Opinion filed August 30, 2019




                                                  In The


            Eleventh Court of Appeals
                                              __________

                                       No. 11-16-00338-CR
                                           __________

                      PHILLIP JAY WALTER, JR., Appellant
                                                      V.
                           THE STATE OF TEXAS, Appellee


                           On Appeal from the 42nd District Court
                                 Callahan County, Texas
                                Trial Court Cause No. 7138


                                              OPINION
        At the conclusion of a joint trial, the jury convicted Appellant, Phillip Jay
Walter, Jr., and his wife, Violet Maree Walter, of murder, robbery, and theft of a
firearm.1 See TEX. PENAL CODE ANN. §§ 19.02, 29.02, 31.03 (West 2019). The trial
court assessed Appellant’s punishment at confinement in the Institutional Division
of the Texas Department of Criminal Justice for forty years for the murder conviction

        1
         In this opinion, we will refer to Phillip Jay Walter, Jr., as “Appellant” and to his wife, Violet Maree
Walter, as “Walter.”
and for twenty years for the robbery conviction. The trial court also assessed
Appellant’s punishment at confinement in the State Jail Division of the Texas
Department of Criminal Justice for a term of two years for the conviction for theft
of a firearm. Additionally, the trial court ordered that the sentences are to run
concurrently.2 Appellant challenges his convictions in a single issue on appeal. We
affirm.
                                        Background Facts
      Don Allen, a police officer with the Abilene Police Department, was found
dead at his home in Clyde on August 31, 2015. Approximately one week before his
death, Allen placed an advertisement on Craigslist seeking an unconventional sexual
encounter. Walter responded to Allen’s post on August 29, 2015, writing: “Still
looking? Sexy couple in their 20s. . . . Down for anything.” For the next couple of
days, Walter and Allen e-mailed each other about the prospect of a sexual encounter
between Appellant, Allen, and Walter. Eventually, Allen invited Appellant and
Walter to his home in Clyde on the afternoon of August 31.
      That evening, Allen’s fiancée found Allen dead in their bedroom, lying
facedown on the floor. Allen was wearing only a T-shirt and socks; he was otherwise
naked. His hands and ankles had been bound by USB cords, with his hands tied
behind his back. Another USB cord, along with Allen’s shorts, was loosely wrapped
around Allen’s face and neck. There was no evidence of forced entry or a struggle
inside the home.
      One of Allen’s neighbors told investigators that he saw a male and a female
arrive at Allen’s home that afternoon. Another one of Allen’s neighbors saw a
vehicle near Allen’s home.                 The neighbor provided the police with the



