                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-09-00373-CR


JOHNNY RAY WALLER                                                   APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


                                    ----------

     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

                                    ----------

                        OPINION ON REHEARING

                                    ----------

      On July 7, 2011, this court issued an opinion reversing the trial court’s

judgment and remanding the case for a new trial. After due consideration, a

majority of this court agrees to grant the State’s motion for rehearing to delete

part IV of our prior memorandum opinion. The substance of the remainder of our

prior opinion, authored by Justice Dauphinot, and set forth below, remains

unchanged.
         We withdraw our prior memorandum opinion, concurring memorandum

opinion, and judgment dated July 7, 2011, and substitute the following in its

place.

         A jury convicted Appellant Johnny Ray Waller of arson causing the death

of Geovany Gustavo Guerra, burglary of a habitation with intent to commit arson,

and felony murder of Guerra in the course of committing arson, all charged in

separate counts of a single indictment, and assessed Appellant’s punishment at

forty-five years’ confinement for each count.        The trial court sentenced him

accordingly, ordering that the sentences run concurrently.

         Appellant brings ten points, arguing that the trial court reversibly erred by

denying his challenges for cause of veniremembers who could not consider the

full range of punishment and by submitting a jury charge that did not require a

unanimous jury verdict or contain an accomplice witness instruction; that the

evidence is factually insufficient to support his convictions for arson as a party

and for felony murder as a party; and that trial counsel rendered ineffective

assistance by failing to request an accomplice witness instruction in the jury

charge. Because we hold that the trial court reversibly erred by failing to grant

Appellant’s challenges for cause of veniremembers who could not consider the

full range of punishment, we reverse the trial court’s judgment and remand this

case to the trial court for a new trial.

I. Summary of the Facts




                                           2
      Appellant and several other people had gone to James Griggs’s Haltom

City apartment one night because Appellant believed that Griggs owed him

money from a drug buy. At the time, Griggs was at his girlfriend’s apartment in

the same complex. Around 2:00 or 3:00 a.m., from his girlfriend’s apartment,

Griggs saw several people walking to his apartment. He also saw two vehicles in

the parking lot, one of which he recognized as Appellant’s girlfriend’s truck.

      Griggs’s neighbor, Tara Daubig, testified that she and a friend were on her

balcony when she saw a black SUV driving around the parking lot. A black Ford

pickup truck met the SUV in front of her apartment, and one man got out of the

truck. About three men got out of the SUV. The group headed toward Griggs’s

apartment, shouting, ―Where’s James?‖ and ―We’ll find you.‖ She heard them

bang on a door. When they left, she noted that it was 2:30 a.m. Around 2:55

a.m., Griggs received a text from Appellant’s girlfriend that they were gone from

his apartment.

      Melissa Svec, another neighbor, awoke between 4:00 a.m. and 4:30 a.m.

to the smell of smoke. She had been awakened briefly about forty-five minutes

before by a bang coming from a nearby apartment.

      A third neighbor, Sandy Bethea, testified that she awoke to the smell of

charcoal lighter fluid around 4:00 a.m.       She went back to sleep and was

awakened about thirty minutes later by someone knocking on her door and

informing her of the fire.




                                         3
      After receiving a phone call telling him that his apartment was on fire,

Griggs returned to his apartment and saw flames rolling along the ceiling. He

testified that he saw a can of lighter fluid on the counter.

      After the fire in the three-story apartment building was extinguished by

firefighters, the body of Guerra was discovered in the bathtub of a third-floor

apartment.

      While out on patrol several days later, Hurst Police Officer Amber Hull ran

the license plate of a car in front of her and discovered that the car had been

reported as stolen. Hull was in North Richland Hills at the time, so she followed

the car until a North Richland Hills police officer could respond. A North Richland

Hills police vehicle gave chase to the car but terminated the chase. The car was

later found abandoned in a subdivision. The police found Appellant and two

women hiding in a nearby drainage ditch. At trial, the North Richland Hills officer

who had chased the car identified Appellant as its driver.

