dissenting.
This further dissent is respectfully filed. The Court, in its opinion on the Motion for Rehearing, being the State’s Motion for Rehearing, cites and relies on Walker v. State, 823 S.W.2d 247 (Tex.Crim.App.1991) cert. denied, — U.S.-, 112 S.Ct. 1481, 117 L.Ed.2d 624 (1992). The per curiam opinion in Walker contains this language:
We granted review to determine whether the evidence was sufficient to sustain the conviction in light of the jury charge....
The indictment in this case alleged appellant committed this offense as a primary actor. The court’s charge included an abstract instruction on the law of parties. The application paragraph tracked the language of the indictment but failed to include any reference to the immediately preceding general parties instruction. (Emphasis added)
Hence, it is clear that the Ninth Court of Appeals’ per curiam opinion impliedly reasoned that the application paragraph failed to include any reference to the instruction on parties. Significant and of importance is the record that shows the application paragraph in the case at bar reads as follows:
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 *649the defendant not guilty. (Emphasis added)
Thus, there is a definite and clear reference to the law of parties and to the instructions on parties to an offense which are incorporated into the application paragraph itself. Hence, our case is distinguishable from. Walker, supra, because the trial judge, instead of failing to include any reference to the parties definition and instructions, actually did specifically include a reference to the parties definition and instructions. The parties instruction reads as follows:
PARTIES TO AN OFFENSE:
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.
Hence, the jury had before it in the crucial paragraph and the same was called to the jury’s attention, i.e., the entire instruction on “Parties to an Offense”. Of an especial importance was the instruction that a party is criminally responsible for an offense committed by the conduct of another if acting with the 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.
Here the verdict of guilty necessarily mandates that the jury found evidence of that on which it was authorized to convict and the sufficiency of that evidence is measured by the charge that was given. Again, it is very significant, I opine, in this instant appeal that the important application paragraph in a succinct manner and in relevant part reads: “The defendant Brice Christopher Chatman, either acting alone or as a party, as that term has been defined, ...”. And the jury found that under the charge as given that the appellant was guilty of the offense of murder as a party. See Boozer v. State, 717 S.W.2d 608, 610, 611 (Tex.Crim.App.1984). It seems reasonable to deduce from Boozer, that once a phrase or an instruction is incorporated into the court’s instructions or charge to the jury in such a way that the jury will take cognizance of it, then the jury, as here, must have found the essential facts to support its verdict. Furthermore, it has been decided that there is no such thing as mere surplusage in that part of the court’s charge to the jury which authorizes a conviction. Hence, the language “either acting alone or as a party, as that term has been defined” cannot be realistically looked upon as mere surplusage. Boozer, supra. The facts of this case abundantly satisfy Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
Indeed, the statutory elements of an offense must be set out either in the application paragraph or in the definitional portion of the charge. The trial judge accomplished both requirements. Benson v. State, 661 S.W.2d 708 (Tex.Crim.App.1982). We quote from Benson, at 714:
The charge states that “in matters of law you must be governed by the instructions, definitions, and the rulings of the Court.” The jury evaluates the evidence and applies it to the instructions and definitions given in the charge. A jury determines guilt or innocence based upon that charge. A defendant is found guilty or not guilty by a jury, based upon the evidence adduced as viewed in light of the charge. (Emphasis theirs)
Here the jury was properly charged in the application paragraph containing a specific and unequivocal reference. Thus, the definitions and instructions of parties to an offense were in the said application paragraph. Hence, the jury was correctly in*650formed of the essential elements of the offense.
When the objections to the charge were taken, we find that the trial judge acquiesced in the appellant’s request to leave certain pages in the charge as requested by the appellant. For example, an instruction on affecting prior credibility was left in the charge at the appellant's request. Also, a charge on voluntary manslaughter was removed. This was acceptable to the trial attorney for the appellant. The removal of the instruction on the definitions of sudden passion and adequate cause was accomplished pursuant to a request by the appellant. Then the charge was re-tendered and the appellant stated that “We have no other objections to the charge.” Hence, there was no objection leveled at any infirmity or error in the application paragraph itself.
