Fee v. State

• Decision Date: 14 October 1992
• Docket Number: No. 107-87,107-87
• Citation: 841 S.W.2d 392
• Parties: Steven FEE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 392

841 S.W.2d 392

Steven FEE, Appellant, v.The STATE of Texas, Appellee.

No. 107-87.

Court of Criminal Appeals of Texas En Banc.

Oct. 14, 1992.

Richard E. Langlois, San Antonio, for appellant.

Fred G. Rodriguez, Former Dist. Atty. and Charles Strauss and Barbara Hervey, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Appellant was convicted of the offense of engaging in organized criminal activity.V.T.C.A. Penal Code, § 71.02.Punishment was assessed at fifty years confinement in the penitentiary.The Fourth Court of Appeals reformed the judgment to reflect that the sentence was enhanced, and affirmed the conviction.Fee v. State, 722 S.W.2d 234(Tex.App.--San Antonio, 1986).

I.

The indictment in this cause alleged that appellant and six others "did ... conspire to commit and agree to commit and did commit Theft over $20,000.00," and that all seven did so with the specific intent "to establish, maintain and participate in a combination and in the profits of a combination[.]"¹The jury charge tracked the indictment, thus requiring for conviction evidence that all seven men conspired to commit and did commit theft with the requisite intent to facilitate the aims of a combination.The indictment did not explicitly identify the members of the combination.On appeal appellant contended that the evidence was insufficient to show that three of the six others that the charge required the jury to find conspired to commit and did commit theft did in fact do so.The court of appeals correctly identified this contention, but then proceeded to answer an altogether different question, viz: whether the evidence was sufficient to establish the three were members of the combination.The court of appeals concluded that two of the three were not in fact shown to be members of the combination, but held that this evidentiary deficiency was of no consequence.Because Chapter 71 of the Penal Code does not require conviction of every member of a combination as a prerequisite to conviction of any one member, the court of appeals held the evidence was not insufficient.The court of appeals opined:

"Fee was alleged in the indictment to have conspired to commit and to have committed theft in combination with six other persons.The State has satisfied the requirements of the organized crime statute by proving that Fee and at least four other persons collaborated in carrying on the criminal activity.TEX. PENAL CODE ANN. § 71.01(A)(2)."²

Fee v. State, supra, at 239.

In his petition for discretionary reviewappellant now contends that the court of appeals erred to measure sufficiency of the evidence against requirements of the statute.Instead, he urges, the court of appeals should have measured evidentiary sufficiency against the offense as it was alleged in the indictment and submitted to the factfinder in the jury charge.³He relies upon our opinion in Benson v. State, 661 S.W.2d 708(Tex.Cr.App.1982).We granted the petition to address this unremarkable, if often controversial contention.Tex.R.App.Pro., Rule 200(c)(3).

II.

A.

By all appearances the court of appeals simply held that because the organized criminal activity statute does not require conviction of all members of the combination to convict any one of them--a proposition well established in this Court's only opinion to date construing § 71.02, supra, viz: Barber v. State, 764 S.W.2d 232(Tex.Cr.App.1988)--the evidence here is sufficient to convict.The statute requires no more than proof of the existence of a combination, and that appellant either committed one of the enumerated offenses in order to facilitate the combination, or that he conspired with at least one other to commit such an offense and he and at least one other performed an overt act pursuant to the conspiracy, with intent to facilitate the combination.Barber v. State, supra, at 238(Clinton, J., dissenting).Thus, that appellant committed theft himself is all the actus rea required on the facts of this case.If he did so with the specific intent to facilitate an existing combination, he has violated the statute.Id.The evidence here does indeed seem to establish a violation of the statute, and appellant does not contend otherwise.

But that is not the end of the matter, as the court of appeals seems to have believed.A jury following the trial court's instructions in this cause would have been required as a prerequisite to conviction to find that appellant and all six others alleged in the indictment both conspired to commit and did commit theft.Consistent with established caselaw, it must be inquired further whether the evidence proves what was alleged and what the jury was instructed it must find to convict, viz: that all six individuals named in the indictment conspired to commit and did commit theft.The court of appeals never addressed this question.

B.

