Jones v. State, 05-88-00208-CR

• Decision Date: 09 May 1989
• Docket Number: No. 05-88-00208-CR,05-88-00208-CR
• Citation: 774 S.W.2d 7
• Parties: Kevin Menard JONES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 7

774 S.W.2d 7

Kevin Menard JONES, Appellant, v.The STATE of Texas, Appellee.

No. 05-88-00208-CR.

Court of Appeals of Texas Dallas.

May 9, 1989.

Discretionary Review Granted Oct. 4, 1989.

John D. Nation, Dallas, for appellant.

Teresa Tolle, Dallas, for appellee.

Before the court en banc.

OVARD, Justice.

Kevin Menard Jones appeals his conviction for aggravated robbery.The court assessed punishment at twenty-seven years' confinement and a $10,000 fine.In three points of error, appellant contends that: (1) the evidence is insufficient to support his conviction; (2)the trial court's charge failed to apply the law of parties to the facts; and (3)the State erred in arguing that defense witnesses had fabricated testimony.We affirm the judgment of the trial court.

The evidence established that on November 9, 1985, Sandra Tubbs was working as a cashier at the Gulf Majek Market in Lancaster, Texas.At approximately 8:25 a.m., three males later identified as appellant, Kevin Jones, Clarence Rhynes, and Stanley Coleman entered the store together.Rhynes proceeded to the ice cream machine, Coleman went to the counter, and appellant stood near the only door.Coleman asked for a package of cigarettes and Tubbs rang up the sale.Coleman paid a part of the cost and asked Rhynes for the balance.Rhynes gave Coleman the money, and then went behind the counter where he pointed a gun directly at Tubbs' face.Coleman and appellant remained at their original locations in the store.Rhynes said, "Give me the money, all of the money" and, as Tubbs attempted to remove the cash tray, Rhynes began taking the bills from the tray.Meanwhile, appellant moved closer to the counter but continued looking out the door.

Appellant and Coleman then went behind the counter; appellant removed all the coins from the cash tray and Coleman took several cartons of cigarettes.The men then departed.Appellant was the last of the three men to leave the store and, as he exited, he took a display of watches.

A fingerprint expert positively identified a latent fingerprint taken from the underside of the cash register money tray as appellant's.Tubbs testified that the only two men who touched the money tray were Rhynes and appellant.

I.

Appellant first contends that, when viewed in light of the jury charge, the evidence is insufficient to support the conviction.He also complains that, due to the trial court's failure to apply the law to the facts, he was egregiously harmed by the charge.The application paragraph of the charge reads as follows:

Now, bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt that the defendant, KEVIN MENARD JONES, on or about the 9th day of November, A.D., 1985, in the County of Dallas and State of Texas, as alleged in the indictment, did then and there, while in the course of committing theft of property and with intent to obtain and maintain control of said property of SANDRA TUBBS, to-wit: current money of the United States of America, without the effective consent of SANDRA TUBBS and with intent to deprive the said SANDRA TUBBS of said property, did then and there knowingly or intentionally threaten or place SANDRA TUBBS in fear of imminent bodily injury or death, and the defendant did then and there use or exhibit a deadly weapon, to-wit: a firearm, you will find the defendant guilty of the offense of aggravated robbery and so say by your verdict.

The jury charge also contains an abstract instruction on the law of parties:

All persons are parties to an offense who are guilty of acting together in 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 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, 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.

The Texas Code of Criminal Procedure requires that the jury be provided with a written charge distinctly setting forth the law applicable to the case.TEX.CODE CRIM.PROC.ANN. art. 36.14(Vernon Supp.1989).In this case, appellant's criminal responsibility for the aggravated robbery was based solely on the law of parties, because it is undisputed that appellant did not personally possess a weapon or threaten anyone.Therefore, the trial court should have included the law of parties in the application paragraph of the charge.The failure to do so was error.

We must now decide whether this was charging error which resulted in "trial error" or, whether the error resulted in "insufficiency of the evidence."The answer to this inquiry depends upon whether we must measure the sufficiency of the evidence against the entire charge or against only the application paragraph.

