No. 01-06-00931-CR
Opinion issued April 19, 2007. DO NOT PUBLISH. See Tex. R. App. P. 47.2(b).
On Appeal from the 21st District Court Washington County, Texas Trial Court Cause No. 14,668.
Panel consists of Justices NUCHIA, KEYES, and HIGLEY.
LAURA CARTER HIGLEY, Justice.
A jury found appellant, Gregory Reginald Jynes, guilty of aggravated robbery and assessed punishment at 15 years' confinement. See Tex. Pen. Code Ann. § 29.03 (Vernon 2003). On appeal, appellant contends that the trial court erred by (1) failing to include an application paragraph in the charge applying the law of parties to the facts and (2) entering an affirmative finding in the judgment on the use or exhibition of a deadly weapon. We affirm.
BACKGROUND
On the night of April 20, 2006, two men robbed the complainant, Kevin Baker, as he was walking into his girlfriend's apartment in Brenham, Texas. Baker had gone out to his truck at around midnight to retrieve some items and was in the parking lot when two men came from behind and grabbed him on each side of his body. The man to his left pushed a handgun into Baker's side. Baker saw the handgun, which he described as a black semi-automatic. The man on his right side, later identified as appellant, did not have a weapon. Both of the men demanded Baker's money. Baker pulled his wallet from his pants pocket and both of the men went through it, taking $80.00 or $90.00 in cash. The men then went through Baker's pants pockets, taking his cellular telephone. At some point during or after the moment that Baker turned over his money, Baker heard appellant instruct the gunman to "do him." Baker understood this phrase to mean that the gunman should shoot Baker. The gunman did not shoot Baker, but Baker was afraid that he would be shot. The two men then ran away and got into a late-model, Ford pick-up truck. Baker got into his car, followed the truck, got the license number, and called 911 from his other cellular telephone. Four officers of the Brenham Police Department responded. Officer J. Wilkins met up with Baker and had Baker follow him to the police department to give a written statement. Officer J. Snowden, who had been on patrol in the area, was able to locate the Ford truck bearing the license number Baker had reported. It was determined that the truck, which displayed Louisiana license plates, had been reported stolen. Assistant Chief of Police J. Petrash and Officer C. Jackson met up with Snowden, and the officers stopped the Ford truck. Appellant was the back-seat passenger. Jackson found a handgun and a "butterfly knife" on the back-seat floorboard. The handgun, which Jackson identified at trial as a Sigpro handgun that had been stolen from a pawn shop in Louisiana during Hurricane Katrina, was admitted into evidence. Jackson testified that, when he found the handgun, it was loaded and "the hammer was in the cock-back position." Jackson also stated that, when he opened the glove box, a cellular telephone, later identified as Baker's, fell onto the floor. In addition, Jackson testified that he recovered $90 from appellant's pants pocket. With regard to the cash, Petrash testified that appellant said "they had took [sic] if off a guy . . . behind the apartments" and that appellant had also stated, "I got it from a dud[e]'s wallet but I didn't have no gun." The day after the incident, Baker identified appellant from a photo-lineup. Subsequently, appellant was indicted for the offense of "Engaging in Organized Criminal Activity." Specifically, the indictment stated that appellant did, "while in the course of committing theft of property and with intent to obtain or maintain control of said property, intentionally or knowingly threaten or place Kenneth Baker in fear of imminent bodily injury or death, and [appellant] did then and there use or exhibit a deadly weapon, to-wit: a handgun." In addition, the indictment stated that appellant did "intentionally or knowingly operate a motor-propelled vehicle, to-wit: an automobile, without the effective consent" of the owner. Further, the indictment stated that appellant committed the offenses "with the intent to establish, maintain, or participate in a combination or in the profits of a combination who collaborated in carrying on said criminal activity." At the conclusion of the guilt-innocence phase, the proposed charge was as follows, in pertinent part: I. [Appellant] stands charged by indictment with the offense of aggravated robbery. . . . You are instructed that the law applicable to this case is as follows: A person commits an offense if, in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death and he uses or exhibits a deadly weapon. . . . II. and III. [statutory terms defined]. IV. 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. V. Now, therefore, if you find from the evidence beyond a reasonable doubt that on or about . . ., [appellant], as alleged in the indictment, did then and there, while in the course of committing theft of property and with intent to obtain and maintain control of said property, intentionally or knowingly threaten or place [Baker] in fear of imminent bodily injury or death, and the defendant did then and there use or exhibit a deadly weapon, to-wit: a handgun, with intent to obtain said property from [Baker], without the effective consent of [Baker], and with intent to deprive him of said property, then you will find [appellant] guilty of the offense of aggravated robbery as charged in the indictment. Hence, the jury charge contained an abstract instruction on the law of parties, but did not contain an application paragraph — applying the law of parties to the facts of this case. The State attempted to add an application paragraph during the charge conference, as follows: Court: Both sides having had an opportunity to review the charge, does either side have any objection to the proposed Charge of the Court? [State]: The State does, Your Honor. Specifically, to Section 5 of the charge. . . . In a proposed charge that the State earlier tendered to the Court we had included a paragraph — an application paragraph on the law of parties and we would ask that that be included. In addition to the one that's already here in Paragraph 1 of Section 5, that there be a Paragraph 2, an application paragraph to the law of parties. . . . . Court: [Defense Counsel], the defendant objects? [Counsel]: Yes, Your Honor. Court: All right. The objection is sustained. Does the defendant have any objections to the proposed charge or any requested instructions? [Counsel]: No, Your Honor. No objection. Finally, the State threaded discussion of the law of parties into its closing, as follows: [State]: And the defendant did then and there use or exhibit a deadly weapon, to wit, a handgun. We talked about it in voir dire, the law of parties, where you don't have to be in the bank to be charged with bank robbery. . . . The law of parties is what we talked about in voir dire and there it is for you outlined in Paragraph 4 of the charge. . . . 