dissenting.
This dissent respectfully submits that the charge of the court in this felony proceeding is meaningfully different and distinguishable from those cases relied upon by the majority opinion. The individualistic and even unique charge of the court on the guilt or innocence stage of this proceeding should and must be examined with meticulous care. Without repeating in toto the entire charge of the court, I respectfully submit that this appellate court must view it as the trial jury was required to do under the court’s instructions. Importantly, murder was defined. The definition is:
A person commits the offense of murder if he intentionally or knowingly causes the death of an individual.
In this particular felony prosecution, the definitions are important. The definitions and their importance are stressed by this charge of the court reading verbatim as follows:
So that you can better understand some of the words and terms used in the charge, the law provides the following definitions: (emphasis added)
Inter alia, the experienced trial court defined correctly the words “intentionally”, “knowingly”, the term “deadly weapon”, the term “firearm”, and, which is especially important to this appeal, the instruction on “parties to an offense”.
“Parties to an offense” is charged as follows:
A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, or by the conduct of another for which he is criminally responsible, or both. Each party to an offense may be charged with the commission of the offense.
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, (emphasis added)
Mere presence alone at the scene of the alleged offense, if any, will not constitute one a party to the offense, (emphasis added)
The important application of the law to the facts in the charge of the court reads as follows:
Now, if you believe from the evidence beyond a reasonable doubt that in Jefferson County, Texas, on or about March 25,1991, the defendant Brice Christopher Chatman, either acting alone or as a party, as that term has been defined, intentionally or knowingly caused the death of an individual, namely: Lester Guillory, Jr., by shooting him with a deadly weapon, namely: a firearm, you shall find the defendant guilty of the offense of murder as alleged in the indictment. (emphasis added)
*643Unless you so find, or if you have a reasonable doubt thereof, you shall find the defendant not guilty.
Of importance is the portion of the application paragraph reading: “either acting alone or as a party, as that term has been defined". Above we have set out the charge on parties to an offense, not only is there juxtaposition here, but there is also actually application and especially incorporation and inclusion for the very simple and obvious reason that the charge says and mandates “the defendant Brice Christopher Chatman, either acting alone or as a party, as that term has been defined.” Hence, within the application paragraph itself by its very language is included and incorporated this language: “[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.”
A modern, intelligent jury can certainly follow the clear instructions, charges, definitions, and application paragraphs given by the trial court.
Stated in another manner, when the jury carefully considered the charge of the court, and especially the paragraph involving the application of the law to the facts, they necessarily had to come across these words: “the defendant Brice Christopher Chatman, either acting alone or as a party, as that term has been defined”; I stress and as that term has been defined, then that said definition is thereby included and incorporated into the application paragraph. The jury, following the instructions and mandates of the trial court, had to immediately and necessarily consider the definition, the pertinent part of which reads: “[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.”
Hence, there is more than mere juxtaposition; there is an actual application and an actual inclusion and incorporation into the crucial paragraph of the charge of the court upon which the accused may, if the jury so finds beyond a reasonable doubt, be convicted of the offense charged. Clearly under the application paragraph, as it was framed and worded by the experienced trial judge below, the Honorable Larry Gist, there was more than a mere abstraction or an abstract instruction on the law of parties. This case, in practicality and in reality, is clearly distinguishable and meaningfully different from Jones v. State, 815 S.W.2d 667 (Tex.Crim.App.1991) and Walker v. State, 823 S.W.2d 247 (Tex.Crim.App.1991). Jones, supra, and Walker, supra, simply did not contain any reference to the law of parties, or more appropriately stated, the instruction on the law of parties within the application paragraph of the charge.
Simply stated in Jones, supra, the Court took the position that the only theory upon which the appellant Jones could have been found guilty of aggravated robbery [emphasis theirs] is under the theory of parties, but the charge does not authorize conviction under that theory. Now, note that the charge, according to the Court of Criminal Appeals, does not authorize the conviction under that theory simply because there was no inclusion or incorporation of the law of parties into the application paragraph which is not the situation in the instant appeal.
