                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                         No. 07-13-00386-CR


                                   JAMES JONES, APPELLANT

                                                     V.

                               THE STATE OF TEXAS, APPELLEE

                          On Appeal from the Criminal District Court 3
                                     Tarrant County, Texas
                 Trial Court No. 1226641D, Honorable Robb Catalano, Presiding

                                          August 25, 2014

                                 MEMORANDUM OPINION
                      Before CAMPBELL and HANCOCK and PIRTLE, JJ.


      Appellant, James Jones, appeals his conviction for the offense of capital

murder.1 Because appellant was found guilty of capital murder and the State did not

seek the death penalty, the trial court automatically sentenced appellant to life

imprisonment without parole.2 We will affirm.




      1
          See TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 2014).
      2
          See id. § 12.31(a)(2) (West Supp. 2014).
                           Factual and Procedural Background


       On January 6, 2011, Kevin Dunlop went to Gerard Dorsey’s apartment to play

video games with Gerard’s younger brother, John. There was a group of seven or eight

people that gathered at the apartment to play games.


       John had been living with Gerard for a couple of weeks and had begun selling

drugs out of the apartment. Appellant contacted John to arrange a purchase of drugs.

Appellant had already purchased drugs from John earlier in the evening.


       Appellant arrived at the apartment alone and John let him in. Appellant was

using his phone to text as he entered the apartment.        After the transaction was

completed, John escorted appellant to the door of the apartment. When John opened

the door to let appellant out, three males burst through the doorway with guns drawn.

Appellant did not appear fearful as the robbery commenced. In fact, according to John,

appellant pulled a previously concealed pistol from his clothing. Almost immediately

after announcing that this was a robbery, one of the members of the group began

shooting.    When the shooting began, the people in the apartment scattered.

Approximately nine shots were fired.


       A neighboring resident of the apartment complex heard the gunshots and looked

out of her window to see a group of males running away from the complex to a car. She

was able to identify one of these males as appellant. Another resident that heard the

shots called the police.




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          When the police arrived, two gunshot victims were discovered in the apartment.

One victim was taken to the hospital. Kevin Dunlop was found lying face down in a

closet.     He had been shot three times and had died.             Subsequent DNA testing

performed on Dunlop’s jeans identified appellant’s DNA inside of Dunlop’s pockets.


          Appellant was indicted for the offense of capital murder. At the close of evidence

at trial, the trial court held a charge conference. At the charge conference, appellant’s

counsel requested that there be no specific reference to the law of parties included in

the application paragraph of the charge.           The trial court denied this request and a

charge that incorporated the instruction on the law of parties by reference into the

application paragraph was submitted to the jury. The jury returned a verdict finding

appellant guilty of capital murder.        Under the applicable statute, the trial court

automatically sentenced appellant to life incarceration without the possibility of parole.

Appellant timely filed notice of appeal.


          By his appeal, appellant presents two issues.         By his first issue, appellant

contends that the trial court erred by failing to expressly state in the application

paragraph of the jury charge that appellant can only be found guilty of capital murder as

a party if he should have anticipated a murder in the course of the aggravated robbery.

By his second issue, appellant contends that he was deprived of the effective

assistance of counsel when trial counsel failed to argue that, for appellant to be guilty of

capital murder as a party, he should have anticipated a murder in the course of the

aggravated robbery.




                                               3
                                       Charge Error


       By his first issue, appellant contends that the trial court erred by failing to include

language in the application paragraph of the court’s charge to the jury that, to find

appellant guilty of capital murder, the jury must find that appellant should have

anticipated that a murder would occur in the course of the aggravated robbery to which

he was a party. The State responds that (1) if the omission is an error, appellant invited

the error, (2) the charge was not in error, and (3) if there was error in the charge, it did

not cause egregious harm.


Invited Error


       If a party requests or moves the court to make a particular ruling and the court

rules in accordance with the request or motion, the party responsible for the court's

action cannot take advantage of the error on appeal. Willeford v. State, 72 S.W.3d 820,

823 (Tex. App.—Fort Worth 2002, pet. ref’d) (citing Prystash v. State, 3 S.W.3d 522,

531 (Tex. Crim. App. 1999) (en banc)). This is the doctrine of invited error. Id. As

applicable to the present case, a party may not complain on appeal that a jury charge

that he requested was in error. See Prystash, 3 S.W.3d at 531.


       The following exchange occurred during the charge conference:


       [Appellant’s counsel]: We object to the inclusion of the language beginning
       on the second line on page four starting with the word "either," either
       acting alone or as a party as that term has been previously defined. We
       would ask that that be stricken on the application paragraph.

       We'd also object and ask that the same words be stricken from the
       application paragraph on the aggravated robbery, either acting alone or as
       a party as that term has been previously defined. We believe that

                                              4
        inclusion of that is an improper comment on the weight of the evidence to
        be given. I believe that party is already defined in the instructions and
        doesn't need to be included in the application paragraph.

        THE COURT: Okay. So your -- you don't want any specific mention of
        acting alone or as a party in the application paragraph at all?

        [Appellant’s counsel]: That's correct.

