Woodard v. State
| Decision Date | 22 October 2009 |
| Docket Number | No. 14-08-00288-CR.,14-08-00288-CR. |
| Citation | 300 S.W.3d 404 |
| Parties | Andrew WOODARD, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Jeffrey W. Purvis, Angleton, TX, for Appellant.
Jon L. Hall, Angleton, TX, for Appellee.
Panel consists of Justices SEYMORE, BROWN, and SULLIVAN.
SUBSTITUTE OPINION
We deny the State's motion for rehearing, withdraw our opinion issued May 14, 2009, and issue this substitute opinion in its place.
Appellant, Andrew Woodard, was acquitted of murder, the only offense described in the felony indictment. However, he was convicted of conspiracy to commit aggravated robbery, a crime that (1) was not set forth in the indictment and (2) is not a lesser-included offense of the crime for which he was indicted.
The State concedes the trial court erred by submitting the unindicted offense but nevertheless urges us to affirm the conviction on harmless-error grounds. We hold appellant was egregiously harmed by the deprivation of his valuable constitutional right to notice of the criminal charges brought against him. Therefore, we reverse appellant's conviction for the unindicted crime of conspiracy to commit aggravated robbery, and remand this case to the trial court with instructions to enter an order of acquittal for the indicted charge of murder.
On August 8, 2006, appellant drove three other men to the boat docks in Freeport, where the group planned to sell fake cocaine—that is, Tylenol crushed to resemble powdered cocaine—to the complainant, Hien Van Ha. When they arrived, appellant remained with the car while two of the other men, Kevin Pipkins and an unidentified black male, boarded the shrimp boat where the complainant resided. While they were on board, appellant heard a gunshot from the boat. The men then returned to the car. Appellant saw that Pipkins was carrying the complainant's wallet, which he discarded as they drove away. The next morning, the boat's owner discovered the body of the complainant, who had been killed by a single gunshot to the head.
Pipkins was tried for, and convicted of, the murder of the complainant. In addition, on February 21, 2007, the grand jury also returned an indictment charging appellant with murder. Under the Texas Penal Code, one commits the offense of murder if he:
(1) intentionally or knowingly causes the death of an individual;
(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or
(3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, . . . he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.
Tex. Penal Code Ann. § 19.02(b) (Vernon 2003). Appellant was charged with murder under sections (b)(1) and (b)(2) but not section (b)(3), commonly known as "felony murder."1 Further, the indictment omits any mention of the potential offenses of robbery, aggravated robbery, or criminal conspiracy.
Appellant was tried for the charged offense of murder. At the beginning of trial, the court read the grand jury's murder indictment aloud and then asked appellant, "Mr. Woodard, to the charge as alleged against you in the indictment how do you plead, guilty or not guilty?"2 Appellant replied, "Not guilty."
At the conclusion of trial, notwithstanding the specific offense described in the grand jury's indictment, the trial court submitted a charge authorizing the jury to convict appellant not only of murder, but also "the lesser offense of" conspiracy to commit aggravated robbery and/or conspiracy to commit robbery. Significantly, the record is silent as to who requested the inclusion of these unindicted offenses or the circumstances under which they were included in the jury charge.
The jury acquitted appellant of the indicted crime of murder but convicted him of conspiracy to commit aggravated robbery, an unindicted offense. Appellant was sentenced to twenty-nine years' confinement and timely appealed, raising two issues. First, appellant contends the submission of these unindicted offenses, which are not lesser-included offenses of the charged crime, violated his constitutional right to notice of the charges against him. Second, appellant claims he did not receive the effective assistance of counsel. Because we sustain appellant's first issue and reverse his conviction, we need not reach his alternative ineffective-assistance claim. See Tex.R.App. P. 47.1.
We review allegations of charge error under a two-step process. See Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim. App.1994). We must first decide whether the charge contains error. Id. If so, then we must determine whether the erroneous charge resulted in sufficient harm as to require reversal. Id. at 731-32.
