MICHAEL DANIEL CUCUTA v. THE STATE OF TEXAS

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Court of Appeals of Texas, El Paso.

MICHAEL DANIEL CUCUTA, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 08-15-00027-CR

Decided: February 23, 2018

Before McClure, C.J., Rodriguez, and Hughes, JJ.

OPINION

During a robbery that occurred in the early morning hours of October 9, 2011, in an apartment shared by Eduardo Bustos and Savana Rodriguez, Bustos was shot and killed, and Rodriguez was shot and injured. 1 In two separate indictments, Appellant was accused of committing two counts of aggravated robbery with respect to both Bustos and Rodriguez, one count of murder in the shooting death of Bustos, and one count each of attempted capital murder and aggravated assault in the shooting of Rodriguez. The attempted capital murder charge was based on the allegation that Appellant intentionally shot both Rodriguez and Bustos in the same criminal transaction.

A jury found Appellant guilty of all five counts, and further found that Appellant had used a deadly weapon in the commission of the offenses as charged in the indictments. The trial court sentenced Appellant to multiple concurrent prison sentences, the maximum of which was 45 years for the murder offense. In this appeal, we consider only the convictions in the Bustos matter, and we issue a separate opinion in the Rodriguez matter in 08-15-00028-CR. Here Appellant argues that the trial court erred by instructing the jury on the law of conspiracy; that the multiple punishments he received for the murder of Bustos, the attempted capital murder of Rodriguez, and the aggravated robbery of Bustos violated the Double Jeopardy Clause; that the trial court erred by allowing witnesses to testify to an extraneous drug dealing offense; and that Texas's “Law of Parties” statute is unconstitutional.2

FACTUAL SUMMARY

Although Appellant pled not guilty to all of the charges against him, he admitted at trial to many of the facts underlying the State's case against him, and expressly acknowledged that he was guilty of committing the robbery. He claimed that he was innocent of the murder and attempted capital murder charges.

The undisputed testimony at trial revealed that Appellant had been friends with both Bustos and Rodriguez. However, Appellant had a falling out with Bustos approximately two months before the murder, and the two had not seen each other until the morning of the crime. Appellant claimed that the falling out occurred when he learned that Bustos had burglarized his residence while Appellant was in jail for violating his probation on a misdemeanor conviction for possession of marijuana.

Jose Acosta, who participated in the charged offenses along with Appellant, was a mutual friend of both Appellant and Bustos, and had been released from prison just days before the robbery. He also had a falling out with Bustos when he learned that Bustos had engaged in sexual relations with the mother of his child while Acosta was in prison, and that Bustos may have provided information to police that led to his imprisonment. Although Appellant claims he was unaware of Acosta's grudge against Bustos, the two of them admittedly devised a plan to burglarize an apartment where Bustos and Rodriguez were residing. According to Appellant, Acosta originally came up with the idea to commit the robbery because he needed money. Appellant agreed to the plan, in part because he believed that he might be able to regain possession of some of the items Bustos stole from him, and in part because he was admittedly addicted to methamphetamines at the time. The State introduced evidence that Appellant and Acosta had exchanged text messages prior to the crime, which indicated both individuals needed money.

Appellant testified that he and Acosta planned to commit the burglary when Bustos and Rodriguez were not at home. He admittedly obtained a gun, claiming that he and Acosta agreed they would only use the gun to scare off anyone who might witness the burglary.

It is undisputed that Appellant and Acosta drove to the apartment in the early morning hours of October 9, 2011, and that Acosta first went inside the apartment, leaving Appellant behind in the car. While inside, Acosta socialized with Bustos, Rodriguez, and another mutual friend, Jesus Hernandez, for at least an hour. After Hernandez left, Acosta contacted Appellant by cell phone, and directed him to come into the apartment. Appellant, who was high on methamphetamines, knew there were people inside the apartment when he entered.

