Romo v. State
| Decision Date | 18 May 1977 |
| Docket Number | No. 52806,52806 |
| Citation | 568 S.W.2d 298 |
| Parties | Jesus Eduardo ROMO, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Francis P. Maher, Laredo, for appellant.
Charles R. Borchers, Dist. Atty. and Donato D. Ramos, Stephen A. Whitworth and Sharon S. Trigo, Asst. Dist. Attys., Laredo, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.
OPINION ON APPELLANT'S MOTION FOR REHEARING
This conviction was affirmed on original submission. On rehearing we find unassigned error that requires consideration in the interest of justice. Art. 40.09(13), V.A.C.C.P.
Appellant was convicted of murder and punishment was assessed at fifty years. In the early morning hours of July 4, 1974, Isauro Martinez, III, was shot and killed by Lisandro Trevino (see Trevino v. State, Tex.Cr.App., 532 S.W.2d 352), who was riding as a passenger in a car driven by appellant. Appellant was convicted as a party to the offense under V.T.C.A., Penal Code Sec. 7.02(a)(2), which provides:
The charge to the jury utterly failed to apply the law to the facts of the case. This requires reversal. Harris v. State, Tex.Cr.App., 522 S.W.2d 199; Perez v. State, Tex.Cr.App., 537 S.W.2d 455; Williams v. State, Tex.Cr.App., 547 S.W.2d 18 (1977).
The first three paragraphs of the charge are abstract instructions on the law of V.T.C.A., Penal Code Sec. 19.02(a), murder; Sec. 1.07(a)(17), definition of "individual"; Sec. 6.03(a)(b), definitions of intentional and knowing culpable mental states; and Sec. 6.04, causation. The fourth paragraph purported to apply the law to the facts in this fashion:
"Now bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt, that the defendant, Jesus Eduardo Romo, on or about the 4th day of July, 1974, in the County of Webb, and State of Texas, as alleged in the indictment, did then and there intentionally and knowingly cause the death of an individual, Isuaro Martinez, III, by shooting him with a gun, you will find the defendant guilty of the offense of murder and so say by your verdict, but if you do not so believe, or if you have a reasonable doubt thereof, you will acquit the defendant of the offense of murder and proceed to consider whether the defendant is guilty of the lesser included offense of voluntary manslaughter."
This paragraph charged appellant as a primary actor, not as a party under Sec. 7.02(a)(2), supra. The next six paragraphs submitted the law of voluntary and involuntary manslaughter and purported to apply the law to the facts for those offenses, again on the theory that appellant was the primary actor. No evidence supported submission of the case on the theory that appellant was the primary actor. Consequently, application of the law to such a factual theory was not authorized, and furthermore neither lead the jury to the threshold of its duty to decide the fact issues, nor guarded against confusion from partisan claims on the application of the law to the facts. See Williams v. State, supra.
Following the paragraphs of the charge submitting murder, voluntary manslaughter, and involuntary manslaughter on the primary actor theory, and immediately before instructions that the indictment is no evidence of guilt, on the burden of proof and on deliberations, the court inserted an abstract instruction on Secs. 7.01(a), (b), and 7.02(a), supra. This paragraph neither focused on Sec. 7.02(a)(2), which was the entire basis of the State's case, nor did it apply the law of that provision to the facts of this case.
Sec. 7.02(a)(2), supra, specifically required for culpability that the accused acted "with intent to promote or assist the commission of the offense," here, murder. Appellant's defense was bottomed on the assertion that, despite his acts as driver of the car, he had no such intent as is required by Sec. 7.02(a) (2) to render him guilty as a party. The charge utterly failed to apply the law to the facts of this case. The "facts" to which the law was applied were wholly unsupported by the evidence.
The cases cited by the dissent were decided under the 1925 Penal Code and are not authority on the issue before us. Under the former Code a distinction was made between accomplices and principals. V.T.C.A., Penal Code Sec. 7.01(c) expressly abolished that distinction, stating:
"All traditional distinctions between accomplices and principals are abolished by this section, and each party to an offense may be charged and convicted without alleging that he acted as a principal or accomplice."
Culpability as a party to an offense by virtue of one's criminal responsibility for the conduct of another is now determined by the several principles set out in Sec. 7.02, supra. In the case at bar the court charged abstractly on all theories of criminal responsibility for the conduct of another provided in Sec. 7.02(a), supra. As a consequence, not only was the charge defective in the manner above described, but it also failed even to focus the jury's deliberations on the particular abstract statement of the law in Sec. 7.02(a), supra, relied upon, to wit, Sec. 7.02(a)(2). Cases decided under the former Penal Code are of no benefit in deciding this issue. With the enactment of Secs. 7.01 and 7.02, supra, and the express mandate of Sec. 7.01(c), we write on a clean slate.
The trial court's application of the law to the allegations of the indictment instead of to the facts shown by the evidence was tantamount to no application of the law to the facts whatsoever.
Appellant's motion for rehearing is granted, and our prior judgment of affirmance in this cause is set aside. Finding fundamental reversible error in the court's charge, we reverse the judgment and remand the cause.
The majority reverses this conviction on the ground that the trial court did not apply the law to the facts of the case. Neither appellant nor his counsel complains of the court's charge upon which the reversal is based.
The indictment charged in pertinent part as follows:
"Lisandro Trevino and Jesus Eduardo Romo (appellant), then and there acting together, did, then and there intentionally and knowingly cause the death of an individual Isauro Martinez, III, by shooting him with a gun, . . ."
The record reflects that Romo and Trevino were acting in concert when the offense occurred. They pursued a van occupied by Martinez and two other men in an Oldsmobile. Romo was driving the car. When the chase terminated Trevino shot and killed Martinez with a .22 caliber rifle. Romo knew Trevino had the loaded rifle in the car before the murder was committed. Afterwards, Romo drove Trevino through other areas of Laredo where Trevino shot at residences and other buildings until they were apprehended.
The following verdict was returned:
"We, the jury, find the defendant Jesus Eduardo Romo guilty as charged in the indictment." (Emphasis added).
The indictment was read to the jury. The jury knew that Romo was charged with being a party to the murder of Isauro Martinez, III, from the indictment, the proof and the court's charge.
Omitting formal and non-pertinent parts, the court submitted the following:
I.
"A person commits the offense of murder if he intentionally or knowingly causes the death of an individual, without justification.
4.
"Now bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt, that the defendant, Jesus Eduardo Romo, on or about the 4th day of July, 1974, in the County of Webb, and State of Texas, as alleged in the indictment, did then and there intentionally and knowingly cause the death of an individual, Isauro Martinez, III, by shooting him with a gun, you will find the defendant guilty of the offense of murder and say so by your verdict, but if you do not believe, of if you have a reasonable doubt thereof, you will acquit the defendant of the offense of murder and proceed to consider whether the defendant is guilty of the lesser included offense of voluntary manslaughter.
12.
Before the court read the charge to the jury, defense counsel was asked whether he had any complaint regarding the charge. Counsel expressly waived any objection.
Since no objection was made to the charge in accordance with Article 36.14, V.A.C.C.P., the judgment cannot be reversed on appeal because of error in the charge unless it appears that Romo has not had a fair and impartial trial. Article 36.19, V.A.C.C.P.; Harris v. State, 522 S.W.2d 199 (Tex.Cr.App.1975); Peterson v. State, 508 S.W.2d 844 (Tex.Cr.App.1974). I cannot agree that error, if any, in the charge in the instant case constitutes fundamental error.
In Davis v. State, 430 S.W.2d 210 (Tex.Cr.App.1968), defendant and two others were convicted of...
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