      2
          We note that Walter received the same sentences.

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vehicle’s make, color, and model. Investigators discovered that Appellant owned a
vehicle similar to the vehicle seen near Allen’s home.
      Video surveillance from a pawn shop in Abilene showed Appellant,
accompanied by Walter, pawning four video games and a woman’s bracelet on the
evening of August 31. The same four video games had been recently played on
Allen’s video game console, and Allen’s fiancée identified the pawned bracelet as
her bracelet. Investigators also identified Appellant’s fingerprint on a water bottle
at Allen’s home.
      Appellant and Walter were subsequently arrested. Police officers searched
their apartment pursuant to a search warrant. In the apartment, the police found an
Abilene Police Department badge, a taser, handcuffs, and an ASP case that had been
issued to Allen as an Abilene Police Officer. Allen’s firearm was returned to police
by a confidential informant, and Allen’s police radio was found on the side of a
highway, two miles east of Clyde.
      During the search of the apartment, the police also found Appellant’s and
Walter’s cell phones. The police searched the phones pursuant to additional search
warrants. Walter’s text messages to Appellant revealed that they were experiencing
financial difficulties at the time and were in the process of being evicted from their
apartment. Walter sent Appellant several text messages on the day of Allen’s death,
urging Appellant to do something to remedy their dire financial situation. For
example, Walter sent Appellant the following text messages on August 31: “Go f--k
someone else and restore our s--t,” “Hurry up and fix this,” “DO SOMETHING
NOW,” and “You NEED to do this. Your fear of a police report versus LOSING us
should be bigger. Your need to feed and house your CHILDREN should be bigger
tha[n] ANYTHING.”
      After Walter set up the meeting with Allen at Allen’s home in Clyde, Walter
texted Appellant that “[w]e have that Clyde lick,” “[w]e MUST do it and do it hard,”
                                          3
and “[t]he lick is waiting.” The State presented evidence that a “lick” refers to
robbery or thievery.
         Dr. Tasha Greenberg, a deputy medical examiner at the Tarrant County
Medical Examiner’s Office, performed an autopsy on Allen’s body. Dr. Greenberg
testified that she observed multiple areas of bleeding “into the muscles of the front
of the neck,” along with a fracture of the thyroid cartilage, specifically the right
cornu. There were also lacerations of the lower lip. Dr. Greenberg determined that
the cause of death was asphyxia, which she described as a lack of oxygen to the
brain.    The evidence of injury to the neck indicated to her that there was a
“compression of the vessels in the neck.” Dr. Greenberg also testified that there was
a likelihood that pressure was applied to Allen’s chest or back.
         Dr. Greenberg did not see any evidence that the USB cord that was found
around Allen’s neck was used as a ligature. In this regard, this cord was somewhat
loose around Allen’s neck. Dr. Greenberg testified that the lack of an imprint on
Allen’s neck indicated that a broader or softer object was used to asphyxiate Allen.
         Two pieces of a braided leather belt were found near Allen’s body. Allen’s
fiancée testified that this belt was neither her belt nor Allen’s belt. Allen’s father
testified that this belt was smaller than the belts found inside the home that belonged
to Allen. DNA testing of both ends of the belt revealed the presence of DNA from
three contributors, and Appellant and Walter could not be excluded as the
contributors. Additionally, Allen could not be excluded as a contributor of DNA on
one end of the belt. Appellant could not be excluded as a contributor of DNA found
on swabs taken from Allen’s neck, and Appellant’s DNA was also not excluded from
DNA recovered from the USB cords wrapped around Allen’s wrists.
         Dr. Greenberg determined that the manner of death was homicide.
“Homicide” is generally defined as “[t]he killing of one person by another.”
Homicide, BLACK’S LAW DICTIONARY (10th ed. 2014). She testified that choking
                                           4
someone to render him or her unconscious would be an act that would be clearly
dangerous to human life and that choking someone to the point of unconsciousness
could result in serious bodily injury. She further opined that voluntary choking is
dangerous.
      During closing argument, Appellant and Walter argued that Allen consented
to being choked and that he died during “high-risk sex.” To support this theory, the
defense stressed the state in which Allen’s body was found and the lack of any
evidence indicating a struggle or resistance to the USB cables around his wrists or
ankles.
                                      Analysis
      Appellant challenges his convictions for murder and robbery in a single issue.
He asserts that the trial court erred by submitting a jury instruction on the law of
parties. Specifically, he asserts that it was error to submit a jury instruction
permitting him to be convicted as a party because there was no evidence that Walter
“touched Don Allen so as to support a conclusion [that] she did anything to cause
him death for the purposes of murder or bodily injury for the purposes of robbery.”
Appellant contends that “there is not sufficient evidence to charge [him] for her acts
under the law of parties.” We disagree.
      We note at the outset that Walter also filed an appeal from her convictions for
murder and robbery. The cause number of Walter’s appeal is 11-17-00002-CR,
styled Violet Maree Walter v. State of Texas. We are issuing our opinion and
judgment affirming Walter’s convictions at the same time we are issuing the opinion
and judgment affirming Appellant’s convictions. In the opinion in No. 11-17-
00002-CR, we have determined that the evidence is sufficient to support Walter’s
convictions for murder and robbery both as a principal and as a party.
      The indictment charged Appellant with murder under all three statutorily
defined ways to commit the offense. See PENAL § 19.02(b)(1)–(3). Under these