Once inside, Appellant observed Bustos and Rodriguez sitting together on a couch in the living room. Shortly thereafter, Acosta confronted Bustos about being a “snitch,” and also about whether he had previously engaged in sexual intercourse with Acosta's “baby momma.” When Bustos admitted to a sexual relationship, Acosta pulled out the gun and directed Appellant to hit Bustos on the head with a liquor bottle that was on a nearby table. Appellant refused to do so. However, fearing that Acosta might turn the gun on him for failing to follow his directions, Appellant went into the victims' bedroom, and began looking through their things.

Rodriguez testified that while Appellant was in the bedroom, Acosta was pointing his gun at Bustos, and she therefore tried to protect herself by moving away from Bustos. When she did so, Acosta grabbed her by the hair and pointed the gun at her, saying, “Bitch, don't fucking move.” Bustos then tackled Acosta, and while the two were wrestling, Rodriguez heard at least four gunshots ring out, and saw blood on Bustos. As Rodriguez tried to run to the door, Acosta shot her in the hip. Rodriguez acknowledged that Appellant did not fire any shots or have a gun with him, and never touched her or Bustos. Nevertheless, she testified that Appellant did not appear to be surprised when Acosta pulled out the gun and threatened to shoot Bustos, and did nothing to stop Acosta from shooting them.

Appellant testified that while he was in the bedroom, he heard gunshots coming from the living room. When he returned to the living room, he saw that both Bustos and Rodriguez had been shot, and that Acosta was pistol-whipping Bustos on his forehead as he lay on the floor. Appellant claimed that he grabbed Acosta and stopped him from continuing to assault Bustos. Appellant also recalled that as they were exiting the apartment, Acosta tried to shoot Rodriguez again, but the gun jammed, and the two of them then ran out the door.

Bustos suffered three gunshot wounds and died shortly after the shooting. The medical examiner testified that Bustos died from a fatal wound to his chest, which was fired while the gun was in contact with his skin. Rodriguez, who had been shot in the right hip, spent several days in the hospital, but was able to attend Bustos's funeral, albeit in a wheelchair.

Following a joint trial on the charges against him in both the Bustos and Rodriguez indictments, a jury found Appellant guilty of one count of murder with regard to Bustos's death, one count each of the attempted capital murder and aggravated assault with regard to Rodriguez's injuries, and two counts of aggravated robbery, one naming Bustos as the victim and the other naming Rodriguez. In addition, the jury found that Appellant had used a firearm during the course of his crimes, and answered “yes” to a deadly weapon special issue. The trial court sentenced Appellant to the following prison terms: 45 years for Bustos's murder; 35 years for the aggravated robbery of Bustos; 35 years for the attempted capital murder of Rodriguez; 20 years for the aggravated assault of Rodriguez; and 35 years for the aggravated robbery of Rodriguez, all sentences to run concurrently. This appeal follows.

THE INSTRUCTIONS ON “CONSPIRACY”

In Issue One, Appellant argues that the trial court erred by giving the following instructions in the jury charge:

“Conspiracy” means an agreement with one or more person that they or one or more of them engage in conduct that would constitute a felony. An agreement constituting a conspiracy may be inferred from the acts of the parties.

A person is criminally responsible for an offense committed by the conduct of another 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 felony 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 the carrying out of the conspiracy.

Appellant did not object to the charge at trial, and contends for the first time on appeal that the instructions may have confused the jurors and caused them to convict him for all of the offenses as a co-conspirator. He emphasizes that criminal conspiracy is a separate substantive offense under section 15.02 of the Texas Penal Code, and that he was not charged with criminal conspiracy in either of his indictments. He urges that we reverse all of his convictions on this basis, so that he might receive a fair trial with a jury charge that is limited to the charges set forth in his indictment.

Standard of Review

The first step in analyzing a claim of jury charge error is to determine whether the submitted charge was erroneous. Arteaga v. State, 521 S.W.3d 329, 333 (Tex.Crim.App. 2017) (citing Barrios v. State, 283 S.W.3d 348, 350 (Tex.Crim.App. 2009)). If so, we must then determine whether the defendant was harmed by that error. Id. (citing Barrios, 283 S.W.3d at 350). When a defendant did not object to the charge, he can prevail only if he can demonstrate that he was egregiously harmed. Id. at 338 (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (op. on reh'g)). Charge error is egregiously harmful if it affects the very basis of a case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Id. (citing Sanchez v. State, 209 S.W.3d 117, 121 (Tex.Crim.App. 2006)). In examining the record for egregious harm, we must consider the entire jury charge, the state of the evidence, the closing arguments of the parties, and any other relevant information in the record. Id. (citing Olivas v. State, 202 S.W.3d 137, 144 (Tex.Crim.App. 2006)).

