their mind.  Manne stated that
the he could not be “a fair person to sit in that chair and make a decision as
a juror” if there was “any doubt” that a person committed “a violence.”  He
would require the defense to prove Appellant’s innocence beyond a reasonable
doubt if there was any allegation of violence.
The
entire venire, as well as individual members of the venire in the presence of
the entire venire, were repeatedly instructed that they had to follow the law,
had to require the State to prove guilt beyond a reasonable doubt, could not
presume guilt, and had to consider the entire range of punishment, be fair and
impartial, and follow the law.  They were instructed that the minimum
punishment was five years but increased to fifteen years if the defendant had
been previously convicted of a felony.  They were told that the maximum
punishment was life but that they had to be able to consider the entire range
of punishment and base their decision on the law and the evidence.
The
trial court did an excellent job of allowing a full and thorough voir dire of
the venire.  Veniremembers were also brought to the bench for individual voir
dire, and the lawyers and the trial court ferreted out any confusion and
answered questions and clarified any misunderstanding on the part of the
veniremembers.  The members of the venire were repeatedly instructed in the law
and their obligations under the law.
The
trial court assured that the requirements of Davis were fully met. 
Korenek and Collins clearly understood that in order to be qualified to serve
as jurors, they had to fully and fairly consider the entire range of
punishment.[17]  They understood what
that range of punishment was, both with and without proof of a prior felony
conviction.[18]  They understood that
their punishment verdict would have to be based on the law and the evidence.[19] 
Still, both rejected any consideration of the minimum punishment.[20] 
We therefore hold that the trial court abused its discretion by denying the
challenges to those two veniremembers, and we further hold that Appellant
showed harm from the denial.  We sustain Appellant’s first and second points,
which are dispositive, and do not reach the merits of his remaining points.[21]
IV. 
Conclusion
Having
sustained Appellant’s dispositive jury selection points, we reverse the trial
court’s judgment and remand this case to the trial court for a new trial.
 
 
SUE WALKER
JUSTICE
 
PANEL: 
DAUPHINOT, WALKER, and MCCOY, JJ.
 
DAUPHINOT,
J. filed a dissenting and concurring opinion.
 
PUBLISH
 
DELIVERED:  October 20, 2011
 








 
 

 


















COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
NO. 02-09-00373-CR
 
 



Johnny Ray Waller


 


APPELLANT




 
V.
 




The State of Texas


 


STATE



 
 
----------
FROM Criminal
District Court No. 2 OF Tarrant COUNTY
----------
DISSENTING
AND CONCURRING OPINION ON REHEARING
----------
I
would deny the State’s motion for rehearing.  Other than that, I am in complete
agreement with the majority opinion.  But because we are remanding this case,
in the interest of judicial economy, I note with concern two issues raised
below but not raised on appeal. 
The
trial court instructed the jurors that they must find Appellant guilty of arson
if they found beyond a reasonable doubt that Appellant “entered into a
conspiracy with Casimer Sifuentes or Jaime Sifuentes to commit the felony
offense of Aggravated Assault on James Griggs, or Burglary of a Habitation with
intent to commit theft, or Burglary of a Habitation with the intent to commit
assault” and in the attempt to carry out the agreement the Sifuentes brothers
committed arson, causing Guerra’s death, “and that such offense was committed
in furtherance of the unlawful purpose to commit Burglary of a Habitation or
Aggravated Assault, and was an offense that should have been anticipated as a
result of the carrying out of the agreement,” even “though [Appellant] may have
had no intent to commit it.”  The trial court provided a similar instruction
that the jurors must convict Appellant of murder if they found beyond a
reasonable doubt that Appellant “entered into a conspiracy with Casimer
Sifuentes or Jaime Sifuentes to commit the felony offense [of] Burglary of a
Habitation” and that “in the attempt to carry out this agreement,” the
Sifuentes brothers committed burglary of a habitation and felony murder of
Guerra and that “such offense was committed in furtherance of the unlawful
purpose, and was an offense that should have been anticipated as a result of
the carrying out of the agreement,” even “though he may have had no intent to
commit it.”
Immediately
following the section 7.02(a) penal code instruction, the trial court, combining
language from subsections (a) and (b) of section 7.02, instructed the jury that