The trial court denied appellant’s objection and the jury charge included the language

incorporating the instructions on the law of parties into the application paragraph. While

appellant requested that the application paragraph of the jury charge contain no

reference to the abstract instruction on the law of parties, the trial court denied his

request.   As such, this is not invited error because the trial court did not “rule[] in

accordance with the request” for an erroneous ruling. See Willeford, 72 S.W.3d at 823.


Error


        Review of an alleged charge error is a two-step process. Nelson v. State, 297

S.W.3d 424, 433 (Tex. App.—Amarillo 2009, pet. ref’d) (citing Abdnor v. State, 871

S.W.2d 726, 731 (Tex. Crim. App. 1994) (en banc)). We must determine whether error

actually occurred and, if so, we then evaluate the error to determine the degree of harm

it caused. Id. The degree of harm requiring reversal depends on whether the appellant

objected to the charge. Id. Preserved error calls for reversal so long as any harm is

shown, in other words, if it is not harmless. Almanza v. State, 686 S.W.2d 157, 171

(Tex. Crim. App. 1985) (en banc) (op. on reh'g). When no proper objection was made

at trial, charge error will result in reversal unless the error is so egregious and created

such harm that it has denied appellant a fair and impartial trial. Id.




                                                 5
       “It is error for a trial court to instruct the jury on the law of parties in the abstract

portion of the charge but then fail to apply or refer to that law in the application

paragraph of the charge.” Greene v. State, 240 S.W.3d 7, 15 (Tex. App.—Austin 2007,

pet. ref’d) (citing Campbell v. State, 910 S.W.2d 475, 477 (Tex. Crim. App. 1995) (en

banc)). Generally, a charge is sufficient to support a conviction on the parties theory if it

instructs the jury on the law of parties in the abstract portion of the charge and the

application paragraph incorporates those instructions by reference. See Vasquez v.

State, 389 S.W.3d 361, 368 (Tex. Crim. App. 2012); Chatman v. State, 846 S.W.2d 329,

332 (Tex. Crim. App. 1993); Greene, 240 S.W.3d at 15. However, it is error for a

charge not to apply the law of parties directly to the facts when requested. Greene, 240

S.W.3d at 15; see Vasquez, 389 S.W.3d at 368. But, if such a direct application of the

law of parties is not requested, incorporation of abstract instructions by reference is not

error, let alone fundamental error. See Greene, 240 S.W.3d at 15-16.


       In the present case, it is clear that the application paragraph of the jury charge

incorporated the abstract instruction on the law of parties by reference to “the foregoing

instructions” and “party[,] as that term has been previously defined.” Appellant did not

request that the law of parties be directly applied to the facts of the case in the

application paragraph of the court’s charge. In fact, as discussed above, appellant

actually requested that the law of parties not be referenced in the application paragraph

at all. Consequently, under the facts of this case, the trial court’s references to the law

of parties in the application paragraph of the jury charge are sufficient to properly

instruct the jury. See Vasquez, 389 S.W.3d at 368; Chatman, 846 S.W.2d at 332;

Greene, 240 S.W.3d at 15. In the absence of appellant’s request for a direct application


                                               6
of the law of parties to the facts of this case in the application paragraph, the jury charge

was not erroneous. See Greene, 240 S.W.3d at 15-16.


       Because the charge was not in error, we cannot address the degree of harm

caused by the error.       See Nelson, 297 S.W.3d at 433.        Accordingly, we overrule

appellant’s first issue.


                             Ineffective Assistance of Counsel


       Appellant contends that, based on the evidence presented in this case, the only

viable defensive theory was that appellant had no reason to anticipate that a murder

would be committed during the course of the aggravated robbery. Therefore, by his

second issue, appellant contends that he was deprived of the effective assistance of

counsel when his trial counsel failed to argue that for him to be found guilty of capital

murder as a party, the murder must have been something that appellant should have

anticipated occurring during the course of the aggravated robbery.           Appellant also

contends that counsels’ failure to request an express application of this principle of the

law of parties to the facts of this case in the application paragraph of the jury charge

was ineffective assistance of counsel.


       The United States Constitution's guarantee of the right to counsel encompasses

the right to effective assistance of counsel.      U.S. CONST. amend. VI; Strickland v.

Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In determining

whether counsel's representation was so inadequate as to violate a defendant's Sixth

Amendment right to counsel, Texas courts apply the two-pronged test enunciated in

Strickland, 466 U.S. at 687. See Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim.

                                              7
App. 1986) (en banc). This test requires an appellant claiming ineffective assistance of

counsel to prove, by a preponderance of the evidence, that (1) counsel's representation

fell below an objective standard of reasonableness, and (2) the deficient performance

prejudiced the appellant. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011)

(citing Strickland, 466 U.S. at 689). Failure to make the required showing of either

deficient performance or sufficient prejudice is fatal to an ineffectiveness claim. See id.

Judicial review of an ineffective assistance of counsel claim must be highly deferential,

and there is a strong presumption that trial counsel's conduct fell within the wide range

of reasonable professional assistance. Strickland, 466 U.S. at 689.


