Rasmussen v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: DOUGLAS; TOM G. DAVIS
• Citation: Rasmussen v. State, 608 S.W.2d 205 (Tex. Crim. App. 1980)
• Decision Date: 25 June 1980
• Docket Number: No. 59398,No. 2,59398,2
• Parties: Charles James RASMUSSEN, Appellant, v. The STATE of Texas, Appellee

Page 205

608 S.W.2d 205

Charles James RASMUSSEN, Appellant, v. The STATE of Texas, Appellee.

No. 59398.

Court of Criminal Appeals of Texas, Panel No. 2.

June 25, 1980.

Rehearing Denied Nov. 26, 1980.

Howard C. Rubin, Dallas, for appellant.

Henry M. Wade, Dist. Atty., T. Michael Sutton, Gerry Holden and John W. Booth, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Karen Chilton Beverly, Asst. Dist. Atty., Dallas, for the State on rehearing.

Before DOUGLAS, ROBERTS and CLINTON, JJ.

OPINION

DOUGLAS, Judge.

Rasmussen was convicted of delivery of marihuana. The court assessed punishment at five years.

The evidence, viewed in the light most favorable to the verdict, shows that two undercover Richardson police officers agreed to meet in a parking lot with appellant's younger brother to arrange a purchase of marihuana. The brother arrived in a car with appellant driving and a third person in the front passenger seat.

One officer was given a bag containing 1.06 ounces of marihuana by appellant's brother as a sample of the quality of a large amount of marihuana to be delivered later. The other officer engaged appellant in conversation about drugs.

When the officers asked about the quality of the marihuana, appellant, as well as his brother and their companion, vouched for its quality.

After a brief conversation, one of the officers noticed a Dallas police patrol car in the vicinity and alerted the others. Appellant said, "Let's get out of here," then, as the officer who had entered the back seat to deal with appellant's brother left the car, said, "We'll get back with you," and drove off.

The evidence is sufficient to support the verdict.

Appellant contends that the court erred in failing to include in its instructions an application of the law of parties to the facts after having granted appellant's requested instruction which included a paragraph applying the law of parties to the facts.

Appellant's requested jury instruction number 3, granted by the court, charged that:

"A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, or by the conduct of another for which he is criminally responsible, or both. Each party to an offense may be charged with the commission of the offense.

"Mere presence alone will not make a person a party to an offense. 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 aids the other person to commit the offense.

"Therefore, if you believe from the evidence beyond a reasonable doubt that the Defendant, CHARLES J. RASMUSSEN, either by his own conduct knowingly and intentionally delivered more than one fourth ounce of marijuana to M. L. FIFE on February ____, 1977 in Dallas County, Texas, or acting with intent to promote or assist the commission of the offense aided LEIF KJEHL RASMUSSEN to commit the offense charged, as defined above, and that the said LEIF KJEHL RASMUSSEN did on February ____, 1977 deliver more than one fourth ounce of marijuana to M. L. FIFE in Dallas County, Texas, you will find the Defendant guilty.

"If you do not so believe, or if you have a reasonable doubt thereof, you will find the Defendant not guilty."

The charge actually used by the court, however, did not apply the law of parties to the facts. In pertinent part, it instructed the jury as follows:

"Therefore, if you believe from the evidence beyond a reasonable doubt that the defendant, Charles James Rasmussen, did, in Dallas County, Texas, on or about the 11th day of February, 1977, knowingly or intentionally deliver to M. L. Fife marijuana in a quantity greater than one-fourth of an ounce, you will find the defendant guilty as charged in the indictment.

"If you do not believe, or if you have a reasonable doubt thereof, that, at the time and place alleged, the defendant knowingly or intentionally delivered marijuana to M. L. Fife, you will find the defendant not guilty.

" * * *

"All persons are parties to an offense who are guilty of acting together in the commission of an 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 by 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.

"Each party to an offense may be charged with the commission of the offense.

"Mere presence alone at the time and the place of the commission of an offense, if any was committed, does not constitute one criminally responsible as a party to the offense."

