              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                         NO. PD-1126-10

                        JUAN ELIGIO GARCIA ADAMES, Appellant

                                                 v.

                                      THE STATE OF TEXAS

           ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
           AND DISCRETIONARY REVIEW ON COURT’S OWN MOTION
                FROM THE THIRTEENTH COURT OF APPEALS
                            HIDALGO COUNTY

       JOHNSON, J., delivered the opinion for a unanimous Court.

                                          OPINION

       Appellant was charged by indictment with one count of capital murder.1 The state did not

seek the death penalty. At trial, the trial judge gave the jury a general instruction as to the law of

parties, and then gave the jury the following charge:

       Now, if you believe from the evidence beyond a reasonable doubt that on or about
       October 23, 2003, in Hidalgo County, Texas, the defendant, Juan Eligio Garcia
       Adames, did then and there intentionally cause the death of an individual, namely
       Ann Marie Garcia, by strangulation with a shoe lace and the defendant was then and
       there in the course of committing and attempting to commit the offense of aggravated


       1
           TEX. PENAL CODE § 19.03.
                                                                                                        2

        kidnapping of Ann Marie Garcia; then you will find the defendant guilty of the
        offense of capital murder as charged in the indictment.

        Or, alternatively, if you find from the evidence beyond a reasonable doubt that on or
        about October 23, 2003, in Hidalgo County, Texas, Luis Carlos Mares did then and
        there intentionally cause the death of an individual, namely, Ann Marie Garcia, by
        strangulation with a shoelace and Luis Carlos Mares was then and there in the course
        of committing and attempting to commit the offense of aggravated kidnapping of
        Ann Marie Garcia, and the defendant, Juan Eligio Garcia Adames, then and there
        knew of the intent, if any, of the said Luis Carlos Mares to commit the aggravated
        kidnapping of Ann Marie Garcia, and the defendant acting with the intent to promote
        or assist Luis Carlos Mares in the commission of the aggravated kidnapping solicited,
        encouraged, directed, aided, or attempted to aid Luis Carlos Mares in the commission
        of the aggravated kidnapping by lending Luis Carlos Mares his car or by injecting the
        victim with heroin or by driving Luis Carlos Mares and the victim to the murder
        scene, then you will find the defendant guilty of the offense of capital murder as
        charged in the indictment.

        Unless you so find beyond a reasonable doubt or if you have a reasonable doubt
        thereof, you will acquit the defendant and say -- of the offense of capital murder.2

        The jury convicted appellant, and the trial court automatically sentenced appellant to life

imprisonment without parole. On appeal, the Thirteenth Court of Appeals found the evidence to be

legally sufficient to support appellant’s conviction as a party to the offense of capital murder, but that

the jury charge was erroneous as the application paragraph did not include instructions necessary for

the jury to find Adames guilty as a party.3 “The actual charge at trial charged him with that offense

[capital murder] as a primary actor but, as a party, only with respect to the underlying aggravated

kidnapping.”4 The court of appeals reversed the judgment and remanded the case to the trial court

for further proceedings. This Court granted part of appellant’s petition for discretionary review in

        2
            XXVIII R.R. at 10–11.

        3
          Adames v. State, No. 13-07-00303-CR, 2010 Tex. App. LEXIS 5786 (Tex. App.—Corpus Christi, pet.
granted) (mem. op., not designated for publication) (citing Wooley v. State, 273 S.W.3d 260, 268 (Tex. Crim. App.
2008)).
        4
            Adames, 2010 Tex. App. LEXIS 5786, at *15.
                                                                                                                       3

order to determine whether the court of appeals erred in refusing to review appellant’s issues

numbers 2-45 regarding legal insufficiency under the Due Process Clause of the 14th Amendment to

the United States Constitution, as required by Jackson v. Virginia.6 This Court granted an additional

ground, on its own motion, to decide whether the court of appeals erred in failing to distinguish

between a sufficiency review under Malik,7 an independent state-ground for review, and Jackson,

a federal constitutional review. Finding that the court of appeals did not err, we affirm the judgment

of the court of appeals.

