IN THE COURT OF CRIMINAL APPEALS

OF TEXAS



NO. 1994-99

ZERICK MARVIS, Appellant


v.


THE STATE OF TEXAS



ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FOURTEENTH COURT OF APPEALS

HARRIS COUNTY


Johnson, J., delivered the opinion of the Court, in which Keller, P.J., and Meyers, Holland, Womack, Keasler, Hervey and Holcomb, JJ., joined. Price, J., filed an opinion concurring in the judgment, in which Womack, J., joined as to part I.



O P I N I O N



Appellant was convicted of murder pursuant to Tex. Pen. Code 19.02(b)(1). The jury found two enhancement paragraphs to be true and assessed punishment at seventy-five years confinement.

A panel of the court of appeals held that the evidence was legally insufficient to support appellant's conviction of murder as a principal, (1) but that the evidence was both legally and factually sufficient to support appellant's conviction of murder as a party. Marvis v. State, 3 S.W.3d 68, 70-6 (Tex. App.--Houston [14th Dist.] 1999). However, it reversed and remanded for a new trial on murder under the law of parties, on the basis of jury-charge error.

We granted the state's petition for discretionary review to determine whether: (1) the court of appeals misapplied the law on concurrent causation in finding the state's evidence legally insufficient to establish the appellant's guilt as a principal; (2) a majority of the justices of the court of appeals wrongly held that unobjected-to error in the jury charge constituted reversible error. We reverse and remand.

According to the evidence adduced at trial, appellant heard a knock on his door while at home one night. He answered the door and saw Jerome Dickey and Carlton Brown standing in the hall. Appellant went back into his apartment, put on a bulletproof vest, got a gun, and returned to the hall. Thereafter, an argument took place among the three men. According to appellant, Dickey shot Brown in the head as Brown started to reach for his pistol. Appellant claimed that he then fired his gun in self defense. Four of appellant's bullets hit Brown, and a shot aimed at Dickey misfired. Brown suffered a total of ten gunshot wounds, six from Dickey and four from appellant. Appellant sustained a gunshot wound in his lower leg. Physical evidence indicated that Dickey and appellant struggled after the gun fight.

In its decision, a majority of the court of appeals held, inter alia, that there was reversible jury-charge error. It found that the charge instructed the jury on the law of parties in the abstract portion, but made no reference to the law of parties in the application portion. Marvis, 3 S.W.3d at 75. Instead, the application paragraph authorized the jury to convict appellant if it found beyond a reasonable doubt that appellant "either acting alone or together with Jerome Dickey, on or about the fourth day of April, 1995, did then and there unlawfully, intentionally or knowingly cause the death of Carlton Brown . . . ." Id. at 72-3. The court noted that acting as a party requires more than just an appearance of acting together and held that the charge in the instant case allowed a conviction based on the mere appearance that appellant and Dickey were acting together. Id. at 73. Thus, it reasoned, this error lowered the state's burden of proof because it allowed the jury to convict appellant as a party without requiring the state to prove the mens rea element. Id. at 73, 76. Based on this error, it concluded that the charge authorized conviction only as a principal. Id. at 76.

Because this error was not objected to at trial, the court conducted an "egregious harm" analysis pursuant to Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) (op. on reh'g). Marvis, 3 S.W.3d at 76. It concluded that the charge error could have allowed appellant to be convicted even while acting in self-defense so long as his self-defense action, combined with Dickey's deadly force, effectuated the death. Id. Thus, the court held that the charge error resulted in egregious harm. Id.

As the court of appeals noted, the application paragraph of the jury charge authorized the jury to convict appellant if it found beyond a reasonable doubt that appellant "either acting alone or together with Jerome Dickey, on or about the 4th day of April, 1995, did then and there unlawfully, intentionally or knowingly cause the death of Carlton Brown by shooting Carlton Brown with a deadly weapon, namely, a firearm," or that appellant "either acting alone or together with Jerome Dickey, on or about the 4th day of April, 1995, did then and there unlawfully intend to cause serious bodily injury to Carlton Brown, and did cause the death of Carlton Brown by intentionally or knowingly committing an act clearly dangerous to human life, namely, by shooting Carlton Brown with a deadly weapon, namely, a firearm . . . ." However, by focusing on this portion of the jury charge, the court of appeals removed it from its context. As we have stated,

the actual degree of harm [concerning jury charge error] must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.



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

In the charge, immediately before the application portion, the jury was instructed that:

All persons are parties to an offense who are proven beyond a reasonable doubt to be guilty of acting together in the 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 by both.



A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other to commit the offense. Mere presence alone will not constitute one a party to an offense.



Thus, the use of the phrase "acting together" in the application portion of the charge is a reference to the abstract portion, which equates "acting together" with "party." "Party" is defined in terms of the definition of "criminal responsibility," which is defined by tracking the statutory language set out in Tex. Pen. Code 7.02(a)(2). As such, the jury charge connected "acting together" with the complete definition of "criminal responsibility," including the requisite culpable mental state. The charge did not relieve the state from proving the mens rea element necessary to be convicted as a party or authorize the jury to convict appellant only as a principal. Therefore, we cannot say that the charge resulted in egregious harm to appellant. The state's second ground for review is sustained. (2)

The judgment of the court of appeals is reversed, and the cause is remanded for consideration of appellant's remaining point of error.

Johnson, J.







Date Delivered: January 31, 2001

En Banc

Publish

1. Appellant also claimed that the evidence was factually insufficient to support his conviction as a principal. Having found the evidence legally insufficient to support the conviction, the court of appeals stated that it was unnecessary to address appellant's factual sufficiency challenge. Marvis, 3 S.W.3d at 70 n.1. However, the court of appeals also stated that it found the evidence both legally and factually insufficient to support appellant's conviction as a principal. Id. at 76.

2. Due to our disposition on this ground, we find it unnecessary to review the state's remaining ground. Therefore, that ground is dismissed.