Andrew WOODARD, Appellant v. The STATE of Texas, Appellee.
Appellant, Andrew Woodard, was tried and convicted of a crime not set forth in the indictment. The State concedes that the trial court erred by submitting an unindicted offense to the jury, but nonetheless asks us to affirm the conviction under an estoppel theory. Because a defendant is constitutionally entitled to know the charges brought against him, we must reverse appellant's conviction for conspiracy to commit aggravated robbery, and remand this case to the trial court.
On August 8, 2006, appellant accompanied Kevin Pipkins, Sherman Myers, and an unknown man to a shrimp boat named the Carolee, which was docked in Freeport. According to appellant, the group planned to sell Tylenol that had been crushed to look like cocaine to complainant, Hien Van Ha, who lived on the Carolee. Other evidence presented at trial suggested the group may have planned to rob complainant.
Appellant told police that he waited near the car while Pipkins and an unidentified man boarded the Carolee. While they were on board, appellant heard a gunshot from the boat. When the men returned to the car, Pipkins had complainant's wallet, which he discarded as they drove away. The next morning, the owner of the Carolee found the body of complainant, who had been killed by a single gunshot wound to the head.
On February 21, 2007, appellant was indicted for the murder of complainant.1 Murder was the only offense listed in the indictment, which did not charge appellant with robbery or criminal conspiracy. Appellant pled not guilty to the charged offense. While he was awaiting trial, Kevin Pipkins was convicted of the murder of Mr. Ha.
Although the indictment charged appellant only with murder, the trial court submitted a charge that authorized the jury to convict appellant not only of murder, but also conspiracy to commit aggravated robbery and/or conspiracy to commit robbery. No objection was made to the inclusion of the unindicted offenses.
The jury acquitted appellant of murder. However, it convicted him of conspiracy to commit aggravated robbery, and assessed punishment at twenty-nine years' confinement in the Texas Department of Criminal Justice, Institutional Division.
On appeal, appellant argues the trial court violated his constitutional right to notice of the charges against him when it included offenses in the jury charge that were neither alleged in the indictment nor constitute lesser-included offenses of the charged crime, murder. Alternatively, appellant claims he did not receive effective assistance of counsel because his attorney failed to object to the submission of the unindicted offenses. Because we sustain appellant's first issue and reverse his conviction, we do not reach his alternative ineffective-assistance claim.
The trial court's delivery of an appropriate jury charge is important because it guides the jury in its fact-finding function. See Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App.1994). Jurors are the exclusive judges of the facts and the issues of the facts. Id. The purpose of the jury charge is to instruct the jury on applying the law to the facts. Id. To instruct the jury properly, the court must apply the law to the facts raised by the evidence and include an accurate statement of the law. Id. An erroneous jury charge jeopardizes a defendant's right to a fair trial but it does not result in automatic reversal of a conviction. Id.
When reviewing allegations of charge error, we undertake a two-step review. First, we must determine whether error actually exists in the charge. Id. Second, we must determine whether sufficient harm resulted from the error to require reversal. Id. at 731-32. The standard to determine whether sufficient harm resulted from the charging error depends upon whether appellant objected to the charge at trial. See Jimenez v. State, 32 S.W.3d 233, 237 (Tex.Crim.App.2000). Where, as here, no objection is made to the charge and the error is urged for the first time on appeal, the appropriate standard is fundamental error. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984), overruled on other grounds by Rodriguez v. State, 758 S.W.2d 787 (Tex.Crim.App.1988). Fundamental error is error calculated to injure the rights of the defendant to the extent that he was deprived of a fair and impartial trial. Id. at 172. Fundamental error involves “egregious harm,” which affects “the very basis of the case,” deprives the defendant of a “valuable right,” or “vitally affect[s] his defensive theory.” Id.; Olivas v. State, 202 S.W.3d 137, 144 (Tex.Crim.App.2006).
