In re State ex rel. Weeks

• Decision Date: 16 January 2013
• Docket Number: Nos. AP–76,953,AP–76,954.,s. AP–76,953
• Citation: 391 S.W.3d 117
• Parties: In re STATE of Texas ex rel. David P. WEEKS.
• Court: Texas Court of Criminal Appeals

391 S.W.3d 117

In re STATE of Texas ex rel. David P. WEEKS.

Nos. AP–76,953, AP–76,954.

Court of Criminal Appeals of Texas.

Jan. 16, 2013.

Jane Starnes, Assistant Attorney General, Austin, TX, for Relator.

Richard E. Wetzel, Lisa C. McMinn, State's Attorney, Austin, TX, for State.

KELLER, P.J., delivered the opinion of the Court in which MEYERS, JOHNSON, KEASLER, HERVEY, COCHRAN and ALCALÁ, JJ., joined.

The present mandamus action arises from a capital-murder prosecution that has reached the jury-charge portion of the guilt stage of trial. The trial judge's proposed charge would submit to the jury the “conspiracy” theory of the law of parties ¹ but not the “intent to promote or assist” theory of the law of parties.² Moreover, in submitting the “conspiracy” theory, the trial judge's proposed charge would require the State to prove that the defendant should have anticipated the particular manner and means by which his co-conspirator killed the victim. The State seeks the issuance of a writ of mandamus to require the submission of the “intent to promote or assist” theory of the law of parties and to require the submission of the “conspiracy” theory of the law of parties without any manner-and-means restriction. We conditionally grant relief.

I. BACKGROUND

A. Trial

John Ray Falk, Jr. and Jerry Duane Martin escaped from prison, and during that escape, Susan Canfield, a prison guard, was killed. Martin has been convicted of capital murder for his role in the killing, and that conviction was recently affirmed by this Court.³ Falk is currently being prosecuted for his role in the incident. According to excerpts of testimony from the court reporter's record in Falk's case,⁴ Canfield was on horseback, attempting to prevent Falk and Martin from escaping, when Falk jabbed a stolen revolver into Canfield's side and obtained her rifle. After disarming Canfield, Falk backed away. As Falk was backing away, Martin drove a pickup truck into Canfield and her horse—causing injuries that ultimately led to her death. Falk then jumped into the truck, and the truck sped away.

In deciding to omit instructions on the “intent to promote or assist” theory of the law of parties, Judge Kenneth Keeling, the trial judge, stated that Falk was already “on down the road” when his co-defendant struck the complainant with a vehicle, and therefore, Judge Keeling did not see any evidence to support inclusion of the instruction:

[U]nder 7.02 parties, 7.02(a)(2), I do not see any evidence where he—this is talking about John Falk, Jr. This is the aiding, abetting part of the driving the vehicle into Canfield or her horse. I don't see any evidence where he solicited, encouraged it, directs it, aids it, or attempts to aid the other person to commit the offense of driving the vehicle into the horse or her. So I don't think you can go under 7.02(a)(2) of the parties statute. The evidence, as I recall it, particularly from Mr. Isaacs—and there was another witness who was under the shed, I can't remember his name, but they testified, as I recall, that Mr. Falk had already gotten the rifle and that he was on down the road at the time of the collision of this vehicle and Mrs. Canfield, okay? ⁵

With respect to the conspiracy theory of the law of parties, Judge Keeling's proposed instructions would apply the law to the facts as follows:

You must determine whether or not the State has proved, beyond a reasonable doubt, four elements. The elements are that:

1. in Walker County, Texas, on or about September 24, 2007, JOHN RAY FALK, JR. joined a conspiracy with JERRY MARTIN to commit the felony offense of Escape; and

2. in an attempt to carry out this conspiracy, JERRY MARTIN intentionally or knowingly caused the death of SUSAN CANFIELD by striking her with a deadly weapon, to wit: a motor vehicle or by striking the horse she was riding with a deadly weapon to wit: a motor vehicle that in its manner of use was capable of causing death or serious bodily injury; and

3. the murder, if any, was committed by JERRY MARTIN in furtherance of the conspiracy, if any, to commit the felony offense of Escape; and

4. JOHN RAY FALK, JR. should have anticipated that JERRY MARTIN would intentionally or knowingly cause the death of SUSAN CANFIELD by striking her with a deadly weapon, to wit: a motor vehicle or by striking the horse she was riding with a deadly weapon, to wit: a motor vehicle that in its manner of use was capable of causing death or serious bodily injury during the commission of felony escape, if any, which was the subject of the alleged conspiracy.⁶

The State's complaint with respect to the conspiracy instructions is that the italicized language in element four is not required and improperly increases the State's burden of proof.

