                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-12-00194-CR


DAMIAN LAMON MURKLEDOVE                                                APPELLANT

                                         V.

THE STATE OF TEXAS                                                           STATE


                                      ----------

      FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

                                      ----------

                            DISSENTING OPINION

      Respectfully, I must dissent from the majority opinion. The conscientious

majority follows the precedent set out by the Texas Court of Criminal Appeals in

Montoya v. State.1 The Montoya opinion states that section 7.02 in toto covers

only the law of parties, not criminal responsibility for the acts of others as stated

in its caption.2 The result is a peculiar rule that provides that a person acts as a

      1
       810 S.W.2d 160 (Tex. Crim. App. 1989), cert. denied, 502 U.S. 961
(1991).
      2
       See id. at 165.
party whether he acts as a party or as a co-conspirator.3 That is, he is a party

whether he is guilty of the offense alleged in the indictment (or a lesser included

offense) or guilty of an offense alleged nowhere. The jury, then, is instructed to

convict the defendant of the offense charged in the indictment whether they find

him guilty of that offense or a totally different offense that is not a lesser included

offense of that alleged.

      The fact that conspiracy to commit murder is a different offense from

murder is the distinction that allowed the Tarrant County District Attorney to

secure the convictions of Christopher William Brosky for both the murder of

Donald Thomas as a party and conspiracy to murder Donald Thomas. 4 After

Brosky’s murder conviction, for which he received a ten-year probated sentence,

the public outrage caused the district attorney’s office to seek a second bite of

the apple.    The district attorney sought and obtained an indictment against

Brosky for conspiracy to commit the murder of Donald Thomas. Brosky filed a

pre-trial application for writ of habeas corpus on the basis of double jeopardy.

The trial court denied relief, and he appealed to this court. This court stated,

            Brosky asserts his prosecution for conspiracy is barred by the
      double jeopardy clause of the Fifth Amendment. We find the double
      jeopardy clause does not bar the prosecution for conspiracy in this
      case.


      3
       See id.; see also Tex. Penal Code Ann. § 7.02 (West 2011).
      4
         Brosky v. State, 915 S.W.2d 120, 139–40 (Tex. App.—Fort Worth, pet.
ref’d), cert. denied, 519 U.S. 1020 (1996).


                                          2
            ....

             We find conspiracy is not a lesser included offense of the law
      of parties. An offense is a lesser included offense if:

             (1) it is established by proof of the same or less than all the
      facts required to establish the commission of the offense charged;

             (2) it differs from the offense charged only in the respect that a
      less serious injury or risk of injury to the same person, property, or
      public interest suffices to establish its commission;

            (3) it differs from the offense charged only in the respect that a
      less culpable mental state suffices to establish its commission; or

            (4) it consists of an attempt to commit the offense charged or
      an otherwise included offense.

             Both criminal conspiracy and engaging in organized criminal
      activity require proof of a fact—an agreement to commit an
      offense—that murder as a party does not.5

      “Brosky argue[d] that the offense of murder as a party under [p]enal [c]ode

section 7.02(a)(2) requires proof of ‘acts of the parties,’ from which an agreement

to commit the offense can be inferred.”6 We explained that

      [i]rrespective of whether the jury may have inferred the existence of
      an agreement from Brosky’s and his co-defendants’ overt acts, this
      argument is beside the point.          The court’s charge at the
      guilt/innocence phase of the murder trial did not instruct the jurors
      they could infer an agreement existed from the overt acts. Rather,
      the jury was merely instructed that it could find Brosky guilty of
      murder if it found that he “acted with intent to promote or assist the
      commission of the offense by encouraging, directing, aiding or
      attempting to aid” his co-defendants in the murder of Donald
      Thomas.
      5
        Ex parte Brosky, 863 S.W.2d 783, 784 (Tex. App.—Fort Worth 1993, no
pet.) (citations and footnote omitted).
      6
       Id. at 785.


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              The only portion of the law of parties that refers specifically to
       a conspiracy is [section] 7.02(b), which the trial court excluded from
       the charge at the defense’s request. Brosky does not contend, and
       the record does not show, that the State argued to the jury that
       Brosky acted as part of a conspiracy. In short, the record is devoid
       of evidence that the State proved the fact of an agreement to commit
       murder in the murder trial.7

       This court stated unequivocally that “conspiracy does not differ from

murder as a party in any of the ways set out in article 37.09. Thus, conspiracy is

not a lesser included offense of murder as a party under that article.”8 Then, we

spelled it out:

       The offense of murder as a party requires proof that the defendant,
       acting as a party, caused the death of an individual.      Criminal
       conspiracy and engaging in organized criminal activity do not.
       Similarly, conspiracy and engaging in organized criminal activity
       require proof that the defendant entered into an agreement, or
       conspired, with others, which murder as a party does not.9

