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In re M.S.

Court of Appeals of Texas, Second District, Fort Worth

August 8, 2019

In the matter of M.S., A Juvenile

          On Appeal from the 323rd District Court Tarrant County, Texas Trial Court No. 323-103751-16

          Before Kerr and Birdwell, JJ.; and Rebecca Simmons, J. (Sitting by Assignment)



         A jury found that M.S. had engaged in delinquent conduct by committing the offenses of capital murder and aggravated robbery. The trial court entered affirmative findings pursuant to the jury findings and found that M.S. was in need of rehabilitation and placed her in the custody of the Texas Juvenile Justice Department for 20 years with the possibility of transfer to the Institutional Division of the Texas Department of Criminal Justice.[1]

         M.S. appeals, contending in points one through four that the trial court erred by including a "legal-duty" parties charge from section 7.02 of the Texas Penal Code because M.S. had no legal duty to prevent the commission of the capital-murder and aggravated robbery offenses. In her fifth point, M.S. complains that the trial court erred by placing "law of parties" language in an incorrect location within the application paragraphs relating to the capital-murder and robbery offenses thereby authorizing the jury to adjudicate Appellant delinquent of (1) the capital murder charges as a principal only;[2] and (2) the aggravated-robbery charges simply because she was a party to using or exhibiting a firearm. We reverse the judgment of the trial court.


         M.S. was charged as a party to the capital murder and aggravated robbery that occurred on the evening of July 26, 2016, at the home of Zach Beloate (Beloate), which left Beloate wounded and his roommate Ethan Walker (Ethan) dead. M.S. had turned 16 years old the day before the incident. The testimony at trial revealed several juveniles[3] and adults participated in the incident including Ariana Bharrat (Ariana), Megan Holt (Megan), M.S., T.K., J.B., Latharian Merritt (Larry), and Sean Robinson (Bankz). According to Megan, M.S. brought up the idea of stealing from Beloate because she was romantically involved with him and because Beloate and Ethan were drug dealers who often had drugs and cash on the premises. M.S. developed the plan and explained the layout of Beloate's apartment.

         On the evening of July 26, Ariana drove Megan, M.S., T.K., and Bankz to Beloate's. Larry and J.B. were in another car driven by one of Larry's girlfriends. Larry and Bankz were armed with guns; J.B. had brass knuckles. The general plan was for M.S. to divert Beloate with sexual activity, Megan would keep the front door unlocked, and Bankz, J.B., and Larry would enter and threaten Beloate and Ethan while T.K. and Megan searched for drugs. Megan testified that she knew there was a plan to rob Ethan and she went to the house voluntarily.

         The night of the incident, M.S. and Megan were the first to enter Beloate's house and then Ariana joined them. All three ended up in Beloate's bedroom, along with Victor Landes, to smoke marijuana. Within approximately 15 minutes, Larry, Bankz, J.B., and T.K. came into the house. Bankz entered Beloate's room pointing his gun at everyone while J.B. followed. The three girls left the room, and Megan helped T.K. look for drugs. Larry displayed his gun and entered a bedroom where Ethan and a minor, A.R., were located. Ethan and Beloate were questioned concerning the location of drugs, but no drugs were found. Both Beloate and Ethan were shot, and Ethan subsequently died from the gunshot. When the three girls heard gun shots they ran to Ariana's car where T.K. and Bankz ultimately joined them before leaving for T.K.'s apartment.

         At trial, M.S. offered evidence to establish that she was the victim of human trafficking and that her participation in the incident had been the result of duress by Ariana, her groomer, and Tramon Jordan (Tramon), her pimp. M.S. first met Ariana when she was 12 and Ariana was a senior in high school. She hung out with Ariana who eventually introduced her to Tramon when M.S. was 14. Thereafter, Ariana and Tramon would take M.S. to strip at clubs in Fort Worth and ultimately Las Vegas. In addition to stripping, Tramon forced M.S. into prostitution when she was 15. M.S. testified that she was unable to escape from Ariana or Tramon because they threatened to harm her family and they physically assaulted her. At trial Texas Department of Public Safety Agent Coleman and Counselor Toni McKinley, an expert on human trafficking, both testified that M.S. was a victim of human trafficking.


