             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                        NOS. PD-1283-12, PD-1582-12, PD-1583-12



                ANDRES NAVA and XIOMARA MENDEZ, Appellants

                                                v.

                                  THE STATE OF TEXAS

           ON APPELLANTS’ PETITION FOR DISCRETIONARY REVIEW
                FROM THE FOURTEENTH COURT OF APPEALS
                            HARRIS COUNTY

       C OCHRAN, J., filed a concurring opinion in which A LCALA, J., joined.

       I join Part II (“Jury Selection–Missing Record”) of the majority opinion, and I concur

in the judgment. I agree that any erroneous “intent to promote or assist” parties instruction

given in this case did not cause appellants egregious harm. I cannot, however, agree with all

of the majority’s reasoning in Part I because I think that the jury charge should have said that

the appellants acted with the “intent to promote or assist the commission of the offense of

murder,” not “felony murder.”1 There is no such thing as an intent to commit felony murder.


       1
         See Majority op. at 12 (stating that the jury instruction “required the State to show that
appellants intended to promote or assist the commission of felony murder before convicting of felony
                                                  Nava & Mendez    Concurring Opinion     Page 2

        As a general proposition, when the charged offense is felony murder, the only theory

of party liability that should be submitted for accomplices is that of conspiracy liability under

Section 7.02(b). Normally, the “intent to promote or assist” theory of party liability under

Section 7.02(a)(2) does not apply to an unintentional killing under the felony-murder rule.

It is most unusual (though not impossible) for an accomplice to the offense of felony murder

to intend to promote or assist in the commission of murder while the person who actually

does the killing does not intend to commit a murder. In such a case, the State must prove that

the accomplice has a greater mens rea than the actual killer who just intended to commit a

felony, such as theft, and then, during that theft, committed an act clearly dangerous to

human life that did cause a death.

       This is the unusual case in which the jury could have found that one of the

accomplices, Andres Nava, intended for the shooter, Roberto Carrillo, to kill the undercover

officer when he shouted, “¡Tírale!” (“Shoot him!”) even though the State was not required

to prove that Carrillo himself intended to cause the undercover officer’s death. Although

there is no evidence that would support a finding that the other accomplice, Xiomara

Mendez, intended that Carrillo kill the undercover officer, I agree that she, like Nava, did not

suffer egregious harm by the ambiguous wording of the jury instructions concerning party

liability under Section 7.02(a)(2).

       The present problem was anticipated and resolved by the drafters of the 1970



murder under this theory of party liability.”).
                                                    Nava & Mendez     Concurring Opinion      Page 3

Proposed Revision to the Texas Penal Code. As a part of Section 19.02, our murder statute,

the drafters proposed a subsection (4) that explicitly addressed party liability in the context

of felony murder. That provision read as follows:

       (4)     he is a party to a felony and another party to the felony commits murder
               as defined in Subdivision (3) [felony murder], and the actor:

               (A)     solicits, directs, aids or attempts to aid the homicidal act; or
               (B)     is armed with a deadly weapon; or
               (C)     is reckless with regard to whether the other party is armed with a deadly
                       weapon; or
               (D)     is reckless with regard to whether the other party intends to commit an
                       act clearly dangerous to human life.2

The Committee Comment to this Section (4) noted that this was “a special theory of

complicity” by which one felon may be held responsible for his cohort’s unintended felony

murder, because “[t]he general complicity test, Section 7.02, would not impose responsibility

on the nonperpetrating felon unless he acted with intent to promote or assist the killing.” 3

The Committee thought that the four different actions (aiding in the homicidal act, being


       2
         STATE BAR COMMITTEE        ON   REVISION   OF THE   PENAL CODE , PROPOSED PENAL CODE §
19.02(4), at 146 (1970).
       3
          Id. Committee Comment to Section 19.02, at 148. Proposed Section 7.02 (“Criminal
Responsibility for Conduct of Another”) contained substantially the same subsection (a) as it does
today, but subsection (b) read, “A coconspirator is not a party to an offense committed by the
conduct of another unless he is criminally responsible for the offense under Subsection (a).” The
Committee stated that it included Subsection (b) “to distinguish clearly between complicity as a basis
of criminal responsibility and the inchoate offense of criminal conspiracy.” Committee Comment
to Section 7.02, at 51. The Committee acknowledged that then-present Texas law was that a co-
conspirator was liable for any reasonably foreseeable offense committed by his coconspirators which
“follows incidentally in the execution of the common design[.]” Id. The Committee disapproved of
such far-reaching liability and intended to eliminate it in the Proposed Penal Code. But it did note
that “[a] cofelon’s criminal responsibility for felony murder is specially dealt with in the murder
section, 19.02, and explained in the comment to that section.” Id. at 52.
                                                  Nava & Mendez       Concurring Opinion       Page 4

reckless about the possibility of a death occurring, being armed with a weapon, or being

reckless about the killer having a deadly weapon) justified the cofelon’s vicarious liability

