Rico v. State, 68637

• Decision Date: 29 June 1983
• Docket Number: No. 68637,68637
• Citation: 707 S.W.2d 549
• Parties: Narcisco Sanchez RICO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 549

707 S.W.2d 549

Narcisco Sanchez RICO, Appellant, v. The STATE of Texas, Appellee.

No. 68637.

Court of Criminal Appeals of Texas En Banc.

June 29, 1983.

On Rehearing April 16, 1986.

John Mann, Amarillo, for appellant.

John H. Tull, Jr., Former County Atty., and John L. Owen, Former Asst. County Atty., Bill Baumann, County Atty., and Pamela C. Oglesby, Asst. County Atty., Amarillo, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the misdemeanor offense of theft of property over the value of five dollars; the punishment is confinement in the county jail for six months and a fine of $1,000.

In his first ground of error the appellant asserts that the trial court committed reversible error by submitting to the jury a charge authorizing conviction on a theory not alleged in the indictment.

It was alleged that:

"NORCISO SANCHEZ RICO, hereinafter styled defendant, heretofore on or about the 7th day of June A.D., 1980, in the County of Potter and State aforesaid did then and there unlawfully appropriate property, to-wit: one bottle of wine, one ribeye steak and one round steak of at least the value of $5.00 but less than the value of $20.00 from the owner, James Meier, without the effective consent of the owner, and with intent to deprive the said owner of said property, the said Defendant committed the offense by acting together with Shanda Sue Sanders in that the said Defendant acted with the intent to promote and assist the commission of the offense by aiding the said Shanda Sue Sanders in the commission of the offense."

The court instructed the jury that:

"Therefore, if you believe from the evidence beyond a reasonable doubt that the defendant either by his own conduct did then and there on or about the 7th day of June A.D., 1980, in the County of Potter and State of Texas unlawfully appropriate property, to-wit: one bottle of wine, one ribeye steak and one round steak of at least the value of $5.00 but less than the value of $20.00 from the owner, James Meier, without the effective consent of the owner, and with intent to deprive the said owner of said property, or, acting with intent to promote or assist the commission of the offense, aided Shanda Sue Sanders to commit the offense charged, as defined above, and that the said Shanda Sue Sanders did then and there on or about the 7th day of June A.D., 1980, in the County of Potter and State of Texas unlawfully appropriate property, to-wit: one bottle of wine, one ribeye steak and one round steak of at least the value of $5.00 but less than the value of $20.00 from the owner, James Meier, without the effective consent of the owner, and with intent to deprive the said owner of said property, you will find the defendant guilty."

A party to an offense may be charged with the offense without alleging the facts which make the defendant a party to the offense and criminally responsible for the conduct of another; V.T.C.A. Penal Code, Section 7.01; Pitts v. State, 569 S.W.2d 898 (Tex.Cr.App.1978); but if the evidence supports a charge on the law of parties the court may charge on the law of parties even though there is no such allegation in the indictment or information. English v. State, 592 S.W.2d 949 (Tex.Cr.App.1980); Galvah v. State, 598 S.W.2d 624 (Tex.Cr.App.1979); LeDuc v. State, 593 S.W.2d 678 (Tex.Cr.App.1979); Pitts v. State, supra. However, in the instant case, the State, perhaps because it correctly anticipated the proof would show the appellant was guilty as a party to the offense only, charged him in the information with being a party to the offense committed by Shanda Sue Sanders.

Although appellant was only charged in the information with committing the offense as a party, the instructions to the jury allowed his conviction on the theory that he committed the offense by his own conduct. Even though there was no trial objection to the charge, it has been held that a charge which allows conviction for commission of an offense in a manner not alleged is fundamental error. Cumbie v. State, 578 S.W.2d 732 (Tex.Cr.App.1979); Gooden v. State, 576 S.W.2d 382 (Tex.Cr.App.1979).

The judgment is reversed and the cause is remanded.

McCORMICK and MILLER, JJ., dissent.

OPINION ON STATE'S MOTION FOR REHEARING

McCORMICK, Judge.

On original submission, a majority of this Court reversed appellant's conviction on the theory that since the information alleged that appellant acted together with another in the commission of the theft it was fundamental error to charge the jury that they could convict appellant if they found he acted either alone or as a party. The majority concluded that what occurred in the instant case was the malady condemned in Cumbie v. State, 578 S.W.2d 732 (Tex.Cr.App.1979). After reviewing this case on rehearing, however, we are constrained to reverse our earlier ruling and hold that the charge did not contain reversible error.