         In points one through four Appellant complains that the trial court improperly instructed the jury in the law of parties by including an incorrect "legal duty" law of parties instruction in the abstract portion of the jury charge. According to M.S., this error flowed into the capital-murder application paragraph as well as the aggravated-robbery application paragraphs relating to Beloate and Ethan.

         I. Standard of Review

         The Texas Rules of Civil Procedure generally govern the jury charge in juvenile proceedings. Tex. Fam. Code Ann. § 56.01(b); see In re L.D.C., 400 S.W.3d 572, 574 (Tex. 2013). But a juvenile proceeding is quasi-criminal; thus, criminal law precedent may be instructive in juvenile cases. See In re C.O.S., 988 S.W.2d 760, 765-67 (Tex. 1999). In criminal cases, jury-charge error is reviewed using a two-step process. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). First, the court determines whether error exists in the charge. Id. If there is error, we determine if the appellant has been harmed: "The degree of harm necessary for reversal depends on whether the appellant preserved the error by objection." Id. If an appellant has preserved the error by objection, we must reverse if we find "some harm" to his rights. See id. (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g)). But where there is no objection, we will not reverse for jury-charge error unless the record shows "egregious harm" to the appellant. Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008) ("The failure to preserve jury-charge error is not a bar to appellate review, but rather it establishes the degree of harm necessary for reversal.").

         M.S. did not object to the legal-duty law of parties instruction in the jury charge. When the charge error is not preserved "and the accused must claim that the error was 'fundamental,' [she] will obtain a reversal only if the error is so egregious and created such harm that [she] 'has not had a fair and impartial trial'-in short 'egregious harm.'" Almanza, 686 S.W.2d at 171; see Mendez v. State, 545 S.W.3d 548, 552 (Tex. Crim. App. 2018). Bearing this standard in mind, we turn to the charge.

         II. Charge Error

         A trial court must instruct the jury on the law applicable to the case. Tex. Code Crim. Proc. Ann. art. 36.14. It is well-settled that "[j]ury charges which fail to apply the law to the facts adduced at trial are erroneous." See, e.g., Gray v. State, 152 S.W.3d 125, 128 (Tex. Crim. App. 2004) (citing Perez v. State, 537 S.W.2d 455, 456 (Tex. Crim. App. 1976); and Harris v. State, 522 S.W.2d 199, 200 (Tex. Crim. App. 1975)). This is so because if an issue is "law applicable to the case," "[t]he jury must be instructed 'under what circumstances they should convict, or under what circumstances they should acquit.'" Id. at 127-28 (quoting Ex parte Chandler, 719 S.W.2d 602, 606 (Tex. Crim. App. 1986) (Clinton, J., dissenting)). "It is not sufficient for the jury to receive an abstract instruction on the law and then to render a verdict according to a general conclusion on whether the law has been violated." Williams v. State, 547 S.W.2d 18, 20 (Tex. Crim. App. 1977).

         The "abstract paragraphs [of a jury charge] serve as a glossary to help the jury understand the meaning of concepts and terms used in the application paragraphs of the charge." Arteaga v. State, 521 S.W.3d 329, 338 (Tex. Crim. App. 2017) (citing Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012)). "An abstract statement of the law that goes beyond the indictment allegations usually will not present reversible error unless 'the instruction is an incorrect or misleading statement of a law which the jury must understand in order to implement the commands of the application paragraph.'" Id. (citing Plata v. State, 926 S.W.2d 300, 302-03 (Tex. Crim. App. 1996)).

         A. Was Inclusion of the "Legal-Duty" Theory Error?

         We first address whether the inclusion of the legal-duty parties' instruction was error. M.S. argues that the trial court committed error by including a legal-duty parties' instruction in the abstract portion of the charge because there was no factual or legal basis to support a duty on M.S.'s part to prevent the offenses for which she was charged, adjudicated delinquent, and sentenced. The State argues that the inclusion of the "legal-duty" law of parties instruction was proper because M.S. had a legal duty to prevent the commission of the offense because she created the danger.

         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 both." Tex. Penal Code Ann. § 7.01(a). A person is criminally responsible for another's criminal conduct if:

(1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense;
(2) 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; or
(3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to ...

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