      A Haltom City police officer investigating the fire at the apartment complex

obtained a search warrant for the stolen vehicle. From the vehicle, the officer

recovered a small blow torch, a pistol equipped with a laser sight, a newspaper

clipping about the fire, and a piece of paper with Griggs’s prior address, his

driver’s license number, and his social security number.

      In a videotaped statement to the police, Appellant admitted going to

Griggs’s apartment on the night of the fire ―to whip [his] ass‖ and also that he had

instructed a number of people to meet him in the apartment complex parking lot.


                                           4
Appellant also admitted that one of his acquaintances kicked in the door to

Griggs’s apartment. Appellant stated that the apartment was empty, and he left.

As he was leaving, Appellant saw brothers K.C. and Jaime Sifuentes in the street

outside the complex. The brothers were among the people that Appellant had

called to meet him at the apartment complex. Appellant stated that they had a

gas container and wanted a ride, claiming that their car was out of gas.

Appellant said that he told the brothers the purpose of his visit and that they told

him something like, ―Don’t worry about it,‖ ―It’ll get taken care of,‖ and ―We got it

taken care of,‖ but they did not say anything about starting a fire.

      Alan LeMaster, who was also charged with arson for the fire, testified for

the State at Appellant’s trial.    LeMaster testified that he and the Sifuentes

brothers were at his godmother’s apartment on the night of the fire.            K.C.

received a phone call from Appellant and went outside to talk. When K.C. came

back inside, he told his brother that ―it was time to go.‖ The brothers invited

LeMaster to go with them. K.C. said that they were going to collect some money

owed to Appellant. They stopped at a gas station on the way; LeMaster testified

that he went inside to use the restroom while the brothers ―were supposedly

getting gas for [their] car.‖ Appellant called K.C., who told him that they were on

their way.

      LeMaster stated that when they arrived at the complex, the brothers went

into Griggs’s apartment and told LeMaster to wait at the top of the stairs.

LeMaster went into the apartment at one point and saw K.C. holding a cup of


                                          5
liquid in his hand and asking Jaime about a good spot. LeMaster did not smell

gas fumes, lighter fluid, or anything of that sort. The brothers told LeMaster to go

back to the stairs. About a minute later, the brothers ran out of the apartment,

and all three ran back to the car. K.C. drove around the parking lot until flames

could be seen coming out of the building. The brothers dropped LeMaster back

off at his godmother’s apartment, where K.C. made a telephone call and told

someone that the brothers ―did what [they] were supposed to and [that they

would] be on [their] way to handle business.‖ The brothers then left but returned

about an hour later with some methamphetamine and some money.

      LeMaster’s godmother testified that LeMaster had told her that he had

gone into the apartment with the brothers and had started a fire to take care of a

problem for Appellant.

      In the jury charge, the trial court charged the separate paragraphs of each

of the three counts in the disjunctive. There was a separate verdict form for each

count. The jury charge did not state that the jury had to be unanimous on any

single theory of the alternative manners and means of committing the offense in

each count.

      The jury charge also contained special issues relating to a deadly weapon

finding. The jury did not find that Appellant had exhibited a deadly weapon in the

form of a combustible or flammable liquid or material or ―carbon monoxide and/or

smoke‖ or that he knew that such deadly weapon would be used.




                                         6
      The jury charge did not contain an accomplice witness instruction

regarding LeMaster’s testimony, and Appellant did not request such an

instruction or object to the trial court’s failure to include one.

II. Sufficiency of the Evidence

      Appellant argues in his seventh and eighth points that the evidence is

factually insufficient to support his convictions for arson as a party and for felony

murder as a party.       The State argues that ―[b]y attacking only the factual

sufficiency of the evidence, Appellant has implicitly conceded that the evidence is

factually sufficient. His seventh and eighth points of error should therefore be

overruled.‖

      After Appellant filed his brief, the Texas Court of Criminal Appeals held that

there is no meaningful distinction between the legal sufficiency standard and the

factual sufficiency standard.1 Thus, the Jackson standard, which is explained

below, is the ―only standard that a reviewing court should apply in determining

whether the evidence is sufficient to support each element of a criminal offense

that the State is required to prove beyond a reasonable doubt.‖2 We therefore

apply the Jackson standard to Appellant’s seventh and eighth points.