A. Jury Charge Error
Appellant complains, and the State concedes, that it was error for the trial court to instruct the jury on the unindicted offenses. We agree. Due process guarantees a defendant notice of the charges against him. Schmuck v. United States, 489 U.S. 705, 718, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989); Stevens v. State, 891 S.W.2d 649, 650 (Tex.Crim.App.1995). The purpose of an indictment is to give the defendant notice of the particular offense with which he is charged, and to enable the court, on conviction, to pronounce the proper judgment. See Lawton v. State, 913 S.W.2d 542, 551 (Tex.Crim.App.1995), overruled on other grounds by Mosley v. State, 983 S.W.2d 249, 263 (Tex.Crim.App.1998). “It is ancient doctrine of both the common law and of our Constitution that a defendant cannot be held to answer a charge not contained in the indictment.” Schmuck, 489 U.S. at 717, 109 S.Ct. 1443.
Thus, a trial court has no jurisdiction to convict a defendant of an offense not included in the indictment. Jacob v. State, 864 S.W.2d 741, 742 (Tex.App.-Houston [14th Dist.] 1993), aff'd, 892 S.W.2d 905 (Tex.Crim.App.1995). An exception to this well-known rule exists if the defendant is convicted of a lesser-included offense of the charged crime. Jacob, 864 S.W.2d at 742. A lesser-included offense “is established by proof of the same or less than all the facts required to establish the commission of the offense charged.” Tex.Code Crim. Proc. Ann. art. 37.09 (Vernon 2003). In other words, a defendant necessarily has notice of the State's intent to prove the lesser-included offense if the facts that are needed to prove the lesser offense are the same facts or a subset of the same facts necessary to prove the greater offense. Jacob, 864 S.W.2d at 742. In those circumstances, notice of the greater offense suffices to inform the defendant of the possibility of a conviction on the lesser offense. See id.
In the instant case, appellant was indicted for murder, and the court's charge instructed the jury that it could convict appellant for conspiracy to commit aggravated robbery or conspiracy to commit robbery as alternatives to murder. However, neither of these alternative offenses are lesser-included offenses of murder. To reach this determination, we compare the elements of murder as they are alleged in the indictment with the elements of the potential lesser-included offenses. Hall v. State, 225 S.W.3d 524, 535-36 (Tex.Crim.App.2007). In order to conclude that appellant received proper notice of the lesser offenses, this analysis must have been capable of being performed before trial. Id. at 535.
The elements of murder, as charged in the indictment, allege that appellant either: (1) intentionally or knowingly caused the death of an individual by shooting the individual with a deadly weapon; or (2) intended to cause serious bodily injury and committed an act clearly dangerous to human life that caused the death of an individual. See Tex. Penal Code Ann. § 19.02 (Vernon 2003). We compare these elements with the elements of the offenses of (1) conspiracy to commit aggravated robbery and (2) conspiracy to commit robbery.
Initially, the elements of criminal conspiracy require that the defendant: (1) agree with one or more persons that they engage in conduct that would constitute a felony offense; (2) with intent that a felony be committed; and (3) that one or more of them performs an overt act in pursuance of the agreement. See Tex. Penal Code Ann. § 15.02 (Vernon 2003). Then, a person commits robbery if he: (1) in the course of committing theft; (2) with intent to obtain or maintain control of property; (3) intentionally, knowingly, or recklessly; (4) causes bodily injury to another or intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. See Tex. Penal Code Ann. § 29.02 (Vernon 2003). Finally, in addition to these elements of robbery, the offense of aggravated robbery requires proof of one more element: the use of a deadly weapon. See Tex. Penal Code Ann. § 29.03(a)(2) (Vernon 2003).
Comparing the elements of murder with the elements of conspiracy to commit aggravated robbery and conspiracy to commit robbery, we agree with the parties that the elements of the lesser conspiracy-based offenses cannot be “established by proof of the same or less than all the facts required to establish the commission of the offense charged.” Tex.Code Crim. Proc. Ann. art. 37.09 (Vernon 2003); see also Hall, 225 S.W.3d at 536. To prove the unindicted offenses, the State would need to demonstrate the existence of an agreement, an overt act, and theft. These elements are not required to establish the commission of murder. Therefore, these purported lesser offenses-conspiracy to commit aggravated robbery and conspiracy to commit robbery-are not lesser-included offenses of murder. Accordingly, it was error for the trial court to include these unindicted offenses in its charge.2 See Barnes v. State, 644 S.W.2d 1, 2 (Tex.Crim.App.1982).
