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COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS


ROBERT "WHITE EAGLE" OTTO,

                            Appellant,

v.

THE STATE OF TEXAS,

                            Appellee.

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No. 08-97-00650-CR

Appeal from the

394th District Court

of Brewster County, Texas

(TC# 3347)

O P I N I O N


	Robert "White Eagle" Otto was indicted for engaging in organized criminal
activity by conspiring to commit the aggravated kidnaping of Joe and Margaret Ann
Rowe.  The State alleged that Otto performed the overt act of abducting the Rowes in
pursuance of the conspiracy.  Otto was convicted by a jury and sentenced by the trial
court to fifty years' confinement.  On appeal, we held that there was no evidence that Otto
performed the overt act of abducting the Rowes.  See Otto v. State, No. 08-97-00650-CR,
slip op. at 10 (Tex. App.--El Paso 1999), rev'd, 95 S.W.3d 282 (Tex. Crim. App. 2003). 
We therefore reversed the conviction and rendered a judgment of acquittal.  Id.

	The Court of Criminal Appeals subsequently reversed our judgment, holding that
the State was not required to prove that Otto abducted the Rowes.  See Otto v. State, 95
S.W.3d 282, 284-85 (Tex. Crim. App. 2003).  The court remanded the cause for us to
consider the remaining issues raised by Otto in his appeal to this Court.  Id. at 285. 
Finding no reversible error regarding those issues, we affirm.
Factual Background
	Otto is a high-ranking officer of the "Republic of Texas."  The Republic of Texas
is a militia-type organization whose members believe that Texas is a sovereign nation that
was never legally annexed by the United States.  McLaren v. State, 2 S.W.3d 595, 596 n.1
(Tex. App.--El Paso 1999), rev'd sub nom. Otto v. State, 95 S.W.3d 282 (Tex. Crim. App.
2003).  There was animosity between the Republic of Texas and the Rowes because the
Rowes had reported the group's activities to the county sheriff.  Id. at 596.  One of their
reports to the sheriff apparently resulted in the arrest of a member of the group.  Id. 
Shortly after the arrest, three Republic of Texas members forcibly entered the Rowes'
house and held them captive.  Id.  The kidnappers eventually relinquished control of the
Rowes' house and left the Rowes there.  It is undisputed that Otto was not present at the
Rowes' house during the kidnaping.  Otto, 95 S.W.3d at 284.
Prosecutors' Argument
	Otto contends that the trial court erred by allowing the prosecutors to argue that the
jury could consider the law of parties, because the law of parties was not included in the
jury charge.  See Whiting v. State, 797 S.W.2d 45, 48 (Tex. Crim. App. 1990) ("[I]t is
error for the State to present a statement of the law that is contrary to that presented in the
charge to the jury.").
	We believe the Court of Criminal Appeals' decision in this case requires us to
reject Otto's contention.  The court held that Otto's "involvement in the planning,
execution, and aftermath of the kidnaping was tantamount to encouraging, directing,
aiding, or attempting to aid in the offense, and therefore, it authorized a conviction under
the law of parties."  Otto, 95 S.W.3d at 285.  Because the Court of Criminal Appeals thus
held that the law of parties applies to this case, we cannot say that it was improper for the
prosecutors to refer to the law of parties in their closing arguments.
Jury Charge
	Otto asserts that the trial court erred by instructing the jury that certain facts do not
constitute a defense to organized criminal activity.
	Section 71.03 of the Texas Penal Code prohibits a defendant from asserting the
following facts as a defense:
	(1) one or more members of the combination are not criminally responsible
for the object offense;

	(2) one or more members of the combination have been acquitted, have not
been prosecuted or convicted, have been convicted of a different offense, or
are immune from prosecution;

	(3) a person has been charged with, acquitted, or convicted of any [of the
object] offense[s] . . . ; or

	(4) once the initial combination of three or more persons is formed there is a
change in the number or identity of persons in the combination as long as
two or more persons remain in the combination and are involved in a
continuing course of conduct constituting an offense under this chapter.

