Woodard v. The State Of Tex.

322 S.W.3d 648

Andrew WOODARD, Appellant,

v.The STATE of Texas.

No. PD-0130-10.

Court of Criminal Appeals of Texas.

Oct. 6, 2010.

Jeff W. Purvis, Angleton, for Appellant.

Jeri Yenne, Crim. D.A., and David Bosserman, Asst. Crim. D.A., Angleton, Jeffrey L. Van Horn, State's Attorney, Austin, for State.

OPINION

HERVEY, J., delivered the opinion of the Court in which KELLER, P.J., PRICE, WOMACK, JOHNSON, KEASLER, HOLCOMB, and COCHRAN, JJ., joined.

In appellant's trial for the indicted offense of murder, the trial court submitted a jury instruction on an unindicted conspiracy to commit aggravated robbery offense, which does not meet the definition of a lesser-included offense of the charged murder offense under Article 37.09(1), Tex.Code Crim. Proc., and under this Court's decision in Hall v. State, 225 S.W.3d 524 (Tex.Cr.App.2007). The jury convicted appellant of this conspiracy to commit aggravated robbery offense. The court of appeals decided that this was jury-charge error that “egregiously harmed” appellant under this Court's decision in Almanza v. State ¹ by depriving appellant “of his valuable constitutional right to notice of the criminal charges brought against him.” ² We exercised our discretionary authority to review this decision. ³ We will reverse.

Appellant's murder indictment alleged that appellant murdered the complainant either by intentionally or knowingly causing the complainant's death or by committing an act clearly dangerous to human life with the intent to seriously injure the complainant. The trial record reflects that the State voir dired the venire on party liability under Section 7.02(b), Tex. Penal Code, which provides that conspirators to a felony are criminally responsible for felonies committed by other conspirators in furtherance of the conspiracy if the other felonies should have been anticipated. ⁴ For example, the State presented the following hypothetical to the venire:

[STATE]: Usually somebody will raise their hand and say, you know, like in a bank robbery. Somebody will use that example if you're the getaway driver. You know, let's say that, Juror Number 7, you and I enter into an agreement

with a couple of other people that we're going to go rob the First National Bank of Lake Jackson. And the agreement is that you and your brother and your cousin and somebody else, they are going to go into the bank with guns and I'm going to stay outside and I'm going to be in the car. I'm the getaway driver. I'm going to be the lookout and the getaway driver. I'm going to stay there and wait for y'all to rob the bank. Okay?

Now do you think if you go into that bank and we've all agreed to commit this felony of Aggravated Robbery in that case, robbing a bank with a deadly weapon, if you were to kill somebody, if you were to kill the clerk or the security guard or somebody like that, do you think that me out in the car should be charged with the murder as well?

The defense also voir dired the venire on party liability under Section 7.02(b). For example, the defense presented the following hypothetical to the venire:

[DEFENSE]: Well, let's go to 702(b). 702(b), [the State] is talking about, says that, “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 offense 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 carrying out a conspiracy.”

You have to find a conspiracy. An example of a conspiracy would be three guys who go into McDonald's after hours. They have got a torch and they are going to burglarize the safe. The place catches on fire and a fireman comes out there to fight the fire and the roof caves in and kills the fireman. That's a conspiracy. Conspiracy to commit burglary of a building and another felony could have been anticipated, the place catching on fire, the firemen coming out and treating it. That's an example of a conspiracy.

Anybody have any problems with that example of a conspiracy? By show of hands, you've got no problems. You understand what conspiracy is. But you have to have some evidence of a conspiracy. Would you agree? Just because two people are there or two people are together doesn't mean a conspiracy. If in the attempt to carry out a conspiracy. So you've got to find that there is a conspiracy to start with. If you don't find a conspiracy to commit a felony in the first place, who cares what happens later on? It's not part of a conspiracy?

