REX D. DAVIS, Justice.
In this original proceeding, the State of Texas, through David P. Weeks, the Criminal District Attorney of Walker County, as Relator, seeks mandamus relief against the Respondent, the Honorable Kenneth Keeling, Judge of the 278th District Court of Walker County. It arises out of the trial proceeding in the criminal prosecution of John Ray Falk, Jr., the Real Party in Interest, for capital murder. Falk is charged by indictment with capital murder under Penal Code section 19.03(a)(4), which makes a capital offense of the commission of murder while escaping or attempting to escape from a penal institution. TEX. PENAL CODE ANN. § 19.03(a)(4) (West Supp.2012).
Relator seeks mandamus relief because (1) Respondent has refused to submit a
The Court of Criminal Appeals recently affirmed the capital murder conviction of Falk's co-defendant, Jerry Duane Martin, who was tried separately. See Martin v. State, No. AP-76,317, 2012 WL 5358862 (Tex.Crim.App. Oct. 31, 2012) (not designated for publication). Briefly, and for background purposes only, the evidence in Martin's case reveals that Martin and Falk were inmates at the Texas Department of Criminal Justice (TDCJ) Wynne Unit located in Huntsville, and, on the day in question, they were assigned to work the Wynne Unit onion patch, which was outside the main perimeter fence of the prison and adjacent to the City of Huntsville Service Center. The Service Center was, at that time, separated from prison property by only a chain-link fence in some portions and a barbed-wire fence in others. Martin and Falk disarmed a guard, and Falk ended up with the guard's handgun. They fled onto Service Center property.
While guards, including TDCJ Officer Susan Canfield, were firing at Falk, Martin got into a truck parked at the Service Center; the key was in the truck. Canfield, who was on horseback, advanced on Falk while firing at him with her revolver. When Canfield had expended her revolver's bullets, Falk ran at her as she was trying to remove her rifle from its scabbard. They engaged in a struggle for the rifle, but once Falk jabbed his stolen revolver in her ribs, Canfield ceased struggling and Falk took the rifle and backed away.
Martin then drove the truck straight toward Canfield and hit her horse and her just as Falk backed away. Canfield and the horse went up onto the hood of the truck. Canfield's back and shoulders hit the windshield, and her head struck the roof. Canfield was then launched into the air and came down on her head, shoulder, and neck. After striking Canfield and her horse, Martin stopped the truck and Falk got in it. They drove off but were soon apprehended. Canfield died from the severe injuries she received from the impact with the truck. See id. 2012 WL 5358862, at *1-4.
At the time of the filing of Relator's petition for writ of mandamus, the evidence had closed in Falk's capital murder trial. Respondent refused to submit a parties instruction in the court's charge under Penal Code section 7.02(a)(2). A record excerpt reflects Respondent's belief that there is no evidence supporting a parties instruction under section 7.02(a)(2). Also, Respondent overruled the State's objection to the charge's application paragraph on capital murder (escape) conspiracy under section 7.02(b). That paragraph requires the State to prove that Falk anticipated the specific manner and means by which Martin killed Canfield.
With the petition, Relator filed an application for emergency temporary stay, which was granted. Falk filed a "motion to dismiss, strike or summarily deny the petition for writ of mandamus and to vacate the stay." In his motion, Falk complains that the petition fails to comply with many of the procedural requirements of
In a supplemental motion, Falk asserts that we must dismiss the petition for lack of jurisdiction because the State seeks the death penalty and the Court of Criminal Appeals has exclusive appellate jurisdiction of cases in which the death penalty has been assessed. See TEX.CODE CRIM. PROC. ANN. arts. 4.03 (West Supp.2012), 4.04, § 2 (West 2005); see also id. art. 37.071, § 2(h) (West Supp.2012). We disagree and deny the supplemental motion; the death penalty has not yet been assessed, and we have mandamus jurisdiction over the judge of a district court within our court of appeals district. TEX. GOV'T CODE ANN. § 22.221(b)(1)(West 2004).
To be entitled to mandamus relief, the relator must show that: (1) he has no adequate remedy at law, and (2) what he seeks to compel is a ministerial act. With respect to the second requirement, the relator must show a clear right to the relief sought. A clear right to relief is shown when the facts and circumstances dictate but one rational decision "under unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law sources), and clearly controlling legal principles."
In re State ex rel. Tharp. ___ S.W.3d ___, ___, 2012 WL 5499867 (Tex.Crim.App. 2012) (orig. proceeding) (citations omitted).
No one disputes that the State cannot appeal directly the alleged trial court error and thus has no adequate remedy at law. See TEX.CODE CRIM. PROC. ANN. art. 44.01 (West Supp.2012); see also Armstrong v. State, 805 S.W.2d 791, 793-94 (Tex.Crim.App.1991)("The United States Supreme Court has held that a `judgment of acquittal, however erroneous, bars further prosecution on any aspect ... and hence bars appellate review of the trial court's error.'") (quoting Sanabria v. United States, 437 U.S. 54, 69, 98 S.Ct. 2170, 2181, 57 L.Ed.2d 43, 57 (1978)).
State ex rel. Healey v. McMeans, 884 S.W.2d 772, 774 (Tex.Crim.App.1994) (orig. proceeding).
State ex rel. Hill v. Court of Appeals for Fifth Dist., 34 S.W.3d 924, 927-28 (Tex. Crim.App.2001)(orig. proceeding)(footnotes omitted).
The Court of Criminal Appeals has summarily stated that
State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 n. 3 (Tex.Crim.App.2003) (orig. proceeding) (brackets in original).