B. Egregious Harm
If the relevant portion of the charge authorizes a conviction on a theory not alleged in the indictment, the charge contains fundamental error. Id. Here, the portion of the charge that applied the law to the facts permitted the jury to convict appellant of an unindicted crime. Thus, the charge contained fundamental error. See id.
Having found fundamental error in the charge, we must now decide whether it resulted in egregious harm to appellant. The State contends that it did not. Egregious harm is a difficult standard to prove and such a determination must be done on a case-by-case basis. Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996). In examining the record to determine whether jury-charge error is egregious, we may consider the entirety of the jury charge itself, the evidence, including the contested issues and weight of the probative evidence, the arguments of counsel, and any other relevant information revealed by the record of the trial as a whole. Stuhler v. State, 218 S.W.3d 706, 719 (Tex.Crim.App.2007). However, in some cases, the charge itself will demonstrate egregious harm. Hutch, 922 S.W.2d at 171.
The Court of Criminal Appeals has acknowledged that convicting a person of a crime totally different from the offense alleged in the indictment constitutes a per se violation of due process. See Almanza, 686 S.W.2d at 173. Because the charge authorized the jury to convict appellant of unindicted crimes, he was convicted of a crime of which he received no notice prior to trial. As a result, the judgment against appellant is void. See Ex parte Sewell, 606 S.W.2d 924, 925 (Tex.Crim.App.1980) (concluding that conviction for theft was void because it was not a lesser-included offense of the burglary charged in the indictment); Houston v. State, 556 S.W.2d 345, 347 (Tex.Crim.App.1977) (concluding that conviction for rape was void because it was not a lesser-included offense of the burglary with intent to commit rape charged in the indictment). We have previously stated that “[a] void judgment cannot stand.” Murray v. State, 261 S.W.3d 255, 261 (Tex.App.-Houston [14th Dist.] 2008, pet. granted). We conclude that the jury-charge error in this case resulted in egregious harm to appellant because it deprived him of the valuable right to notice of the charges against him. Thus, we must sustain appellant's first issue and reverse his conviction.
Having done so, we remand this cause to the trial court for further proceedings. Because he was acquitted of murder, appellant cannot be retried for that offense. See Rollerson v. State, 227 S.W.3d 718, 729 (Tex.Crim.App.2007). However, our decision does not necessarily preclude the State from re-indicting appellant for a previously-unindicted offense. See Barnes, 644 S.W.2d at 2.
Accordingly, the judgment of the trial court is reversed and the cause remanded for proceedings not inconsistent with this opinion.
1. The indictment alleged as follows:THE GRAND JURY, for the County of Brazoria, State of Texas, duly selected, empaneled, sworn, charged, and organized as such for the District Court of said County, upon their oaths present in and to said court that ANDREW WOODARD, hereinafter styled Defendant, on or about the 9th day of August, 2006, and before the presentment of the indictment, in the County and State aforesaid, did then and there intentionally or knowingly cause the death of an individual, namely, Hien Van Ha by shooting the said Hien Van Ha with a deadly weapon, to-wit: a firearm;And the Grand Jurors aforesaid, upon their oaths aforesaid, in said County and State, do further present in and to said Court that Andrew Woodard, hereinafter styled Defendant, on or about the 9th day of August, 2006, and before the presentment of this indictment, in said County and State, did then and there with intent to cause serious bodily injury to an individual, namely, Hien Van Ha, intentionally or knowingly commit an act clearly dangerous to human life, to-wit: did shoot the said Hien Van Ha with a deadly weapon, to-wit: a firearm, which caused the death of the said Hien Van Ha[.]
2. The State contends that appellant is legally estopped from appealing from the inclusion of the unindicted offenses, arguing that appellant “apparently requested the lesser offenses.” However, the record does not support the State's argument because it is silent as to who requested the inclusion of the additional charges. Therefore, we reject the State's estoppel claim.
KENT C. SULLIVAN, Justice.