Evidence presented at appellant's trial shows that the complainant in this case (Hien Van Ha) was murdered on the Miss Carolee shrimp boat at the docks in Freeport, Texas. Someone placed a loaded pistol against the complainant's head and pulled the trigger. The complainant's wallet was located in a field about two miles away. After initially denying any involvement in the offense, appellant eventually told the police that he and several individuals, including a person named Kevin Pipkins, went to the docks in a borrowed car to sell the complainant fake cocaine-i.e., “Tylenol crushed to resemble powdered cocaine.” ⁵ According to appellant's statement to the police, Pipkins and an unidentified person boarded the shrimp boat while appellant remained at the car. Appellant heard a gunshot just before Pipkins and the unidentified person returned to the car. Pipkins threw the complainant's wallet out of the car soon after they left the docks.

The State's theory, however, was that there never was any plan to sell the complainant fake cocaine. The State presented evidence that appellant and at least two other individuals, including Pipkins and another person named Sherman Myers, conspired to rob the complainant by using a gun and that either Pipkins or appellant shot the complainant. ⁶ The State presented the testimony of Debra Evans, who testified that she saw appellant at her home with a gun while appellant, Pipkins, and Myers conspired to rob the complainant on the night that he was murdered.

Q. [STATE]: And this person that you refer to as Blue, the Defendant here in the courtroom today, this person was at your house on August 8th of 2006?

A. [EVANS]: Him and Kevin [Pipkins] showed up later that evening.

Q. And what was the purpose of their visit?

A. They had found out about some Chinese man that supposedly had some money and was looking for a woman and they were going to go see him.

* * *

They were going down there [to the docks] to roll him, to rob him, to get some money from him.

Q. And what did the Defendant say specifically that gave you that impression?

A. They pulled a gun out. He pulled a gun out. It was an automatic weapon.

Q. And when you say he pulled a gun out, are you referring to the Defendant?

A. Yes, sir.

Q. And can you sort of show the jury, describe how that occurred?

A. I walk in. Okay. I'm a convicted felon. I'm not supposed to be around firearms. I walked into my living room and he was pulling a gun out. He said, “This is how we can get him. This will take care of him.” He had an automatic weapon in his hand.

* * *

Q. But to the best of your recollection can you tell the jury what you heard the Defendant say, specifically say?

A. They were going down to the boat to get the money. That this would work. This would-this will take care of it.

* * *

Q. Now can you please tell the jury what it was you told the police that Blue said that night?

A. “Fuck a woman. This will take care of it.”

Q. Thank you. And did he indicate what-in what he said that night, did he indicate what it was that they were after by going down there to the docks?

A. Money.

* * *

Q. Now, Ms. Evans, when this conversation was taking place and the Defendant made those statements, who was around and a party to that conversation?

A. I walked into the room. Blue, K.P., Kevin Pipkins, and Sherman [Myers] was in the room.

* * *

Q. And what was the reaction of those individuals in response to what Blue said?

A. They were ready to go. That's what they did. They left.

After the State rested its case at the guilt phase, appellant moved for a directed verdict which the trial court denied. Noting that the State's case was based on a conspiracy between appellant, Pipkins and Myers “to commit some felony,” appellant argued, in support of his motion for a directed verdict, that there was no evidence that he was involved in a conspiracy to rob the complainant and that any conspiracy to sell the complainant fake cocaine was not a felony:

[DEFENSE]: On behalf of Andrew Woodard, the Defendant in Cause No. 53468, we would respectfully ask the Court for a directed verdict of not guilty to the offense of Murder.

The State's case in this particular felony is based on a conspiracy, a conspiracy between Mr. Pipkins and Mr. Myers and Mr. Woodard to commit some felony; and during the course of that felony that the murder of Mr. Ha occurred and that they should have anticipated that felony of Murder occurring.

* * *

The Court is also aware that, you know, Mr. Pipkins was convicted of the offense of Murder of Mr. Ha last July, 2007. The State has brought to the Court no evidence at all of any conspiracy on the part of Mr. Woodard, that he asked Mr. Pipkins to commit a felony, to rob Mr. Ha or to commit the offense of Aggravated Robbery and then the murder ensued after that. There is no testimony regarding even the ballistics that was used other than that it was a medium sized bullet of a .38 family. There is no ballistics. There is no weapon. There is no conversation in the statements that you've heard from the officers that were taken regarding anybody seeing a weapon at any time, anybody giving a weapon to Mr. Pipkins-certainly not Mr. Woodard-and any indication that any robbery or felony was going to take place.

At the very most the Court heard that they were going there to sell some more dope. They didn't have

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