NO. 1994-99







Price, J., filed a concurring opinion in which Womack, J., joined as to part I.

I concur because I disagree with the majority's resolution of the State's grounds for review. I would address the State's first ground for review and hold that the Court of Appeals's erred when it decided that the evidence was legally insufficient to support finding the appellant guilty as a principal.


I would hold that the Court of Appeals erred in holding the evidence legally insufficient to support the appellant's guilt as a principal because wounds caused by the appellant's conduct were not clearly insufficient to cause the death of the victim.

When conducting a legal sufficiency review, we review all the evidence in the light most favorable to the jury's verdict. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The trier of fact is the exclusive judge of credibility and the weight to be given to testimony at trial. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). The resolution of conflicts in evidence is properly made by the jury. Id.

Penal Code section 6.04(a) provides the relevant requirements for proving causation. "A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient." We explained the statute in Robbins v. State, 717 S.W.2d 348, 351 (Tex. Crim. App. 1986):

If concurrent causes are present, two possible combinations exist to satisfy the "but for" requirement: (1) the defendant's conduct may be sufficient by itself to have caused the harm, regardless of the existence of a concurrent cause; or (2) the defendant's conduct and the other cause together may be sufficient to have caused the harm.

Id. Although I agree that the result of Dickey's conduct was sufficient to cause the victim's death, I do not agree that the result of the appellant's conduct was clearly insufficient.

The evidence at trial showed that the appellant and Dickey used two weapons of different calibers. Therefore, Dr. Tommie J. Brown, the assistant medical examiner who performed the autopsy, was able to distinguish the wounds caused by the appellant's weapon and the wounds caused by Dickey's weapon. Dr. Brown testified that the four wounds from the appellant's weapon would have been fatal unless the victim received immediate medical attention. He testified that three of the injuries caused by Dickey were almost instantly fatal. One of the injuries by Dickey, a shot to the victim's head, would have caused death in fifteen to thirty seconds.

The Court of Appeals held that the evidence was legally insufficient to support the appellant's guilt as a principal because the victim would not have died from the wounds caused by the appellant before dying from the wounds caused by Dickey. The Court said that the issue was "whether or not Dr. Brown's testimony provides some evidence beyond a reasonable doubt that appellant's gunshot wounds to complainant's abdominal region caused complainant's death before the other assailant's gunshot wounds to complainant's head." The Court distinguished Umoja v. State, 965 S.W.2d 3, 5 (Tex. App.--Fort Worth 1997, no pet.), in which more than one defendant beat the victim to death. The medical examiner could not say which blows to the victim caused his death. Id. at 9. In that case, no proof existed to show that the appellant's blows were clearly sufficient and other blows clearly insufficient. Id.

The Court explained that, in the instant case, the victim would have died regardless of the appellant's conduct. I agree that Dickey's conduct was sufficient to cause the result in less than one minute. But the Court goes on to say that the appellant's shots were clearly insufficient to have caused the victim's death within the relevant time. The statute contains no temporal requirement, and I would not read one into the statute. I would reverse the Court of Appeals's holding that the evidence was legally insufficient to find the appellant guilty as a principal.


Because of the way that I would resolve the State's first ground for review, I would not address the second ground for review. See Brown v. State, 716 S.W.2d 939, 945-46 (Tex. Crim. App. 1986) (holding that any error in charging on the law of parties is harmless if the evidence clearly supports appellant's guilt as a primary actor). Because I disagree with parts of the majority's opinion, I will address my concerns.

The appellant did not object to the absence of the language in the application paragraph. Therefore, the error must be analyzed under the egregious harm standard of Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). Egregious harm exists when the defendant is denied a fair and impartial trial. To determine whether egregious harm exists, the reviewing court must look at "the entire jury charge, the state of the evidence, including 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." Id.

In further explanation, the Almanza Court said:

But in determining whether the error is material . . . we are to look to the whole record bearing upon the subject. What was the nature of the testimony supporting the verdict? Was it cogent and overwhelming? What was the character of the testimony presenting the phase or theory of the case omitted to be noticed in the charge, and upon which omission error is assigned? Was it at all reasonable? Did it present a theory which a reasonable mind could entertain, or was it supported by such testimony as was remotely calculated to destroy the State's case when considered in connection with the other testimony in the case, as well as the charge as a whole? Was the phase of the case simply an addition to the case as made by the State and consistent therewith, or was it in direct conflict with the State's theory? These are all important matters to be considered in passing upon the [degree of harm] in the omission or error. . . .

Id. at 173-74 (citing Davis v. State, 28 Tex. Ct. App.542, 13 S.W. 994, 995 (1890)).

In Chatman v. State, 846 S.W.2d 329 (Tex. Crim. App. 1993), we said that the language "either acting alone or as a party as that term has been defined" was sufficient to incorporate the entire instruction on parties from the abstract portion of the charge. In Chatman the application portion of the charge included: "acting alone or as a party, as that term has been defined." Id. at 332. The language from the Chatman charge tells the jury to look for the definition elsewhere in the charge.

In this case, the abstract portion of the jury charge language included instructions on party liability:

All persons are parties to an offense who are proven beyond a reasonable doubt to be guilty of acting together in the commission of an 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 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 person to commit the offense. Mere presence alone will not constitute one a party to an offense.

Cl. R. at 21-22.

The application paragraph included the following language:

Now, if you find from the evidence beyond a reasonable doubt that, in Harris County, Texas Zerick Marvis, the defendant, 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 . . . .

Cl. R. at 22 (emphasis added).

The majority holds that the words "acting together with" were sufficient to incorporate the parties charge into the application portion of the jury's charge in this case, and thus, the appellant did not suffer egregious harm. I would distinguish this case from Chatman. In this case there was no reference to the what the trial court meant by "acting together with."

"Together" is a word that, in common usage, has many meanings. It can mean spatial or temporal closeness, see Webster's II New College Dictionary1158 (1999), or it can mean "in union with." Black's Law Dictionary 1658 (rev. 4th ed. 1968). A usage note on the meaning of "together with" explains that it means "in addition to." (1) There are many different meanings that the jury could take from the use of the word together.

The application portion of the charge with the definition of "together with" included would say: "either acting alone or in addition to 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 . . ." This may or may not convey the meaning of a party and the legal elements that the jury must find. It weighs in favor of the State that the abstract portion of the charge that describes party liability is directly above the application portion, but the majority does not discuss this as a factor.

The majority cites Almanza, but addresses only the language of the instruction in the context of the entire charge. The other factors that should be addressed include the state of the evidence, contested issues, argument of counsel, any other relevant information provided by the record. Almanza, 686 S.W.2d at 171. The majority reverses the judgment of the Court of Appeals for failing to conduct a complete analysis and then fails to take all of the factors into consideration in its own analysis.

I would vacate the judgment of the Court of Appeals and remand to the Court of Appeals for a factual sufficiency analysis.

Delivered: January 31, 2001


1. -together with. in addition to. usage: Together with, sometimes follows the subject of a sentence or clause to introduce an additional element. In such a circumstance, however, the number of the verb is governed only by the subject and does not change. Therefore it is correct to write The ambassador (sigular), together with two aides, is (singular)going to attend the conference. The same principle applies to the use of expressions such as along with, as well as, besides, in addition to, and plus: Common sense as well as tact is necessary for the job.

Webster's II New College Dictionary1158-59 (1999).