Analysis

Appellant correctly states that fundamental error occurs when a trial court instructs the jury on an unindicted offense and when the defendant is subsequently convicted of the unindicted offense. See Woodard v. State, 322 S.W.3d 648, 657-58 (Tex.Crim.App. 2010). Appellant then argues that the instruction effectively told the jury that it could convict him of criminal conspiracy, even though he had not been indicted for that offense. We disagree.

The trial court gave the instruction when discussing the doctrine of the law of parties, which is found in sections 7.01 and 7.02 of the Texas Penal Code. Section 7.01 provides that 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) (West 2011). In turn, section 7.02 of the Code provides that a person may be held “criminally responsible for an offense committed by the conduct of another” under a variety of circumstances, including when the person acts with “intent to promote or assist the commission of the offense [and] solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense ․”3 TEX.PENAL CODE ANN. § 7.02(a)(2) (West 2011). Section 7.02 of the Code also expressly provides that a person may be held criminally responsible for the acts of another under a conspiracy theory, providing 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 felony 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 the carrying out of the conspiracy.” TEX.PENAL CODE ANN. § 7.02(b). As explained by the Fort Worth Court of Appeals, under the law of parties, the State is able to enlarge a defendant's criminal responsibility to include acts in which he or she may not have been the principal actor. Bleil v. State, 496 S.W.3d 194, 202 (Tex.App.--Fort Worth 2016, pet. ref'd) (citing Ryser v. State, 453 S.W.3d 17, 28 (Tex.App.--Houston [1st Dist.] 2014, pet. ref'd)); see also Goff v. State, 931 S.W.2d 537, 544 (Tex.Crim.App. 1996).

The doctrine may be applied to a defendant's case even though no such allegation is contained in the indictment. See Murkledove v. State, 437 S.W.3d 17, 21-22 (Tex.App.--Fort Worth 2014, pet. dism'd, untimely filed) (citing Montoya v. State, 810 S.W.2d 160, 165 (Tex.Crim.App. 1989)). Moreover, the Court of Criminal Appeals has expressly held that when instructing the jury on the law of parties, the trial court may properly include a definition of the term, “conspiracy,” and approved a jury charge that contained almost identical language to the one that was given here. See Ladd v. State, 3 S.W.3d 547, 565 (Tex.Crim.App. 1999); see also Gilmore v. State, 397 S.W.3d 226 (Tex.App.--Fort Worth 2012, pet. ref'd) (finding that the trial court did not err in including a definition of “conspiracy” in the jury charge while instructing the jury on the law of parties).4 In reaching this conclusion, the court held that although the trial court was not required to define the term “conspiracy” as it was not defined in the Penal Code, it “certainly did not err in instructing the jury to give the term its commonly understood meaning.” Ladd, 3 S.W.3d at 565.

In Montoya, the Court of Criminal Appeals, rejected a substantially similar argument to the one Appellant raises in this case. There, the trial court gave a virtually identical instruction on the “theory of conspiracy” in a jury charge explaining the law of parties.5 Montoya, 810 S.W.2d at 164–65. The defendant argued that it was error to do so, as the instruction might have confused the jurors and caused them to mistakenly convict him of the separate offense of criminal conspiracy. The court held that the jury charge, which properly defined the term, was not misleading as it did not instruct the jury that it could find the defendant guilty of a separate conspiracy offense, and instead, merely explained to the jury the circumstances under which a defendant could be held liable under an alternative “parties” charge as provided in section 7.02(b) of the Penal Code. Id. at 165; see also Murkledove, 437 S.W.3d at 23 (rejecting appellant's argument that a similar jury charge defining the term “conspiracy” in explaining the law of parties would have allowed the jury to convict him of capital murder if it found him guilty of conspiracy); see also Ladd, 3 S.W.3d at 565 (trial court properly provided the jury with a definition of the term “conspiracy” in explaining the concept of the law of parties); Gilmore, 397 S.W.3d at 245 (recognizing that a trial court may instruct the jury on both the law of parties and the law of conspiracy in a jury charge in accordance with section 7.02 of the Penal Code). We conclude that the trial court properly provided the jury with an instruction on the definition of conspiracy in explaining the law of parties doctrine to the jury. We overrule Issue One.