In Apodaca v. State, 589 S.W.2d 696 (Tex.Cr.App.1979), we held that, where a timely and proper objection was made to the charge's failure to apply the law of parties to the facts, and where no evidence supported submission of the case on the theory that the defendant was the primary actor, the failure of the court to apply the law of parties to the facts of the case was reversible error notwithstanding the fact that the court included in its instructions a charge in the abstract on the law of parties.

Like Apodaca, the instant case presents no support for submission on the theory that appellant was the primary actor. Like the court in Apodaca, the court did charge in the abstract on the law of parties. Unlike the charge in Apodaca, the charge contains no reference whatever to appellant as a party in the paragraph applying the law to the facts. The rule of Apodaca, therefore, finds perhaps a stronger case for its application here.

The State contends that appellant's failure to object to the charge after a portion of his requested instruction, already having been granted by the court, was omitted from the charge vitiates his complaint and requires us to apply the rule of Romo v. State, 568 S.W.2d 298 (Tex.Cr.App.1978). In Romo, we held that absent a timely and sufficient objection to the failure of the court to apply the law of parties to the facts where such an application would be proper there is no reversible error.

Article 36.15, V.A.C.C.P., provides, in pertinent part, that

"... The defendant may, by a special requested instruction, call the trial court's attention to error in the charge, as well as omissions therefrom, and no other exception or objection to the court's charge shall be necessary to preserve any error reflected by any special requested instruction which the trial court refuses.

"Any special requested charge which is granted shall be incorporated in the main charge and shall be treated as a part thereof, ...

"When the defendant has leveled objections to the charge or has requested instructions or both, and the court thereafter modifies his charge and rewrites the same and in so doing does not respond to objections or requested charges, or any of them, then the objections or requested charges shall not be deemed to have been waived by the party making or requesting the same, but shall be deemed to continue to have been urged by the party making or requesting the same unless the contrary is shown by the record; no exception by the defendant to the action of the court shall be necessary or required in order to preserve for review the error claimed in the charge."

The statutory language anticipates the State's position and refutes it. The promptly requested special charge preserved the error.

The judgment is reversed and remanded.

Before the court en banc.

OPINION ON STATE'S MOTION FOR REHEARING

TOM G. DAVIS, Judge.

Appeal is from conviction for delivery of marihuana. Upon original submission the panel reversed and remanded because the jury charge failed to apply the law of parties to the facts as timely requested by appellant. ¹

In its motion for rehearing the State asserts that "appellant was a primary actor in the commission of this offense and no charge on the law of parties was required." This contention is based upon the premise that appellant "constructively delivered" marihuana.

Art. 4476-15, Sec. 1.02(8), V.A.C.S., provides:

" 'Deliver' or 'delivery' means the actual or constructive transfer from one person to another of a controlled substance, whether or not there is an agency relationship. For purposes of this Act, it also includes an offer to sell a controlled substance. Proof of an offer to sell must be corroborated by a person other than the offeree or by evidence other than a statement of the offeree." (Emphasis added).

Viewed in the light most favorable to the jury's verdict the evidence shows that an undercover police officer, M. L. Fife, made arrangements to meet Kjehl Rasmussen, appellant's brother, on the parking lot of a Dallas shopping center for the purpose of discussing a purchase of marihuana. Fife and his partner were waiting on the lot when a blue Ford Mustang automobile pulled up next to their car. Appellant was driving the Mustang, Kjehl Rasmussen was in the backseat, and a third male passenger was in the front seat. At appellant's suggestion the parties drove to another portion of the parking lot where Fife entered the backseat of the Mustang while the other officer squatted near the driver's door and conversed with appellant. Kjehl Rasmussen gave Fife a "baggie" containing 1.06 ounces of marihuana. Fife offered to pay for the marihuana, but Kjehl Rasmussen refused payment saying "we'll give it to you this time since you're going to make another purchase." Fife inquired as to the quality of the marihuana, and all three occupants of the Mustang indicated that it was "good stuff."

Fife's partner alerted the others that a Dallas police car had entered the parking lot. Appellant stated "Let's get out of here." All agreed and Fife got out of the car. As they were...