       After his jury trial for conspiracy to commit murder, Brosky appealed his

conviction. We summarily dismissed his double-jeopardy claim, stating,

             This court has already evaluated and rejected each claim that
       Brosky now asserts on the issue of double jeopardy. We have
       already determined that engaging in organized crime and conspiracy
       is not a species of the lesser included offense of murder by
       complicity. We applied the Blockburger test and concluded that
       “both criminal conspiracy and engaging in organized criminal activity
       require proof of a fact—an agreement to commit an offense—that
       murder as a party did not.” Next, in the murder prosecution, the jury
       was not instructed on the conspiratorial theory of parties, nor did the

       7
       Id. at 785 (citation omitted).
       8
       Id.
       9
       Id. at 788.


                                          4
      prosecutor argue that Brosky acted as part of a conspiracy. This
      court also rejected Brosky’s arguments based on Pereira v. United
      States and United States v. Dixon and held that the controlling
      precedent was United States v. Felix, where the United States
      Supreme Court recognized that a prosecution for conspiracy is not
      precluded by a prior prosecution for the substantive offense. Brosky
      has presented nothing new to this court requiring us to deviate from
      our holding in Ex parte Brosky.10

      The holding of the Montoya court now causes trial and appellate courts,

including this court, to take a curious step. Under the guise of the law of parties,

we increase the burden of the State in a parties’ prosecution beyond the burden

established by the legislature.   The legislature has never suggested that the

State must prove an agreement among parties to an offense to convict a party of

that offense. Often, the obvious lack of planning among parties is astounding.

But, acting with intent to promote or assist the commission of the offense, they

solicit, encourage, direct, aid, or attempt to aid the other person to commit the

offense, and they manage to do so with startling frequency, sometimes amazing

ingenuity, a total lack of appreciation of consequences, and usually a total

absence of any evidence of planning.11 They are guilty as parties to the offense

because they did more than think about or plan the offense. They did an act.

Conspirators, on the other hand, are guilty of thinking or planning, even though

they commit no act. That is why the penalty for conspiracy is a degree lower

than the offense that is the subject of the conspiracy. But when a person is

      10
        See Brosky, 915 S.W.2d at 140 (citations omitted).
      11
        See Tex. Penal Code Ann. § 7.02.


                                         5
convicted of conspiracy under the cloak of the law of parties, that person may be

convicted of the offense of planning or even just talking about committing the

offense although he committed no act in furtherance of the conspiracy, and the

State must prove the extra element of the agreement. And, suddenly, the State

has an extra element added to its burden of proof.

      The plain reading of section 7.02, “Criminal Responsibility for Conduct of

Another” means just that. There are only two ways a person can be criminally

responsible for the acts of another. A person is criminally responsible for the

acts of another if he is guilty as a party (7.02(a)) or if he is a co-conspirator

(7.02(b)). We presume the legislature means what it says.12

      In the case now before this court, the learned trial judge recognized the

distinction between guilt as a party and guilt as a co-conspirator under penal

code section 15.02, Criminal Conspiracy, a different offense from the offense

charged and carrying a penalty one degree lower than the target offense. 13

Although the charge instructed the jury to add to the State’s burden of proof

beyond that required by the legislature, the jury charge carefully included the

requirement that the jury find Appellant committed an act:

      then and there at the time of the shooting was acting with and aiding
      or attempting to aid Dominique Jones in the execution of the robbery
      or burglary of Daniel Garner, if any, and that the shooting of Daniel

      12
       See Tex. Gov’t Code Ann § 311.021 (West 2013); Clinton v. State, 354
S.W.3d 795, 801–02 (Tex. Crim. App. 2011).
      13
       See Tex. Penal Code Ann. § 15.02(d) (West 2011).


                                        6
      Garner was committed in furtherance of the conspiracy, if any, of
      Damian Murkledove and Dominique Jones to rob Daniel Garner or to
      burglarize the home of Daniel Garner and that the shooting of Daniel
      Garner, if any, was an offense that should have been anticipated as
      a result of the carrying out of the conspiracy, then you will find the
      defendant, Damian Murkledove, guilty of Capital Murder as charged
      in the indictment.

      I understand that this is an attempt to explain and apply the law of

transferred intent. But it is the unhappy attempt to improperly merge the law of

parties with the law of conspiracy as required by Montoya. For the reasons

stated above, I would admit that the Montoya court was incorrect in holding that

section 7.02 is exclusively the law of parties, hold that following Montoya is error,

and do away with this impossible burden we have placed on the trial court to craft

a jury charge that reconciles the irreconcilable. The State has no burden to

prove any prior planning, any malice aforethought, any agreement, or

premeditation to convict a defendant as a party. We have no authority to add

that which the legislature did not include in the State’s burden of proof.

      For all these reasons, I respectfully dissent from the majority opinion.



                                              /s/ Lee Ann Dauphinot
                                              LEE ANN DAUPHINOT
                                              JUSTICE


PUBLISH

DELIVERED: May 15, 2014




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