This cause is analytically indistinguishable from Ortega v. State, 668 S.W.2d 701(Tex.Cr.App.1983).Ortega was prosecuted for credit card abuse.The indictment alleged he knowingly used the credit card of another with the specific intent "to fraudulently obtain property and services[.]"On original submission in Ortega we held that, although it was not necessary to state a violation of the statute to allege an intent to obtain both property and services, the conjunctive allegation was descriptive of an essential element of the offense, and could not be disregarded as surplusage.Thus, we held, the State was bound to prove an intent to obtain both.In a footnote we also observed that the jury charge had authorized conviction only on proof of an intent to obtain property and services, and remarked that "there is no such thing as 'surplusage' in the part of the court's instructions to the jury which authorizes a conviction[.]"Id., at 705, n. 10.We found sufficient evidence on original submission to support a conviction on the basis of an intent to obtain both property and services.

On appellant's motion for rehearing, however, the Court reversed itself, holding the evidence was insufficient to show an intent to obtain services.The Court observed:

"It was proper for the State to charge appellant by alleging conjunctively that he intended to fraudulently obtain property and services, and proof of either would have been sufficient to convict, Sidney v. State, 560 S.W.2d 679(Tex.Cr.App.1978);Garcia v. State, 537 S.W.2d 930(Tex.Cr.App.1976);Boyd v. State, 419 S.W.2d 843(Tex.Cr.App.1967), and it was proper for the trial court to charge the jury that a finding of either would be sufficient to convict.

However, because the charge instructed the jury that it must find both property and services before returning a guilty verdict, then it was necessary that there be sufficient proof of both means alleged.Otherwise, a guilty verdict would be deemed contrary to the law and the evidence."

Ortega v. State, supra, at 707.At this juncture the opinion on rehearing added a footnote fully endorsing the observation on original submission that "there is no such thing" as surplusage in the authorization paragraph of a jury charge.Ortega's conviction was reversed, and a judgment of acquittal ordered.

The jury charge in the instant cause tracked the indictment, and expressly authorized conviction only in the event the jury should find that all seven individuals conspired and agreed to commit, and did in fact commit theft.Clearly this elevated the State's burden of proof beyond the minimum necessary to establish a violation of the statute.But "there is no such thing as 'surplusage' " in the authorization paragraph of the jury charge, and since Benson and Ortega we have steadfastly held that so long as the State does not object to a jury charge that thus enhances its burden, sufficiency of the evidence will be measured against that charge.E.g., Boozer v. State, 717 S.W.2d 608(Tex.Cr.App.1984);Williams v. State, 696 S.W.2d 896(Tex.Cr.App.1985);Stephens v. State, 717 S.W.2d 338(Tex.Cr.App.1986);Marras v. State, 741 S.W.2d 395(Tex.Cr.App.1987);Garrett v. State, 749 S.W.2d 784(Tex.Cr.App.1988);Nickerson v. State, 782 S.W.2d 887(Tex.Cr.App.1990);Arceneaux v. State, 803 S.W.2d 267(Tex.Cr.App.1990);Jones v. State, 815 S.W.2d 667(Tex.Cr.App.1991);Walker v. State, 823 S.W.2d 247(Tex.Cr.App.1991).There is no rational basis to deviate from that rule in this cause.

Accordingly, the judgment of the court of appeals is reversed and the cause is remanded to that court to determine whether the evidence shows all seven individuals alleged to have conspired to commit, and to have committed theft, did in fact do so.

OVERSTREET, Judge, concurring in part and dissenting in part.

I agree with the majority's conclusion that the court of appeals erred in its treatment and analysis of appellant's evidence sufficiency claim.However, I strongly disagree with remanding the cause back to the court of appeals for reanalysis.

The court of appeals has already explicitly stated that the evidence was insufficient to prove beyond a reasonable doubt that two of the named conspirators, specifically Araujo and Bates, were a part of the combination.Fee v. State, 722 S.W.2d 234, 239(Tex.App.--San Antonio1986).Thus it seems to me to be incredibly fruitless to remand to the court of appeals for it "to determine whether the evidence shows all seven individuals alleged to have conspired ... did in fact do so" when the court of appeals has already quite explicitly said that the evidence was insufficient with respect to two of them.

I note that the indictment alleges that the offense occurred on or about August 11, 1983, and that appellant was convicted and sentenced in April of 1984.The court of appeals published its opinion on December 31, 1986.Appellant's petition for discretionary review was filed in this...