B. Court of Appeals

The State filed a petition for writ of mandamus with the Waco Court of Appeals. Rejecting the State's claim with respect to the “intent to promote or assist” theory of the law of parties, the court of appeals concluded that Judge Keeling's “assessment of the evidence to determine whether it supports the inclusion of an instruction under section 7.02(a) in the court's charge is not a ministerial act, but rather is an exercise of [his] judgment and judicial determination” and “to the extent that there is a dispute about the state of the evidence, we may not resolve it in an original mandamus proceeding.” ⁷

With respect to the State's complaint about the proposed conspiracy instructions, the court of appeals acknowledged that “[n]o party to this proceeding has cited any authority that specifically supports the inclusion in the fourth element that the State must prove that Falk should have anticipated the specific manner and means by which Martin caused the death of Canfield, nor has our research located any.” ⁸ “But,” the court of appeals concluded, “there is likewise no specific authority that the inclusion of the manner and means in the fourth element of section 7.02(b) conspiracy is erroneous.” ⁹ From this, the court of appeals further concluded that the issue was not well-settled law such that Judge Keeling had a ministerial duty to omit the language in the application paragraph of the jury charge. ¹⁰ But in a footnote, the court of appeals expressed the following reservation to its conclusion:

While we conclude that the law is not “well-settled” on this specific issue, which appears to be one of first impression under Texas law, we are of the strong opinion, based on the authorities cited above, that Texas law does not support including in the fourth element that the State must prove that Falk should have anticipated the specific manner and means by which Martin caused the death of Canfield. Irrespective of the indictment's manner-and-means allegation, no statutory or case law supports its inclusion. Furthermore, two of the recognized criminal pattern jury charge books do not include it. ¹¹

II. ANALYSIS

A. Mandamus Standards

In addressing whether a relator is entitled to mandamus relief against a court of appeals that has denied mandamus relief against a trial court, we decide de novo whether the relator was entitled to mandamus relief against the trial court.¹² To be entitled to mandamus relief, the relator must show two things: (1) that he has no adequate remedy at law, and (2) that what he seeks to compel is a ministerial act.¹³

With respect to the “no adequate remedy at law” requirement, we have said that a remedy at law, though it technically exists, “may nevertheless be so uncertain, tedious, burdensome, slow, inconvenient, inappropriate, or ineffective as to be deemed inadequate.” ¹⁴

The ministerial-act requirement is satisfied if the relator can show a clear right to the relief sought.¹⁵ A clear right to relief is shown when the facts and circumstances dictate but one rational decision “under unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law sources), and clearly controlling legal principles.” ¹⁶ Although we have sometimes suggested that a legal issue's status as one of first impression meant that the law was not well-settled,¹⁷ we have since clarified that an issue of first impression can sometimes qualify for mandamus relief.¹⁸

At least two of our mandamus cases—Patrick and Poe—contain dissents that were predicated at least in part upon the fact that the issue was one of first impression.¹⁹ One lesson from Patrick and Poe is that an issue of first impression can sometimes qualify for mandamus relief when the factual scenario has never been precisely addressed but the principle of law has been clearly established.

B. No Adequate Remedy at Law

Before the court of appeals, the parties did not dispute that the State had no adequate remedy at law because it could not appeal the trial judge's decision. ²⁰ Falk and Judge Keeling contend, however, that the State now has an adequate remedy at law because Judge Keeling has agreed to reconsider his rulings. The factual basis for this contention is an email written by the judge, which states in relevant part:

I am willing to have a hearing on the state[']s motion, defense motions and anything else about this case on Monday morning at 9:00 a.m. in Brazos County, if all of the attorneys can be present. PROVIDED, there are no proceedings pending in the Court of Criminal Appeals or any other court of appeals. PROVIDED FURTHER, that the case can be argued upon completion of the hearing.

In essence, Judge Keeling's email requires the State to abandon its mandamus action in exchange for a reconsideration that affords the State no guarantee that the earlier rulings will be changed. If the State accepted Judge Keeling's offer and Judge Keeling ultimately decided to let his earlier rulings stand, then the State would lose any ability to have that decision reviewed. We do not agree with Judge Keeling that his proposed course of action constitutes an adequate remedy for mandamus purposes.²¹

Falk also contends that the State has an...