                                          5
statutory provisions, a person commits the offense of murder if he (1) “intentionally
or knowingly causes the death of an individual,” (2) “intends to cause serious bodily
injury and commits an act clearly dangerous to human life that causes the death of
an individual,” or (3) “commits or attempts to commit a felony, other than
manslaughter, and in the course of and in furtherance of the commission or attempt,
or in immediate flight from the commission or attempt, he commits or attempts to
commit an act clearly dangerous to human life that causes the death of an
individual.” Id. These three methods of committing murder are not separate
offenses but, rather, are alternative methods of committing the same offense.
Smith v. State, 436 S.W.3d 353, 378 (Tex. App.—Houston [14th Dist.] 2014, pet.
ref’d).
          Under Section 19.02(b)(1), the indictment alleged that Appellant intentionally
or knowingly caused Allen’s death by asphyxiation by choking, strangling, or
otherwise impeding his breathing.         Under Section 19.02(b)(2), the indictment
alleged that Appellant committed an act clearly dangerous to human life by choking,
strangling, or otherwise impeding Allen’s breathing with the intent to cause serious
bodily injury. Under Section 19.02(b)(3), the indictment alleged that Appellant
committed or attempted to commit robbery or felony theft and that, in the course of
and in furtherance of the commission or attempt, he committed an act clearly
dangerous to human life by choking, strangling, or otherwise impeding Allen’s
breathing. See PENAL § 29.02 (robbery statute); PENAL § 31.03(e)(4)(C) (theft of a
firearm is a state jail felony). When an indictment alleges multiple felonies in a
prosecution under Section 19.02(b)(3), the specifically named felonies are not
elements about which the jury must be unanimous. White v. State, 208 S.W.3d 467,
469 (Tex. Crim. App. 2006).
          With respect to Appellant’s conviction for robbery, the indictment alleged
that, while in the course of committing a theft, and with the intent to obtain and
                                             6
maintain control over property, to wit: a police badge, an asp baton, or a taser,
Appellant intentionally, knowingly, or recklessly caused bodily injury to Allen. As
relevant to this case, Section 29.02 of the Penal Code provides that a person commits
the offense of robbery “if, in the course of committing theft . . . and with intent to
obtain or maintain control of the property, he . . . intentionally, knowingly, or
recklessly causes bodily injury to another.” PENAL § 29.02(a)(1). Theft is the
unlawful appropriation of property “with intent to deprive the owner of the
property.” Id. § 31.03(a). “‘In the course of committing theft’ means conduct that
occurs in an attempt to commit, during the commission, or in immediate flight after
the attempt or commission of theft.” Id. § 29.01(1).
      The court’s charge allowed the jury to convict Appellant of murder and
robbery either as a primary actor or as a party with Walter. Under Section 7.01 of
the Penal Code, “[a] person is criminally responsible as a party to an offense if the
offense is committed by his own conduct, by the conduct of another for which he is
criminally responsible, or by both.” PENAL § 7.01(a) (West 2011); see Adames v.
State, 353 S.W.3d 854, 862 (Tex. Crim. App. 2011). The court’s charge permitted
the jury to find that Appellant was criminally responsible for the conduct of Walter
under Section 7.02(a)(2) of the Penal Code. See PENAL § 7.02(a)(2). This statute
provides that “[a] person is criminally responsible for an offense committed by the
conduct of another if: . . . acting with intent to promote or assist the commission of
the offense, he solicits, encourages, directs, aids, or attempts to aid the other person
to commit the offense.” Id.; see Adames, 353 S.W.3d at 862.
      We review a claim of jury charge error using the procedure set out in
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). See State v.
Ambrose, 487 S.W.3d 587, 594 (Tex. Crim. App. 2016). Our first duty in analyzing
a jury charge issue is to decide whether error exists. Arteaga v. State, 521 S.W.3d
329, 333 (Tex. Crim. App. 2017) (citing Barrios v. State, 283 S.W.3d 348, 350 (Tex.
                                           7
Crim. App. 2009)). If error exists, we must determine whether the error caused
sufficient harm to warrant reversal. Id. If a timely objection was lodged at trial,
reversal is required if the error resulted in “some harm” to the defendant. Elizondo v.
State, 487 S.W.3d 185, 204 (Tex. Crim. App. 2016). Appellant objected to the
inclusion of the instruction on the law of parties in the trial court’s charge based on
his contention that there was no evidence to support its submission.3 Appellant
asserts that he has suffered some harm requiring reversal. Because we conclude that
the trial court’s charge was not erroneous in this case, we do not conduct a harm
analysis. See Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015) (citing
Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012)).
        Generally, the trial court may instruct the jury on the law of parties if “there
is sufficient evidence to support a jury verdict that the defendant is criminally
responsible under the law of parties.” Ladd v. State, 3 S.W.3d 547, 564 (Tex. Crim.
App. 1999). “Regardless of whether it is pled in the charging instrument, liability
as a party is an available legal theory if it is supported by the evidence.” In re State
ex rel. Weeks, 391 S.W.3d 117, 124 (Tex. Crim. App. 2013). The State does not
have to prove it is correct regarding the defendant’s participation as a party; instead,
the State must only show that the evidence raises the issue to be entitled to its
submission. Id. at 125. Thus, a trial court errs by submitting an instruction under
the law of parties if the evidence adduced at trial would not support a jury verdict
under the law of parties. Ladd, 3 S.W.3d at 564.
        The jury is entitled to consider the events that took place before, during, and
after the commission of the crime. See Paredes v. State, 129 S.W.3d 530, 536 (Tex.
Crim. App. 2004); Goff v. State, 931 S.W.2d 537, 545 (Tex. Crim. App. 1996).

