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Court of Appeals of Texas, Houston (14th Dist.).


NO. 14-21-00533-CR

Decided: May 25, 2023

Panel consists of Justices Spain, Poissant, and Wilson.


Affirmed and Majority and Concurring Opinions filed May 25, 2023.

I concur in the court's judgment and join the court's opinion, but I write separately to address a case the State cites from this court, Draper v. State, 681 S.W.2d 175 (Tex. App.—Houston [14th Dist.] 1984, pet. ref'd).

The State cited Draper in support of the proposition that appellant has criminal responsibility for the conduct of another. Tex. Penal Code Ann. § 7.02(a)(2):

Additionally and alternatively, appellant was guilty as a party to the burglary. Under section 7.02 of the Penal Code, a defendant is guilty as a party to an offense when he is physically present at the commission of the offense and encourages the commission by words or agreement. Porter v. State, 634 S.W.2d 846, 849 (Tex. Crim. App. 1982). Such an agreement to act together in committing an offense may be established by circumstantial evidence. Medrano v. State, 658 S.W.2d 787, 791 (Tex. App.—Houston [1st Dist.] 1983, pet. ref'd). In determining whether appellant participated as a party, the fact finder may consider events before, during, and after the offense and may rely on actions indicating an understanding to do a certain act. Strelec v. State, 662 S.W.2d 617, 619 (Tex. App.—Houston [14th Dist.] 1983, no pet.).

Draper v. State, 681 S.W.2d at 178.

The problem with Draper is that while it cites Penal Code section 7.02, Draper is silently based on former Penal Code article 66, which defined principal offenders to an offense:

Art. 66. [75] Encouraging.—When an offense is actually committed by one or more persons, but others are present, and knowing the unlawful intent, aid by acts or encourage by words or gestures, those actually engaged in the commission of the unlawful act, or who, not being actually present, keep watch so as to prevent the interruption of those engaged in committing the offense, such persons so aiding, encouraging or keeping watch are principal offenders.

1925 Penal Code and Code of Criminal Procedure, 39th Leg., R.S., § 1 (Penal Code), art. 65, 1925 Tex. Crim. Stat. 2, 12, repealed by Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 3(a), 1973 Tex. Gen. Laws 883, 991.

The current Penal Code, which was in effect when Draper was handed down, explicitly abolished the traditional distinctions between accomplices and principals. Tex. Penal Code Ann. § 7.01(c). Currently 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. Tex. Penal Code Ann. § 7.01(a).

This court in Draper used the language of repealed 1925 Penal Code article 66 and miscited it to current Penal Code section 7.02. We were mistaken then, and while the majority wisely does not cite Draper today, the court should acknowledge our mistake now so that the bench and bar are wary of citing Draper without explaining why it nonetheless remains good authority.

Charles A. Spain Justice

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Docket No: NO. 14-21-00533-CR

Decided: May 25, 2023

Court: Court of Appeals of Texas, Houston (14th Dist.).

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