                                                NO. 07-02-0108-CR

                                        IN THE COURT OF APPEALS

                               FOR THE SEVENTH DISTRICT OF TEXAS

                                                    AT AMARILLO

                                                        PANEL E

                                         FEBRUARY 24, 2003
                                   ______________________________

                                               MICHAEL W. MILES,

                                                                             Appellant

                                                             v.

                                            THE STATE OF TEXAS,

                                                         Appellee
                                 _________________________________

                 FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

                     NO. 2000-433,443; HON. JACK D. YOUNG, PRESIDING
                             _______________________________

Before JOHNSON, C.J., QUINN, J., and BOYD, S.J. 1

         Appellant Michael W. Miles seeks reversal of his conviction for murder by

contending 1) the trial court erred in failing to include an instruction in the jury charge on

the lesser-included offense of aggravated assault, 2) the evidence is legally and factually

insufficient to support the verdict that he caused the victim’s death as the primary actor,

3) the evidence is legally and factually insufficient to support the verdict that he caused the




         1
           John T. B oyd, C hief Justice (R et.), Se venth Court o f Appea ls, sitting by assignm ent. T EX . G O V ’T C O D E
A N N . §75.0 02(a )(1) (V erno n 19 98).
victim’s death as a party, and 4) the trial court erred in overruling his objection to the

inclusion in the charge of an instruction on the law of parties. We affirm the judgment.

                                         Background

        On January 17, 2000, Mark Alexander (Mark) received a phone call sometime after

5:30 p.m. from appellant who was his co-worker. Appellant and Mark worked for Preferred

Service which was a company specializing in the repair and maintenance of equipment

used in the food services industry. According to Kay Alexander (Kay), Mark’s wife,

appellant wanted Mark to help with a job that night. Mark left to supposedly go to

appellant’s house and told Kay he would be home around 10:00 p.m. However, Mark did

not return, and Kay began to look for him by trying to page him and by calling his cell

phone. The next day, she called his place of employment and discovered that Mark had

not come to work. Appellant was at work, however, and she talked to him. He told her he

had not seen Mark the night before. Later that day, Kay spoke to appellant again. At that

time, he admitted that Mark had come to his home the previous night. Appellant also

stated that Mark had been drinking, complained about his boss and his marriage, and left

after about 30 minutes.2

        Thereafter, some of Kay’s friends located the Suburban that Mark had been driving

(a company vehicle) at a gentleman’s club. Kay went to pick up the vehicle and return it

to Mark’s employer. Afterward, Kay spoke to appellant again during which time he told the

same story about Mark having been at his house for a brief period. Appellant also told Kay



        2
            Kay testified that Mark had not been drinking before he left the house on the evening he
disappeared. Ricky Jones, who saw Mark after he left home that night, testified that Mark was not intoxicated
and , in fact, seldom dran k at all.

                                                     2
that her husband had made a phone call using a flip-style cell phone to someone appellant

believed was a girlfriend.3           Kay then filed a missing persons report with the police

department. Later, when questioning Ricky Jones (Jones), another friend of Mark’s, Kay

learned that Mark had gone to his house the night he disappeared to pick up some scales

to be used in a cocaine purchase. Mark told Jones that he was going to buy cocaine from

a man with whom he worked.

        On February 25, 2000, a worker at a well location in New Mexico discovered a body

in a water-filled caliche pit northwest of Hobbs. The body was identified to be that of Mark.

It was wrapped in a blanket which was wrapped in a blue tarp which was then wrapped in

cords and chains. Two metal wheels were attached to the chains. It was subsequently

learned that Elton Bradshaw (Bradshaw), who was living with appellant at the time Mark

disappeared, used to fish in the caliche pit where the body was found. The cause of Mark’s

death was determined to be blunt force trauma to the head.

        After the body was found, appellant was brought to the police station for a third

interview. At that time, he told a story that conflicted with his previous ones. The next day,

appellant voluntarily returned to the police station and stated that Mark had approached

him to set up a cocaine deal. On the night Mark disappeared, appellant claimed that two

Hispanic males came to his house in a Cadillac. He told Mark he would not participate in

his drug deal, and Mark got in his car and drove away after motioning for the two Latinos

in the Cadillac to follow him. Appellant was later arrested for the murder.




        3
          It was determined that Mark did not own a flip-style cell phone, and the last ca ll on the cell phone he
did ha ve was p laced ea rlier in the d ay.

                                                        3
                          Issue One - Lesser-Included Offense

       In his first issue, appellant argues that the trial court should have granted his request

for an instruction to be included in the jury charge on the lesser-included offense of

aggravated assault. We overrule the issue.

       The State concedes that aggravated assault is a lesser-included offense of murder.

