Concurring opinion issued August 16, 2012




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                            NOS. 01-10-00176-CR
                                 01-10-00177-CR
                           ———————————
                  STEVEN CECEILIO TORRES, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 185th District Court
                            Harris County, Texas
                   Trial Court Case No. 1246750 & 1246751



                         CONCURRING OPINION

      I agree that the trial court’s judgments should be affirmed. Unlike the

majority, however, I would hold that Torres has waived his first issue, in which he

contends trial court denied him due process of law in erroneously denying his
request for a jury charge on murder, rather than capital murder. I question whether

the charges in these cases are correct. Accordingly, I concur in this Court’s

judgments.

      Torres’s trial complaint was that because the indictments only charged him

with murder, not capital murder for remuneration, the trial court erred in denying

his requested jury charges on murder:

      The Defendant submits that the State’s indictments herein, in effect,
      allege that the manner and means whereby Defendant caused the
      death of Jose Perez was by 1) employing either Peter Quintanilla or
      Michael Belmarez, for remuneration of the promise of remuneration
      (money), and 2) by shooting Jose Perez with a deadly weapon,
      namely, a firearm. The indictments, however, do not allege what
      Quintanilla or Belmarez were to do after being employed by the
      Defendant. For example, were they to be look-outs, were they to lure
      Perez to his death, or were they to be get-a-way drivers? Neither
      indictment alleges conduct on the part of either Quintanilla or
      Belmarez other than a passive employment relationship with the
      Defendant. What the indictments do allege, in a common sense
      reading is that the Defendant caused the death of Jose Perez by the
      Defendant shooting Perez with a deadly weapon namely a Firearm.

On appeal, Torres cites to one case that he claims contained a similarly erroneous

capital-murder charge. Robinson v. State, 266 S.W.3d 8, 10–13 (Tex. App.—

Houston [1st Dist.] 2008, pet. ref’d). The charge in Robinson instructed the jury as

follows:

      Now, if you find from the evidence beyond a reasonable doubt that in
      Harris County, Texas, on or about the 5th day of September 1991, the
      defendant, Ronald Robinson, did then and there unlawfully,
      intentionally or knowingly cause the death of Jimmy Sims, by

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       employing Robert Mason for remuneration or the promise of
       remuneration, to-wit: money and/or a firearm, to shoot Jimmy Sims
       with a deadly weapon, namely, a firearm; or

       If you find from the evidence beyond a reasonable doubt that the
       defendant, Ronald Robinson and Robert Mason entered into an
       agreement to commit the felony offense of aggravated assault of
       Jimmy Sims, and pursuant to that agreement, if any, they did carry out
       their conspiracy and that in Harris County, Texas, on or about the 5th
       day of September 1991, while in the course of committing such
       aggravated assault of Jimmy Sims, Robert Mason intentionally caused
       the death of Jimmy Sims by shooting Jimmy Sims with a deadly
       weapon, namely, a firearm, and the murder of Jimmy Sims was
       committed in furtherance of the conspiracy and was an offense that
       the defendant should have anticipated as a result of carrying out the
       conspiracy, then you will find the defendant guilty of capital murder,
       as charged in the indictment.

Id. at 11. We reversed because the second paragraph did not require the jury to

find an aggravating factor that properly charged the defendant with capital murder.

Id. at 15.

       Torres does not discuss on appeal the first paragraph of the Robinson charge,

which included the appropriate aggravating factor, and differs substantively only

that Robinson used the words “to shoot [the victim]” after the phrase “for

remuneration or the promise of remuneration, to-wit, money” whereas the charges

in these appeals use the words “by shooting [the victim].” Id. at 11.




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      In his brief Torres contends that “[t]his case is similar to Robinson.” I

disagree. The first paragraph of the Robinson charge was a correct capital-murder

charge and has no applicability here.

      Torres neither makes any substantive argument nor cites any authority

applying to similar situations for why using the words “by shooting [the victim]”

instead of the words “to shoot [the victim]” mandated that the trial court submit a

jury charge on murder, rather than capital murder.      Texas Rule of Appellate

Procedure 38.1(i) requires that an appellant’s brief contain “clear and concise

argument for the contentions made” and “appropriate citations to authorities.” See

Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000). Such briefing is

absent in these cases, and I would decline to construct the appellant’s arguments

for him.




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      The question that Torres is not asking is whether the trial court improperly

charged him on capital murder. I understand that Torres wants to be charged for

murder under the indictments so he can argue that he did not personally cause the

Perez’s death by shooting Perez with a firearm. But the fact that this Court affirms

the judgments should not give any comfort to those who might try to argue that the

charges in these cases are correct. At best, the charges—and the indictments as

well—are confusing as to who shot whom. My judgment as to whether this

confusion rises to the level of reversible error must await a case in which it was

preserved.




                                             Jim Sharp
                                             Justice

Panel consists of Justices Keyes, Bland, and Sharp.

Justice Sharp, concurring.

Publish. TEX. R. APP. P. 47.2(b).




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