“because of the great danger accompanying most violent felony commissions and the absence

of social utility in this type of conduct.” 4

       However, when the revised Penal Code was actually enacted in 1974, the special

cofelon criminal responsibility provisions for felony murder in 19.02(4) were simplified and

turned into a general conspiratorial liability theory in Section 7.02(b).              The Practice

Commentary to the 1974 Code explained that its drafters had restored the

       constructive malice doctrine to punish more severely a homicide growing out
       of a conspiracy to commit any felony. Section 7.02(b) [an entirely different
       provision than that proposed in the 1970 Code] makes cofelons vicariously
       responsible for all felonies committed by any one of them, so long as the
       felony actually committed was committed in furtherance of the object felony,
       if the felony actually committed was one that should have been anticipated as
       a result of committing the object felony.5

The 1974 Code painted the conspiracy concept with a broad brush and took the type of

vicarious responsibility that once applied only to felony-murder cofelons and applied it to the

unintended commission of any felony.6 The Practice Commentary to Section 7.02 took a dim

       4
         Id. Committee Comment to Section 19.02, at 149. The Committee stated that the then-
current Texas law upheld murder convictions in these circumstances “on a theory of complicity to
the effect that all parties to a felony are responsible for conduct that was or ought to have been
foreseen by the parties as a probable consequence of the intended felony.” Id. (emphasis in original).
But, the Committee noted that this former law, a simple negligence standard for vicarious liability,
was rejected both in the complicity statute of Section 7.02 and in the felony-murder context as well.
Id.
       5
           TEX . PENAL CODE § 19.02, Practice Commentary at 10 (Vernon’s 1974).
       6
           Id.
                                                  Nava & Mendez       Concurring Opinion       Page 5

view of subsection (b) which “codifies a vicarious responsibility doctrine of the common law

that is foreign to a major objective of this code: the requirement of individual culpability as

a prerequisite to imposition of criminal responsibility.”7          But that is the law that the

Legislature adopted and it has not been amended since.

       Thus, by charging the jury with both theories of criminal responsibility for Carrillo’s

act of shooting and killing Officer Canales, the State took on the burden of proving either

       (1)      appellants, Nava and Mendez, intended “to promote or assist the commission
                of the offense of murder” . . . and they solicited, encouraged, directed, aided,
                or attempted to aid “Roberto Carrillo to commit the offense of murder”; or

       (2)      appellants, Nava and Mendez, along with Roberto Carrillo, “entered into an
                agreement to commit felony theft,” . . . and “while in the course of committing
                such theft, Roberto Carrillo committed an act clearly dangerous to human life
                that caused the death of” Officer Canales, and that the [act]8 causing Officer
                Canales’s death was committed in furtherance of the conspiracy and was an
                [act] that [appellants] should have anticipated as a result of the conspiracy.”

Under the first prong, the State was required to prove that appellants had the intent to have

Carrillo commit the offense of murder and that they assisted him to commit the offense of

murder, even though appellants were not charged with murder, only felony-murder.

       Appellants are correct that the jury charge is ambiguous because the “intent to

promote” party liability application instruction simply says that the jury must find that each


       7
           Id. § 7.02, Practice Commentary at 135-36.
       8
           The jury charge actually reads “and that the murder of H. Canales was committed in
furtherance of the conspiracy and was an offense that the defendant should have anticipated as a
result of the conspiracy[,]” when it should have read “and that the act [or the clearly dangerous act]
that caused the death of H. Canales was committed in furtherance of the conspiracy and was an act
that the defendant should have anticipated as a result of the conspiracy.”
                                                Nava & Mendez      Concurring Opinion     Page 6

appellant intended to assist the commission of “the offense, if any” and that they solicited,

encouraged, directed, aided or attempted to aid Roberto Carrillo to commit “the offense”

without specifying what offense the instruction was referring to. But, precisely for the

reasons given by the majority, I agree that this instruction, though ambiguous on its face, did

not cause appellants egregious harm under Almanza.9

Filed: December 18, 2013
Publish




       9
           Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g).