The appellant advances a point of error on the insufficiency to support the conviction, but the briefing of this point reveals that the appellant really challenges the sufficiency of the evidence on the question of identity of this appellant. A witness for the State, for example, was asked whether he believed that the occurrence was an accident. That witness testified, “I can’t say.” This witness had been convicted of a felony and this witness testified that the light conditions were poor on the occasion in question. Appellant argues that there was contradicted testimony from the only witness that purported to identify the appellant as a person involved and as a person firing shots. In other words, the briefing of the appellant’s point of error number two, based on insufficiency of the evidence, does not comport to the holding of the Court. No where in the appellant’s brief are the cases of Jones v. State, 815 S.W.2d 667 (Tex.Crim.App.1991) or Walker v. State, 823 S.W.2d 247 (Tex.Crim.App.1991) cited or referred to or argued.
Indeed, it is clear that Jones, supra is different and distinguishable from our record. In Jones, the appellant on a direct appeal, challenged the sufficiency of the evidence by asserting that the jury charge did not authorize the jury to convict Jones as a party to the aggravated robbery because the application paragraph authorized his conviction only as the primary actor. That is simply not the challenge made to us by Brice Christopher Chatman. Our appellant here does not challenge the sufficiency of the evidence in this appeal by asserting that the application paragraph is deficient. I would submit that there are decisional authorities by the Court of Criminal Appeals of Texas that have not been overruled, which stand for rule that the sufficiency of the evidence must be measured in view of the entire charge to the jury. The Court of Criminal Appeals has written that the sufficiency of the evidence must be measured against the jury charge which that court has interpreted to mean the entire charge. Boozer v. State, supra; Benson v. State, supra.
But in Jones, the court recited that in Garrett v. State, 749 S.W.2d 784 (Tex. Crim.App.1986), the court held that a mere abstract definition of the theory of the transferred intent was not sufficient to bring that theory before the jury. But the court pointed out that the application paragraph began: “Now bearing in mind the foregoing instructions_” Id. at 789, n. 6. The phrase “[n]ow bearing in mind the foregoing instructions” the court held, could not be construed in any manner to refer to the abstract definition. This footnote and its holding do not apply to this appeal. The application paragraph in this appeal is meaningfully different as spelled out above. For the reasons set out above, I must respectfully file this dissent from the opinion of the Court on the State’s Motion for Rehearing.
Furthermore, the Court of Criminal Appeals in Apodaca v. State, 589 S.W.2d 696 (Tex.Crim.App.1979) stated as follows:
In circumstances where a defendant, if guilty at all, is guilty as a party, the court should properly apply the law of parties to the facts of the case, but the failure to do so is not reversible error unless there is a timely and sufficient objection .:. (Emphasis added)
This quotation was from Romo v. State, 568 S.W.2d 298 (Tex.Crim.App.1978). Our appellant, Chatman, made no objection.
*651In Romo, supra, Judge Dally wrote that in the absence of an objection when the trial court fails to apply the law of parties to the facts of the case, no fundamental error results. Judge Dally wrote as follows:
In a case where a charge on the law of parties is applicable, it is usually the State that insists on and is entitled to have such a charge, including an application of the law to the facts, submitted to the jury. Such a charge fits the State’s theory of a case when, as in this case, a co-defendant is the principal actor and the defendant is guilty, if at all, as a party because he solicited, encouraged, directed, aided, or attempted to aid the co-defendant. However, if the court fails to apply the law of parties to the facts of the case, it might be better trial strategy for the defense counsel not to ask for such a charge. It might very well be to the benefit of such a defendant not to have the State’s theory so clearly blueprinted and delineated by a charge applying the law of parties to the facts. It would permit the defendant to make a stronger jury argument that the State had not proved its case since the evidence clearly showed that appellant did not shoot the deceased.
Here, the appellant did not request that a charge be submitted applying the law of parties to the facts, and the appellant did not object to the court’s charge because it failed to apply the law of parties to the fact. In these circumstances, the court did not commit fundamental error in failing to apply the law of parties to the facts of the case.
For the reasons above cited and on the authorities above cited I would vote to affirm the conviction, verdict, judgment and sentence below.
But I respectfully submit further that there is a clear, compelling holding in Selvage v. State, 680 S.W.2d 17 (Tex.Crim.App.1984). The Selvage court specifically held that a charge must be viewed as a whole to determine whether fundamental error exists. An appellate review should not be limited to parts of a charge standing alone. The court cited Jackson v. State, 591 S.W.2d 820, 824-825 (Tex.Crim.App.1979). An unanimous Court of Criminal Appeals held in Selvage, supra, as follows:
Appellant next contends that the court’s charge to the jury was fundamentally defective for failing to apply the law of parties to the facts of the case.
