            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                     NO. PD-0264-17



                              ARMAUD SEARS, Appellant

                                             v.

                                THE STATE OF TEXAS

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE NINTH COURT OF APPEALS
                          JEFFERSON COUNTY

              K EEL, J., filed a concurring opinion in which W ALKER, J., joined.

                               CONCURRING OPINION

       I join the majority opinion. I write separately for two reasons. First, I want to

point out that under Texas Penal Code Section 7.02(a)(2), a person cannot be a party to an

offense that he only learned of after the fact because a person cannot act with intent to

promote or assist the commission of a completed offense. To the extent that Wyatt v.

State, 367 S.W.3d 337 (Tex. App.—Houston [14th Dist.] 2012, pet dism’d), the opinion

below and other opinions suggest otherwise, they are in error. Second, this kind of
                                                                    Sears Concurrence–Page 2

sufficiency issue could largely be avoided by use of Section 7.02(b), the conspiracy

theory of party liability.

       Appellant’s jury charge authorized his conviction as a party under Section

7.02(a)(2). That statute imposes criminal responsibility for conduct of another if, “acting

with intent to promote or assist the commission of the offense, [the actor] solicits,

encourages, directs, aids, or attempts to aid the other person to commit the offense.” It

requires intentional participation in the crime. Cary v. State, 507 S.W.3d 750, 758 (Tex.

Crim. App. 2016). A person acts intentionally “when it is his conscious objective or

desire to engage in the conduct or cause the result.” T EX. P ENAL C ODE § 6.03(a). Thus,

to be criminally responsible as a party under Section 7.02(a)(2), a person must act with

the conscious objective or desire to promote or assist the commission of the offense and

do something to help its commission. It would be impossible to act with the conscious

objective or desire to commit an offense or help with its commission if it already had

been committed.

       The opinion below, however, implies that the evidence could have been sufficient

to convict Sears as a party to aggravated robbery if he had learned of the use of firearms

after the fact. Sears v. State, 2017 WL 444366 *10 (Tex. App.—Beaumont, pet. granted)

(mem. op., not designated for publication) (noting lack of evidence “to show that after the

robbery, Sears became aware that the masked men had used or exhibited firearms during

the commission of the offense.”). The court relied on Wyatt in which the Fourteenth
                                                                    Sears Concurrence–Page 3

Court of Appeals held that “there must be direct or circumstantial evidence that [the

defendant] not only participated in the robbery before, while, or after a [deadly weapon]

was displayed, but did so while being aware that the [deadly weapon] would be, was

being, or had been, used or exhibited during the offense.” 367 S.W.3d at 341 (internal

quotes omitted). That formulation of Section 7.02(a)(2) party liability is mistaken to the

extent that it suggests that a person can participate in a crime that already has been

committed and that after-the-fact awareness of the crime will suffice for intentional

participation. It is true that we look to events occurring before, during or after the

commission of the offense to evaluate the sufficiency of the evidence to show intent,

Cary, 507 S.W.3d at 758, but party liability cannot be imposed solely on the basis of

after-the-fact intent or efforts.

       Moreover, Section 7.02(b), the conspiracy parties theory, obviates the kind of

sufficiency issue posed in this case because it does not require intent to commit the

offense actually committed:

       If, in the attempt to carry out a conspiracy to commit one felony, another
       felony is committed by one of the conspirators, all conspirators are guilty of
       the felony actually committed, though having no intent to commit it, if the
       offense was committed in furtherance of the unlawful purpose and was one
       that should have been anticipated as a result of the carrying out of the
       conspiracy.

Sections 7.02(b) and 7.02(a)(2) are not mutually exclusive, and a jury charge could

include both.

       With these comments I join the majority.
                            Sears Concurrence–Page 4

Filed: September 12, 2018
Do Not Publish