                                                         Facts

         Luis Carlos Mares (“Huicho”) and Rick Velasquez, both members of the Mexican Mafia,

went to the home of Reynaldo Saenz on October 22, 2003, in order to rob him. Saenz was storing

3,000 pounds of marijuana in his house for an acquaintance in Mexico. The victim, Ann Marie

Garcia, was partying at Saenz’s house when Saenz heard car doors slamming outside between 11:30

p.m. and midnight. Saenz went outside to see who had arrived, when he encountered two men

wearing ski masks and holding guns. One of the men pointed a gun at Saenz’s head and led him

inside the house. Inside, one of the gunmen pointed his gun at the victim and motioned for her to



         5
             Appellant’s issues numbers 2-4 in the court of appeals were: (2) legally insufficient evidence exists under
the Due Process Clause of the 14th Amendment of the United States Constitution to support the guilty jury verdict;
(3) The Due Process Clause of the 14th Amendment of the United States Constitution prohibits this court from using,
in its sufficiency review, the standard set out in Tex. Penal Code § 7.02 because its statutory standard is absent from
the jury charge that purportedly authorized conviction; (4) The Due Process Clause of the 14th Amendment of the
United States Constitution prohibits this court from using in its sufficiency review the standard set out in Tex. Penal
Code § 19.02(b)(3) because its statutory standard is absent from the jury charge that purportedly authorized
conviction.
            While appellant cites the Texas felony-murder statute in his argument number four in the court of appeals,
appellant was indicted and convicted under the felony-capital-murder statute, Tex. Penal Code § 19.03(a)(2).
         6
             Jackson v. Virginia, 443 U.S. 307 (1979).

         7
             Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997).
                                                                                                                      4

get up. She looked scared and complied with the gunman. The men bound Saenz’s feet, hands, and

mouth with duct tape, put him on the kitchen floor, kicked him, and asked him where he was storing

the marijuana.8 One of the men stayed with Saenz in the kitchen while the other followed the victim

down the hall to where the marijuana was stored. Saenz did not see the victim again, but she was

not there after the men left and she left several personal items at his home. Before leaving, one of

the gunmen took off his ski mask and pointed an automatic pistol at Saenz’s head.

         In his written statement, appellant told Rafael Garza, an investigator at the Sheriff’s

Department of Hidalgo County, that on the morning of October 23, 2003, between 2:00 a.m. and

3:00 a.m., Huicho Mares called appellant and told him to go to Rick Velasquez’s house. Earlier in

the night of October 22, 2003, appellant had lent his Yukon truck to Mares, Velasquez, and a young

guy nicknamed “Cricket.” When appellant got to Velasquez’s house, Mares and Velasquez informed

him that they had stolen about 1,800 pounds of marijuana from a house in Starr County. They had

a girl with them, and Mares told appellant that they had to bring her with them because she

recognized him. Appellant stated that Velasquez gave him heroin and told him to inject it into the

girl so that she would die, but he only injected her with a little of it and injected the rest into himself.

He then got into the driver’s seat of the Yukon, Cricket got in the passenger seat, and Mares got into

the back seat with the girl, who was now unconscious. While he was driving, he saw Mares having

sex with the unconscious girl and then strangle her with something. Appellant could not see what

Mares was using to strangle her because he was driving.9 As appellant was driving by a canal


         8
             The chronological order of these actions is unclear in Saenz’s trial testimony.
         9
           This information is contained in appellant’s statement to the police and does not reveal how he was able to
see the sexual assault and strangulation. Appellant did not testify, so the trial record also fails to reveal how he was
able to see the sexual assault and strangulation.
                                                                                                      5

towards Mercedes, Mares told him to stop the vehicle. When he did, Mares threw the girl out of the

truck.

         The victim’s body was found in a remote area along a canal on the outskirts of Edcouch,

Texas, at around 10:53 a.m. on October 23, 2003. The victim was dead when found, was clothed

but without shoes, and had a shoelace tied tightly around her neck. A pair of light blue tennis shoes

was found a few yards away with the shoelace missing from one of the shoes. An autopsy conducted

later that evening by Dr. Fulgencio Salinas determined that the cause of death was asphyxia by

ligature strangulation and that the victim died within the previous 24 hours. Further, Dr. Salinas

determined that there was a significant amount of cocaine and heroin metabolites in the victim’s

body, but that these substances were not the cause of death.