      The "right to effective assistance of counsel merely ensures the right to

reasonably effective [not perfect] assistance." Robertson v. State, 187 S.W.3d 475, 483

(Tex. Crim. App. 2006) (quoting, with alteration, Ingham v. State, 679 S.W.2d 503, 509

(Tex. Crim. App. 1984) (en banc)).      This right does not mean errorless or perfect

counsel whose competency of representation is to be judged by hindsight. Ingham, 679

S.W.2d at 509. Counsel is not ineffective simply because he did not do that which his

accuser thought that he should have done or because some attorney having the benefit

of hindsight and cool reflection would have acted differently.      Nanez v. State, 346

S.W.3d 875, 876-77 (Tex. App.—Amarillo 2011, no pet.). Counsel's performance is

judged by "the totality of the representation," and "judicial scrutiny of counsel's

performance must be highly deferential" with every effort made to eliminate the

distorting effects of hindsight. Robertson, 187 S.W.3d at 483.


      For an appellate court to find that counsel was ineffective, counsel's deficient

performance must be firmly founded in the trial record. See Lopez, 343 S.W.3d at 142;

                                            8
McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).                         When direct

evidence of counsel’s reasoning for taking the questionable action is not available, we

will assume that counsel took such action for any reasonably sound strategic purpose

that can be imagined. See Lopez, 343 S.W.3d at 143. When no reasonable strategy

could justify trial counsel’s conduct, counsel’s performance fell below the objective

standard of reasonableness as a matter of law, regardless of whether the record reflects

counsel’s subjective strategy. Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App.

2005).


         While appellant acknowledges that, in most instances, trial counsel should be

given the opportunity to explain his or her trial strategy on the record before an

appellate court will find counsel’s representation ineffective, appellant contends that his

counsels’ failure to argue that appellant should not have anticipated that a murder would

be committed during the course of the aggravated robbery was ineffective because

there could be no sound trial strategy to justify this failure.3 However, the record reflects

that appellant’s trial counsel argued to the jury the high burden of proof that the State

had to carry and that the evidence suggested that appellant was only guilty of

aggravated robbery. Further, it appears that counsel made a strategic choice to attempt

to minimize the law of parties in the jury charge by requesting that there be no reference

to the abstract instruction on the law of parties in the application paragraph of the

charge. While these strategies may not have been the best strategies, we cannot

         3
          We must remain mindful that there was evidence that appellant not only knew that others in the
group of robbers had guns, but that he had a gun himself. As a result, had trial counsel made the
argument appellant now contends they should have made, it may have only focused the jury’s attention
on the fact that appellant should have anticipated that a murder could occur during the course of the
aggravated robbery. As such, we conclude that it was a viable trial strategy to attempt to deemphasize
the law of parties in this case.

                                                   9
conclude that there could be no reasonably sound strategic purpose for making these

arguments.       Therefore, we do not conclude from the record4 that trial counsels’

representation fell below an objective standard of reasonableness. See Robertson, 187

S.W.3d at 483; Ingham, 679 S.W.2d at 509.


        Appellant contends that the “should have anticipated” argument was the only

viable defense available to appellant. As such, according to appellant, there was no

sound strategy for not presenting this argument to the jury. Appellant points to the

State’s voir dire as evidencing that the State’s trial counsel believed that the “should

have anticipated” element is a given whenever a gun is taken to an aggravated robbery,

and appellant’s counsel failed to correct this impression. However, even assuming that

the record of voir dire would allow us to conclude that this is State’s counsel’s belief,

appellant fails to cite any authority establishing that such a belief is incorrect. While the

hypotheticals presented by the State in voir dire might have been on the outer edge of

what could constitute what a party defendant “should have anticipated,” there can be

little dispute that, in the present case, there was sufficient evidence to have allowed the

jury to rationally conclude that appellant should have anticipated the murder during the

commission of the aggravated robbery. As mentioned before, there is evidence that

appellant knew that the others had guns and that he himself possessed a gun during

the aggravated robbery.          We believe that appellant should have anticipated that a

murder could occur during the commission of aggravated robbery when he and the

other parties to the robbery were armed with guns. For this reason, even were we to


        4
         Because trial counsel were not given the opportunity to explain their trial strategy in the record,
we review counsels’ performance to determine whether any reasonably sound strategic purpose can be
imagined that would justify their actions. See Lopez, 343 S.W.3d at 143.

                                                    10
conclude that trial counsels’ failure to argue the “should have anticipated” defense fell

below the standard of professional norms, we cannot say that trial counsels’ failure to

present this argument undermined confidence in the outcome of the trial and prevented

appellant from receiving a fair trial. See Strickland, 466 U.S. at 694.


         Because appellant has failed to establish that trial counsels’ representation fell

below an objective standard of reasonableness, or that any deficiency in the

performance caused him prejudice, we overrule appellant’s second issue. See Lopez,

343 S.W.3d at 142.


                                        Conclusion


         Having overruled both of appellant’s issues, we affirm the judgment of the trial

court.




                                           Mackey K. Hancock
                                               Justice


Do not publish.




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