        3
          Appellant did not object to the particular manner in which the trial court’s charge addressed his
status as a party in an attempt to narrow or modify the language of the charge. See Ferreira v. State, 514
S.W.3d 297, 302 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (citing Vasquez v. State, 389 S.W.3d
361, 368 (Tex. Crim. App. 2012)).
                                                    8
“There must be sufficient evidence of an understanding and common design to
commit the offense.” Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim. App. 2012)
(citing Guevara, 152 S.W.3d at 49). “Each fact need not point directly to the guilt
of the defendant, as long as the cumulative effect of the facts are sufficient to support
the conviction under the law of parties.” Id. (citing Guevara, 152 S.W.3d at 49).
Mere presence of a person at the scene of a crime—either before, during, or after the
offense—or even flight from the scene, without more, is insufficient to sustain a
conviction as a party to the offense; however, combined with other incriminating
evidence, it may be sufficient to sustain a conviction. Thompson v. State, 697
S.W.2d 413, 417 (Tex. Crim. App. 1985); accord Gross, 380 S.W.3d at 186.
Additionally, allegations that a party is guilty under the law of parties need not be
specifically pleaded in the indictment. See Barrera v. State, 321 S.W.3d 137, 144
n.1 (Tex. App.—San Antonio 2010, pet. ref’d).
      Appellant acknowledges on appeal that “there is probably legally sufficient
evidence to convict him under a direct culpability theory.” In this regard, Appellant
has not challenged the sufficiency of the evidence supporting his convictions for
murder and robbery. If the evidence “clearly supports a defendant’s guilt as a
principal actor, any error of the trial court in charging on the law of parties is
harmless.” Ladd, 3 S.W.3d at 564–65 (quoting Black v. State, 723 S.W.2d 674, 675
(Tex. Crim. App. 1986)). An appellant is not harmed by the inclusion of an
instruction on the law of parties if the jury “almost certainly did not rely upon the
parties instruction in arriving at its verdict, but rather based the verdict on the
evidence tending to show appellant’s guilt as a principal actor.” Id. at 565. If guilt
as a party would be “an irrational finding under the evidence, then it is highly
unlikely that a rational jury would base its verdict on a parties theory.” Cathey v.
State, 992 S.W.2d 460, 466 (Tex. Crim. App. 1999).


                                            9
        The evidence in this case was sufficient to establish Appellant’s guilt as a
primary actor. Thus, even if we assume error in the jury charge by the inclusion of
the instruction on the law of parties, the error is harmless because the evidence
supports Appellant’s guilt as a primary actor. See Cathey, 992 S.W.2d at 466.
        In Cause No. 11-17-00002-CR, we determined that the evidence was
sufficient to support Walter’s participation in the murder and robbery as a primary
actor. This determination is dispositive of Appellant’s contention that there was no
evidence to support the inclusion of the instruction of his culpability under the law
of parties. We overrule Appellant’s sole issue.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.




                                                                   JOHN M. BAILEY
                                                                   CHIEF JUSTICE


August 30, 2019
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.4

Willson, J., not participating.




        4
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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