Because constitutional due process guarantees a defendant's right to notice of the criminal charges against him, when an indictment facially alleges a complete offense, as here, the State is limited to proving the theory alleged in the indictment. See Schmuck v. United States, 489 U.S. 705, 717-18, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989); Stevens v. State, 891 S.W.2d 649, 650 (Tex.Crim.App.1995); Castillo v. State, 7 S.W.3d 253, 258 (Tex. App.-Austin 1999, pet. ref'd) (citing Fisher v. State, 887 S.W.2d 49, 55, 57 (Tex.Crim. App.1994)). Thus, the jury charge may not enlarge the alleged offense or permit the jury to convict the defendant for a crime different from that described in the indictment. Castillo, 7 S.W.3d at 258.
Even so, a defendant may be convicted of an unindicted offense that is a "lesser-included offense" of the charged crime. See Wasylina v. State, 275 S.W.3d 908, 910 (Tex.Crim.App.2009). A lesser-included offense "is established by proof of the same or less than all the facts required to establish the commission of the offense charged." Tex.Code Crim. Proc. Ann. art. 37.09 (Vernon 2003). Thus, notice of the State's intent to prosecute the defendant for the greater offense necessarily suffices to inform him, by extension, of the possibility of a conviction on the lesser offense. See Wasylina, 275 S.W.3d at 910; Jacob v. State, 892 S.W.2d 905, 907 (Tex.Crim.App. 1995).
However, in its brief, the State expressly acknowledges that criminal conspiracy, including conspiracy to commit aggravated robbery, is not a lesser-included offense of the murder allegations brought against appellant.3 Accordingly, the State concedes error in the trial court's submission of the unindicted conspiracy charges. See Castillo, 7 S.W.3d at 258 (citing Fella v. State, 573 S.W.2d 548, 548 (Tex.Crim.App.1978)).4 Still, the State argues the erroneous conviction should be affirmed on the basis that appellant, who did not object to the submission, did not suffer egregious harm as to require reversal of the judgment.5
The United States Supreme Court has repeatedly held a conviction cannot stand if premised upon an offense different from that set forth in the grand jury's indictment. See Schmuck, 489 U.S. at 717, 109 S.Ct. 1443; United States v. Miller, 471 U.S. 130, 142-43, 105 S.Ct. 1811, 85 L.Ed.2d 99 (1985); Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). But the erroneous submission of an unindicted offense, although unconstitutional, has not yet been described as a "structural defect" for which reversal is automatic. See United States v. Gonzalez-Lopez, 548 U.S. 140, 148-49, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006); Linton v. State, 15 S.W.3d 615, 620 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd); see also Daniels v. State, 754 S.W.2d 214, 222 (Tex.Crim.App.1988) (). Thus, we must review the trial court's error for harmlessness. See Gonzalez-Lopez, 548 U.S. at 148, 126 S.Ct. 2557; Williams v. State, 252 S.W.3d 353, 357 (Tex.Crim.App.2008) ().
In the context of jury-charge errors, the standard for assessing harm depends upon whether the defendant objected to the charge at trial. See Jimenez v. State, 32 S.W.3d 233, 237 (Tex.Crim.App. 2000). When, as here, the accused did not object to the erroneous charge and raises that complaint for the first time on appeal, he must show fundamental error, that is, the error was "egregious and created such harm that appellant was denied a fair trial." Warner v. State, 245 S.W.3d 458, 461 (Tex.Crim.App.2008). Generally, an error results in egregious harm if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Id. at 461-62. Therefore, we consider appellant's contention that he was deprived of his valuable due-process rights, under both the United States and Texas Constitutions, to notice of the charges brought against him.
Both the United States and Texas Constitutions guarantee the rights of a criminal defendant to know the nature of the charges brought against him. See U.S. Const. amend. VI; Tex. Const. art. I, § 10; Sanchez v. State, 182 S.W.3d 34, 44-45 (Tex.App.-San Antonio 2005), aff'd, 209 S.W.3d 117 (Tex.Crim.App.2006). This right has been described as "fundamental." State v. Moff, 154 S.W.3d 599, 602 (Tex. Crim.App.2004). Such due-process notice must come from the face of the charging instrument and be specific enough to allow the defendant to investigate the allegations and prepare a defense. See id.; Riney v. State, 28 S.W.3d 561, 565 (Tex.Crim.App. 2000); Sanchez, 182 S.W.3d at 45. Thus, the defendant need not look beyond the indictment to determine the charges he must defend and is not required to anticipate any and all variant facts the State might hypothetically seek to prove. Riney, 28...
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