FEDERAL AND STATE DOUBLE JEOPARDY RIGHTS

In his second and third issues on appeal, Appellant contends that his federal and state double jeopardy rights were violated when he was convicted and punished for all five offenses. With regard to the Bustos indictment, he makes two distinct arguments that we review separately. First, he argues that double jeopardy prohibited multiple punishments for both the murder of Bustos and the attempted capital murder of Rodriguez, using Bustos's shooting as an aggravating circumstance. Second, he argues that double jeopardy prohibited multiple punishments for both the murder of Bustos and the aggravated robbery of Bustos.

Standard of Review and Applicable Law

The Double Jeopardy Clause of the United States Constitution is applicable to the states through the Fourteenth Amendment, and it protects an accused from impermissible multiple punishments in the same proceeding, or successive prosecutions for the same offense after an acquittal or conviction. Ex parte Castillo, 469 S.W.3d 165, 168–69 (Tex.Crim.App. 2015) (U.S. CONST. AMEND. V, cl. 2); Ex parte Amador, 326 S.W.3d 202, 205 (Tex.Crim.App. 2010); see also Littrell v. State, 271 S.W.3d 273, 275 (Tex.Crim.App. 2008) (recognizing that a defendant may not be convicted of the same offense twice either in the same or subsequent proceedings).

When two distinct statutory provisions are at issue, we ordinarily determine legal sameness by applying the Blockburger test. Ex parte Castillo, 469 S.W.3d at 168 (citing United States v. Dixon, 509 U.S. 688, 697, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993); Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932)). Under the Blockburger test, “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.” See Ex parte Denton, 399 S.W.3d 540, 545-46 (Tex.Crim.App. 2013) (quoting Blockburger, 284 U.S. at 304, 52 S.Ct. at 182). As the Court of Criminal Appeals has recognized, the Blockburger test is merely the starting point in the analysis of a multiple-punishments double jeopardy claim. Id. at 546 (citing Bigon v. State, 252 S.W.3d 360, 370 (Tex.Crim.App. 2008)). In Texas, the application of the Blockburger same elements test is governed by the cognate pleadings approach, which entails comparing the elements of the greater offense as pled in the indictment, to the statutory elements of the lesser offense. Ex parte Benson, 459 S.W.3d 67, 72 (Tex.Crim.App. 2015) (citing Ex parte Amador, 326 S.W.3d 202, 206 n.5 (Tex.Crim.App. 2010)). If the two offenses so compared have the same elements, then “a judicial presumption arises that the offenses are the same for purposes of double jeopardy” and that the defendant may not be punished for both. But that presumption can be rebutted by a clearly expressed legislative intent to impose multiple punishments. Id. Conversely, if the two offenses have different elements under the Blockburger test, the judicial presumption is that the offenses are different for double jeopardy purposes and cumulative punishment may be imposed. Id. This presumption can be rebutted by showing, through various factors, that the Legislature “clearly intended only one” punishment. Id. This analysis is a legal question and does not depend on the evidence offered at trial. Ex parte Castillo, 469 S.W.3d at 169 (citing Hall v. State, 225 S.W.3d 524, 535 (Tex.Crim.App. 2007)).

