KELLER, J., delivered a dissenting opinion.
In Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997), we held that sufficiency of the evidence would be measured "by the elements of the offense as defined by the hypothetically correct jury charge for the case." Id. at 240. We further explained:
Such a charge would be one that 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 describes the
particular offense for which the defendant was tried.
Id. The question presented is whether the record contains sufficient evidence of a theory of the crime that is "authorized by the indictment." The indictment in this case read as follows:
William Edward Planter...on or about December 22, 1994, did then and there
unlawfully with intent that a capital felony be committed, namely Capital
Murder...requested, commanded and attempted to induce Lex Bacquer to engage in
specific conduct, namely, to kill Bob Fratt[a], and that under the circumstances
surrounding Lex Baquer's conduct as the Defendant believed them to be, would
constitute Capital Murder or make Lex Baquer a party to its commission.
The law of parties need not be contained in the indictment. Malik, 953 S.W.2d at 234. The result is that a defendant may be convicted as a party even though a literal reading of the indictment would require a showing that the defendant committed the crime as the primary actor. For example, a murder indictment reading "Planter did then and there kill Fratta" would authorize conviction even if the evidence did not show that Planter personally killed Fratta but showed instead that Planter encouraged someone else to kill Fratta (and that other person did in fact kill Fratta). By law, then, an indictment authorizes conviction on the law of parties even though the indictment's wording indicates that the defendant personally committed the criminal acts alleged. See Texas Penal Code 7.01(c).
But the present case does not involve the application of the law of parties to the defendant. Instead, the crucial question for sufficiency purposes is whether the law of parties can be applied to a third person named in the indictment, i.e. Lex Bacquer. Because personally killing Fratta would make Baquer a primary actor, the phrase "or make Lex Baquer a party to its commission,"(1) would be deprived of any meaning unless the law of parties were in fact applied to Bacquer's (anticipated) conduct. Under this interpretation, the indictment authorized a conviction on at least two theories: (1) that Planter requested, commanded, or attempted to induce Baquer to cause Fratta's death by personally killing him, and (2) that Planter requested, commanded, or attempted to induce Baquer to cause Fratta's death by becoming a party to Fratta's killing. There is no question that the evidence in this case is sufficient to support a conviction under the second theory. I would affirm.
I respectfully dissent.
DATE DELIVERED: December 15, 1999
1. In including the parties language, the indictment tracked the language of the solicitation
A person commits an offense if, with intent that a capital felony or felony of the
first degree be committed, he requests, commands, or attempts to induce another
to engage in specific conduct that, under the circumstances surrounding his
conduct as the actor believes them to be, would constitute the felony or make the
other a party to its commission.
Texas Penal Code 15.03.