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the

      1
       Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (overruling
Clewis v. State, 922 S.W.2d 126, 131–32 (Tex. Crim. App. 1996)).
      2
       Id.


                                            7
prosecution to determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. 3 The jury is the sole

judge of the credibility of the evidence and the weight to be given to each piece

of evidence.4

      The sufficiency of the evidence in a criminal case is not determined by a

no-evidence standard.5 Instead, we must look at all the evidence to determine

whether a rational jury could have found that the State proved every element of

the offenses of arson and felony murder beyond a reasonable doubt.

      As the Texas Court of Criminal Appeals has explained,

            [T]he law in Texas allows individuals to be charged as a party
      to an offense and to be held criminally responsible for the conduct of
      another when that individual acts in concert with another person in
      committing an offense. Circumstantial evidence alone may be used
      to prove that a person is a party to an offense. 6

      Appellant argues, and the record reflects, that he was not present when

LeMaster or the Sifuentes brothers, or both LeMaster and the Sifuentes brothers,

set the fire that destroyed Griggs’s apartment and caused Guerra’s death.


      3
       Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
      4
       Brooks, 323 S.W.3d at 899.
      5
       Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989), overruled on
other grounds by Geesa v. State, 820 S.W.2d 154, 161 (Tex. Crim. App. 1991),
overruled on other grounds by Paulson v. State, 28 S.W.3d 570, 571 (Tex. Crim.
App. 2000).
      6
       Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006).


                                        8
Appellant also points out that the jury specifically found in Special Issues One

and Two that he did not use or know that any type of accelerant would be used to

start a fire.

       Nevertheless, there was evidence from which the jury could conclude that

Appellant had instructed LeMaster and the Sifuentes brothers to act as enforcers

to punish Griggs for failing to pay Appellant what was owed. There was also

evidence from which the jury could conclude that when Appellant left Griggs’s

apartment, he knew that the Sifuentes brothers would stay behind to inflict that

punishment when the apartment was empty.

       By not answering the deadly weapon special issue in the affirmative, the

jury expressed its belief that Appellant did not anticipate that an accelerant would

be used. Although there was evidence of a gas can, Griggs saw a can of lighter

fluid, and a neighbor smelled lighter fluid. There was also evidence that one of

the Sifuentes brothers called someone and reported that ―[they had done] what

[they] were supposed to.‖ There was also evidence of a blow torch in the car that

Appellant was seen driving immediately before his capture.           We therefore

conclude that the jury’s verdict regarding the special issues was not necessarily

inconsistent with a finding of guilt.

       Applying the appropriate standard of review, we hold that, as Appellant

phrased his seventh and eighth points, the evidence is sufficient to support

Appellant’s guilt as a party to both arson and felony murder.         We overrule

Appellant’s seventh and eighth points.


                                         9
III. Jury Selection

      In his first, second, and third points, Appellant argues that the trial court

reversibly erred by denying his challenges for cause to three members of the

venire, numbers 13, 14, and 20. Appellant properly preserved his complaints by

striking the three veniremembers, requesting additional strikes, and showing that

he was forced to accept at least three specific objectionable jurors.7

      The indictment charges in both paragraphs of the first count that Appellant

committed arson of a habitation within the limits of an incorporated city or town,

―and/or knowing that the said habitation[] was located on property belonging to

another, and death was suffered by Geovany Gustavo Guerra by reason of the

commission of said arson.‖      The first count of the indictment, then, charges

commission of first-degree arson.8

      Both paragraphs of Count Three charge that Appellant intentionally or

knowingly committed or attempted to commit an act clearly dangerous to human

life, arson, that caused the death of Guerra and that Appellant was in the course

of or immediate flight from the commission or attempted commission of a felony

(arson in the first paragraph and burglary of a habitation in the second




      7
       See Loredo v. State, 159 S.W.3d 920, 923 (Tex. Crim. App. 2004).
      8
       See Tex. Penal Code Ann. § 28.02(a)(2), (d) (West 2011).


