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Nava v. State

Court of Criminal Appeals of Texas

December 18, 2013

ANDRES NAVA and XIOMARA MENDEZ, Appellants
v.
THE STATE OF TEXAS

ON APPELLANT S' PETITIONS FOR DISCRETIONARY REVIEW FROM THE FOURTEENTH COURT OF APPEALS HARRIS COUNTY

Keller, P.J., delivered the opinion of the Court in which Meyers, Price, Keasler and Hervey, JJ., joined. Cochran, J., joined as to part II. Cochran, J., filed a concurring opinion in which Alcala, J., joined. Womack and Johnson, JJ., concurred.

Keller, P.J.

Nava and Mendez were each indicted for felony murder and organized criminal activity. Nava was sentenced to sixty years and seven years, respectively, on those charges, and Mendez was sentenced to sixty years and twenty years. We granted review to determine whether the appellants suffered egregious harm as a result of an error in the jury instructions on the law of parties and whether their appeals were prejudiced due to a missing portion of the voir dire record. Finding against appellants on both issues, we affirm.

I. JURY CHARGE - LAW OF PARTIES

A. Background

1. The Incident

In June 2009, the Houston Police Department conducted undercover sting operations to identify and arrest individuals who were buying and reselling stolen goods. In one of these operations, Sergeant Robert Calderon, posing as someone wanting to sell stolen televisions, made contact with Mendez. Officer Henry Canales posed as the person delivering the televisions. Officer Canales wore a hidden microphone that recorded and transmitted audio to other officers. He drove a Budget rental truck containing over $30, 000 worth of televisions and laptops to a Fiesta parking lot, the meeting place.

Mendez arrived at the parking lot in a van with Nava, Robert Carrillo, and a minor female. All discussions between Officer Canales and the conspirators took place in Spanish. Officer Canales discussed the price of the merchandise with the conspirators, and they eventually agreed to pay $6, 500. But the conspirators were worried about whether the televisions would function. Officer Canales explained that he had no equipment with which to test the televisions but that they were new, stolen from the trucks that were transporting them. Eventually, it was agreed that the conspirators would pay Officer Canales up front, and then Officer Canales would accompany them to a location where the merchandise could be unloaded and tested.

After the conspirators paid for the televisions, Officer Canales said, in English, "It's a done deal." That phrase was meant to convey that money had exchanged hands, but a second phrase or act was expected to be the bust signal, which would alert the other officers to descend upon the conspirators and arrest them. Carrillo began asking Officer Canales for the key to the Budget truck, while Officer Canales ignored the request and stalled for time. Again Officer Canales said in English, "It's a done deal, " and again Carrillo asked about the key. Officer Canales's cellphone rang, and he answered, in English, "Go ahead." This may have been intended as the bust signal, but Sergeant Calderon did not hear it because he ended the phone call upon seeing Carrillo approach Officer Canales from behind. Carrillo approached with a pistol drawn and demanded the key. Officer Canales ran to the passenger side of the truck, muttering, "¡Ay buey!" Nava may have said, "¡Tírale!" ("Shoot him!"). Carrillo then said, "¿Traes las llaves? ¡Dame la feria o te mato, cabrón!" ("Do you have the keys? Give me the money or I'll kill you, asshole!"). Carrillo then shot Officer Canales in the back, and Officer Canales shot Carrillo in the chest. Officer Canales then said, in English, "It's a done deal. I'm shot." Both Officer Canales and Carrillo died from their injuries.

The remaining conspirators fled in the van. While Nava drove, Mendez called 9-1-1 because she thought that they were being pursued by a gang of thieves intent on murder. While the 9-1-1 operator was attempting to elicit Mendez's cell phone number, the police caught up with and stopped the van. As the police were ordering the conspirators to get on the ground, Mendez muttered, "I think they were undercover."

2. Jury Charges

So that the reader may more easily understand how the jury charges were organized and appellants' complaint about them, we first set out the two statutory theories of party liability at issue in this case. The first theory of party liability, the more common "intent to promote or assist" theory, provides:

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. [1]

The second theory of party liability, the "conspiracy" theory, provides:

If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy. [2]

As shown below, the abstract portion of appellants' jury charges included the exact language above and correctly instructed the jury on both theories of party liability, as follows:

A person acts intentionally, or with intent, with respect to a result of his conduct when it is his conscious objective or desire to cause the result.
* * *
All persons are parties to an offense who are guilty of acting together in the commission of the offense. A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.
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 will not constitute one a party to an offense.
If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.