[a]
person is criminally responsible for an offense committed by the conduct of
another 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.[22]
The
trial court then instructed the jury on the definition of conspiracy as set out
in section 15.02 of the penal code:
The
term “conspiracy” means an agreement with one or more persons that they or one
of [sic] more of them engage in conduct that would constitute a felony.  An
agreement constituting a conspiracy may be inferred from the acts of the
parties.  . . .
.
. . [I]t is no defense that the person for whose conduct the defendant is
criminally responsible 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 prosec[u]tion.[23]
The
trial court did not instruct the jury pursuant to section 15.02(d) that “[a]n
offense under this section is one category lower than the most serious felony
that is the object of the conspiracy, and if the most serious felony that is
the object of the conspiracy is a state jail felony, the offense is a Class A
misdemeanor.”[24]
Essentially,
in attempting to provide a section 7.02(b) instruction, the trial court
actually instructed the jury that they could convict Appellant as a party to
the more serious offense if the jury found Appellant guilty of section 15.02
conspiracy, an offense for which he was not indicted.
It
is well established that the offense of criminal conspiracy is a separate
offense and is not a lesser included offense of the aim of the conspiracy,[25] nor is it the
same as the law of parties.[26] 
In Pereira v. United States, defendants Pereira and Brading were charged
with and convicted for violating the federal mail fraud statute and the
National Stolen Property Act and conspiracy to commit those offenses.[27]  The Pereira court
held that the substantive offenses and conspiracy to commit the substantive
offenses are separate offenses because each contains an element that the other
does not.[28] 
Conspiracy requires the State to prove an agreement.  Murder, as a principal or
as a party, does not require the State to sustain the burden of proving an
agreement.  The instruction, contrary to the mandate of Malik,[29] both permits the
jury to convict of an offense that is neither charged in the indictment nor a
lesser included offense of that charged in the indictment and also increases
the burden of the State beyond that prescribed by the indictment by requiring
the State to prove an agreement.
In Ex
parte Brosky, the State chose to prosecute Brosky for conspiracy to commit
murder after a jury recommended that his sentence for murder as a party be
probated.  Brosky argued that he could not be prosecuted for conspiracy to
commit murder under section 15.02 of the penal code because it was essentially
the same offense as murder as a party, or, at best, a lesser included offense
of murder as a party.  We held that Brosky could be prosecuted for both the
substantive offense and conspiracy to commit the substantive offense because
they were different offenses.[30] 
After the second trial, Brosky again raised the double jeopardy argument,
arguing that he could not be convicted of murder as a party and of conspiracy
to commit murder.  Again, this court held that they were two separate offenses,
not two ways to commit the same offense and not a greater and lesser included
offense.[31] 
We relied on United States v. Felix, in which the United States Supreme
Court recognized that a prosecution for conspiracy is not precluded by a prior
prosecution for the substantive offense.[32]
If a
trial court instructs jurors that they may convict a defendant of the substantive
offense, whether they find him guilty of the substantive offense or of
conspiracy to commit the substantive offense, the trial court instructs the
jurors that they may convict of either the indicted offense or of an unindicted
offense that is not a lesser included offense of the greater substantive
offense.[33]
In Woodard
v. State, the Texas Court of Criminal Appeals recently addressed the issue
of whether a jury could be instructed to convict a defendant of conspiracy to
commit the substantive offense when the defendant was not charged by indictment
with conspiracy but only with the substantive offense.[34]  The intermediate appellate
court had reversed Woodard’s conviction on this ground.[35]  Woodard was indicted for
murder, both intentional murder and murder as a consequence of doing an act
clearly dangerous to human life.  The jury was instructed to convict if they
found Woodard guilty of conspiracy to commit either robbery or aggravated
robbery.  The intermediate appellate court held that our federal and state
constitutions do not permit conviction of an offense not alleged in the
indictment, such as robbery or conspiracy.[36]
The
Texas Court of Criminal Appeals reversed the appellate court and affirmed the
conviction because Woodard had participated in preparation of the jury charge
that contained the conspiracy instruction.[37] 
The court noted, 
[T]he
federal constitutional rule that “a defendant cannot be held to answer a charge
not contained in the indictment brought against him” is not based entirely “on
the [due-process] right of the defendant to notice of the charge brought
against him.”  This rule is also based on the Fifth Amendment’s grand jury
guarantee that no person “shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a grand jury.”
Our
constitution contains a similar guarantee.  The right to a grand jury
indictment under state law is a waivable right, which “must be implemented by
the system unless expressly waived.”[38]
In
the case now before this court, however, trial counsel timely and specifically
objected to the conspiracy instructions and pointed out that Appellant was not
charged with the offense of conspiracy.  The trial court overruled Appellant’s
objections and included the improper instructions.
Trial
counsel also objected to the jury instructions that allowed the jury to convict
Appellant both of arson causing Guerra’s death and of felony murder causing
Guerra’s death in the course of arson.  The trial court overruled his
objections and allowed both convictions, raising the question of whether a
person may be convicted of both arson resulting in death[39] and of felony murder,[40] with arson being
both the underlying felony and the act clearly dangerous to human life that
caused the death.[41]
I
agree wholeheartedly with the majority’s determination of the merits of
Appellant’s issues.  I write only to bring this entire matter to a more
efficient final resolution.
 
