Opinion issued October 4, 2012




                                   In The

                            Court of Appeals
                                  For The

                        First District of Texas
                         ————————————
                            NO. 01-11-00263-CR
                         ———————————
                  MARIAN EVELYN SKURA, Appellant
                                     V.
                     THE STATE OF TEXAS, Appellee



           On Appeal from County Criminal Court at Law No. 9
                         Harris County, Texas
                  Trial Court Case No. 171559601010

                      MEMORANDUM OPINION

     A jury found Marian Evelyn Skura, guilty of theft1 and assessed her

punishment at 90 days in jail. In her sole issue, Skura contends that she was


1
     See TEX. PENAL CODE ANN. § 31.03(a), (e) (2)(A)(i) (West Supp. 2012)
     (theft of property having value of $50 or more but less than $500).
egregiously harmed by the trial court’s submission of an erroneous charge that

failed to mention her in the application paragraph. We affirm.

                                   Background

      Two Wal-Mart “asset protection officers” (Rogers and Bates) noticed Skura

and her co-defendant, Vanessa Melton, place numerous cologne and perfume

bottles in their shopping cart. The two employees followed the women around the

store and observed both Skura and Melton cut open the cologne and perfume

boxes’ plastic wrappers, Skura conceal a white T-shirt in her purse, and Melton put

several other items in Skura’s purse, while Skura was the “lookout.”

      When the two women went through the checkout line, Bates testified that

neither paid for the items in their purses.      Once outside the store, Rogers

confronted the women and took them to the loss-prevention office where their

purses were emptied of $138.78 of merchandise. Rogers did not separately itemize

the items that came from each purse.

      The jury charge allowed the jury to convict Skura of theft as the principal

actor and as a party to the offense. The charge instructed the jury as to the law of

parties:

            Each party to an offense may be charged with commission of
      the offense. 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 both. A
      person is criminally responsible for an offense committed by the

                                         2
      conduct of another if, acting with intent to promote or assist the
      commission of the offense, he solicits or encourages, aids or attempts
      to aid the other person to commit the offense. Mere presence alone
      will not constitute one a party to a crime.

See TEX. PENAL CODE ANN. §§ 7.01(a), (b), .02(a)(2) (West 2011). The

application portion of the law of parties, however, read:

             Therefore, if you believe from the evidence beyond a
      reasonable doubt that on or about the 25th day of October, 2010, in
      Harris County, Texas, another person, namely, Vanessa Melton, did
      intentionally or knowingly cause the offense of theft by the
      appropriation of the property listed above and there with intent to
      promote or assist the commission of the theft by Vanessa Melton, did
      aid, assist, or encourage Vanessa Melton in the commission of the
      theft while Vanessa Melton was committing the theft, then you will
      find the defendant guilty.

      There was no objection to the charge at trial.

                                      Discussion

      Both Skura and the State essentially concede the charge was erroneous in

omitting the words “the defendant” in the application paragraph relating to the law

of parties. In her sole issue Skura argues that, despite her failure to lodge an

objection, she is entitled to a reversal if the error of submitting the defective charge

“is so egregious and created such harm that [s]he ‘has not had a fair and impartial

trial.” See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984 & 1985)

(interpreting TEX. CODE CRIM. PROC. ANN. art. 36.19 (West 2006)). Because no


                                           3
proper objection was made, we must determine whether there has been egregious

harm. See Almanza, 686 S.W.2d at 171.

      Errors that result in egregious harm are those which “go to the very basis of

the case,” “deprive the accused of a ‘valuable right,’” or “vitally affect his

defensive theory.”   Id. at 172.   To determine the actual degree of harm, we

consider (1) the entire jury charge, (2) the state of the evidence, including the

contested issues and weight of probative evidence, (3) the argument of counsel,

and (4) any other relevant information revealed by the record of the trial as a

whole. Id.

      The record identifies numerous occasions, both during voir dire and in the

closing statement, in which the State addressed the law of parties and its

application. During voir dire, the State gave the following example:

             Another important thing I want to talk about here is called the
      law of parties. Anybody ever heard that phrase before, the law of
      parties? Maybe? Basically, what it means is if you take part, if you
      play a role in a crime, you can still be found guilty of that crime, even
      if you’re not the one that actually, physically does -- for instance in a
      theft, the taking of the property or say a get-away driver in a bank
      robbery. Right? He is not actually going to the bank with a gun, but,
      clearly he is involved in a scheme, right? He is playing a role. Or
      better, yet, let’s say the guy that stands on the street corner in
      downtown, while his buddy runs into the bank and another buddy is
      driving the car. Okay. So the guy that goes into the bank, he’s got the
      gun, he says, Give me all your money. I want all the money in the
      bank. Give it to me, now.

During closing the State argued:

                                         4
             Now, the second paragraph I want you to look at here is
      referring to what we referred to before, the law of parties. What it is
      essentially saying is someone who is involved in the crime, doesn’t
      necessarily have to be the person taking the perfume or taking the
      T-shirt or taking whatever it is. If they are acting as a look-out, and
      you heard testimony based on the two different loss prevention
      officers that said: While one is doing the taking, the other one is doing
      the looking around. What’s around? Do I see somebody? Am I
      looking for security? That is what the law of parties means. And that
      is what that instruction means. And I want to make sure that you guys
      understand that when you go back there.

More important, however, as both parties recognize, the jury was given a proper

abstract instruction on the law of parties.

      Skura argues her case is similar to Green v. State, in which two brothers

charged with murder were tried together. Green v. State, 233 S.W.3d 72, 74 (Tex.

App.—Houston [14th Dist.] 2007, pet. ref’d).          The law-of-parties application

paragraph in that case allowed the defendant to be convicted of murder based

solely on the actions of his younger brother because the charge omitted language

that in order for defendant to be found guilty as a party, the jury had to find that the

defendant “‘with the intent to promote or assist’ in the commission of the offense,

‘solicited, encouraged, directed, aided, or attempted to aid’ [his brother] in

committing murder.” Id. at 79. The Fourteenth Court held that the charge error

was egregious and reversed. Id. at 86.

      The Green law-of-parties application paragraph was a completely erroneous

statement of the law, as it affirmatively misled the jury by allowing it to convict

                                              5
the defendant for a murder committed by his younger brother, even if the

defendant was not a party. Id. at 81. Unlike Green, the jury in this case was not

left to interpret the instruction without any guidance. Here the jury was given a

charge that correctly stated the law of parties, although it did omit a reference to

“the defendant” in the application paragraph. Given the correct charge on the law

of parties, the State’s explanations of the law of parties during voir dire and closing

argument, as well as the testimony from Rogers and Bates, we cannot say that

Skura has suffered egregious harm.2

                                     Conclusion

      We overrule the sole issue and affirm the judgment of conviction.




                                               Jim Sharp
                                               Justice


Panel consists of Justices Jennings, Higley, and Sharp.

Do not publish. TEX. R. APP. P. 47.2(b).


2
      We express no opinion whether Skura would have suffered “some harm”
      under an Almanza analysis if a proper trial objection had been made. See
      Almanza, 686 S.W.2d at 171.
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