                                        10
paragraph).    That is, Count Three of the indictment charges that Appellant

committed felony murder of Guerra.9

      During voir dire, defense counsel asked the venire, ―If the facts justify it

and the law allows it, could you—where you found somebody guilty beyond a

reasonable doubt of arson where somebody had died, could you consider the

minimal range of punishment?‖           Then he explained the possible minimum

punishments of five or fifteen years.

      Venireperson Number 14, Kelly Koreneck, stated,

      If we found whoever guilty beyond a reasonable doubt, why would
      we go for the minimum? That just seems like a slap on the wrist, if
      someone died. If someone has died, then you—someone needs to
      be held accountable for that and somebody should.

              ....

              [KORENEK]: So I would go to the maximum.

           [DEFENSE]:         And—and you would always go to the
      maximum?

            [KORENEK]: If we found them guilty beyond a reasonable
      doubt, why would we go for the minimum?

      The jurors indicated that death justified maximum punishment. But death

of an individual was an essential element of two counts of the indictment. The

jury would reach the issue of punishment only if they found the defendant guilty

beyond a reasonable doubt, that is, only if they found all the elements, including



      9
       See id. § 19.02(b)(3) (West 2011).


                                          11
death, beyond a reasonable doubt.10 Had there been no death, Appellant would

have been acquitted of the charged offenses.

      Venireperson Number 12, Sasidara Manne said, in discussing the range of

punishment and intoxication as mitigation of punishment,

      When a person’s drunk beyond the limit— . . . —that means he’s
      already guilty. So whether it’s involuntary or voluntary, it’s not a
      question in my mind. Drinking beyond the limit itself he is—he—he
      committed a big mistake. Therefore, you know, he is treated like a
      normal person. He should be punished to the maximum.

             [DEFENSE]: To the maximum?

             [MANNE]: Yes.

             [DEFENSE]: You could never consider the minimum?

             [MANNE]: No, sir.

      Venireperson Number 13, Ms. Collins, volunteered that she agreed with

the ―people that are sitting here with me,‖ immediately after Manne spoke.

Defense counsel clarified that Collins was speaking of Manne when she referred

to the people that were sitting there with her.

      Venireperson Number 20, Benjamin Hatcher, firmly stated that he could

not ―go for the minimum punishment if someone died.‖ Hatcher was recalled and

insisted that he could not consider the minimum punishment. After the trial judge

intervened, Hatcher finally said, ―[T]he answer is yes, I can consider the

minimum.‖ And then the trial court clarified,


      10
        See Tex. Code Crim. Proc. Ann. art. 37.07, § 2(b) (West Supp. 2010).


                                         12
      [COURT]: And the maximum?

      [HATCHER]: Yes, and the maximum.

      While the State is correct in stating that a juror who could not consider the

full range of punishment under certain circumstances is not disqualified, the

circumstance cannot be an essential element of the offense. 11 A juror must be

able to consider the full range of punishment in a murder case 12 but is not

disqualified if he or she could not consider the full range under certain

circumstances,13 for example, if torture was involved, or in a mercy killing, or if a

child was killed. But here, the circumstance that precluded considering the full

range of punishment was finding guilt beyond a reasonable doubt if there was a

death; that is, conviction.

      The State argues that Hatcher was a vacillating juror. He appears, rather,

to be an acquiescing juror. But Korenek and Collins were neither vacillating nor

confused. They were adamant.