LEE ANN DAUPHINOT
JUSTICE
 
PUBLISH
 
DELIVERED:  October 20, 2011




[1]Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010) (overruling Clewis v. State, 922
S.W.2d 126, 131–32 (Tex. Crim. App. 1996)).


[2]Id.


[3]Jackson v. Virginia,
443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007).


[4]Brooks, 323 S.W.3d at
899.


[5]Butler v. State, 769
S.W.2d 234, 239 (Tex. Crim. App. 1989), overruled
on other grounds by Geesa v. State, 820 S.W.2d 154,
161 (Tex. Crim. App. 1991), overruled
on other grounds by Paulson v. State, 28 S.W.3d 570, 571 (Tex. Crim.
App. 2000).


[6]Powell v. State,
194 S.W.3d 503, 506 (Tex. Crim. App. 2006).


[7]See Loredo v. State,
159 S.W.3d 920, 923 (Tex. Crim. App. 2004).


[8]See Tex. Penal Code
Ann. § 28.02(a)(2), (d) (West 2011).


[9]See id. §
19.02(b)(3) (West 2011).


[10]See Tex. Code
Crim. Proc. Ann. art. 37.07, § 2(b) (West Supp. 2010).


[11]See id. art.
35.16(c)(2) (West 2006).


[12]See id.


[13]Sadler v. State,
977 S.W.2d 140, 142 (Tex. Crim. App. 1998).


[14]Davis v. State, 329 S.W.3d 798, 807 (Tex. Crim. App. 2010), cert.
denied, No. 10-10063, 2011 WL 4530525 (Oct. 3, 2011) (citations omitted).


[15]See Tex. Code
Crim. Proc. Ann. art. 36.14 (West 2007).


[16]See Davis, 329
S.W.3d at 807.


[17]See Cardenas v. State,
325 S.W.3d 179, 186–87 (Tex. Crim. App. 2010).


[18]See id.


[19]See id.


[20]See id.


[21]See Tex. R. App.
P. 47.1.


[22]Tex. Penal Code Ann. §
7.02(b) (West 2011).


[23]Id. §
15.02(a)–(c).


[24]See id. §
15.02(d).


[25]Pereira v. United
States, 347 U.S. 1, 74 S. Ct. 358 (1954).


[26]See Ex parte Brosky,
863 S.W.2d 783, 784 (Tex. App.—Fort Worth 1993, no pet.) (Brosky I).


[27]Pereira, 347 U.S. at
3, 74 S. Ct. at 360.


[28]Id. at 11, 74 S.
Ct. at 364.


[29]Malik v. State,
953 S.W.2d 234, 240 (Tex. Crim. App. 1997).


[30]Brosky I, 863
S.W.2d at 784, 788.


[31]Brosky v. State,
915 S.W.2d 120, 140 (Tex. App.—Fort Worth, pet. ref’d) (Brosky II), cert.
denied, 519 U.S. 1020 (1996).


[32]503 U.S. 378, 390–91, 112
S. Ct. 1377, 1385 (1992).


[33]See generally
Pereira, 347 U.S. 1, 74 S. Ct. 358; see Brosky I, 863 S.W.2d at 784
& n.4.


[34]322 S.W.3d 648, 649 (Tex. Crim. App. 2010) (Woodard
II).


[35]Woodard v. State, 300
S.W.3d 404, 406 (Tex. App.—Houston [14th Dist.] 2009) (Woodard I), rev’d,
322 S.W.3d at 659.


[36]Id. at 407–09.


[37]Woodard II, 322
S.W.3d at 659.


[38]Id.
at 656–57 (citations omitted).


[39]Tex. Penal Code Ann. §
28.02(a)(2), (d) (West 2011).


[40]Id. § 19.02(b)(3).


[41]See, e.g., Littrell
v. State, 271 S.W.3d 273, 279 (Tex. Crim. App. 2008); Lawson v. State, 64
S.W.3d 396, 397–401 (Tex. Crim. App. 2001) (Cochran, J., concurring).