Initially we note that the charge in the instant case does not contain the type of error condemned in Cumbie. The concern in Cumbie was that a charge including a different theory of the commission of the offense would permit a conviction on proof different from that required to prove the allegations in the charging instrument. This is not the situation in the instant case. It has been acknowledged that a charge on the law of parties enlarges a defendant's criminal responsibility. Thus, the concept of criminal responsibility as a party is a benefit to the State. Bilbrey v. State, 594 S.W.2d 754, 756 (Tex.Cr.App.1980); Romo v. State, 568 S.W.2d 298, 302 (Tex.Cr.App.1978) (Opinion on Rehearing); Ellis v. State, 551 S.W.2d 407, 411 (Tex.Cr.App.1977). In the instant case, allowing conviction of appellant while acting alone narrowed appellant's scope of criminal responsibility and actually was a boon to appellant in that it effectively increased the State's burden. That is, if the jury actually convicted appellant as a result solely of his actions, they found that the State proved appellant was acting as a party and more.

In addition, this Court has held on several occasions that error is not present in the converse situation, that is, when an accused is charged alone but a conviction is authorized on the theory of parties. Meanes v. State, 668 S.W.2d 366 (Tex.Cr.App.1983); Blanco v. State, 641 S.W.2d 532 (Tex.Cr.App.1982); Le Duc v. State, 593 S.W.2d 678 (Tex.Cr.App.1979); English v. State, 592 S.W.2d 949 (Tex.Cr.App.1980); Pitts v. State, 569 S.W.2d 898 (Tex.Cr.App.1978). In those cases, an individual does not receive the detailed notice that the appellant in the instant case received. Yet we have found no error.

Secondly, since the original opinion in this cause was handed down, a new test for finding fundamental error in the court's charge has been enunciated by this Court. In Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1984) (Opinion on Rehearing), this Court held that, if no objection was made at trial and the accused was claiming "fundamental error," reversal should occur only if the record showed that as a result of the error in the charge the accused had suffered "egregious harm." Thus, the automatic reversal rule of Cumbie has been eliminated and a two-step inquiry has been substituted in its place.

Applying the Almanza standard to the instant case, we find that fundamental error is not present. As we held above, the charge as given contained no error. However, even if we had found that the charge as given was erroneous, our review of the record under the second step--the "egregious harm" step--shows that appellant suffered no harm at all as a result of the court's charge.

A review of the evidence shows that the State clearly proved that appellant acted with another in stealing several grocery items. Officer John Vela, an Amarillo police officer, testified that he was working security at a Safeway Grocery store on the date of the offense when he saw appellant and Shanda Sanders enter the store. Sanders picked out a grocery cart and the pair then headed for the meat counter. At the meat counter appellant picked up two packages of meat and placed them in the grocery cart. Sanders, with appellant walking beside her, pushed the cart down an aisle where she stopped. Appellant then walked around to the front of the cart and turned to face Sanders. After both appellant and Sanders looked in both directions to see if anyone was watching, Sanders placed the two packages of meat in her purse. The pair then proceeded to the aisle containing the wine. Once again with appellant acting as a lookout, Sanders picked up a bottle of wine and deposited it in her purse. Appellant then proceeded to an express check out line where he stood waiting to pay for a loaf of bread he had picked up. Meanwhile Sanders walked to the door of the store and exited. She was immediately arrested. Appellant was arrested while waiting in the check out line.

The defensive theory presented at trial was that appellant did not know his companion was stealing the items. Appellant's co-defendant testified that she stole the items without appellant's knowledge.

The State's theory was that appellant was guilty as a party. The information charged that he acted as a party and indeed the charge submitted to the jury contained instructions that they should find him guilty either as a party or as acting alone. The evidence clearly showed appellant's guilt as a party and the verdict returned by the jury at the guilt-innocence stage of the trial read:

"We the Jury, find the Defendant guilty as alleged in the Information."

We can find no harm to appellant as a result of the way the jury was charged. Compare Williams v. State, 676 S.W.2d 399 (Tex.Cr.App.1984) (where accused was indicted as a party with Rebecca Taylor and Pete DeLaRosa, but the jury charge allowed conviction upon a finding that...