      The State relies on Davis v. State to argue that Appellant did not

sufficiently instruct Korenek and Collins on the law that would govern them as

jurors:

            To preserve error for a trial court’s erroneous denial of a
      challenge for cause, appellant must show that: (1) he asserted a

      11
          See id. art. 35.16(c)(2) (West 2006).
      12
          See id.
      13
          Sadler v. State, 977 S.W.2d 140, 142 (Tex. Crim. App. 1998).


                                          13
     clear and specific challenge for cause; (2) he used a peremptory
     challenge on the complained-of venire member; (3) his peremptory
     challenges were exhausted; (4) his request for additional strikes was
     denied; and (5) an objectionable juror sat on the jury. Appellant has
     properly preserved error with respect to each of the challenged
     venire members.

            If a trial judge errs in overruling a challenge for cause against
     a venire member, then a defendant is harmed if he uses a
     peremptory strike to remove the venire member and thereafter
     suffers a detriment from the loss of the strike. Appellant was denied
     any additional peremptory strikes. To demonstrate harm, appellant
     must show that the trial court erroneously denied one challenge for
     cause.

            When reviewing a trial court’s decision to deny a challenge for
     cause, we look at the entire record to determine if there is sufficient
     evidence to support the ruling. The test is whether a bias or
     prejudice would substantially impair the venire member’s ability to
     carry out the juror’s oath and judicial instructions in accordance with
     the law. Before venire members may be excused for cause, the law
     must be explained to them, and they must be asked whether they
     can follow that law, regardless of their personal views. The
     proponent of a challenge for cause has the burden of establishing
     that the challenge is proper. The proponent does not meet this
     burden until he has shown that the venire member understood the
     requirements of the law and could not overcome his or her prejudice
     well enough to follow the law.

            We review a trial court’s ruling on a challenge for cause with
     considerable deference because the trial judge is in the best position
     to evaluate a venire member’s demeanor and responses. A trial
     judge’s ruling on a challenge for cause may be reversed only for a
     clear abuse of discretion. When a venire member’s answers are
     vacillating, unclear, or contradictory, we accord particular deference
     to the trial court’s decision.14




     14
        Davis v. State, 329 S.W.3d 798, 807 (Tex. Crim. App. 2010), cert.
denied, No. 10-10063, 2011 WL 4530525 (Oct. 3, 2011) (citations omitted).


                                       14
      The trial court, not the lawyers, bears the obligation of instructing the jurors

on the law.15 Davis instructs us that the proponent of the challenge bears the

burden not of instructing the jurors but of showing that the challenged ―venire

member understood the requirements of the law and could not overcome his or

her prejudice well enough to follow the law.‖16 The distinction is subtle, but it is

significant. The attorneys do not bear the burden of instructing the venire on the

law. The attorneys do bear the burden of providing a sufficient record showing

that the venire has been instructed and understands the law. Presumably, if the

trial court fails to provide adequate instruction, the lawyers may provide the

missing information to the venire or may ask the trial court to do so. In either

case, the record must reflect that the challenged veniremembers could not follow

the law even though they had been adequately instructed in the requirements of

the law.

      The trial court thoroughly instructed the venire on the burden of proof and

the meaning of beyond a reasonable doubt. The lawyers thoroughly discussed

the obligations of jurors to consider the entire range of punishment. The lawyers

dealt with at least one veniremember who had trouble understanding why the

death penalty was not available. The veniremembers were told repeatedly what

the range of punishment was and that they had to be able to consider the full


      15
           See Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007).
      16
           See Davis, 329 S.W.3d at 807.


                                           15
range of punishment. They were repeatedly instructed that if the facts justified it

and the law allowed it, they were required to be able to give full and fair

consideration to the full range of punishment. Only then would they be qualified

to serve as jurors. They were told that they had only to consider the entire range

and that there was a difference between considering the entire range and

assessing a particular punishment.

      Members of the venire announced that they believed that Appellant was

guilty because he had been arrested and that nothing could change their mind.

Manne stated that the he could not be ―a fair person to sit in that chair and make

a decision as a juror‖ if there was ―any doubt‖ that a person committed ―a

violence.‖ He would require the defense to prove Appellant’s innocence beyond

a reasonable doubt if there was any allegation of violence.

