Brown v. Collins, 90-1475
| Decision Date | 02 August 1991 |
| Docket Number | No. 90-1475,90-1475 |
| Citation | 937 F.2d 175 |
| Parties | Junior BROWN, Petitioner-Appellant, v. James A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Mike Brown, Clifford W. Brown, Brown, Harding, Bass, Fargason & Rice, Lubbock, Tex., for petitioner-appellant.
Charles A. Palmer, Asst. Atty. Gen., Jim Mattox, Atty. Gen., Austin, Tex., for respondent-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before GOLDBERG, HIGGINBOTHAM, and JONES, Circuit Judges.
Under well settled principles of Texas criminal jurisprudence, evidence is insufficient as a matter of law if it does not conform to the jury charge given at trial. Where the jury is instructed that the defendant must be found guilty as a principal, but the evidence does not support that theory of culpability, the defendant is entitled to a judgment of acquittal even if the evidence is sufficient to convict the defendant as a party-accomplice. The issue presented in this habeas corpus petition is whether that nuance in Texas criminal jurisprudence is of constitutional caliber. We conclude that it is not, and therefore affirm the judgment of the district court denying the petition.
Appellant Junior Brown was charged with aggravated robbery in connection with an incident which took place on the morning of December 16, 1981. The indictment charged Brown with aggravated robbery alleging that Brown did:
intentionally and knowingly, acting by his own conduct and as a party with Tommy Glynn McLoud and Wesley Thomas Patterson, while in the course of committing theft of property and with intent to obtain and maintain control of said property, threaten and place Fannie Price Evans in fear of imminent bodily injury and death, and JUNIOR BROWN did then and there use and exhibit a deadly weapon, to-wit: A firearm.
See Tex.Penal Code Ann. Sec. 29.03 (Vernon 1989) (aggravated robbery). The facts underlying the charge, as elicited at trial, are set forth in great detail in the opinion of the Texas Court of Criminal Appeals, and are not in dispute:
[Accomplice witness Tommy Glynn] McLoud testified that he, Wesley Patterson, and appellant met in Weatherford on December 15, 1981, and planned a robbery to take place the following morning. Appellant drove the two men by the victims' residence in a pickup truck that evening, and Patterson was instructed to return to cut the telephone line leading to the residence. The next morning appellant drove McLoud and Patterson back to the area, and after viewing the intended target again, dropped them off "about a block up the street" from the victims' residence. McLoud and Patterson were bearded and wore blue stocking caps, or "toboggans," and appellant was clean shaven. At approximately 9:00 a.m., under a pretext of buying jewelry, McLoud and Patterson entered the residence and robbed the 84-year-old complainant and her 93-year-old husband at gunpoint of cash, jewelry, a coin collection, and other items. The couple was placed in a closet while the residence was ransacked. McLoud looked out of the living room window periodically to make sure appellant was in the vicinity, and saw appellant parked at the nearby Cherry Park. Approximately 45 minutes after they had entered the house, McLoud lost sight of appellant and he and Patterson decided to leave the residence to look for him. They failed to find appellant after walking around the neighborhood and decided to split up. McLoud walked back to Cherry Park, saw a police car, and fled into a nearby residence where he was apprehended. The complainant testified that two men entered her home on December 16, and robbed her at gunpoint. After the robbers left, she attempted to call the police but the phone line had been cut.
Brown v. State, 672 S.W.2d 487, 488-89 (Tex.Crim.App.1984). Critically, it is undisputed that Brown himself never used or exhibited a firearm in the course of the robbery; his role in the criminal plan was limited to serving as the get-away driver. Thus, notwithstanding the fact that Brown did not "then and there use and exhibit a deadly weapon," the indictment charged that he did.
At trial, however, the government proceeded on a theory of party-accomplice liability. The government stressed to the jury that although Brown himself did not go into the Evans' home wielding a firearm, he was nevertheless as guilty as his compadres who did:
Ladies and gentlemen, Junior Brown is a smart man. He is a "wheel man." He didn't go into that house. He put as much distance between that house and what was going on as he could....
Thank God for the rule about parties. That's all I can say. He's just as guilty if he went in there and pulled that robbery, just like I told you in voir dire; and you said that you agreed with that principal [sic] and could follow it.
