State v. Renteria

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

PRICE, Judge,

delivered the opinion of the court,

joined by McCORMICK, Presiding Judge and MEYERS, MANSFIELD, KELLER, HOLLAND and WOMACK, Judges.

Appellant was convicted of the offense of murder and sentenced to life imprisonment and a $10,000 fine. He was part of a group who attended a party on August 21, 1993. Several people, including appellant and the victim, Freddy Belis, left to purchase liquor. Belis was the only one of legal age to purchase alcohol, but he was refused purchase because he was too intoxicated. On the way back, Belis apparently propositioned one of the group, Chris Galindo. Galindo reported this at the party. Later, Belis was enticed into leaving the party again, this time in his own car, with a group including appellant. He was pulled out of his car, beaten by several of the passengers, and then abandoned. They returned and ran over Belis several times.

On appeal, appellant claimed, among his points of error, that the trial court erred in overruling his objection to the State’s assertion in final argument that the jury could find appellant guilty as a party. Appellant contended that this allowed the State to ai’gue a theory of criminal responsibility not properly included in the jury charge. The Court of Appeals agreed and reversed the conviction on this basis. Renteria v. State, No. 08-95-00155-CR, slip op. at 10 (Tex.App.-EI Paso March 6, 1997, pet. granted) (not designated for publication). It found that the jury charge included an instruction on the law of criminal responsibility as a party in the abstract portion, but not in the application paragraph. Id. at 11. The application paragraph required the jury to find the appellant guilty only if he

“did ... intending to cause serious bodily injury to [the victim], intentionally or knowingly commit an act clearly dangerous to human life, namely sti’iking, beating and kicking him ... with his, the defendant’s hands and feet and by striking and driving over the body of [the victim] with a deadly weapon.... ”

Id. The Court of Appeals concluded that the issue of appellant’s criminal responsibility as a party was not properly before the jury, and that the trial court erred in allowing the State to argue that the juiy could find appellant guilty as a party. Id. at 12. Finding that the error was not harmless, it did not reach appellant’s remaining points of error, and reversed the trial court’s judgment and remanded the case for a new trial. Id. at 13-14. We granted the State’s petition for discretionary review on the following ground: Where a parties instruction is set forth in the abstract portion of the charge but not in the application paragraph, is it improper for the prosecutor to argue that the jury can convict the defendant as a party?

In reversing the trial court, the Court of Appeals relied on a number of decisions, including Jones v. State, 815 S.W.2d 667 *608(Tex.Crim.App.1991). In Jones, the abstract portion of the jury charge included an instruction on the theory of parties, but the application portion only authorized conviction for aggravated robbery and robbery as a principal. Id. at 668. We held that in measuring the evidence against the entire charge, the evidence was insufficient to convict Jones of aggravated robbery in a non-parties capacity. Id. at 670-671. We reversed and ordered a judgment of acquittal. Id. at 671.

Jones relied upon a line of cases which dealt with sufficiency of the evidence as measured against the jury charge and which have developed into the Benson/Boozer doctrine. This doctrine was recently overruled by us in Malik v. State, 953 S.W.2d 234, 236-240 (Tex.Crim.App.1997). The reasoning from Jones and other, similar cases has itself become known as the Jones/Walker doctrine. See, e.g., Higginbotham v. State, 919 S.W.2d 502, 504 (Tex.App.-Fort Worth 1996, pet. refd). One question left open after Malik is the continuing validity of the Jones/Walker doctrine.

However, we need not resolve that question today, because Jones/Walker and Benson/Boozer dealt with sufficiency of the evidence as measured against the jury charge. Here, the issue before the Court concerns improper jury argument.1

We have long held that “error in jury argument does not lie in going beyond the court’s charge, but in stating law contrary to the same.”2 That is, there is no error in correctly arguing the law, even if the law is not included in the court’s charge. Thus, a claim that the prosecutor argued beyond the charge cannot, in and of itself, constitute improper jury argument. Therefore, even assuming in the present case that the prosecutor’s argument went beyond the jury charge by arguing issues only included in the abstract portion of the charge, there was no error, as the prosecution properly argued the parties issue to the jury. See Renteria, slip. op. at 10-12; Tr., vol. XI, at 15-17, 40-41. The State’s point of error is sustained.

The Court of Appeals in this case is not the first to transform the Jones/Walker doctrine into an “improper jury argument” rule. See Sandoval v. State, 846 S.W.2d 9, 11 (Tex.App.-Corpus Christi 1992, pet. refd) (holding that, under Jones, theory of transferred intent was not properly before jury because it did not appear in the application paragraph, so that trial court erred in allowing the prosecution to argue it to the jury). Because Jones/Walker relates only to sufficiency of the evidence, we hereby disavow the language holding otherwise in Sandoval.

We reverse the judgment of the Court of Appeals and remand the cause there to address appellant’s remaining points of error.

OVERSTREET, J., dissents with an opinion which BAIRD, J., joins.

. Appellant did make a sufficiency argument, but it was limited to whether or not certain of the State's witnesses were accomplices as a matter of law. The Court of Appeals overruled this point of error and it is not before us now. See Renteria, slip. op. at 8-10.

. See, e.g., Mauldin v. State, 628 S.W.2d 793, 795 (Tex.Crim.App.1982); Hill v. State, 518 S.W.2d 810, 813-814 (Tex.Crim.App.1975); Singleton v. State, 479 S.W.2d 672, 674 (Tex.Crim.App.1972); Patterson v. State, 458 S.W.2d 658, 661 (Tex.Crim.App.1970); Daywood v. State, 248 S.W.2d 479, 484 (Tex.Crim.App.1952).