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. That's exactly what you have here. He is aiding him by being there when the gun is pushed into Mr. Baker's ribs. He is standing right on the other side of Mr. Baker. He is encouraging him because he is saying do him, do him. The jury found appellant "`[g]uilty' of the offense of aggravated robbery." There was not a special issue presented to the jury on appellant's use or exhibition of a deadly weapon. Similarly, no special issue was submitted as to whether appellant was a party to the offense and knew that a deadly weapon was used or exhibited. At the close of the punishment phase, the charge to the jury stated that "[b]y your verdict in this case you have found the defendant guilty of the offense charged in the indictment," and the jury's verdict on punishment stated: "WE, THE JURY, having found [appellant] . . . guilty of the offense of AGGRAVATED ROBBERY as alleged in the indictment, and [sic] assess his punishment. . . ." In its judgment on the verdict, the trial court stated that appellant was guilty of the offense of aggravated robbery and that "[t]he jury by its verdict made the affirmative finding that the defendant did use or exhibit a deadly weapon, to-wit: a gun during the commission of the offense or during immediate flight therefrom." ANALYSIS
In two issues, appellant contends that the trial court erred by (1) failing to include an application paragraph in the charge applying the law of parties to the facts and (2) entering an affirmative finding in the judgment on the use or exhibition of a deadly weapon. Application paragraph
In his second issue, appellant contends that the trial court erred by failing to include an application paragraph in the charge applying the law of parties to the facts. A. Standard of Review and Applicable Law
We review an alleged error in a jury charge by considering (1) whether the jury charge was erroneous and, if so, (2) whether sufficient harm resulted from the error to require reversal. See Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2006); Holford v. State, 177 S.W.3d 454, 459 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd). It is error for a trial court to refer to the law of parties in the abstract portion of the jury charge and then fail to apply that law or to refer to that law in the application paragraph of the jury charge. Campbell v. State, 910 S.W.2d 475, 477 (Tex.Crim.App. 1995). It is the application paragraph that authorizes the jury to convict the defendant. Id. Hence, an abstract charge on a theory of law that is not applied to the facts is insufficient to bring that theory before the jury. Id. Under the invited error doctrine, if a party, by his request for a ruling, leads the court into error, the party responsible for the court's action may not take advantage of the error on appeal by using the error as a basis for reversal of the judgment. Prystash v. State, 3 S.W.3d 522, 531 (Tex.Crim.App. 1999) (discussing invited error); Franks v. State, 961 S.W.2d 253, 255 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd) (holding that it is well-settled that appellant may not act as "moving factor" creating error at trial and then raise that error on appeal). The invited error doctrine applies to jury charges. Cadd v. State, 587 S.W.2d 736, 741 (Tex.Crim.App. 1979); Willeford v. State, 72 S.W.3d 820, 823 (Tex.App.-Fort Worth 2002, pet. ref'd). B. Analysis
Here, the State sought to add an application paragraph to the charge, applying the law of parties to the facts of this case. Appellant's trial counsel objected to the addition of the application paragraph, and the trial court sustained the objection. Because appellant moved the court to make the ruling, and the court ruled in accordance with the request, appellant is responsible for the trial court's action and may not assert this action as error on appeal. See Prystash, 3 S.W.3d at 532 (refusing to permit appellant to complain on appeal of deletion of language in jury charge when language was deleted at appellant's request). We conclude that appellant invited error by objecting to the inclusion of the application paragraph applying the law of parties to the facts of this case. Hence, appellant may not now complain on appeal that the charge submitted to the jury by the trial court was erroneous on this ground. See Prystash, 3 S.W.3d at 532; Willeford, 72 S.W.3d at 823. Accordingly, we overrule appellant's second issue. C. Affirmative Finding
In his first issue, appellant contends that the trial court erred by entering an affirmative finding on the use or exhibition of a deadly weapon. Specifically, appellant argues that this case does not fit any of the modes of Polk v. State. 693 S.W.2d 391 (Tex.Crim.App. 1985). Under Polk, the trial court may properly enter an affirmative finding on the use of a deadly weapon when (1) the indictment alleges the use of a deadly weapon and the jury's verdict states that it found the defendant "guilty as charged in the indictment"; (2) the jury finds guilt as alleged in the indictment and, although not specifically pled as a deadly weapon, the weapon is deadly per se; or (3) the jury affirmatively answers a special issue on the use of a deadly weapon. Id. at 394; see Johnson v. State, 6 S.W.3d 709, 713-14 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd). Here, the indictment specifically alleged the use of a "deadly weapon"; and the handgun used is deadly per se. See Tex. Pen. Code Ann. § 1.07a(17) (Vernon Supp. 2006). The jury's verdict after the guilt-innocence phase stated only that the jury found appellant "`[g]uilty' of the offense of aggravated robbery." However, the jury's verdict after the punishment phase stated: "WE, THE JURY, having found the defendant . . . guilty of the offense of AGGRAVATED ROBBERY as alleged in the indictment, and assess his punishment at. . . ." (Itals. added.) Hence, the affirmative finding of a deadly weapon is supported by the first and second bases listed in Polk. See Polk, 693 S.W.2d at 394; Johnson, 6 S.W.3d at 914. Once the jury made the affirmative finding, the trial court was required to enter the finding in the judgment. See Johnson, 6 S.W.3d at 714. We hold that the trial court did not err by entering an affirmative finding that a deadly weapon was used or exhibited. Accordingly, appellant's first issue is overruled. Conclusion
We affirm the judgment of the trial court.