Tex. Pen. Code Ann. § 71.03 (Vernon 2003).  Attempting to track this statutory
language, the court instructed the jury:
		It is no defense to prosecution for the offense of Engaging in
Organized Criminal Activity that one or more members of a combination
are not criminally responsible for the offense as charged in a particular case;
that one or more members of a combination have been acquitted, have not
been prosecuted or convicted, have been convicted of a different offense, or
are immune from prosecution; or that there is a change in the number or
identity of persons to a combination, as long as the initial combination of
three or more persons is formed and two or more persons remain in a
combination and are involved in a continuing course of conduct constituting
the offense charged in the indictment.

	Otto argues that it was improper to include this instruction in the jury charge
because there was no evidence regarding any of the defenses excluded by section 71.03. 
See Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 2003) (requiring court to give
jury a written charge "setting forth the law applicable to the case"); Tro v. State, 101 Tex.
Crim. 185, 188, 274 S.W. 634, 635 (1925) ("[A] charge should not be given which is
inapplicable to the evidence, or which presents a defense or an issue not made by the
evidence."); cf. Dowden v. State, 537 S.W.2d 5, 7 (Tex. Crim. App. 1976) (stating that it
is useless and confusing to include in the charge statutory provisions that cannot be relied
upon for a conviction).  But see Martinez v. State, 157 Tex. Crim. 603, 606, 252 S.W.2d
186, 187-88 (1952) (holding that it was permissible to include statutory elements that did
not apply to the case in the abstract portion of the charge).
	Assuming that the court erred by instructing the jury regarding the excluded
defenses, we must determine whether Otto was harmed by the error.  Because Otto
objected to the instruction, the question is whether he suffered "some harm."  Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).  Otto has the burden to suggest how
prejudice may have occurred.  Ovalle v. State, 13 S.W.3d 774, 787 & n.38 (Tex. Crim.
App. 2000).
	Otto argues that prejudice occurred because the instruction confused the jury.  In
particular, he complains of this language:  "It is no defense to prosecution for the offense
of Engaging in Organized Criminal Activity that one or more members of a combination
are not criminally responsible for the offense as charged in a particular case."  Otto
asserts that this instruction allowed the jury to find him guilty even if it believed he was
not criminally responsible.  He argues that the jurors must have considered this
instruction important because they underlined the words "criminally responsible for the
offense" in the charge of his co-defendant.
	We must consider Otto's argument in light of the entire jury charge, the arguments
of counsel, the state of the evidence, and any other relevant information revealed by the
record.  Ovalle, 13 S.W.3d at 786; Almanza, 686 S.W.2d at 171.
	The complained-of instruction was included in the abstract portion of the charge. 
The application paragraphs of the charge accurately set forth the elements of the offense
and authorized a conviction only if the jury found those elements beyond a reasonable
doubt.  Thus, the application paragraphs authorized a conviction only if the jury found
Otto to be criminally responsible.
	The prosecutors did not refer to the complained-of instruction during their closing
arguments.  And although defense counsel's closing argument focused on the issue of
criminal responsibility, the argument was based on an incorrect understanding of the law. 
Counsel argued that Otto could not be held responsible for the kidnaping because he did
not personally perform the abduction.  Under the Court of Criminal Appeals' decision, it
is irrelevant whether Otto personally performed the abduction.  See Otto, 95 S.W.3d at
284.
	Finally, the State presented overwhelming evidence that Otto was involved in the
planning and execution of the Rowes' kidnaping and was therefore criminally responsible
for their abduction.  Before the kidnaping, the Republic of Texas circulated fliers
designating the Rowes' home as a "miliary target."  The kidnappers used Otto's car in the
course of the kidnaping.  Joe Rowe testified that one of the kidnappers told him that Otto
ordered the kidnaping.  After they released the Rowes, the kidnappers retreated to their
"ambassador's" house, which they referred to as their "embassy," with Otto and others. 
Otto also made a written statement in which he explained the reasons for kidnaping the
Rowes.  He indicated that he and other members of the Republic of Texas developed the
plan for abducting the Rowes and agreed to execute the plan.  Considering all this
evidence, it is unlikely that the jury found Otto guilty even though it did not believe he
was criminally responsible.
Conclusion
	For the reasons stated herein, the judgment of the trial court is affirmed.

						SUSAN LARSEN, Justice
April 10, 2003

Before Panel No. 4
Barajas, C.J., Larsen, and McClure, JJ.

(Publish)
