Marvis v. State

EDELMAN, Justice,

dissenting.

The majority opinion holds that the jury charge relieved the State of proving that appellant had the requisite mental state to be a party to the offense and thereby resulted in egregious harm. The charge allowed appellant to be convicted as a party if the jury found that he was acting “together with” the principal actor to commit the offense. By contrast, the law of parties statute states that a defendant may be convicted as a party 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.” See Tex. Pen.Code Ann. § 7.02(a)(2) (Vernon 1994). The central question, then, is whether the meaning of acting “together with” is substantially the same as or different from the language of section 7.02(a)(2).

*77The essential thrust of section 7.02(a)(2) is that, in committing the offense, the parties be acting, not independently of one another, but rather to assist one another in a shared objective or common purpose. Although the phrase “acting together with ... [the principal actor to commit the offense]” is less detailed and precise than the language of section 7.02(a)(2), its plain meaning signifies both a common purpose to commit an offense and some action to assist in committing it.1 This is illustrated by the first sentence commonly appearing in the abstract portion of charges on the law of parties stating, as in this case, “All persons are parties to an offense who are ... guilty of acting together in the commission of the offense” (emphasis added).2 Indeed, if one was attempting to succinctly state the opposite of “acting independently,” the phrase “acting together” is arguably the most obvious choice. Because it is not apparent to me how two defendants could “act together” to commit an offense without also satisfying the party language of section 7.02(a)(2), I do not believe that the meaning of the charge language used in this case differed materially enough from that prescribed in section 7.02(a)(2) to actually lower the State’s burden of proof and thereby constitute egregious harm.

The majority opinion also states that the above discrepancy in the parties charge “allowed appellant to be convicted even while acting in self-defense so long as his self-defense action combined with Dickey’s deadly force effectuated the death.” Appellant has not challenged the validity of his charge on self-defense, and his counsel expressly stated during oral argument that he was not challenging the sufficiency of the evidence to support the jury’s failure to find that appellant acted in self-defense. To the extent appellant had proven that his shooting of the complainant constituted self-defense, he would have been entitled to acquittal regardless of whether he had acted as a principal actor or party. Therefore, contrary to the referenced statement in the majority opinion, I see no connection between the parties charge and the issue of self defense.

Accordingly, I would hold that the charge language did not result in egregious harm and thereby affirm the conviction.

. This is in contrast to the application paragraph of Plata which asked merely whether the two defendants "did unlawfully appropriate” the money and contained no language signifying a joint purpose or common effort in doing so. See Plata v. State, 926 S.W.2d 300, 303 (Tex.Crim.App.1996).

. See, e.g., McFarland v. State, 928 S.W.2d 482, 514 (Tex.Crim.App.1996), cert. denied, 519 U.S. 1119 (1997). Plata v. State, 926 S.W.2d 300, 303 (Tex.Crim.App.1996); Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App.1994), cert. denied, 519 U.S. 1030 (1996). Campbell v. State, 910 S.W.2d 475, 476 (Tex.Crim.App.1995) cert. denied, 517 U.S. 1140 (1996).