                                              The Court of Appeals

         The court of appeals conducted a legal- and factual-sufficiency review of the evidence

presented at trial, measuring the evidence against the elements of the offense as defined by the

hypothetically correct jury charge.10 Based upon its review, the court of appeals held that the

evidence was legally insufficient to support appellant’s conviction as a primary actor in light of the

evidence that the cause of death was asphyxia by ligature strangulation and the lack of evidence that

appellant was the one that strangled the victim.11 However, the court of appeals found the evidence

legally sufficient to support appellant’s conviction under the law of parties.12 Additionally, the court

held that the independent evidence was sufficient to show the corpus delicti of both the murder and


         10
              Wooley, 273 S.W.3d at 267–68.

         11
              Adames, at *17.

         12
              Id. at *17–18.
                                                                                                              6

the underlying felony, and therefore, the evidence was factually sufficient to support the conviction.

        This Court subsequently held that there is no meaningful distinction between the legal-

sufficiency standard under Jackson v. Virginia,13 and the Clewis v. State14 factual-sufficiency

standard.15 Thus, the Jackson standard 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.”16 The court of appeals applied a Jackson

evidentiary-sufficiency review, so there is no need to remand this case for re-analysis under Brooks.

        Appellant contends that the court of appeals failed to distinguish between a sufficiency

review under Malik, an independent state-ground review, and Jackson, a federal constitutional

review, when it analyzed the hypothetically correct jury charge in its sufficiency review. Appellant

sought only a federal constitutional review and argues that, by using the Malik hypothetically correct

jury charge, the court of appeals did not review appellant’s claim of legal insufficiency. Instead,

appellant asserts, the correct federal due-process review requires the appellate court to measure the

sufficiency of the evidence against the jury charge as submitted to the jury. Had the court of appeals

used the erroneous jury charge submitted to the jury, it would have found the evidence legally

insufficient as submitted and ordered a judicial acquittal.

        Appellant is correct that the application paragraph in the jury charge submitted by the trial



        13
             Jackson, 443 U.S. 307.

        14
           Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996) (overruled by Brooks v. State, 323 S.W.3d 893
(Tex. Crim. App. 2010)).

        15
             Id. at 912.

        16
             Id.
                                                                                                       7

court was erroneous in its instruction regarding the law of parties as applied to the offense of capital

murder. As given, the charge allowed for appellant’s conviction as the primary actor of capital

murder, but allowed for appellant’s conviction as a party only to the underlying aggravated

kidnapping. The court of appeals recognized this error when it noted, “There is a due process rule,

. . ., prohibiting us from affirming a conviction under a theory that was not presented to the jury.”17

However, appellant conflates the jury charge error with the federal legal-sufficiency standard and

confuses sufficiency of the evidence, a due-process doctrine, with the due-process problem of notice

that was presented in McCormick v. United States,18 Dunn v. United States,19 and Cole v. Arkansas.20

The McCormick/Dunn/Cole rule applies only when a defendant is convicted on a charge that was

neither alleged in an indictment nor presented to the jury, as the defendant is then not given sufficient

notice as to the specific charge.21 “It is as much a violation of due process to send an accused to

prison following conviction of a charge on which he was never tried as it would be to convict him

upon a charge that was never made.”22 Here, appellant was given notice in the indictment that he

was charged with the offense of capital murder. The state presented evidence of that offense, and

the jury received instructions on that offense, albeit imperfect as applied to the facts of this case.




        17
             Adames, at *15.

        18
             500 U.S. 257 (1991).

        19
             442 U.S. 100 (1979).

        20
             333 U.S. 196 (1948) (citing De Jonge v. Oregon, 299 U.S. 353, 362 (1937)).

        21
             Dunn, 442 U.S. at 106.
        22
             Cole, 333 U.S. at 201.
                                                                                                     8

This is a case of jury-charge error distinct from an evidentiary insufficiency;23 appellant was

convicted on a theory, guilt as a party, that was not presented to the jury, as opposed to a charge for

which he was never tried.

