Miles v. State
Decision Date | 03 June 2008 |
Docket Number | No. 06-07-00143-CR.,06-07-00143-CR. |
Citation | 259 S.W.3d 240 |
Parties | Kendrick Ray MILES, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Appeals |
R. Scott Walker, Marshall, for Appellant.
Al Davis, Asst. Dist. Atty., Marshall, for Appellee.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
Trouble had been brewing for a few days, and Kendrick Ray Miles1 had at least some involvement at each step of its development. It had started when a couple Miles knew had a physical fight. It grew from there, with a fight at the Green Acres Club involving Miles and others, a meeting including Miles at a Marshall residence where a further fight was discussed, and ultimately a shootout at Spring Street Park in Marshall, during which Miles and others shot guns, as a result of which shootout at least five people were injured, one of which, Lee McCowan, died. That was the story told by at least some of the evidence at Miles' trial.
Miles was indicted for felony murder, deadly conduct, and criminal conspiracy. A jury found Miles guilty of all three charges and assessed punishment at twenty years' imprisonment for murder and ten years' imprisonment for both the deadly conduct and the criminal conspiracy charges. Miles raises nine issues on appeal arguing that the convictions for both felony murder and deadly conduct violate the Double Jeopardy Clause, that the trial court erred in admitting an out-of-court statement by a co-defendant, that the trial court erred in instructing the jury on the law of parties, and that the evidence is legally and factually insufficient. We affirm the judgment of the trial court because (1) the trial court did not err in instructing the jury on the law of parties, (2) the Double Jeopardy Clause was not violated, (3) the trial court did not abuse its discretion in admitting the statement made by a co-defendant, and (4) the evidence is legally and factually sufficient.
(1) The Trial Court Did Not Err in Instructing the Jury on the Law of Parties
Miles claims that the trial court erred in instructing the jury on the law of parties.2 According to Miles, there is no evidence Miles intentionally solicited, encouraged, aided, or attempted to aid another person to shoot at, or in the direction of, anyone. Under Texas law, a person is criminally culpable as a party if, with intent to promote or assist the commission of the offense, the person solicits, encourages, aids, directs, or attempts to aid another person in commission of the offense. TEX. PENAL CODE ANN. § 7.02(a)(2) (Vernon 2003). When evidence shows that the defendant was physically present during the commission of the offense and that the defendant encouraged or aided the crime's commission by either words, agreement, or other affirmative and supportive conduct, the evidence is sufficient to sustain a conviction under the law of parties. King v. State, 29 S.W.3d 556, 564 (Tex.Crim.App. 2000); Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App.1994) (op. on reh'g).
When there is evidence that the defendant is guilty as a party, a trial court may charge the jury on the law of parties even if the indictment charges the defendant as a principal. Swope v. State, 805 S.W.2d 442, 444 (Tex.Crim.App.1991); Rosillo v. State, 953 S.W.2d 808, 811 (Tex. App.-Corpus Christi 1997, pet. ref'd); see Marable v. State, 990 S.W.2d 421, 424 (Tex.App.-Texarkana 1999), aff'd, 85 S.W.3d 287 (Tex.Crim.App.2002); see also TEX. PENAL CODE ANN. § 7.01(c) (Vernon 2003). As discussed below, there is evidence that Miles was guilty under the law of parties. We overrule this point of error.
(2) The Double Jeopardy Clause Was Not Violated
Miles asserts that convicting him of both deadly conduct and felony murder put him in double jeopardy because the underlying felony was the deadly conduct charged in the separate count.3 According to Miles, the Double Jeopardy Clause prohibits the trial court from convicting him for both deadly conduct and murder.4
The Double Jeopardy Clause provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. CONST. amend. V. This guarantee applies to state prosecutions through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The Double Jeopardy Clause of the Fifth Amendment embodies several concepts: it protects a person from being twice prosecuted for the same offense; it precludes the State from prosecuting someone for the same offense or a lesser-included offense after a jury has acquitted the accused; and it bars punishing a person more than once for the same offense. Nickerson v. State, 69 S.W.3d 661, 670 (Tex.App.-Waco 2002, pet. ref'd); see also U.S. CONST. amend. V; Hutchins v. State, 992 S.W.2d 629, 631 ( ). The Double Jeopardy Clause is violated if a defendant is prosecuted twice for the same offense. Ex parte Hawkins, 6 S.W.3d 554, 556 (Tex.Crim.App.1999); see Sanabria v. United States, 437 U.S. 54, 69-70, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978).
