Anderson v. State

• Decision Date: 29 January 2014
• Docket Number: No. PD–0408–12.,PD–0408–12.
• Citation: 416 S.W.3d 884
• Parties: Rodney Young ANDERSON, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

416 S.W.3d 884

Rodney Young ANDERSON, Appellant

v.The STATE of Texas.

No. PD–0408–12.

Court of Criminal Appeals of Texas.

Nov. 27, 2013.

Rehearing Denied Jan. 29, 2014.

Cynthia E. Orr, Attorney at Law, San Antonio, TX, for Appellant.

William J. Delmore III, Assistant District Attorney, Conroe, TX, Lisa C. McMinn, State's Attorney, Austin, TX, for the State.

OPINION

MEYERS, J., delivered the opinion for a unanimous Court.

Appellant, Rodney Anderson, was charged with possession of methamphetamine with intent to deliver, over four grams but less than 200 grams, and aggravated assault of a public servant.¹ The jury found him guilty, and he was sentenced to 40 years' imprisonment in the Texas Department of Criminal Justice—Correctional Institution Division for the possession offense, and life imprisonment for the aggravated assault. Appellant appealed, asserting that the evidence was legally insufficient to support his conviction of aggravated assault of a public servant. The court of appeals held that a rational jury could find that Appellant was guilty of aggravated assault of a public servant under the conspiracy theory of party liability. Anderson v. State, No. 09–10–00061–CR, 2011 WL 6743297, 2011 Tex.App. LEXIS 10038 (Tex.App.-Beaumont December 21, 2011) (not designated for publication). Appellant filed a petition for discretionary review, which we granted to consider whether the court of appeals erred in holding that the evidence was legally sufficient to support Appellant's conviction for aggravated assault under the law of parties in Texas Penal Code Section 7.02(b). We hold that the evidence is sufficient to support Appellant's conviction for the aggravated assault charge under the conspiracy theory of the law of parties. We will affirm the judgment of the court of appeals.

FACTS

Appellant and Timothy Sherber had sold methamphetamine to Jeffery Harmon on numerous occasions. Harmon, who was acting as a paid confidential informant for the Texas Department of Public Safety, arranged to meet Appellant and Sherber in a parking lot to purchase methamphetamine. Appellant and Sherber arrived at the arranged location in Sherber's truck, and Harmon approached Appellant, who was sitting on the passenger side. When Appellant showed Harmon the drugs, Harmon removed his hat, which was a signal to the undercover officers waiting in the parking lot. On Harmon's signal, the undercover officers pulled their weapons, identified themselves as police, and yelled at Appellant and Sherber to get out of the vehicle. Instead, Sherber backed his truck out of the parking space before officers were able to block him in. One of the officers who approached Sherber's truck on foot struck the driver's side window with the barrel of his gun and repeatedly yelled at Sherber to stop.

As he attempted to flee, Sherber hit two unmarked patrol cars. One of the detectives fired his weapon several times, and Appellant suffered a gunshot wound to the chin. Sherber continued to drive forward and hit the side of a marked patrol car as he exited the parking lot. The officer driving the marked patrol car was injured in this collision. Another officer rammed the side of Sherber's truck to bring it to a stop, and Appellant and Sherber were arrested. Officers searched Sherber's truck and found a plastic bag containing methamphetamine on the passenger side of the floorboard. They also collected loose methamphetamine from inside Sherber's truck and on the ground outside the passenger door. Appellant was tried by a jury and found guilty of possession with intent to deliver four grams or more but less than 200 grams of methamphetamine and with aggravated assault on a public servant. He was sentenced to 40 years' imprisonment in the Texas Department of Criminal Justice—Correctional Institution Division for the possession charge, and life in prison for aggravated assault.

COURT OF APPEALS

Appellant appealed, contending that the evidence was legally insufficient to sustain his conviction of aggravated assault of a public servant. The court of appeals noted that the jury charge in this case authorized the jury to convict Appellant of aggravated assault if the jury determined beyond a reasonable doubt that 1) Appellant intended to promote or assist Sherber in the aggravated assault of the officer; or 2) the aggravated assault was committed by Sherber in furtherance of a conspiracy to commit the felony offense of possession with intent to distribute a controlled substance, and that Appellant should have anticipated that an aggravated assault of a public servant could result from the parties' carrying out their conspiracy. Anderson, 2011 WL 6743297 at *5–6, 2011 Tex.App. LEXIS 10038 at *15–16. The court of appeals evaluated whether Appellant's conviction could be affirmed under a conspiracy theory and determined that,

[b]ased on the evidence, it was reasonable for the jury to infer from the circumstances that Sherber committed the aggravated assault in furtherance of his conspiracy with Anderson to commit the felony offense of possession with intent to deliver a controlled substance. The evidence is also sufficient to support the reasonable inference that Anderson should have anticipated that, under the circumstances of this case, police officers would face injury as a result of Sherber's attempt to flee.