If a court determines that the offenses are legally the same, the next step is to determine whether the offenses are factually the same. Id. (citing Ex parte Benson, 459 S.W.3d at 72)). “We determine factual sameness by determining the allowable unit of prosecution and reviewing the trial record to establish how many units have been shown.” Id. “The allowable unit of prosecution of an offense turns on statutory construction and usually requires ascertaining the gravamen, or gravamina, of the offense.” Id. If a court concludes that the offenses are based on the same allowable unit of prosecution, then the offenses are factually the same for double jeopardy purposes. Id. To prevail on a double jeopardy claim, the claimant must prove both “legal sameness and factual sameness.” Id.

A double jeopardy claim may be raised for the first time on appeal “when the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and when enforcement of usual rules of procedural default serves no legitimate state interests.” Gonzalez v. State, 8 S.W.3d 640, 643 (Tex.Crim.App. 2000).

Appellant Could be Punished for Both the Murder of Bustos and the Attempted Capital Murder of Rodriguez

Appellant was charged in two separate indictments with the murder of Eduardo Bustos, by shooting him with a deadly weapon, and with the attempted capital murder of Savana Rodriguez, using Bustos's shooting as an aggravating circumstance. The murder charge alleged that Appellant did “then and there intentionally or knowingly cause the death of an individual, Eduardo Bustos, by shooting him with a deadly weapon, to-wit: a firearm[.]” The attempted capital murder indictment alleged that Appellant “did then and there, with the specific intent to commit the offense of capital murder of more than one person during the same criminal transaction, intentionally shoot Eduardo Bustos and Savana Rodriguez with a deadly weapon, to wit: a firearm, which amounted to more than mere preparation that tended but failed to effect the commission of the offense intended[.]”

Appellant contends that double jeopardy prohibited him from being convicted and punished for both offenses. In particular, he alleges that the murder charge was a lesser-included offense of the attempted capital murder charge, as proof of the murder was required to prove the attempted capital murder charge. He points out that although attempted capital murder may be committed in a variety of ways, as pled in the indictment in the Rodriguez matter, the State was required to prove that he intended to kill both Bustos and Rodriguez during the same criminal transaction. He therefore argues that proof that he acted as a party to Bustos's murder was a “necessary element” to the attempted capital murder charge.6 He concludes that his double jeopardy rights were violated for the multiple punishments he received for the two offenses.

In support of his argument, Appellant relies solely on the Fifth Circuit Court of Appeal's decision in Milner v. Johnson, 210 F.3d 368 (5th Cir. 2000). As the Fifth Circuit's opinion is somewhat sparse, we look to the Texas Court of Criminal Appeals' explanation of the underlying facts in that case, as set forth in an opinion stemming from the defendant's subsequent state habeas proceeding in Ex parte Milner, 394 S.W.3d 502 (Tex.Crim.App. 2013). Milner was convicted of the first-degree murder of Frankie Garcia for shooting him with a firearm. Id. at 504. In addition, he was convicted of two attempted capital murder offenses. Id. One count was based on the allegation that he attempted to murder Jimmy Britten, and that in the same scheme and course of conduct, he caused the death of Frankie Garcia. Id. The second count was based on the allegation that he attempted to murder Kenneth Williams, and that in the same scheme and course of conduct, he caused the death of Frankie Garcia. Id. The Fifth Circuit held that Milner's murder conviction violated double jeopardy, and therefore vacated that conviction. Id. at 503-04 n.1 (citing Milner v. Johnson, 210 F.3d 368 (5th Cir. 2000)).

In reaching its conclusion, the Fifth Circuit held that Milner could not be convicted of both the murder of Frankie Garcia and the attempted capital murders of Britten and Williams, using the murder of Garcia as the aggravating factor in the attempted capital murders cases. Milner, 210 F.3d at 368. The court relied on the Blockburger test, noting that it “inquires whether each offense contains an element not contained in the other [and] if not, they are the ‘same offense’ and double jeopardy bars additional punishment and successive prosecution.” Id. (citing United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993); Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)). The court concluded that the murder offense contained “no element which also was not required to be proved in Milner's attempted capital murder prosecutions[.]” Id. It then concluded that Milner's murder conviction violated the Double Jeopardy Clause.7 Id.

