Opinion
No. 07-02-0108-CR.
April 22, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).
From the 137th District Court of Lubbock County, No. 2000-433,443.
Before JOHNSON, C.J., QUINN, J., and BOYD, S.J.
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. § 75.002(a)(1) (Vernon Supp. 2003).
On Motion for Rehearing
Appellant, Michael W. Miles, has moved for rehearing. He contends that we applied an incorrect test when analyzing whether he was harmed by the improper submission of an instruction on the law of parties. That is, he believes the court "merg[ed] or equat[ed] the some harm standard of Almanza and Arline with the standard of review an appellate court utilizes to determine whether the evidence is minimally sufficient to support a verdict." (Emphasis in original). We overrule the motion for the following reasons. First, appellant criticizes the court for using the test he invited the court to use in his brief. That this is true is readily evinced by comparing our opinion to his appellant's brief. On page 46 of appellant's brief, he stated that "[g]enerally when the evidence at trial clearly supports a defendant's guilt as the primary actor, error in charging law of parties is considered harmless." In our opinion, we stated that error arising from the improper submission of a party charge was harmless "`if the evidence clearly supports appellant's guilt as a primary actor.'" As can be seen, the utterance in our opinion is virtually identical to that in his brief. So, assuming arguendo that we erred in assessing harm by determining whether the evidence clearly supported appellant's culpability as a primary actor, we did so at appellant's invitation. And, he cannot complain about that. See Prystash v. State, 3 S.W.3d 522, 531 (Tex.Crim.App. 1999) (holding that an appellant cannot complain about error he invited). Second, the standard utilized was the very same standard invoked and applied by the Texas Court of Criminal Appeals in Brown v. State, 716 S.W.2d 939 (Tex.Crim.App. 1986) (holding the error harmless when the evidence clearly supported appellant's culpability as a primary actor); Black v. State, 723 S.W.2d 674 (Tex.Crim.App. 1986) (stating that "[w]here the evidence clearly supports a defendant's guilt as a principal actor, any error of the trial court in charging on the law of parties is harmless"); Cathey v. State, 992 S.W.2d 460 (Tex.Crim. App. 1999) `stating that "where, as in the instant case, the evidence clearly supports a defendant's guilt as the primary actor, error in charging on the law of parties was harmless"); and Ladd v. State, 3 S.W.3d 547 (Tex.Crim.App. 1999) `stating "[n]evertheless, `where . . . the evidence clearly supports a defendant's guilt as a principal actor, any error of the trial court in charging on the law of parties is harmless'"). Given that the holding was announced by the highest criminal court in the State of Texas, we, as an intermediate appellate court, are not free to ignore it, despite appellant's wishes. Or, stated differently, we may rely on it until the Court of Criminal Appeals holds otherwise. Third, even if we were to apply the test mentioned in Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1984) and Arline v. State, 721 S.W.2d 348 (Tex.Crim.App. 1986) we would nevertheless arrive at the same result. Given that appellant objected to the inclusion of the party charge in the jury's instruction, both Almanza and Arline require reversal only when the record, when viewed as a whole, illustrates that the "defendant must have suffered `some' actual, rather than theoretical, harm from the error." Arline v. State, 721 S.W.2d at 351. Furthermore, in conducting that analysis we may assess the overall weight of the evidence illustrating guilt. See Webber v. State, 29 S.W.3d 226, 237 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). So too may we consider the extent to which the error was brought to the attention of the jurors. See Russell v. State, 43 S.W.3d 66, 70-71 (Tex.App.-Waco 2001, no pet.). Here, an actuality of harm does not exist for several reasons. For instance, while the instruction was included in the charge and the prosecutor alluded to it during summation, he nevertheless urged the jurors not to find appellant guilty as a party but as the primary actor given the quantum of evidence before it. Moreover, that evidence, while circumstantial, clearly established his guilt. As illustrated in the record, the decedent was killed by blunt force trauma to the head and body. The decedent's blood splatter was found on appellant's shovel which was found in appellant's garage. The decedent was last seen at appellant's house. The decedent was found wrapped in materials akin to those found in appellant's house or to which he had access. Within the materials in which the decedent was wrapped was a cigarette of the same brand as appellant's. Appellant informed his cellmate that he had killed someone with a bat. Finally, appellant continually contradicted his story regarding his last encounter with the decedent. All of this constitutes clear evidence supporting appellant's guilt as the murderer. Furthermore, the very evidence which could conceivably be viewed as illustrating that appellant acted as a party was the same evidence which illustrated that he personally committed the murder. As previously mentioned in our original opinion, the evidence either showed that appellant did nothing or that he committed the murder on his own or at the behest of others. Nothing illustrated that someone else committed the murder and appellant merely directed, solicited, encouraged, aided, or attempted to aid the murderer. In short, there was no evidence that anyone, other than appellant, killed the decedent. Thus, if no evidence exists illustrating that someone other than appellant killed the decedent, then the only conceivable way the jury could have found that he acted as a party to the murder was if it concluded that he killed at the behest of another. Yet, under that scenario, while he may have been a party in the sense that he was acting on behalf of others, he was nevertheless the primary actor because he did the killing. So, the same evidence which could conceivably categorize appellant as a party to the crime also made him the primary actor, and because of that, we cannot see how appellant was harmed. See Montes v. State, 724 S.W.2d 54, 56-57 (Tex.Crim.App. 1987) (holding that the appellant suffered no harm when the trial court erroneously included the party charge because the acts which conceivably made him a party also made him the primary actor). Finally, because there existed no evidence that anyone else killed the decedent, the record cannot support the conclusion that appellant must have suffered some actual, as opposed to theoretical, harm as required by Almanza and Arline. When circumstances such as these appear of record, the reviewing court is entitled to conclude that no harm resulted since "the jury almost certainly did not rely upon the parties instruction in arriving at its verdict, but rather based the verdict on the evidence tending to show appellant's guilt as a principal actor." Ladd v. State, 3 S.W.3d at 565. Or, as stated in Cathey, if there is no evidence upon which a jury could rationally find that the accused acted as a party, then the error is harmless because it is "highly unlikely that a rational jury would base its verdict on a parties theory." Cathey v. State, 992 S.W.2d at 466. Accordingly, the motion for rehearing is overruled.
We are aware of the recent decision by the San Antonio Court of Appeals in Guevara v. State, No. 04-00-00340-CR, 2003 WL 201299 (Tex.App.-San Antonio January 31, 2003, no pet. h.). There, the court held the defendant was harmed because it could not determine whether the jury considered the improper instruction while deliberating. The improper instruction consisted of a misstatement of law, not the submission of a party charge when the evidence did not warrant it. Additionally, none of the opinions by the Texas Court of Criminal Appeals which we discussed and found binding here, where mentioned there. Thus, the opinion is inapposite.