Id. at *6, 2011 Tex.App. LEXIS 10038 at *16–17. The court of appeals concluded that a rational jury could have found Appellant guilty under the conspiracy theory of the law of parties. Appellant filed a petition for discretionary review, which we granted to determine whether the court of appeals erred in holding that the evidence was legally sufficient to support Appellant's aggravated assault conviction under the conspiracy theory of the law of parties.

ARGUMENTS OF THE PARTIES

Appellant's Arguments

Appellant argues that the court of appeals erred in holding that the evidence was legally sufficient under the law of parties' conspiracy prong because Appellant did not anticipate the second felony of aggravated assault of a public servant, and thus cannot be guilty under the conspiracy theory of party liability. Appellant argues that it is well settled law that co-conspirators are responsible only for conduct they anticipate. Appellant contends that he had no reason to anticipate violence or assault because he and Sherber were conducting “a drug transaction between old friends who always and repeatedly bought and sold drugs peaceably and amicably.” He also could not anticipate that the truck would be used as a deadly weapon because its obvious intended and immediate purpose was merely a means of transporting the men and the drugs. Appellant argues that the truck “does not fall into the category of obvious, apparent, and innately understood deadly weapons in the same fashion as a firearm or switchblade.”

Finally, Appellant asserts that the application paragraph of the jury charge failed to instruct the jury to find that he should have anticipated the aggravated assault, and no rational juror could have found beyond a reasonable doubt that Appellant anticipated Sherber's actions. Because Appellant “could not anticipate, as a 7.02(b) conspiracy requires, the truck's use as a deadly weapon, and the jury was not instructed to first find this fact in the application paragraph of the charge, his conviction under 7.02(b) for party liability fails for insufficient evidence.”

State's Arguments

The State argues that the evidence is sufficient to establish that Appellant should have anticipated aggravated assault of a public servant as a result of his conspiracy to distribute methamphetamine. Although the application paragraph of the jury charge did not include the “should have anticipated” language from Penal Code Section 7.02(b), the State points out that a review of the sufficiency of the evidence is based on a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997). Thus, the State contends that the court of appeals' analysis of the sufficiency of the evidence was correct.

The State says that case law supports a finding that Appellant should have anticipated violence as a result of his conspiracy to commit the felony offense of possession of a controlled substance with intent to distribute. Ervin v. State, 333 S.W.3d 187 (Tex.App.-Houston [1st Dist.] 2010, pet. ref'd); Love v. State, 199 S.W.3d 447 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd) (defendant should have anticipated that violence would occur when co-conspirator was armed with a deadly weapon); Hernandez v. State, 171 S.W.3d 347 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd); Moore v. State, 24 S.W.3d 444 (Tex.App.-Texarkana 2000, pet. ref'd) (even when co-conspirators were unarmed, a defendant should have anticipated that a deadly weapon might be acquired during the commission of the offense); Rue v. State, No. 05–97–00482–CR, 1998 WL 300911, 1998 Tex.App. LEXIS 3458 (Tex.App.-Dallas, June 10, 1998, no pet.) (defendant should have anticipated that his co-conspirator would commit aggravated assault when he tried to flee the scene of the offense in his vehicle).

The State contends that a jury may make reasonable inferences from the evidence to determine whether a particular offense should have been anticipated as a result of carrying out the conspiracy. Hooper v. State, 214 S.W.3d 9 (Tex.Crim.App.2007). The State says that it is well known that drug transactions include risks and that the jury made reasonable inferences from the evidence in determining that Appellant should have anticipated that his conspiracy to deliver drugs could result in the use of the truck in a violent effort to escape from law enforcement.

The State concludes that the question of whether Appellant should have anticipated the secondary felony is one for the jury and that the evidence, when viewed in the light most favorable to the verdict, is sufficient to establish Appellant's guilt...