The record reflects that the abstract portion of the charge defined the law of parties pursuant to Sec. 7.01; 7.02(a)(2); and 7.02(b), V.T.C.A. Penal Code. The charge, in applying the law to the facts, stated in pertinent part as follows:
Therefore, if you find from the evidence ... that the defendant, John Henry Selvage, ... acting alone or as a party as that term has been defined, ... [Emphasis added]
Appellant did not request that a charge be submitted applying the law of parties, and did not object to the court’s charge because it failed to apply the law of parties to the facts in detail. Rather, appellant requested that no instruction on parties be given.
The high court affirmed the conviction of Selvage. Selvage also contended that the evidence was insufficient. Nevertheless, even in view of the charge as given, the court found that the evidence was ample. In fact, Selvage challenged the verdict on three different grounds of insufficiency of the evidence; each challenge was rejected and overruled by the court in a unanimous opinion. Governing and controlling is the following holding of the Court of Criminal Appeals in Selvage:
Appellant next contends that the evidence adduced at trial was insufficient to support his conviction under the theory of parties pursuant to Sec. 7.02(a), supra. Appellant argues that in applying the law of parties to the facts of the case the court relied wholly on the law of parties as reflected in Sec. 7.01, and 7.02(a), and did not apply the law of parties as reflected in Sec. 7.02(b), and that the evidence at best supported a conviction pursuant to Sec. 7.02(b).
The abstract portion of the charge instructed the jury on Sec. 7.01, 7.02(a)(2), *652and 7.02(b). In applying the law to the facts, the charge referred back to the definitional charge, as noted ante. The ground of error is overruled.
Especially under this horrendous instant record, the Ninth Court should be guided by and should follow Selvage, supra. The opinion and holding in Selvage should be dispositive of this appeal; Selvage has not been overruled.
The carefully worded application paragraphs as set forth in 8 Michael J. McCoR-mick & Thomas D. Blackwell, Texas CRIMINAL FORMS and Trial Manual § 84.01 at 302, 303 (Texas Practice, 9th ed., 1985) and more specifically, the court’s charges (being the application paragraphs) as set out on page 303 were tracked in the case at bar. Nor are these application paragraphs of court’s charges modified in any manner in the 1992 pocket part to the 9th Edition, § 84.01.
In conclusion, I submit that the application paragraph containing the words: “or as a party, as that term has been defined” is more than a casual reference; the words just quoted are of consequence to the jury. Since this crucial clause is in the application paragraph the clause cannot be mere juxtaposition. The clause definitely calls to the jury’s attention the definition and instructions concerning parties to an offense. The clause pointedly calls the attention of the jury to the law concerning when one person is criminally responsible for an offense committed by the conduct of another.
Especially important and significant is that part of the opinion of Judge Campbell that recites that Garrett II reveals that Garrett II, itself, is the product of an unusual set of circumstances illustrating the tension and strain' between pre-Almanza and post-Almanza analysis. Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1985). Of paramount and momentous importance is the following holding written by Judge Campbell:
At first blush, this case seems to require that a measurement of the sufficiency of the evidence be limited to a sole consideration of the application paragraph of the jury charge. This would be misapplication of the rule enunciated in Boozer v. State, 717 S.W.2d 608 (Tex.Cr.App.1986); Ortega v. State, 668 S.W.2d 701 (Tex.Cr. App.1983); and Benson v. State, 661 S.W.2d 708 (Tex.Cr.App.1983). Boozer, Ortega, and Benson hold that sufficiency of the evidence be measured against the jury charge, which we interpret to mean the entire charge.
Judge Campbell further expressed no opinion in Garrett II as to whether Garrett could be tried for some lesser included offense. The Campbell opinion also held that the Court’s prior opinion in Garrett I [Garrett v. State, 642 S.W.2d 779 (Tex.Crim.App.1982)] to the extent that that prior opinion discussed double jeopardy was advisory only. The denial of the motion for rehearing was dated April 20, 1988, about one year and ten months after the opinion of June 11, 1986.
In any event, the Court of Criminal Appeals should, I respectfully submit, affirm the conviction in view of the heinous facts in this case as well as the procedural record and the briefs in this appeal. I must respectfully, but earnestly, dissent.