In its brief, the State does not attempt to distinguish the Milner case. Instead, the State relies on our sister court's holding in Castillo v. State, 186 S.W.3d 21 (Tex.App.--Corpus Christi 2005, pet. ref'd) in which the court found that double jeopardy was not violated by the defendant's convictions for both murder and attempted capital murder where the State used the murder victim as the aggravating circumstance in the attempted capital murder case. In Castillo, the defendant was charged with one count of murder in the drive-by shooting of Francisco Sanchez. Id. at 25 Another victim, Rafael Almanza, was shot in the same incident, but survived. Id. The defendant was charged by indictment with one count of murder for the killing of Sanchez and one count of attempted capital murder for the shooting of both Sanchez and Almanza. Id. The defendant argued that double jeopardy prohibited multiple punishments for the two offenses, asserting that they were the same offenses under the Blockburger test. Id. at 25-26.

The court held that upon reviewing the statutory elements of the charged offenses, the “murder and attempted capital murder (based on an attempt to commit multiple murders) are not the same offense under the Blockburger test.” Id. at 26. In reaching this conclusion, the court held that “[e]ach offense requires proof of a fact which the other does not.” Id. First, the court noted that a person commits the offense of murder if he intentionally or knowingly causes the death of an individual. Id. (citing TEX.PENAL CODE ANN. § 19.02(b)(1) (Vernon 2003)). On the other hand, “[a] person commits the offense of attempted capital murder if he specifically intends to commit the offense of capital murder (here, the murder of more than one person during the same criminal transaction) and does an act amounting to more than mere preparation that tends but fails to effect the commission of capital murder.” Id. (citing TEX.PENAL CODE ANN. §§ 15.01(a) (Vernon 2003), 19.03(a)(7)(A) (Vernon Supp. 2004–05)). The court held that in this instance, “Each offense thus requires proof of a fact which the other does not: (1) murder requires the death of an individual and attempted capital murder does not, and (2) attempted capital murder requires an intent to kill more than one person and murder does not.” Id. The two offenses were therefore different under the Blockburger test. Id.

This conclusion appears to be in conflict with the Fifth Circuit's decision in Milner, where the court concluded that the defendant could not be convicted of both murder and attempted capital murder for double jeopardy purposes, where the murder victim's death was used as an aggravating factor in the attempted capital murder case. However, we believe that the court in Castillo properly analyzed the question under the cognate pleading approach utilized by the Court of Criminal Appeals.8

Moreover, analyzing the issue using the question of whether one of the charged offenses is a lesser-included offense of the other, we would reach the same conclusion. In Girdy v. State, 213 S.W.3d 315 (Tex.Crim.App. 2006), the court explained that if “the prosecution, in proving the elements of one charged offense, also necessarily proves another charged offense, then that other offense is a lesser-included offense” for double jeopardy purposes. Id. at 319. If there is no clear legislative intent to punish the offenses separately, “multiple punishments for the criminal act that is the subject of the prosecution is barred.” Id.

Here, if the attempted murder charge is viewed as the greater offense, by proving that Appellant shot Bustos as required for the attempted capital murder charge as alleged in the indictment, the State has not proven that the lesser offense of murder occurred--only that a shooting took place, not that a death occurred as required for a conviction of murder. Conversely, if the murder charge is viewed as the greater offense, by proving that Bustos was murdered the State has not proven that an attempted capital murder involving multiple victims occurred--only that one victim was shot. We cannot see how the elements of the two offenses can be viewed as the same under this scenario.