      The entire venire, as well as individual members of the venire in the

presence of the entire venire, were repeatedly instructed that they had to follow

the law, had to require the State to prove guilt beyond a reasonable doubt, could

not presume guilt, and had to consider the entire range of punishment, be fair

and impartial, and follow the law.     They were instructed that the minimum

punishment was five years but increased to fifteen years if the defendant had

been previously convicted of a felony.       They were told that the maximum

punishment was life but that they had to be able to consider the entire range of

punishment and base their decision on the law and the evidence.




                                        16
      The trial court did an excellent job of allowing a full and thorough voir dire

of the venire. Veniremembers were also brought to the bench for individual voir

dire, and the lawyers and the trial court ferreted out any confusion and answered

questions and clarified any misunderstanding on the part of the veniremembers.

The members of the venire were repeatedly instructed in the law and their

obligations under the law.

      The trial court assured that the requirements of Davis were fully met.

Korenek and Collins clearly understood that in order to be qualified to serve as

jurors, they had to fully and fairly consider the entire range of punishment. 17

They understood what that range of punishment was, both with and without proof

of a prior felony conviction.18 They understood that their punishment verdict

would have to be based on the law and the evidence. 19 Still, both rejected any

consideration of the minimum punishment. 20 We therefore hold that the trial

court abused its discretion by denying the challenges to those two

veniremembers, and we further hold that Appellant showed harm from the denial.




      17
       See Cardenas v. State, 325 S.W.3d 179, 186–87 (Tex. Crim. App. 2010).
      18
       See id.
      19
       See id.
      20
       See id.


                                        17
We sustain Appellant’s first and second points, which are dispositive, and do not

reach the merits of his remaining points.21

IV. Conclusion

      Having sustained Appellant’s dispositive jury selection points, we reverse

the trial court’s judgment and remand this case to the trial court for a new trial.




                                                     SUE WALKER
                                                     JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

DAUPHINOT, J. filed a dissenting and concurring opinion.

PUBLISH

DELIVERED: October 20, 2011




      21
        See Tex. R. App. P. 47.1.


                                          18
                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-09-00373-CR


JOHNNY RAY WALLER                                                    APPELLANT

                                         V.

THE STATE OF TEXAS                                                         STATE


                                     ----------

     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

                                     ----------

   DISSENTING AND CONCURRING OPINION ON REHEARING

                                     ----------

      I would deny the State’s motion for rehearing. Other than that, I am in

complete agreement with the majority opinion. But because we are remanding

this case, in the interest of judicial economy, I note with concern two issues

raised below but not raised on appeal.

      The trial court instructed the jurors that they must find Appellant guilty of

arson if they found beyond a reasonable doubt that Appellant ―entered into a

conspiracy with Casimer Sifuentes or Jaime Sifuentes to commit the felony
offense of Aggravated Assault on James Griggs, or Burglary of a Habitation with

intent to commit theft, or Burglary of a Habitation with the intent to commit

assault‖ and in the attempt to carry out the agreement the Sifuentes brothers

committed arson, causing Guerra’s death, ―and that such offense was committed

in furtherance of the unlawful purpose to commit Burglary of a Habitation or

Aggravated Assault, and was an offense that should have been anticipated as a

result of the carrying out of the agreement,‖ even ―though [Appellant] may have

had no intent to commit it.‖ The trial court provided a similar instruction that the

jurors must convict Appellant of murder if they found beyond a reasonable doubt

that Appellant ―entered into a conspiracy with Casimer Sifuentes or Jaime

Sifuentes to commit the felony offense [of] Burglary of a Habitation‖ and that ―in

the attempt to carry out this agreement,‖ the Sifuentes brothers committed

burglary of a habitation and felony murder of Guerra and that ―such offense was

committed in furtherance of the unlawful purpose, and was an offense that

should have been anticipated as a result of the carrying out of the agreement,‖

even ―though he may have had no intent to commit it.‖

      Immediately following the section 7.02(a) penal code instruction, the trial

court, combining language from subsections (a) and (b) of section 7.02,

instructed the jury that

            [a] person is criminally responsible for an offense committed
      by the conduct of another 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


