Mayfield v. State

• Decision Date: 17 September 1986
• Docket Number: No. 619-85,619-85
• Citation: 716 S.W.2d 509
• Parties: Larry Michael MAYFIELD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 509

716 S.W.2d 509

Larry Michael MAYFIELD, Appellant, v. The STATE of Texas, Appellee.

No. 619-85.

Court of Criminal Appeals of Texas En Banc.

Sept. 17, 1986.

Jane Wynegar, court appointed on appeal, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. and Eleanor M. McCarthy and Jim Peacock, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty. and Alfred Walker, First Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Appellant was convicted as a party to the offense of robbery, and his punishment was assessed by the jury at twenty years confinement in the Texas Department of Corrections. The court of appeals reversed and remanded the conviction, holding that the trial court erred in failing to submit appellant's requested jury instruction affirmatively charging on "the defensive issue of independent impulse." Mayfield v. State, 690 S.W.2d 682, 686 (Tex.App.--Houston [1st] 1985). We granted the State's petition for discretionary review to determine whether this holding is in conflict with prior decisions of this Court construing the concept of "independent impulse." Tex.Cr.App. Rule 302(c)(3).

I.

The circumstances surrounding the offense are more than adequately summarized in the opinion of the court of appeals, as follows:

" ... The complainant testified that she and her brother were in a parking lot in Houston on May 20, 1983, waiting for the complainant's husband to come out of a club next door. Appellant and another man walked past them, then returned and asked them for money. The complainant, in Vietnamese, told her brother to pretend he did not understand English and to slowly walk away. Appellant's companion told the complainant to shut up, and asked her if she wanted to get killed. Appellant's companion grabbed the complainant's purse, pushed her, and ran down the street. Appellant held the complainant's brother for a moment, and then he, too, ran down the street, with the complainant's brother chasing them. The complainant had Vietnamese currency in her purse.

The complainant's brother testified that appellant's companion got into a car, started it, began to drive away, and then yelled to appellant to hurry. Appellant got into the car, and they sped away. The complainant's brother flagged down a passing police car and reported the robbery.

Can Duc Nguyen testified that he was driving home on the night in question when his car was hit in the rear. The other car kept driving for several blocks and Nguyen followed it, honking his horn. When it stalled, appellant and another man got out. The driver of the other car yelled to appellant to run as he ran from the scene. Appellant did not run, but approached Nguyen's car, denying responsibility for the accident. Nguyen asked him to wait while he called the police. A police car arrived almost immediately, and while Nguyen was talking to the police, appellant began walking in the direction the driver had run.

The arresting officer testified that he saw appellant walking away and stopped him to ask if the stalled car belonged to him. Appellant said that it did, and gave the name Larry Darnell. Appellant testified that his name on his birth certificate is Larry Darnell Mayfield. The police arrested appellant for suspicion of robbery. In an inventory search of the car, they found Vietnamese currency.

Appellant testified that, on the night in question, he saw a man he knew only as Anthony standing on the side of the road. Anthony appeared to be intoxicated, and appellant offered him a ride. Anthony told appellant to pull into a parking lot so that he could give him some money for gasoline. Appellant parked his car, leaving the keys in the ignition, while they walked to an oriental club, where Anthony said he would get the money. As they approached the club, they saw the complainant and her brother standing in the parking lot next to the club. Appellant asked the complainant's brother for a light, but he received no response. As appellant turned to walk away, he saw Anthony grab the complainant's purse and run back towards the car. Appellant testified that he did not know that Anthony was going to rob the complainant, and he stood watching Anthony run away, shocked by his actions. The complainant's brother pushed appellant aside to run after Anthony, and appellant followed him. Appellant specifically denied that he intentionally hindered the complainant's brother in any way and stated that when he caught up with the complainant's brother, he told him that he had nothing to do with the robbery. Anthony got into appellant's car and yelled for him to get in. Appellant said he hesitated for a moment, but then got in, and Anthony drove away. He said he told Anthony to return the purse, but Anthony ignored him and drove on.