In reaching this conclusion, we recognize that the Court of Criminal Appeals has held that under the cognate pleadings approach it has adopted, double jeopardy challenges can be made even to offenses that have differing elements under Blockburger if the same “facts required” are alleged in the indictment. Bigon, 252 S.W.3d at 370 (citing Hall v. State, 225 S.W.3d 524 (Tex.Crim.App. 2007)). The State utilized one act that was the same in both indictments, i.e., the act of shooting Bustos. To convict Appellant of attempted capital murder, the State was required to allege an additional act-- the shooting of both Bustos and Rodriguez in the same criminal indictment. We recognize that the Legislature did not intend for the State to punish Appellant for two capital offenses with regard to this conduct. In other words, the State could not have obtained a capital murder conviction against Appellant for Bustos's death using the theory that he shot multiple victims in the same transaction, and at the same time obtained a conviction for attempted capital murder charge using the same multiple victims. See, e.g., Moreno v. State, 1 S.W.3d 846 (Tex.App.--Corpus Christi 1999, pet. ref'd) (sentences for capital murder of two victims and attempted capital murder of same two victims, plus a third victim, violated double jeopardy); see also Saenz, 166 S.W.3d at 272-73 (double jeopardy was violated by defendant's conviction for three counts of capital murder involving the same multiple victims killed in the same criminal transaction); Ex parte Milner, 394 S.W.3d at 510 (defendant could not be convicted of multiple counts of attempted capital murder involving the same victims). However, Appellant was not convicted of two such capital offenses, and we do not believe that the Legislature intended to prohibit the State from pursuing two statutorily different offenses -- one non-capital offense and one capital offense, naming two different victims.

We reach the same conclusion applying the allowable unit of prosecution test. As the Court of Criminal Appeals has noted, although capital murder can be committed in a variety of ways, when the defendant is charged with capital murder under section 19.03(a)(7), a defendant must commit both a murder under TEX.PENAL CODE ANN. § 19.02(b)(1), and at least one additional murder during the same criminal transaction, or during different criminal transactions that are committed pursuant to the same scheme or course of conduct. See Saenz, 166 S.W.3d at 272-73. As explained by the court in Milner, in a capital murder case under section 19.03(a)(7), the allowable unit of prosecution is the “killing of two or more persons.” Ex parte Milner, 394 S.W.3d at 507; see also Saenz, 166 S.W.3d at 272-73 (the allowable unit of prosecution under section 19.03(a)(7) is the commission of one predicate murder and additional murders of other individuals). The court further noted that an attempted and completed offense have the same allowable units of prosecution. Ex parte Milner, 394 S.W.3d at 508. Therefore, the allowable unit of prosecution for attempted capital murder under section 19.03(a)(7), for which Appellant was charged and convicted, is the attempted murder of more than one person in the same criminal transaction and/or the same scheme or course of conduct.9 Ex parte Milner, 394 S.W.3d at 508. To establish the attempted capital murder of Rodriguez, as alleged in the Rodriguez indictment, the State was required to prove that Appellant had the specific intent to kill two victims, Rodriguez and Bustos, regardless of whether Bustos died or not.

On the other hand, to establish that Appellant committed murder, as charged in the Bustos indictment, the State was required to prove that Appellant “intentionally or knowingly” caused Bustos's death by shooting him with a firearm. TEX.PENAL CODE ANN. § 19.01 (West 2011) (A person commits criminal homicide if he intentionally, knowingly, recklessly, or with criminal negligence causes the death of an individual). In a murder case, the allowable unit of prosecution is the intentional killing of one victim. 10 See Johnson v. State, 364 S.W.3d 292, 295–96 (Tex.Crim.App. 2012) (recognizing that “each victim is an allowable unit of prosecution for the offense of murder”); see also Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex.Crim.App. 2006) (“The allowable unit of prosecution for an assaultive offense is each complainant.”) (citing Phillips v. State, 787 S.W.2d 391, 394–95 (Tex.Crim.App. 1990)(assault); Ex parte Rathmell, 717 S.W.2d 33, 36 (Tex.Crim.App. 1986) (voluntary manslaughter)); Saenz, 166 S.W.3d at 272 (recognizing that in contrast to a capital murder involving multiple victims, the allowable unit of prosecution for most violent offenses is each individual).

Here, the allowable units of prosecution for the two offenses are different -- the murder of one individual, as opposed to the attempted murder of multiple individuals. Not only are the allowable units of prosecution different, but the victim alleged in each count is different. Bustos was the victim of the murder and Rodriguez was the victim of the attempted capital murder. Where, as here, the State has alleged the violations of two separate statutory provisions, with two different allowable units of prosecution and two different victims, we do not believe that Appellant's double jeopardy rights were violated. See generally Castillo, 469 S.W.3d at 172 (concluding that an alleged aggravated assault charge against one victim, and a capital murder charge, based on the commission of a burglary in the course of a different victim's murder, were not factually the same, where the two charges named different victims, and therefore alleged two different units of prosecution).