                               Sufficiency of the Evidence Standard of Review

       In a federal due-process evidentiary-sufficiency review, we view all of the evidence in the

light most favorable to the verdict to determine whether any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.24 This standard recognizes the trier

of fact’s role as the sole judge of the weight and credibility of the evidence after drawing reasonable

inferences from the evidence.25 On review, this Court determines whether the necessary inferences

made by the trier of fact are reasonable, based upon the cumulative force of all of the evidence.26

We conduct this constitutional review by measuring the evidentiary sufficiency with “explicit

reference to the substantive elements of the criminal offense as defined by state law.”27 In Malik,

this Court set forth the state-law standard for ascertaining what those elements are: the elements of

the offense are to be defined by the hypothetically correct jury charge which, for that particular

case,28 “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase

the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately


       23
            See Wooley, at 269 n.13.

       24
            Jackson, at 319; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

       25
            Id.

       26
            Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007).

       27
            Jackson, at 324.

       28
            Malik, 953 S.W.2d at 240; Fuller v. State, 73 S.W.3d 250, 252 (Tex. Crim. App. 2002).
                                                                                                                       9

describes the particular offense for which the defendant was tried.”29

         Appellant argues that the Malik sufficiency standard is “a purely state law standard that is

foreign to federal constitutional norms”30 and does not apply to a constitutional evidentiary-

sufficiency review. Instead, appellant asserts, the correct Jackson review looks at the jury charge

submitted to determine if the evidence was legally sufficient to meet the elements of that charge.

For support, appellant points to Fuller, in which this Court clarified that “Gollihar’s31 standard of

measuring evidentiary sufficiency against the ‘elements of the offense as defined by the

hypothetically correct jury charge for the case’ is clearly not the same as the Jackson standard of

measuring evidentiary sufficiency against the ‘substantive elements of the criminal offense as

defined by state law.’”32 The two standards are different, and appellant misses the distinction

between them.

         Both the state and federal standards draw the elements of the offense, against which we

measure the sufficiency of the evidence, from the hypothetically correct jury charge for the case.

They diverge, however, in distinguishing between “substantive elements,” the only elements to be

used in a Jackson v. Virginia analysis, and Gollihar’s “elements of the offense as defined by the

hypothetically correct jury charge.” The hypothetically correct jury charge may include elements that



         29
              Malik, at 240.

         30
              Fuller, 73 S.W.3d at 252.

         31
            In Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim. App. 2001), this Court decided that, under Malik,
evidentiary sufficiency should be measured against the “elements of the offense as defined by the hypothetically
correct jury charge for the case,” but rejected Malik as a federal constitutional decision. Gollihar further rejected the
limitation that the “hypothetically correct jury charge” applied only in sufficiency analyses involving a jury-charge
error; rather, it controls all sufficiency of the evidence.

         32
              Fuller, at 252.
                                                                                                                     10

must be plead in the charging instrument under Texas procedural rules, such as the manner and

means of an offense,33 but which lie outside of the Texas Penal Code and are not “substantive

elements as defined by state law” for purposes of a Jackson review.

         In harmonizing Texas’s sufficiency-of-the-evidence standards with federal standards, this

Court overruled the Benson/Boozer line of cases, in which evidentiary sufficiency was to be

measured by the jury charge actually given.34 Malik and its progeny, Gollihar, Fuller, and Byrd,

made clear that an appellate court does apply the Jackson standard of review to the hypothetically

correct jury charge.35

                                                     Analysis

         The court of appeals applied the proper standard in conducting its evidentiary-sufficiency

review and correctly found that the evidence was legally insufficient to support appellant’s

conviction as a primary actor, but legally sufficient to support his conviction as a party.36 While the

parties theory was not plead in the indictment, both state and federal law specify that due process

does not require a defendant’s culpability as a party to the offense to be plead in the charging

instrument.37


         33
           See Rodriguez v. State, 18 S.W.3d 228, 232 (Tex. Crim. App. 2000) (indictment alleging intoxication
“by alcohol” precluded jury instruction authorizing conviction for alternative theory of intoxication by alternate
means of “alcohol, a drug, or a combination”).

