Opinion
No. 10-03-00260-CR
Opinion delivered and filed October 27, 2004. DO NOT PUBLISH.
Appeal from the 54th District Court, McLennan County, Texas, Trial Court # 2002-979-C. Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA. (Justice VANCE dissenting with note)
"(Justice VANCE dissents with a note: I would reverse the judgment for factual insufficiency. Roberts' counsel presents a detailed, three-page analysis of the evidence, which the majority does not even acknowledge. I continue to believe that we owe it to the litigants, the higher courts, the Bench and Bar, and the public generally to provide more of the facts and our analysis in memorandum opinions, particularly when counsel presents a rational argument that is being rejected. It is hard to understand why the majority will not provide the basic facts necessary to understand why the Appellant brought the issues or the reasons for rejecting them.)"
MEMORANDUM OPINION
Rodrigo Barnes, a childhood friend of Andrew Roberts, Jr., was carjacked at gunpoint by a neighborhood gang. Roberts knew the gang members and was in the back seat of Barnes's parked Mercedes Benz when the carjacking occurred. Barnes had been trying to get Roberts out of the vehicle before the robbery, but Roberts was detaining him. Barnes believed Roberts was setting him up for the robbery by signaling the gang while sitting in the back seat. Roberts and two of the gang members who pled guilty to aggravated robbery said he did not assist in the robbery. Roberts was convicted of aggravated robbery. He was sentenced to thirty-five years in prison. We affirm. Roberts first contends that the evidence is factually insufficient to support his conviction as a party to the aggravated robbery. Viewing the evidence under the appropriate standard of review, we find the evidence factually sufficient to support the conviction. Zuniga v. State, No. 539-02, 2004 Tex. Crim. App. LEXIS 668, at *20 (Tex.Crim.App. Apr. 21, 2004). Issue one is overruled Roberts argues in his next two issues that the trial court committed fundamental error in permitting a State's witness to allegedly testify about Roberts's culpable mental state and about Barnes's truthfulness. Roberts did not object to this alleged testimony. The failure to object to the admissibility of evidence forfeits complaints about admissibility on appeal. Saldano v. State, 70 S.W.3d 873, 888-890 (Tex.Crim.App. 2002). Issues two and three are not preserved for our review. Tex.R.App.P. 33.1. In his last two issues, Roberts contends that the trial court erred in its charge to the jury. Specifically, in issue four, he claims the charge erroneously shifted the burden of proof as to the law of parties from the State to him. In issue five, he contends the court erred in failing to submit a charge on unanimity. When reviewing charge errors, an appellate court must undertake a two-step review: first, the court must determine whether error actually exists in the charge, and second, the court must determine whether sufficient harm resulted from the error to require reversal. Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex.Crim.App. 1994); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (on rehearing). The portion of the charge of which Roberts first complains is a converse charge on the law of parties:
You are further instructed that the mere presence of the defendant at the scene of the aggravated robbery, if any, would not constitute him a party to the offense, and if you should find from the evidence beyond a reasonable doubt that Ernest Proctor, Dominque Bentencourt, Demarcus Carr, Michael Calhoun or Darren Williams did then and there commit the said Aggravated Robbery as aforesaid, but you further find and believe from the evidence, or you have a reasonable doubt thereof, that the defendant, Andrew Roberts, Jr., did not agree to, or solicit, encourage, direct, aid, or attempt to aid Ernest Proctor, Dominque Bentencourt, Demarcus Carr, Michael Calhoun or Darren Williams in the commission of the said Aggravated Robbery, then you will find the defendant, Andrew Roberts, Jr., not guilty of the offense of Aggravated Robbery as alleged in the indictment.(Emphasis added.). To support his issue on appeal, Roberts relies solely on a case from San Antonio that held the submission of a converse charge was erroneous. See Allen v. State, 686 S.W.2d 685, 689-690 (Tex.App.-San Antonio 1985, no pet.). Even if Allen is properly decided, it is not controlling in this case. In Allen, the charge only abstractly defined the law of parties; it did not apply the law of parties to the facts of the case. The law of parties must be incorporated within the application paragraph of the jury charge to authorize the jury to convict a defendant as a party. Biggins v. State, 824 S.W.2d 179, 180 (Tex.Crim.App. 1992). But because the converse paragraph in Allen was the only paragraph in the charge which addressed the defendant's criminal responsibility, the San Antonio Court held that the converse charge improperly shifted the burden of proof on criminal responsibility to the appellant. Allen, 686 S.W.2d at 690. In Roberts's case, the court's charge included an abstract instruction on the law of parties:
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. Mere presence alone will not constitute one a party to an offense.Immediately after this abstract instruction, the charge applied the law of parties to the facts of the case:
Now if you find from the evidence beyond a reasonable doubt that on or about the 11th day of July, 2002, in McLennan County, Texas, that Ernest Proctor, Dominque Bentencourt, Demarcus Carr, Michael Calhoun or Darren Williams, while in the course of committing theft of property, and with intent to obtain and maintain control of said property, did intentionally or knowingly threaten or place Rodrigo Barnes, in fear of imminent bodily injury or death, and did then and there use and exhibit a deadly weapon, to-wit: a firearm, and that the defendant, Andrew Roberts, Jr., knew of the unlawful intent, if any, of Ernest Proctor, Dominque Bentencourt, Demarcus Carr, Michael Calhoun or Darren Williams to rob Rodrigo Barnes, and that he acted with intent to promote or assist the commission of the offense by soliciting, encouraging, directing, aiding or attempting to aid Ernest Proctor, Dominque Bentencourt, Demarcus Carr, Michael Calhoun or Darren Williams, to commit the offense of Aggravated Robbery, then you will find the defendant Andrew Roberts, Jr., guilty of aggravated robbery.
Unless you so find beyond a reasonable doubt, or it you have a reasonable doubt thereof, you will acquit the defendant of aggravated robbery.Immediately after this instruction, came the converse charge previously quoted. The jury was charged on the law of parties in the abstract and in the application paragraph of the law to the facts of the case. Because these necessary instructions were also given, the converse charge does not shift the burden of proof from the State to Roberts. Thus, the trial court did not err. There is some disagreement between the parties as to whether Roberts objected to the portion of the charge for which he now complains on appeal. This disagreement is important in determining what the proper harm analysis would be if there is error in the charge. Because the trial court did not err in submitting the charge, a decision on whether or not Roberts properly objected to the charge is unnecessary. Issue four is overruled. Roberts next contends that the trial court failed to submit a charge on unanimity because, he claims, the charge as submitted did not require members of the jury to unanimously agree to the identity of at least one of the five principals named in the primary offense. The cases cited by Roberts do not stand for the proposition that the trial court must submit a charge on unanimity in this particular fact situation. He presents no authority for his proposition. See TEX. R. APP. P. 38.1(h). Issue five is inadequately briefed and presents nothing for review. See Long v. State, 137 S.W.3d 726, 737 (Tex.App.-Waco 2004, no pet.). The trial court's judgment is affirmed.