In the jury trial of a criminal case, the "judge shall ... deliver to the jury ... a written charge distinctly setting forth the law applicable to the case;...." TEX.CODE CRIM. PROC. ANN. art. 36.14 (West 2007).
Each side may request the inclusion of instructions in the court's charge, and the "court shall give or refuse these charges." TEX.CODE CRIM. PROC. ANN. art. 36.15 (West 2006); see Gigliobianco v. State, 179 S.W.3d 136, 144 (Tex.App.-San Antonio 2005) ("In fact, article 36.15 grants the trial court the discretion to deny a charge."), aff'd, 210 S.W.3d 637 (Tex.Crim. App.2006). After receiving objections to his charge, the judge "may make such changes in his main charge as he may deem proper,...." TEX.CODE CRIM. PROC. ANN. art. 36.16 (West 2006).
Relator's first complaint concerns the trial court's refusal to include a law-of-parties instruction in the court's charge under Penal Code section 7.02(a)(2), which provides that a "person is criminally responsible for an offense committed by the conduct of another if: ... (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;...." TEX. PENAL CODE ANN. § 7.02(a)(2). "In general, an instruction on the law of parties may be given to the jury whenever there is sufficient evidence to support a jury verdict that the defendant is criminally responsible under the law of parties." Ladd v. State, 3 S.W.3d 547, 564 (Tex.Crim.App.1999). Relator asserts in his petition that the State "has produced sufficient evidence that Falk acted with the intent to promote or assist in the capital murder of Susan Canfield."
Both Relator and Falk have provided us with the court reporter's "rough draft" reporter's record
In an attempt to show that there is sufficient evidence that Falk acted with the intent to promote or assist in the capital murder of Canfield, Relator filed a "rough draft" reporter's record of the testimony of Larry Grissom and Joe Jeffcoat, two of the State's witnesses.
We conclude that Respondent's assessment of the evidence to determine whether it supports the inclusion of an instruction under section 7.02(a)(2) in the court's charge is not a ministerial act, but rather is an exercise of Respondent's judgment and judicial determination. See Hill, 34 S.W.3d at 927. And to the extent that there is a dispute about the state of the evidence, we may not resolve it in an original mandamus proceeding:
Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 60 (Tex.1991) (orig. proceeding). Accordingly, mandamus relief is not available on the trial court's refusal to include a law-of-parties instruction in the court's charge under section 7.02(a)(2).
Relator's other complaint is that the charge's application paragraph on capital murder (escape) conspiracy under section 7.02(b) erroneously requires the State to prove that Falk should have anticipated the specific manner and means by which Martin killed Canfield, and Relator requests that we enjoin Respondent from requiring the State to prove that Falk should have anticipated the specific manner and means by which Canfield's death occurred.
Section 7.02(b) of the Penal Code provides that:
TEX. PENAL CODE ANN. § 7.02(b).
The portion of the court's charge at issue provides:
Relator's complaint concerns the fourth element. He asserts that it is clear error to require the State to prove that Falk should have anticipated the specific manner and means by which Martin caused the death of Canfield. In short, Relator contends that the fourth element of the court's charge increases the State's burden of proof and adds a material element to section 7.02(b).
The "rough draft" reporter's record of the parties' objections to the court's charge reflects that, in response to the State's objection to the inclusion of the manner and means in the application paragraph's fourth element, Respondent replied that it was in the State's "pleadings." Respondent's counsel in this proceeding asserts in a reply brief that the indictment alleges in pertinent part that
Sanchez v. State, 376 S.W.3d 767, 773 (Tex. Crim.App.2012); see also Pizzo v. State, 235 S.W.3d 711, 714 (Tex.Crim.App.2007)("[J]ury unanimity is required on the essential elements of the offense" but is "generally not required on the alternative modes or means of commission.").
Based on Sanchez, Relator contends that if the State may convict a principal of murder without proving the manner and means by which the result of the offense — death — occurred, the State may convict a conspiracy party such as Falk without proving the manner and means by which the death occurred.
Relator also argues that the plain text of section 7.02(b) and applicable case law under section 7.02(b) do not require the State to prove that Falk should have anticipated the manner and means. "[T]he State does not have to prove that the accused intended to shoot or kill the victim or intended that the victim be shot, as long as the evidence established he conspired to commit the robbery and that he `should have' anticipated the murder as a result of carrying out the conspiracy to commit the robbery." Davis v. State, 276 S.W.3d 491, 495 (Tex.App.-Waco 2008, pet. ref'd); see Ex parte Martinez, 330 S.W.3d 891, 902 (Tex.Crim.App.2011)("In this case, therefore, Applicant may be convicted of capital murder as a party to the offense if the jury found that (1) Applicant conspired with the group to commit robbery, (2) the murder occurred in furtherance of the robbery, and (3) the murder should have been anticipated as a result of carrying out the robbery.") (footnote omitted); Ruiz v. State, 579 S.W.2d 206, 209 (Tex.Crim.App. [Panel Op.] 1979).
No party to this proceeding has cited any authority that specifically supports the inclusion in the fourth element that the State must prove that Falk should have anticipated the specific manner and means by which Martin caused the death of Canfield, nor has our research located any. But there is likewise no specific authority that the inclusion of the manner and means in the fourth element of section 7.02(b) conspiracy is erroneous. We thus turn to the applicable standard for mandamus relief and must conclude that this issue is not "well-settled" law such that Respondent has a ministerial duty to not include it in the application paragraph in the court's charge on capital-murder (escape) conspiracy, despite our reservation
For the above reasons, we deny Relator's petition for writ of mandamus, and we vacate our stay of the proceedings in the trial court.