If we are confronted with "trial error,"appellant's conviction was based on a defect which had nothing to do with his guilt or innocence.SeeMesser v. State, 729 S.W.2d 694, 699-700(Tex.Crim.App.1986).In the past, incorrect jury instructions have been viewed as "trial error."Messer v. State, 729 S.W.2d at 700.In instances of "trial error," the double jeopardy clause does not preclude a retrial.Id.Distinguished from "trial error" is "insufficiency of the evidence" which is a determination that the State has failed to prove its case.The result is that the defendant must be acquitted and the double jeopardy clause prohibits a retrial.Burks v. United States, 437 U.S. 1, 16, 98 S.Ct. 2141, 2149-50, 57 L.Ed.2d 1(1978);Seymore & Thielman, Appellate Reversal for Insufficient Evidence In Criminal Cases: The Interaction of the Proof and the Jury Charge, 16 Am.J.Crim.L. ----- (1989).

Several cases have addressed the issue of what standard must be used to define error in a jury charge.Boozer v. State, 717 S.W.2d 608(Tex.Crim.App.1984);Ortega v. State, 668 S.W.2d 701(Tex.Crim.App.1983)(op. on reh'g);Benson v. State, 661 S.W.2d 708(Tex.Crim.App.1982)(op. on reh'g).The earliest of these cases was Benson, in which the defendant attacked the sufficiency of the evidence to sustain his conviction for retaliation.The statute under which the defendant was charged created an offense for threatening a "witness," but not for threatening a "prospective witness."The court concluded that under the charge, the only authorized verdict was not guilty because the evidence proved that the person threatened was only a prospective witness.However, the court also stated: "[W]hen a charge is correct for the theory of the case presentedwe review the sufficiency of the evidence in a light most favorable to the verdict by comparing the evidence to the indictment as incorporated into the charge."Benson v. State, 661 S.W.2d at 715(emphasis omitted).Benson became the foundation for subsequent decisions.

A similar problem was presented in Ortega.In that case, the charge tracked the conjunctive language of the indictment, requiring proof that the defendant"intentionally and knowingly with intent to fraudulently obtain property and service" presented a credit card in exchange for clothing knowing that the card had not been issued to him.The only labor or service involved was the sales clerk's effort in completing the sale.Because there was no evidence that defendant did the act with intent to obtain both property and services, the proof was insufficient.Ortega v. State, 668 S.W.2d at 707.The court held that the State did not prove the specific allegations in the indictment, as incorporated into the charge, and the defendant's conviction was reversed and a judgment of acquittal was ordered.Id.In response to the argument that the word "service" was mere surplusage, the court held that surplusage does not exist in a court's charge.SeeOrtega v. State, 668 S.W.2d at 707 n. 5.

Thereafter, in Boozer, the Court of Criminal Appeals considered a charge which instructed the jury that a witness was an accomplice as a matter of law; however, the evidence showed the charge was erroneous.The majority wrote: "[T]he sufficiency of the evidence is measured by the charge that was given."Boozer v. State, 717 S.W.2d at 610.Because there was insufficient evidence, as opposed to "trial error,"the State was denied a retrial.

It is clear from these cases that when determining sufficiency, the evidence must be compared to the entire charge.Garrett v. State, 749 S.W.2d 784, 802-03(Tex.Crim.App.1986)(op. on reh'g).Benson, Ortega, and Boozer involved factual situations in which the State was unable to meet its burden of proof under the entire charge.In each of these cases, it was impossible for the State to prove what it pled.¹ In each case, the factual deficiency was unchangeable and the evidence remained forever insufficient.

In the case at bar, we are bound to compare the evidence to the entire charge.We hold that the evidence, when compared to the application paragraph and the abstract instruction on the law of parties, was sufficient to prove the offense of aggravated robbery.Accordingly, we further hold that the charging error resulted in "trial error," and not "insufficiency of the evidence."

We next address Garrett v. State which appellant argues is dispositive of this case.Garrett was charged with having "knowingly cause[d] the death of an individual, [the complainant], by shooting her with a gun."The facts showed that complainant, her family, and a neighbor were having a barbecue at their home.Garrett arrived with a rifle in her car and joined the group.The complainant went inside her mobile home to clean the dishes.An argument erupted between Garrett and the neighbor regarding Garrett's dog having been shot by the neighbor.Garrett went to her car, removed the...