But observe how significant it is that the High Court writes: “The only theory upon which appellant could be found guilty of aggravated robbery is under the theory of parties, but the charge does not authorize conviction on that theory.” Now, immediately the Court of Criminal Appeals shifts gears. The very next sentence is: “We conclude that the evidence is insufficient to demonstrate that appellant was guilty of aggravated robbery in a non-parties capacity.” In Jones, supra, the Court apparently relied upon Boozer v. State, 717 S.W.2d 608 (Tex.Crim.App.1984), and Garrett v. State, 749 S.W.2d 784 (Tex.Crim.App.1986).
The High Court, on former occasions, has held that to judge the true and actual *644insufficiency of the evidence the reviewing court must look to the jury charge read as a whole. See and compare Garrett v. State, supra, at 803 (Opinion on rehearing). Indeed, the Jones, supra, Per Curiam opinion, if it can be so classified in view of the dissent, writes at 815 S.W.2d at 670 in substance that what can be gleaned and concluded from Garrett,, Apodaca v. State, 589 S.W.2d 696 (Tex.Crim.App.1979), and predecessor case law is that while it is correct to view the sufficiency of the evidence as against the ‘entire charge,’ Garrett, 749 S.W.2d at 802-803, a charge which fails to apply a theory of law to the facts of the case is insufficient to authorize conviction on that theory, even where the theory of law is abstractly defined in the charge. Id., 749 S.W.2d at 789, n. 6. And the Court requoted the quotation: “Mere juxtaposition does not amount to authorization.” Ibid.
But, here, I submit, in practicality, we have juxtaposition plus authorization plus inclusion plus incorporation in this case. And since the application paragraph, that is the application of the law to the facts paragraph, actually by inclusion and incorporation applies the law of parties, then this defendant is not deprived of a fair and impartial trial. Under Judge Gist’s application paragraph the charge does not fail to state nor does it fail to apply the law under which the accused is actually prosecuted. The Jones case, 815 S.W.2d at 670, Per Curiam—if there can be such a thing with two concurrences and with two dissents— states:
We are required to measure the evidence against the jury charge. Garrett, 749 S.W.2d 784; Ortega, 668 S.W.2d 701; Arceneaux v. State, 803 S.W.2d 267 (Tex.Cr.App.1990).
This writer would respectfully submit that we are required to measure the evidence against the entirety and all the parts, diktats and definitions included in the application paragraph; and in doing so certainly Chatman, here, is not deprived of a fair and impartial trial.
In Boozer v. State, supra, the Court considered a charge containing an abstract instruction to the jury that a witness was an accomplice as a matter of law. Therein the Court of Criminal Appeals reaffirmed the holding in Benson v. State, 661 S.W.2d 708 (Tex.Crim.App.1982), writing that: “the sufficiency of the evidence is [to be] measured by the charge that was given." Boozer, supra, at 610. In the instant case, the charge “that was given” actually incorporated and included the law of parties properly in the very application of the law to the facts paragraph itself. In Jones, supra, at 674 the Court specifically quoted from Garrett, supra, and recited that:
This would be a misapplication of the rule announced in [Boozer, Ortega and Benson. These cases] hold that sufficiency of the evidence be measured against the jury charge, which we interpret to mean the entire charge. Garrett, 749 S.W.2d at 802-803 (citations and footnote omitted; emphasis added).
Hence, it is correct to look to the entire charge, but especially in the instant case at the appellate level to the entirety of the application paragraph itself. Indeed, a charge must be treated in its entirety and regard must be properly given to the connection and the interdependence of its several parts. See and compare Nickerson v. State, 782 S.W.2d 887, 891 (Tex.Crim.App. 1990). Under either approach, whether the reviewing court should look to the charge as a whole or look to the entirety of the application paragraph, the evidence in this record, in my opinion, authorizes a conviction of the accused and upholds the verdict of the jury and the judgment of the district court. Obviously then, the jury’s finding of necessary, sufficient evidence to support the elements of the offense satisfies the constitutional dictates of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), inasmuch as Jackson is satisfied if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 443 U.S. at 319, 99 S.Ct. at 2789. Also, here, the conviction was authorized by the charge as a whole and especially by the application paragraph of the court’s charge to the jury. Therefore, the jury’s finding of guilt is both authorized and correct. It *645is in conformity with the State’s theory of the case and with the charge as a whole and indeed, with the actual application paragraph as written. Judge White, in his noble, inspired dissent in Jones, supra, wrote:
Today an aggressive and assertive majority of this Court indicates that intelligent jurors in Texas cannot read plain English and then use common sense during their deliberations in criminal trials, [footnote omitted]
Judge White concludes:
I respectfully dissent because the aggressive and assertive majority turns the jury system upside down.
