                                 IN THE
                         TENTH COURT OF APPEALS

                               No. 10-12-00080-CR

JOE ANGEL FELAN,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                          From the 54th District Court
                           McLennan County, Texas
                          Trial Court No. 2011-1921-C2


                          MEMORANDUM OPINION


      Joe Angel Felan was indicted on one count of murder and five counts of

aggravated assault with a deadly weapon. The jury convicted Felan on one count of

murder and three counts of aggravated assault with a deadly weapon and assessed his

punishment at confinement for 70 years and a $10,000 fine for murder and 20 years

confinement on each of the convictions for aggravated assault with a deadly weapon.

We modify the trial court’s judgments and affirm as modified.
                                     Background Facts

        Felan had a dispute with Carneilyus Fields. Quinton Henry drove Felan and

Aaron Davila around in a green suburban looking for Fields. There was testimony that

Felan was in the front seat of the suburban holding a gun and Davila was in the

backseat holding a gun.       Fields was walking with some friends when the green

suburban sped by them and went around the block. The suburban then stopped at the

corner, and Felan and Davila rolled down their windows and began shooting. Fields

was killed in the shooting, and Latoya Hamilton and Jamie Toney were injured.

Jheromy Johnson was with Fields and the others at the time of the shooting, but he

dropped to the ground when the shooting began and escaped injury.

                                        Jury Charge

        In the first issue on appeal, Felan argues that the trial court erred in charging the

jury. Appellate review of alleged jury-charge error involves a two-step process. Abdnor

v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). Initially, the court must determine

whether error actually exists in the charge. If error is found, the court must then

evaluate whether sufficient harm resulted from the error to require reversal. Id. at 731-

32. If an error was properly preserved by objection, reversal will be necessary if the

error is not harmless. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).

Conversely, if error was not preserved at trial by a proper objection, a reversal will be

granted only if the error presents egregious harm, meaning appellant did not receive a


Felan v. State                                                                         Page 2
fair and impartial trial. Id. To obtain reversal for jury-charge error, appellant must

have suffered actual harm and not just merely theoretical harm. Sanchez v. State, 376

S.W.3d 767, 775 (Tex. Crim. App. 2012); Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim.

App. 1986).

        Felan specifically argues that the trial court’s charge on the offense of murder

erroneously allowed the jury to convict on the uncharged offense of conspiracy. The

trial court charged the jury as follows:

        Now bearing in mind the foregoing instructions, if you believe from the
        evidence beyond a reasonable doubt, that [Felan] on or about the 12 th day
        of September, 2009, in the County of McLennan and State of Texas, as
        alleged in the indictment, did then and there,

    1) Intentionally or knowingly cause the death of an individual, namely,
       Carneilyus Fields, by shooting him with a deadly weapon, a firearm; or
    2) With intent to cause serious bodily injury to an individual, namely
       Carneilyus Fields, commit an act clearly dangerous to human life that
       caused the death of said Carneilyus Fields, by shooting Carneilyus Fields
       with a deadly weapon, a firearm

          then you will find [Felan] guilty of the offense of Murder as charged in
        Count I and say so by your verdict;

           Or, if you believe from the evidence beyond a reasonable doubt that
        someone other than [Felan] on or about the 12th day of September, 2009, in
        the County of McLennan and State of Texas, the person did then and
        there,

    1) Intentionally or knowingly cause the death of an individual, namely,
       Carneilyus Fields, by shooting him with a deadly weapon, a firearm; or
    2) With intent to cause serious bodily injury to an individual, namely
       Carneilyus Fields, commit an act clearly dangerous to human life that
       caused the death of said Carneilyus Fields, by shooting Carneilyus Fields
       with a deadly weapon, a firearm,
Felan v. State                                                                       Page 3
        and you further find and believe beyond a reasonable doubt that

    1) [Felan] acting with intent to promote or assist the other person to commit
       said offense, solicited, encouraged, directed, aided, or attempted to aid the
       other person to commit said offense; or
    2) That said offense was committed by the other person in the attempt to
       carry out a conspiracy to commit another felony and in furtherance of the
       unlawful purpose, and that [Felan] was a coconspirator to the other
       felony, and that [Felan] should have anticipated that said offense would
       be committed as a result of the carrying out of the conspiracy, whether or
       not you believe [Felan] intended the commission of said offense …

Felan did not object to the charge. We will first determine if there is any error in the

charge.

        The court's charge did not instruct the jury to consider whether appellant was

guilty of the separate offense of criminal conspiracy as set out in TEX. PENAL CODE ANN.

§ 15.02 (West 2011). Montoya v. State, 810 S.W.2d 160, 165 (Tex. Crim. App. 1989). The

court's charge merely tracked the language on the law of parties as set out in TEX. PENAL

CODE ANN. 7.02(a)(2) and the alternative parties charge in § 7.02(b). Montoya v. State,

810 S.W.2d at 165.

        It is well accepted that the law of parties may be applied to a case even though

no such allegation is contained in the indictment. Montgomery v. State, 810 S.W.2d at

165. This rule applies not only to the law of parties found in Section 7.02(a)(2) but also

the law of parties found in Section 7.02(b). Id. The evidence supported the submission

of a charge on criminal responsibility pursuant to Section 7.02(a) and Section 7.02(b). Id.



Felan v. State                                                                         Page 4
The trial court did not err in including the instruction in the charge. We overrule the

first issue.

                                   Assessment of Fees

        In his second issue Felan contends that because he is indigent, the trial court

erred in assessing court-appointed attorney’s fees and court-appointed investigator

fees. The State concedes that there is insufficient evidence to support the assessment of

court-appointed attorney’s fees and investigator fees. We sustain Felan’s second issue.

                                       Conclusion

        We modify the trial court’s judgments to delete the assessment of attorney’s fees

and investigator fees. As modified, the judgments are affirmed.




                                          AL SCOGGINS
                                          Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed as modified
Opinion delivered and filed May 1, 2014
Do not publish
[CRPM]




Felan v. State                                                                     Page 5