See Cardenas v. State, 30 S.W.3d 384, 392 (Tex. Crim. App. 2000). Therefore, to be

entitled to the instruction, evidence must appear of record which would permit a jury to

rationally conclude that appellant is guilty only of the lesser crime. Schweinle v. State, 915

S.W.2d 17, 18 (Tex. Crim. App. 1996). It is not enough that the jury may disbelieve crucial

evidence pertaining to the greater offense. Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim.

App. 1994). There must be evidence directly germane to the lesser offense; that is, there

must be evidence affirmatively showing that appellant only committed the lesser offense.

Id. And, that evidence may come from any source. Lugo v. State, 667 S.W.2d 144, 147

(Tex. Crim. App. 1984).

       Here, the evidence indicates that appellant either did nothing to the decedent or

that he repeatedly struck the decedent about his head and body with or against a blunt

object, placed plastic bags over Mark’s head, wrapped him in blankets, tarps, cord, chains

and weights, and finally dumped the body into a watery pit. To the extent that appellant

denied the commission of any act against appellant, that does not entitle him to an

instruction on a lesser-included offense. Garcia v. State, 630 S.W.2d 914, 919 (Tex.

App.— Amarillo 1982, no pet.) (holding that when a defendant’s evidence indicates he is

not guilty of any offense, he is not entitled to an instruction on a lesser offense).



                                               4
        As to the other alternative, appellant suggests that the evidence permits one to infer

that he did not intend to kill Mark and, therefore, he was entitled to an instruction on the

lesser offense.       Yet, we note that the State indicted appellant for intentionally and

knowingly causing the death of Mark, i.e. for murder under §19.02(b)(1) of the Texas Penal

Code. Furthermore, the very same evidence upon which appellant bases his contention

illustrates, nonetheless, an intent to cause serious bodily injury.4 And, because those acts

constituted acts clearly dangerous to human life and it is undisputed that one or more of

them caused Mark’s death, the evidence also established appellant’s guilt for murder under

§19.02(b)(2) of the Penal Code.5 In other words, the evidence before us illustrates that he

either committed murder under §19.02(b)(1) or (b)(2). Since it does, it is akin to that before

the Court of Criminal Appeals in Forest v. State, 989 S.W.2d 365 (Tex. Crim. App. 1999).

And, given the absence of any evidence “that appellant was guilty only of anything less

than some form of murder,” we like the court in Forest, must also conclude that he “was not

entitled to any instruction on aggravated assault.” Id. at 368 (emphasis added). To

reiterate, when the acts undertaken cause death and illustrate endangerment to human life

and an intent to cause serious bodily injury, one cannot claim entitlement to the lesser-

included offense of aggravated assault simply because he may not have intended to kill.

Id.



        4
          Indeed, one wou ld be h ard-pres sed to argue that repeatedly striking the decedent’s body and head
with or against a blunt object in a manner which could cause death , the n placing the decedent’s head in plastic
bags, wrapping the body in tarps, co rd, ch ain and weights , and dum ping the body in a pit is something other
tha n conduct u ndertak en with an intent to cause serious bodily injury.

        5
         One comm its murder under §19.02(b)(2) of the Texas Penal Code if the accused “intends to cause
serious bodily injury and com m its an act clearly dangerou s to hum an life that causes the death of an
individual.” T EX . P EN . C ODE A N N . §19 .02(b )(2) (V erno n 19 94).

                                                       5
              Issue Two - Legal and Factual Sufficiency as Primary Actor

       In his second issue, appellant complains that the evidence is legally and factually

insufficient to show he intentionally and knowingly caused Mark’s death as the primary

actor. We overrule the issue.

       The standards by which we review legal and factual sufficiency challenges are well

settled. We will not reiterate them but instead refer the parties to Jackson v. Virginia, 443

U.S. 307, 309, 99 S. Ct. 2781, 61 L. Ed.2d 560 (1979); Zuliani v. State, No. 1168-01, 2003

Tex. Crim. App. LEXIS 26 (Tex. Crim. App. Feb. 5, 2003); and King v. State, 29 S.W.3d

556, 562-64 (Tex. Crim. App. 2000) for explanation of the same.

       The evidence in this case was circumstantial. However, the following appeared of

record. Mark was last seen alive at appellant’s house. Appellant and Mark were involved

in a drug transaction. Mark’s body was found wrapped in material identical to that found

in or around appellant’s house. A cigarette butt found in appellant’s garage and containing

his DNA was of the same brand found between several plastic bags tied around Mark’s

head. Mark’s blood was found on a shovel in appellant’s garage, and the blood spatter

appearing thereon was of a medium velocity consistent with blunt force trauma. Mark’s

body was discovered at a remote location, a location about which appellant’s roommate

had knowledge. An inmate in jail with appellant testified that appellant said he had killed

a man at his home with a bat because he owed him money for cocaine. The equipment

used to weigh the body down was available at the place where appellant and Mark worked.