Several blocks away, Anthony ran into another car, and when the appellant's car overheated, Anthony got out and ran. Appellant walked in the same direction to see where Anthony was going, and Anthony yelled to him, asking him if he was coming along. Appellant said no, and Anthony ran away. The driver of the other car asked appellant to stay there while he called the police. While he was gone, appellant saw a passing police car and flagged it down. He said he tried to give the police his full name, but the officer stopped him before he said his last name."

690 S.W.2d at 683-84.

At the conclusion of the presentation of the evidence at the guilt phase of the trial appellant requested the following jury instruction relative to the court's charge authorizing the jury to convict him as a party to the robbery under V.T.C.A. Penal Code, § 7.02(a)(2):

"If you believe from the evidence beyond a reasonable doubt that on or about May 28, 1983, an unknown black male in the course of committing theft of property owned by Thutam N. Tran, and with intent to obtain and maintain control of the property, intentionally & knowingly threatened and placed the complainant in fear of imminent bodily injury and death and if you further believe from the evidence beyond a reasonable doubt that on or about May 28, 1983, the Defendant Larry Michael Mayfield, as a party, knew of the unknown black male's unlawful intent and agreed to or aided or encouraged him in the commission of the offense and that the actions of the unknown black male were not of his own independent impulse, then you will find the defendant guilty of robbery.

Unless you so find beyond a reasonable doubt or if you have a reasonable doubt thereof you will acquit the defendant of robbery.

You are further instructed that if you believe that the defendant was not acting together with the unknown black male in robbing the complainant, or that the defendant had not previously entered into an agreement with the unknown black male to rob the complainant, or if you have a reasonable doubt thereof, you will acquit the defendant.

If there was no such common design and intent by the unknown black male and the defendant to commit the offense, or, if the offense was committed by the unknown black male acting independently of the defendant in so doing and without participation by him in the design and intent to commit it, then the defendant is not guilty and if you have a reasonable doubt as to this issue, you must give the defendant the benefit of the doubt and acquit him." ¹

The trial court refused to submit appellant's requested instructions, simply charging the jury under the express terms of § 7.02(a)(2), supra, that it could convict appellant as a party to the robbery only if it found beyond a reasonable doubt that, "with intent to promote or assist an unknown black male to commit" the offense, he "did act with intent [sic] to encourage, direct, aid, or attempt to aid the unknown black male" in the commission of the offense.

After reviewing pertinent caselaw the court of appeals observed:

"In each case we have examined, either the evidence failed to raise the issue, or the trial court submitted a jury charge which was sufficient to present the defendant's theory and to protect his rights. However, in the instant case, the evidence raised the issue and the charge given did not affirmatively submit the defensive issue of independent impulse."

Id., at 686. It is with the conclusion that the issue of independent impulse was raised that we find we must disagree.

II.

The concept of "independent impulse" is a somewhat elusive one. It has never been clearly delineated in the caselaw. As revealed in the early cases, however, it seems to embrace the theory that an accused, though he was admittedly intent on some wrongful conduct, nevertheless did not contemplate the extent of criminal conduct actually engaged in by his fellows, and thus cannot be held vicariously responsible for their conduct. ²

A.

Under prior penal codes an accused who was present during the commission of an offense could be guilty as a "principal," if either, "knowing the unlawful intent" of the person actually engaged in commission of the offense, he lent that person "aid by acts or encourage[ment] by words or gestures," P.C., Art. 66 (1925); P.C., Art. 75 (1911, 1879); P.C., Art. 215 (1856), or beforehand he had "advise[d] or agree[d] to the commission of [the] offense," P.C., Art. 69 (1925); P.C., Art. 78 (1911, 1879); P.C., Art. 218 (1856). In a judicial expansion of this latter, conspiracy based theory of principals, it was held that:

"Each conspirator is responsible for everything done by his confederates which follows immediately in the execution of the common design as one of its natural and probable consequences, even though it was not intended as a part of the original design. To be admissible in evidence, or in order for responsibility to attach to the nonacting party, the act must be the ordinary and probable effect of the wrongful act specifically agreed on, so that the connection between them may be reasonably apparent,...