But even the Per Curiam, or majority, opinion in Jones, supra, states:
Garrett is one in a long line of cases which stand for the proposition that the application paragraph of a jury charge is that which authorizes conviction, and an abstract charge on a theory of law which is not applied to the facts is insufficient to bring that theory before the jury.
In the instant case, Judge Gist, in his application paragraph, required and forced the jury by the very words thereof to consider and apply the law of parties to the facts in this case in the very application paragraph. Is it really an insufficiency of the evidence? No, it is not. Had the charge spelled out or respelled out the law of parties in accordance with the suggested form, then undoubtedly the conviction would have been upheld in the instant appeal.
It is interesting to note that in the case of Walker v. State, 823 S.W.2d 247 (Tex. Crim.App.1991), the Court of Criminal Appeals in a Per Curiam opinion writes this important sentence:
The application paragraph tracked the language of the indictment but failed to include any reference to the immediately preceding general parties instruction.
But this is not the case at all in Chatman, the case at bar, simply because the trial judge actually incorporated and included the entire law of the parties within the application paragraph itself.
Indeed, in Walker, supra, the Court in its Per Curiam opinion made an excellent summary of its holding in Jones, supra. The holding was as follows:
[W]e held that in order for the jury to be authorized to convict one as a party, the law of parties must be included in the application paragraph of the charge.
For all practical purposes and by an express and mandatory reference, the law of parties was included in the application paragraph. Therefore, the Chatman charge certainly satisfies the language and rationale of the Court of Criminal Appeals in Jones, supra. I think the charge given in the Chatman case is meaningfully different and distinguishable from the rationale in Walker, supra, and Jones, supra. In Walker, the Per Curiam opinion states that since the law of the parties was not included in the application paragraph, then the court must look to whether the evidence is sufficient to find if the appellant was guilty of his own conduct rather than convicted as a party. But in our case, his own conduct as a party was specifically referred to and clearly thereby incorporated and included in the actual application paragraph. Here is the crucial application statute as given by Judge Larry Gist:
CHARGE:
Now, if you believe from the evidence beyond a reasonable doubt that in Jefferson County, Texas, on or about March 25,1991, the defendant Brice Christopher Chatman, either acting alone or as a party, as that term has been defined, intentionally or knowingly caused the death of an individual, namely: Lester Guillory, Jr., by shooting him with a deadly weapon, namely: a firearm, you shall find the defendant guilty of the offense of murder as alleged in the indictment.
Unless you so find, or if you have a reasonable doubt thereof, you shall find the defendant not guilty.
Bear in mind that the trial judge in the actual application paragraph charged on either acting alone or as a party as that term has been defined — thereby incorporating the law of parties into the application paragraph. Hence, under the entire record I find that the evidence is sufficient to *646sustain the conviction. The evidence is abundant. This is correct because the trial judge used the phrase: “or as a party, as that term has been defined”. The trial court included its definition of parties to an offense within the application paragraph. The clear and unequivocal charge on the law of parties to an offense, as given, is as follows:
A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, or by the conduct of another for which he is criminally responsible, or both. Each party to an offense may be charged with and convicted of the commission of the offense.
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 at the scene of an alleged offense, if any, will not constitute one a party to an offense.
Again, the Chatman charge is meaningfully different from the charge as set out in the opinion in Walker, supra, in footnote 6 in the concurring opinion by Justice Sam Houston Clinton. The charge in Walker reads as follows:
[TJhat appellant “did then and there, intentionally and knowingly, without the effective consent of [named] owner thereof, enter a building not then and there open to the public, with intent to commit theft[.]”
I respectfully dissent for the reasons given.