                                         2
      committed in furtherance of the unlawful purpose and was one that
      should have been anticipated as a result of carrying out the
      conspiracy.1

      The trial court then instructed the jury on the definition of conspiracy as set

out in section 15.02 of the penal code:

            The term ―conspiracy‖ means an agreement with one or more
      persons that they or one of [sic] more of them engage in conduct
      that would constitute a felony.      An agreement constituting a
      conspiracy may be inferred from the acts of the parties. . . .

            . . . [I]t is no defense that the person for whose conduct the
      defendant is criminally responsible has been acquitted, has not been
      prosecuted or convicted, has been convicted of a different offense or
      of a different type or class of offense, or is immune from
      prosec[u]tion.2

The trial court did not instruct the jury pursuant to section 15.02(d) that ―[a]n

offense under this section is one category lower than the most serious felony that

is the object of the conspiracy, and if the most serious felony that is the object of

the conspiracy is a state jail felony, the offense is a Class A misdemeanor.‖ 3

      Essentially, in attempting to provide a section 7.02(b) instruction, the trial

court actually instructed the jury that they could convict Appellant as a party to

the more serious offense if the jury found Appellant guilty of section 15.02

conspiracy, an offense for which he was not indicted.



      1
       Tex. Penal Code Ann. § 7.02(b) (West 2011).
      2
       Id. § 15.02(a)–(c).
      3
       See id. § 15.02(d).


                                          3
      It is well established that the offense of criminal conspiracy is a separate

offense and is not a lesser included offense of the aim of the conspiracy, 4 nor is it

the same as the law of parties.5 In Pereira v. United States, defendants Pereira

and Brading were charged with and convicted for violating the federal mail fraud

statute and the National Stolen Property Act and conspiracy to commit those

offenses.6 The Pereira court held that the substantive offenses and conspiracy to

commit the substantive offenses are separate offenses because each contains

an element that the other does not. 7 Conspiracy requires the State to prove an

agreement. Murder, as a principal or as a party, does not require the State to

sustain the burden of proving an agreement. The instruction, contrary to the

mandate of Malik,8 both permits the jury to convict of an offense that is neither

charged in the indictment nor a lesser included offense of that charged in the

indictment and also increases the burden of the State beyond that prescribed by

the indictment by requiring the State to prove an agreement.

      In Ex parte Brosky, the State chose to prosecute Brosky for conspiracy to

commit murder after a jury recommended that his sentence for murder as a party

      4
       Pereira v. United States, 347 U.S. 1, 74 S. Ct. 358 (1954).
      5
       See Ex parte Brosky, 863 S.W.2d 783, 784 (Tex. App.—Fort Worth 1993,
no pet.) (Brosky I).
      6
       Pereira, 347 U.S. at 3, 74 S. Ct. at 360.
      7
       Id. at 11, 74 S. Ct. at 364.
      8
       Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).


                                          4
be probated. Brosky argued that he could not be prosecuted for conspiracy to

commit murder under section 15.02 of the penal code because it was essentially

the same offense as murder as a party, or, at best, a lesser included offense of

murder as a party.      We held that Brosky could be prosecuted for both the

substantive offense and conspiracy to commit the substantive offense because

they were different offenses. 9 After the second trial, Brosky again raised the

double jeopardy argument, arguing that he could not be convicted of murder as a

party and of conspiracy to commit murder. Again, this court held that they were

two separate offenses, not two ways to commit the same offense and not a

greater and lesser included offense.10 We relied on United States v. Felix, in

which the United States Supreme Court recognized that a prosecution for

conspiracy is not precluded by a prior prosecution for the substantive offense. 11

      If a trial court instructs jurors that they may convict a defendant of the

substantive offense, whether they find him guilty of the substantive offense or of

conspiracy to commit the substantive offense, the trial court instructs the jurors




      9
       Brosky I, 863 S.W.2d at 784, 788.
      10
       Brosky v. State, 915 S.W.2d 120, 140 (Tex. App.—Fort Worth, pet. ref’d)
(Brosky II), cert. denied, 519 U.S. 1020 (1996).
      11
          503 U.S. 378, 390–91, 112 S. Ct. 1377, 1385 (1992).