Unfortunately, the court's instructions to the jury were not as clear and articulate as the prosecutor's closing remarks. Rather than tailor the "application paragraphs" 1 of the instructions to the prosecution's "party" theory, the court, without objection from the State, crafted an instruction which tracked the language of the indictment:
Now if you find from the evidence beyond a reasonable doubt that on or about the 16th day of December, 1981, in Parker County, Texas, the Defendant, Junior Brown, did then and there intentionally or knowingly, acting by his own conduct or as a party with Tommy Glynn McLoud and Wesley Thomas Patterson, while in the course of committing theft of property and with intent to obtain and maintain control of said property threaten and place Fannie Price Evans in fear of imminent bodily injury or death, and JUNIOR BROWN did then and there use and exhibit a deadly weapon, to-wit: a firearm, then you will find the Defendant guilty of Aggravated Robbery, as charged in the indictment.
Unless you find that each and every element of the offense charged as set out in the immediately preceding paragraph has been proved beyond a reasonable doubt, or if you have a reasonable doubt of any element thereof, you will acquit the Defendant of the offense of aggravated robbery and proceed to consider whether or not the Defendant is guilty of the offense of Burglary of a Habitation.
In addition, the court instructed the jury about the law of parties: 2
Each party to an offense may be charged with 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, aids, or attempts to aid the other person to commit the offense. Mere presence alone will not constitute one a party to the crime.
See Tex.Penal Code Ann. Secs. 7.01, 7.02 (Vernon 1989). The jury found Brown guilty of aggravated battery, and the court sentenced him to life imprisonment based on his prior criminal record.
On direct appeal, Brown's conviction was affirmed both by the Court of Appeals for the Second Supreme Judicial District, Brown v. State, 659 S.W.2d 499 (Tex.Ct.App.1983), and by the Texas Court of Criminal Appeals, Brown v. State, 672 S.W.2d 487 (Tex.Crim.App.1984). In neither appeal did Brown vigorously press the argument he now raises: that he was entitled to a judgment of acquittal because the evidence was insufficient to convict him as a principal of the offense of aggravated battery as charged in the court's instructions. He did raise, however, a challenge to the sufficiency of the evidence of the aggravated robbery charge. 3
Brown then sought collateral relief in state court raising the argument he is pursuing in this court. The 43rd Judicial District Court of Parker County, Texas "proceeded to consider said petition" and recommended that Brown's petition for a writ of habeas corpus be denied:
[a]fter having reviewed the pleadings and instruments on file ... the Court is of the opinion and does hereby find there are no controverted, previously unresolved issues of fact material to the legality of the Petitioner's conviction and therefore recommends that the relief requested in said petition be denied.
The Texas Court of Criminal Appeals denied Brown's application without written order.
Thereafter, Brown filed the instant action in the United States District Court for the Northern District of Texas. Upon the written recommendations of the United States Magistrate Judge, see 28 U.S.C. Sec. 636(b), the court denied Brown's petition for writ of habeas corpus, and later denied Brown's motion for new trial. On appeal to this court, Brown challenges the sufficiency of the evidence presented at trial on the charge of aggravated robbery.
The State contends that Brown's sufficiency claim is procedurally barred because he did not raise it on direct appeal, and therefore, his protestations should fall on deaf ears. Under Texas law, sufficiency of the evidence claims not raised on direct appeal are procedurally defaulted; they may not be raised in state collateral proceedings. Clark v. Texas, 788 F.2d 309, 310 (5th Cir.1986); Ex parte McWilliams, 634 S.W.2d 815, 818 (Tex.Crim.App.1980), cert. denied, 459 U.S. 1036, 103 S.Ct. 447, 74 L.Ed.2d 602 (1982).
We are not persuaded in the first instance that Brown failed to raise his federal sufficiency claim on direct appeal and thereby waived it. The mainstay of Brown's direct appeal was a challenge to the sufficiency of the evidence to sustain his conviction for aggravated robbery. He argued that the evidence independent of the accomplice-witness testimony was insufficient--that the State failed to carry its burden of proof because it "proved only that...
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