Miles must show, to prevail on his double jeopardy claim, that the two offenses constitute "the same offense" under the Double Jeopardy Clause. See Ortega v. State, 171 S.W.3d 895, 896 (Tex. Crim.App.2005) (en banc). In determining whether conviction for two offenses constitutes double jeopardy, we will apply the test commonly called the "same elements" or Blockburger test announced by the United States Supreme Court some seventy-five years ago. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Ephraim v. State, 237 S.W.3d 438, 440 (Tex.App.-Texarkana 2007, pet. ref'd); see United States v. Dixon, 509 U.S. 688, 704, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (reinstating the Blockburger test). Blockburger ruled that, where one act or transaction violates two different criminal statutes, courts determine whether there are two offenses or only one by determining "whether each provision requires proof of a fact which the other does not." Blockburger, 284 U.S. at 304, 52 S.Ct. 180.
Both the United States Supreme Court and the Texas Court of Criminal Appeals have held that associated greater-inclusive and lesser-included offenses constitute the same offense for double jeopardy purposes. See Brown v. Ohio, 432 U.S. 161, 169, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Hall v. State, 225 S.W.3d 524, 533 (Tex. Crim.App.2007). Miles cites Honeycutt v. State, 82 S.W.3d 545, 549 (Tex.App.-San Antonio 2003, pet. ref'd), for the proposition that deadly conduct is a lesser-included offense of aggravated assault. Miles argues "[t]he instant case presents the exact same fact scenario, with the exception that the victim died in the instant case." Applying the reasoning of Honeycutt and the Texas Court of Criminal Appeals opinion in Jacob v. State, 892 S.W.2d 905, 908 (Tex.Crim.App.1995), Miles argues the deadly conduct conviction is for the same offense as the felony murder conviction.
The Texas Court of Criminal Appeals has recently adopted the "cognate-pleadings" test to evaluate whether an offense is a lesser-included offense of another.5 See Hall, 225 S.W.3d at 535; Jones, 241 S.W.3d at 670. The court rejected the "cognate-evidence" approach in which the court "includes the facts adduced at trial in its lesser-included offense analysis." See Hall, 225 S.W.3d at 535. "Facts required" under Article 37.09 means the evidence legally required to prove the elements of the offense. Id.; see TEX.CODE CRIM. PROC. ANN. art. 37.09 (Vernon 2006). Under the "cognate-pleadings" test, a court compares the statutory elements of the greater offense, as modified by the particular allegations in the indictment, with the statutory elements of the lesser offense. Hall, 225 S.W.3d at 536; see also Ortega, 171 S.W.3d at 899 (). Applying the "cognate-pleadings" test, the Texas Court of Criminal Appeals has determined deadly conduct is a lesser-included offense of capital murder. See Flores v. State, 245 S.W.3d 432 (Tex.Crim.App.2008).
Miles was indicted for felony murder in addition to a separate count of deadly conduct. The indictment provides in pertinent part that Miles did:
COUNT I:
... knowingly discharge a firearm at or in the direction of individuals, namely, Samuel Spratling, Broderick Sanders, Kendrick Dunn and Chris Dunn
Under the above indictment, Count I, Paragraph B, charges Miles with felony murder under Section 19.02(b)(3) of the Texas Penal Code, and Count II charges Miles with deadly conduct under Section 22.05(b)(1). See TEX. PENAL CODE ANN. §§ 19.02(b)(3), 22.05(b)(1) (Vernon 2003).
A person commits felony murder when he or she commits or attempts to commit an act, clearly dangerous to human life, which causes the death of an individual, while in the course of committing, in furtherance of, or in immediate flight from the commission or attempt to commit a felony, other than manslaughter. See TEX PENAL...
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