"Conspiracy" means an agreement between two or more persons with intent that they, or one or more of them, engage in conduct that would constitute the offense. An agreement constituting a conspiracy may be inferred from acts of the parties. [3]

The application paragraphs contained instructions on the law of parties for the charged offense of felony murder and for the lesser-included offenses of felony theft and attempted felony theft. The felony-murder instructions referred to both the "intent to promote or assist" and "conspiracy" theories of party liability:

Now, if you find from the evidence beyond a reasonable doubt that on or about June 23, 2009, in Harris County, Texas, [co-defendant] and/or Roberto Carrillo, did then and there unlawfully, intentionally or knowingly commit or attempt to commit felony theft, and while in the course of and furtherance of the commission or attempted commission of felony theft, Roberto Carrillo did commit an act clearly dangerous to human life, to wit: shooting H. Canales with a deadly weapon, namely, a firearm and did thereby cause the death of H. Canales, and that the defendant... with the intent to promote or assist the commission of the offense, if any, solicited, encouraged, directed, aided or attempted to aid [co-defendant] and/or Robert Carrillo to commit the offense; or
If you find from the evidence beyond a reasonable doubt that the defendant, [defendant], and [co-defendant] and/or Roberto Carrillo entered into an agreement to commit felony theft, and pursuant to that agreement, if any, they did carry out their conspiracy and that in Harris County, Texas, on or about June 23, 2009, while in the course of committing such theft, Roberto Carrillo committed an act clearly dangerous to human life that caused the death of H. Canales by shooting H. Canales with a deadly weapon, namely a firearm, and that the murder of H. Canales was committed in furtherance of the conspiracy and was an offense that the defendant should have anticipated as a result of the conspiracy, then you will find the defendant guilty of murder, as charged in the indictment. [4]

As will be discussed in more detail later, appellants' complaint focuses on the generic references in these instructions to "the offense" (italicized above). Their complaint is, in short, that the application portion of the charge misled the jury as to what offense, exactly, the defendant's intent had to be directed toward. The reference to "the offense" is ambiguous, and we will address the effect of this ambiguity in the analysis portion of our opinion. [5]

The lesser-included offense instructions included application paragraphs on liability as the primary actor and under the "intent to promote or assist" theory of the law of parties. The felony-theft instruction applying the law of parties provided:

If you find from the evidence beyond a reasonable doubt that on or about June 23, 2009, in Harris County, Texas, [co-defendant] and/or Roberto Carrillo, did then and there unlawfully, with intent to deprive the owner of property hereinafter described, and believing said property was stolen by another, appropriate, by acquiring or otherwise exercising control over said property, to-wit: thirty four televisions and two computers of the value of at least $20, 000 but less than $100, 000, which property was in the custody of a law enforcement agency, namely, the Houston Police Department, and which property had been explicitly represented by H. Canales, a law enforcement agent, to [co-defendant] and/or Roberto Carrillo as being stolen, and that the defendant... with the intent to promote or assist the commission of the offense, if any, solicited, encouraged, directed, aided or attempted to aid [co-defendant] and/or Roberto Carrillo to commit the offense, [6] then you will find the defendant guilty of theft of property of the value of at least $20, 000 but less than $100, 000.

The law-of-parties application paragraph in the attempted-felony-theft instructions contained similar language. No objections were made to any of the jury instructions.

3. Evidence and Argument

In the opening portion of the State's closing argument, the prosecutor argued correctly the "intent to promote or assist" theory of party liability as it related to the offense of theft:

A person 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. And just 'cause you're present mere presence alone will not constitute one a party to an offense. But what do you think is happening when Ms. Mendez tells Kleypas or what she thought Officer Canales was or she tells any person out there that's a thief, go out there and steal and I'll buy everything you have. I'll be the market for your theft. Is she acting with the intent that the crime of theft be committed. Well, of course she is. She doesn't benefit unless they're stealing something. Does she do something to solicit, encourage or aid the other person to go out and do the theft? Well, of course she is. She's telling you I'll be the market. I'll be the fence. You steal it and I'll fence it for you. Every time she does that and they go out and they do something like burglary or theft or whatever and they do it in reliance that she's going to be the fence they're guilty for what they do. So is she. So is anybody else that is working together with the intent that that crime be committed and they do something to encourage it to happen.

The prosecutor then discussed the "conspiracy" version of party liability as it related to the ...


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