And, appellant told conflicting stories about what happened the night of Mark’s

disappearance. Viewing this evidence in a light most favorable to the verdict, we conclude

that a trier of fact could have rationally found, beyond all reasonable doubt, that appellant

                                             6
knowingly and intentionally caused the death of the victim. Furthermore, that the evidence

and testimony of record establishing guilt was circumstantial or contained inconsistencies

or was subject to discredit did and does not render the evidence supporting the verdict so

weak as to make the verdict clearly wrong or manifestly unjust. Nor does it render the

verdict against the great weight and preponderance of the evidence so as to be clearly

wrong. It simply created opportunity for the jury to exercise its role as factfinder. Thus, the

evidence was neither legally nor factually insufficient to support the verdict.

              Issue Three - Legal and Factual Sufficiency as a Party

       Appellant contends in his third issue that the evidence is legally and factually

insufficient to show that he is guilty of murder as a party. We overrule the issue.

       As previously discussed, the jury found appellant guilty as the primary actor in the

murder of Mark. Furthermore, we concluded that the evidence supporting the verdict was

both legally and factually sufficient. Therefore, the judgment can be upheld on that basis

alone, even if the evidence failed to establish that appellant committed the offense as a

party. So, we need not consider issue three. See Barnes v. State, 62 S.W.3d 288, 296-

299 (Tex. App.—Austin 2001, pet. ref’d) (holding that when different theories, i.e.

commission of a crime as the primary actor or as a party, are submitted to the jury, a

general verdict is sufficient if the evidence supports one of the theories submitted).

                             Issue Four - Charge on the Law of Parties

       In his final issue, appellant argues that the trial court erred in overruling his objection

to submitting a party charge to the jury. The court purportedly erred because there was

no evidence warranting the submission. We overrule the issue.



                                               7
       A person is criminally responsible as a party to an offense if the offense is

committed by his own conduct or by the conduct of another for which he is criminally

responsible or both. TEX . PEN . CODE ANN . §7.01(a) (Vernon 1994). Here, the jury was

instructed that if they found that a “person or persons unknown” intentionally and knowingly

caused the death of Mark by striking him with or against a hard object, and that appellant

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

encouraged, directed, aided, or attempted to aid an unknown person or persons to commit

the offense, then appellant would be guilty of murder. Yet, we have perused the record for

evidence illustrating that appellant was simply a party to a murder committed by another

and found none.

       As described throughout this opinion, the evidence either showed that appellant did

nothing or that he committed the murder on his own or at the behest of others (i.e the two

Latinos in the Cadillac). Nothing illustrates that someone else committed the murder and

appellant merely directed, solicited, encouraged, aided, or attempted to aid the murderer.

In short, there was no evidence that anyone, other than appellant, killed Mark. So, a party

charge was unwarranted, and the court erred in submitting one.

       Nevertheless, our job is not over for now we must assess whether the instruction

harmed appellant. In making that determination we find guidance in Brown v. State, 716

S.W.2d 939 (Tex. Crim. App. 1986) and Reyes v. State, 910 S.W.2d 585 (Tex.

App.—Amarillo 1995, pet. ref’d). Both hold that any error in charging the jury on the law

of parties is harmless “if the evidence clearly supports appellant’s guilt as a primary actor.”

Brown v. State, 716 S.W.2d 939, 946 (Tex. Crim. App. 1986); Reyes v. State, 910 S.W.2d



                                              8
585, 593 (Tex. App.—Amarillo 1995, pet. ref’d).6 Having previously determined that the

evidence was legally and factually sufficient to sustain appellant’s conviction as the primary

actor, we find that appellant suffered no harm when the trial court mistakenly included the

party instruction in its jury charge.

         Accordingly, the judgment of the trial court is affirmed.



                                                                 Brian Quinn
                                                                   Justice

Do not publish.




         6
           Appellant sugges ts that to “clearly” support conviction as the primary actor, the evidence must be
of so m e ca liber gre ater than that neede d to establish guilt beyond reasonable doubt. However, he cites no
auth ority supporting that proposition. Nor does he explain to what standard the court referred when it used
the term “clearly.” Additionally, in applying the test, neither the Brown or Reyes courts held that the error was
harmless because the evidence “clearly” supported conviction as the primary actor; rather, both m erely
concluded that the evidence was sufficient to support conviction. And, we found the evidence both legally and
factu ally suffic ient to u phold the verdict at bar. Finally, of the three standards often used to describe the
evidentiary burdens of pro of, i.e. preponderance of the evidence, clear and convincing evidence, and beyond
all reas ona ble do ubt, the latter is the m ost onero us o f all. See Leal v. Texas Dept. of Protective & Reg. Serv.,
25 S.W .3d 315, 319 (Tex. App.--Austin 2000, no pet.) (discussing the three evidentiary standards). Thus, if
the evidence is of a q uality which wo uld pe rm it the jury to find gu ilt, beyond all reasona ble doubt, then it is safe
to say that it “clearly” supports the conviction.

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