                                         5
that they may convict of either the indicted offense or of an unindicted offense

that is not a lesser included offense of the greater substantive offense. 12

      In Woodard v. State, the Texas Court of Criminal Appeals recently

addressed the issue of whether a jury could be instructed to convict a defendant

of conspiracy to commit the substantive offense when the defendant was not

charged by indictment with conspiracy but only with the substantive offense. 13

The intermediate appellate court had reversed Woodard’s conviction on this

ground.14 Woodard was indicted for murder, both intentional murder and murder

as a consequence of doing an act clearly dangerous to human life. The jury was

instructed to convict if they found Woodard guilty of conspiracy to commit either

robbery or aggravated robbery. The intermediate appellate court held that our

federal and state constitutions do not permit conviction of an offense not alleged

in the indictment, such as robbery or conspiracy.15




      12
       See generally Pereira, 347 U.S. 1, 74 S. Ct. 358; see Brosky I, 863
S.W.2d at 784 & n.4.
      13
        322 S.W.3d 648, 649 (Tex. Crim. App. 2010) (Woodard II).
      14
       Woodard v. State, 300 S.W.3d 404, 406 (Tex. App.—Houston [14th Dist.]
2009) (Woodard I), rev’d, 322 S.W.3d at 659.
      15
        Id. at 407–09.


                                          6
      The Texas Court of Criminal Appeals reversed the appellate court and

affirmed the conviction because Woodard had participated in preparation of the

jury charge that contained the conspiracy instruction. 16 The court noted,

            [T]he federal constitutional rule that ―a defendant cannot be
      held to answer a charge not contained in the indictment brought
      against him‖ is not based entirely ―on the [due-process] right of the
      defendant to notice of the charge brought against him.‖ This rule is
      also based on the Fifth Amendment’s grand jury guarantee that no
      person ―shall be held to answer for a capital, or otherwise infamous
      crime, unless on a presentment or indictment of a grand jury.‖

            Our constitution contains a similar guarantee. The right to a
      grand jury indictment under state law is a waivable right, which ―must
      be implemented by the system unless expressly waived.‖17

      In the case now before this court, however, trial counsel timely and

specifically objected to the conspiracy instructions and pointed out that Appellant

was not charged with the offense of conspiracy.         The trial court overruled

Appellant’s objections and included the improper instructions.

      Trial counsel also objected to the jury instructions that allowed the jury to

convict Appellant both of arson causing Guerra’s death and of felony murder

causing Guerra’s death in the course of arson. The trial court overruled his

objections and allowed both convictions, raising the question of whether a person

may be convicted of both arson resulting in death18 and of felony murder,19 with


      16
        Woodard II, 322 S.W.3d at 659.
      17
        Id. at 656–57 (citations omitted).
      18
        Tex. Penal Code Ann. § 28.02(a)(2), (d) (West 2011).


                                         7
arson being both the underlying felony and the act clearly dangerous to human

life that caused the death.20

      I agree wholeheartedly with the majority’s determination of the merits of

Appellant’s issues. I write only to bring this entire matter to a more efficient final

resolution.



                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PUBLISH

DELIVERED: October 20, 2011




      19
        Id. § 19.02(b)(3).
      20
        See, e.g., Littrell v. State, 271 S.W.3d 273, 279 (Tex. Crim. App. 2008);
Lawson v. State, 64 S.W.3d 396, 397–401 (Tex. Crim. App. 2001) (Cochran, J.,
concurring).


                                          8
