On Appeal from the 248th District Court Harris County, Texas
Trial Court Cause No. 1373244
Appellant Anthony Alegria was indicted for the offense of capital murder. A jury convicted him of the lesser offense of murder and assessed punishment at life in prison. Appellant challenges his conviction in two issues. First, he argues that the trial court erred in failing to include a law of parties instruction in the jury charge. Next, he asserts that the trial court did not properly present mens rea in the jury charge. We affirm.
I. Factual and Procedural Background
On October 20, 2012, the complainant, Armando Sierra-Castro, was found dead approximately two blocks from his residence in Harris County, Texas. The cause of death was a single gunshot wound to the chest. The death was ruled a homicide. There were no initial leads in the investigation.
In January 2013, investigators received a Crime Stoppers tip implicating appellant and an individual named Julian Valdez. After receiving the tip, investigators spoke with appellant. During that conversation, appellant admitted that he and Valdez robbed the complainant. Appellant further stated that after he stole the complainant's wallet, he shot him.
Appellant was indicted for the offense of capital murder pursuant to section 19.03(a)(2) of the Texas Penal Code—committing a murder during the course of a robbery. The State did not seek the death penalty. The case proceeded to a jury trial. After the close of the evidence, appellant requested that the jury charge include the option of convicting him of the lesser included offense of murder pursuant to section 19.02(b)(3) of the Texas Penal Code, which is commonly referred to as "felony murder." The court granted appellant's request and the jury ultimately convicted appellant of felony murder. After hearing evidence at the punishment phase, the jury sentenced appellant to life in the Institutional Division of the Texas Department of Criminal Justice.
Appellant raises two issues on appeal. Appellant complains that: (1) the trial court erred by failing to authorize conviction based on the law of parties, leaving the jury without any guidance regarding the involvement of multiple actors; and (2) the trial court erred by excluding a mens rea for felony murder in the application paragraph of the jury charge.
A. The Law of Parties
Appellant contends that the trial court erred in failing to include a jury instruction regarding the law of parties, despite the fact that no such instruction was requested at trial. We disagree.
Appellant's statement to police implicated another actor in complainant's murder—Julian Valdez—and so raised the possibility that appellant could be convicted as either a principal or an accomplice based on the law of parties. We assume without deciding that an instruction on the law of parties would have been appropriate at trial and that its omission was error. However, appellant failed to request such an instruction at trial, meaning that we review the jury charge only for egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). An egregious harm analysis considers: (1) the entire jury charge, (2) the state of the evidence including the contested issues and the weight of the probative evidence, (3) the arguments of the parties, and (4) any other relevant information revealed by the record of the trial as a whole. Id. Jury charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Id. at 172. Egregious harm is "a difficult standard to prove." Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011). We have not found, nor has appellant cited, any authority standing for the proposition that the complete absence of a law of parties charge can be harmful to the appellant. Rather, the majority of cases on the subject address situations in which a law of parties charge was given either inappropriately or incompletely. Finding no precedent regarding the harm imposed by the absence of a law of parties charge, we proceed with the Almanza analysis.
The law of parties is expressed in the Texas Penal Code as follows:
(a) A person is criminally responsible for an offense committed by the conduct of another if:
(1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense;
(2) 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; or
(3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense.
Tex. Penal Code Ann. § 7.02(a) (West 2011).
Regarding the initial factor, a review of the entire jury charge indicates that any error in the charge did not result in egregious harm to appellant. The charge authorized a conviction only if the jury found, beyond a reasonable doubt, that the defendant actually caused the death of the complainant; that is, the jury had to find that appellant was the shooter. In contrast, a law of parties instruction would have allowed a conviction for the same offense even if the jury found that appellant did not actually shoot the complainant, but rather solicited, encouraged, directed, aided, or attempted to aid Valdez in causing the death of the complainant. Tex. Penal Code Ann. § 7.02(a)(2) (West 2011). We cannot see how the trial court's failure to expand appellant's possible criminal liability was harmful, much less egregiously harmful.
The second Almanza factor looks at the state of the evidence. We agree with appellant that the evidence clearly suggested that appellant committed this offense in concert with Valdez. Because of this, a law of parties charge allowing the jury to convict appellant as either an accomplice or the principal actor would have been proper. However, we again find no harm in allowing the jury to only find appellant guilty on a single theory, rather than multiple theories, of culpability.
We next consider the parties' arguments at trial. The record reflects that neither appellant nor the State argued that appellant should be convicted as an accomplice under a law of parties theory. The jury arguments instead focused on whether appellant was guilty of the charged offense of capital murder or of lesser offenses, including felony murder. The parties' arguments do not indicate that the law of parties was contemplated at trial and so do not support a finding of egregious harm.
The jury was also given the option of convicting appellant of the lesser included offense of aggravated robbery.
Finally, we consider all other relevant information revealed by the trial record as a whole. In so doing, we find nothing further in the record to suggest egregious harm.
Given the forgoing analysis, we hold that appellant did not suffer egregious harm as a result of the trial court's failure to instruct the jury on the law of parties. Accordingly, we overrule appellant's first issue. B. Mens Rea for Felony Murder
At trial, appellant requested that the felony murder instruction in the jury charge require proof of a culpable mental state. The trial court denied that request. Appellant asserts that denial of the requested language was error.
The felony murder statute provides, among other things, that a person commits murder if he causes another person's death during the commission of a felony "other than manslaughter." The jury charge included the following language:
Section 19.02(b)(3) of the Texas Penal Code provides that a person commits the offense of murder if he:
commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from 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)(3) (West 2011).
Now, if you find from the evidence beyond a reasonable doubt that on or about the 20th day of October, 2012, in Harris County, Texas, the defendant, Anthony Alegria, did then and there unlawfully, while in the furtherance of the commission or attempted commission of the felony of robbery of Armando Sierra-Castro, or in immediate flight from the commission or attempted commission of the felony of robbery of Armando Sierra-Castro, commit an act clearly dangerous to human life, to-wit: by shooting Armando Sierra-Castro with a deadly weapon, namely a firearm, that caused the death of Armando Sierra-Castro, then you will find the defendant guilty of felony murder.
At trial, appellant asked that the words "intentionally or knowingly" be inserted after "unlawfully" in the court's charge to indicate a mens rea requirement.
We note that the requested language closely matches Texas Penal Code section 19.02(b)(1), which states that an individual commits the offense of murder if he "intentionally or knowingly causes the death of an individual." Tex. Penal Code Ann. § 19.02(b)(1) (West 2011). --------
In a felony murder prosecution, the State must prove the elements of the underlying felony, including the culpable mental state for that felony. Lomax v. State, 233 S.W.3d 302, 306-07 (Tex. Crim. App. 2007). However, no culpable mental state is required to be proven for the murder itself. Id. The Lomax court concluded that the plain language of the felony murder statute requires proof of the underlying felony, but does not require any proof of the accompanying mental state with regard to either causing the death of another or committing an act clearly dangerous to human life. See id. at 307 & n.16; see also Tex. Penal Code Ann. § 19.02(b)(3) (West 2011). Therefore, the trial court did not err in failing to include a mens rea instruction for felony murder in the jury charge. We overrule appellant's second issue.
Having overruled both of appellant's issues, we affirm the trial court's judgment.
/s/Marc W. Brown
Justice Panel consists of Justices Boyce, Busby, and Brown. Do Not Publish — TEX. R. APP. P. 47.2(b).