         34
           Malik, at 239–240. See Boozer v. State, 717 S.W.2d 608 (Tex. Crim. App. 1984), overruled by Malik;
see also Benson v. State, 661 S.W.2d 708 (Tex. Crim. App. 1982) overruled by Malik.

         35
           Malik, at 240; see also Gollihar, 46 S.W.3d at 257; Fuller, at 252–253; Byrd v. State, 336 S.W.3d 242,
246 (Tex. Crim. App. 2011).

         36
              Adames, at *17–18.

         37
           TEX. PENAL CODE § 7.01(c); United States v. Osborne, 286 F. Supp. 2d 891, 902 (E.D. TN 2003) (citing
Standefer v. United States, 447 U.S. 10 (1980), and United States v. Dunne, 324 F.3d 1158 (11th Cir. 2003)).
                                                                                                   11

        Although the jury charge included a general instruction on the law of parties, it did not

properly apply the law to the elements of this specific capital-murder case: aggravated kidnapping

and murder. In Texas, a person is guilty of the offense of capital murder if “the person commits

murder as defined under Section 19.02(b)(1) and the person intentionally commits the murder in the

course of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual

assault, arson, obstruction or retaliation, or terroristic threat.”38 A person commits murder under

section 19.02(b)(1) when the person “intentionally or knowingly causes the death of an individual.”39

A person is 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 by both.”40 Finally, a person is criminally

responsible for the conduct of another if, “acting with the intent to promote or assist in the

commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person

to commit the offense . . ..”41

        Applying the law of parties to the felony capital-murder statute, with kidnapping as the

underlying felony, a person is criminally responsible as a party to the offense of capital murder if,

acting with the intent to promote or assist in the commission of that kidnapping by another person,

and that other person intentionally commits murder in the course of committing or attempting to

commit that kidnapping, the person solicits, encourages, directs, aids, or attempts to aid the other

person to commit the kidnapping and murder. The court of appeals applied the facts of this case to


        38
             TEX. PENAL CODE § 19.03(a)(2).

        39
             TEX. PENAL CODE § 19.02(b)(1).

        40
             TEX. PENAL CODE § 7.01(a).

        41
             TEX. PENAL CODE § 7.02(a)(2).
                                                                                                  12

this law and correctly ascertained the substantive elements of the offense as set out in the

hypothetically correct jury charge. The court of appeals then properly measured the evidence,

viewed in the light most favorable to the verdict, against these substantive elements—as is required

by Jackson.

       Based upon the evidence from appellant’s statement that Huicho Mares told appellant that

they had to bring the victim with them because she recognized Mares, and that Rick Velasquez told

appellant to inject the victim with heroin so that she would die, the court of appeals reasonably

concluded that appellant was aware of the aggravated kidnapping and intention to kill the victim.

Also from his statement, the court of appeals reasonably concluded that appellant, being aware of

the ongoing kidnapping and intent to murder, assisted in that kidnapping and capital murder by

driving the victim to a rural location where her body was thrown from the vehicle. In finding that

appellant’s statements were corroborated by independent evidence both as to the murder and

kidnapping of the victim, including the fact that the victim was scared before she left Saenz’s home,

that one of the gunmen pointed his gun at her, that she left personal items at Saenz’s home, the

discovery of the victim’s body, and the manner in which she died, the court of appeals correctly

found that

       a rational jury could have determined from the evidence as we have outlined it that,
       acting with the intent to promote or assist Luis Carlos Mares in the offense of Capital
       Murder, when Mares intentionally committed the murder in the course of committing
       the offense of aggravated kidnapping, Adames solicited, encouraged, directed, aided,
       or attempted to aid Mares to commit the two offenses of aggravated kidnapping and
       murder.42




       42
            Adames, at *18.
                                                                                                 13

                                           Conclusion

       We hold that the court of appeals did not fail to distinguish between sufficiency reviews

under Malik and Jackson. The court of appeals correctly applied the Jackson evidentiary-sufficiency

standard to the hypothetically correct jury charge and held that the evidence was legally sufficient

to support appellant’s conviction, thereby reviewing appellant’s claims 2-4.

       We affirm the judgment of the court of appeals and remand the cause to the trial court for

further proceedings.



Delivered: October 5, 2011
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