Appellant Could be Convicted of Both the Aggravated Robbery of Bustos and The Murder of Bustos

Appellant next contends that his conviction for aggravated robbery must be vacated on double jeopardy grounds, arguing that the facts necessary to convict him for the two offenses were the same. We disagree.

To be convicted of aggravated robbery, the State must first prove that a defendant engaged in a violation of section 29.02 of the Texas Penal Code, which provides that a person commits robbery “if, in the course of committing theft as defined in Chapter 31 and with intent to obtain or maintain control of the property, he: (1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.” TEX.PENAL CODE ANN. § 29.02 (West 2011). Then the State must prove one of the aggravating factors, which includes proving that the defendant caused “serious bodily injury to another,” or that the defendant “use[d] or exhibit[ed] a deadly weapon” during the course of committing the offense. TEX.PENAL CODE ANN. § 29.03(a)(1)(2) (West 2011). The State chose to charge Appellant with aggravated robbery by intentionally or knowingly, while in the course of committing theft of property, threatening or placing Bustos in fear of imminent bodily injury or death, and used a deadly weapon, to-wit, a firearm. The means of committing the robbery was via threat rather than infliction of bodily injury. In contrast, the murder charge was based on the allegation that Appellant shot Bustos with a deadly weapon, an offense that was assaultive in nature. Thus, the indictment alleged two dissimilar means of committing the two offenses.

In applying the Blockburger test, we note that as pled in the indictment, each offense required an element that the other did not. The aggravated robbery offense required the State to prove a threat, while the attempted capital murder offense did not. In addition, the murder offense required the State to prove that Appellant shot at Bustos with the intent to commit murder, while the aggravated robbery charge did not. Under the facts as pled in the indictment, each offense required proof of an element that the other did not, and we conclude that that the two offenses were not the same for double jeopardy purposes.

We contrast this with situations in which the State has charged the defendant with committing an aggravated robbery and aggravated assault (or any other assaultive offense), pleading the same means of committing the two offenses. In such cases, where the State has pled the same means of committing the two offenses, the two offenses may be the same for double jeopardy purposes. Thus, in Ex parte Denton, 399 S.W.3d 540 (Tex.Crim.App. 2013), the court held that where the State alleged that the defendant had committed aggravated robbery based on threatening his victims, and similarly alleged that he had committed aggravated assault of the same victim during the same criminal transaction by also threatening the same victims, the two offenses, as pled in the indictment, were the same for double jeopardy purposes. Id. at 547. In particular, the court noted that in this instance, the aggravated assault by threat offense, as pled in the indictment, was a lesser-included offense of the greater offense of aggravated robbery by threat, because it was “established by proof of the same or less than all the facts” required to establish the commission of the aggravated robbery. Id. In reaching this conclusion, the court found it significant that neither count alleged bodily injury, and both relied on the same set of facts, the threat with a deadly weapon, to establish guilt. Id.

Where, as here, the State charges the defendant with an aggravated robbery and an additional assaultive offense committed by different means, the outcome is different. Thus, in Garfias v. State, 424 S.W.3d 54, 64 (Tex.Crim.App. 2014) the court held that a defendant's double jeopardy rights are not violated when the defendant is convicted of both aggravated robbery by threat, and aggravated assault with a deadly weapon, even when the two offenses arose of the same transaction and involved the same victim. The court noted that the focus of the two offenses differed, in that the assault offense was committed by virtue of a threat, while the aggravated assault offense was committed by causing bodily injury. Id. at 57, 59. It further concluded that because the two offenses are found in different sections of the Penal Code, and because the gravamen of the two offenses differ, the Legislature intended for a defendant to be punished for both offenses, even if the same victim was involved in both offenses. Id. at 61. The court reached this conclusion by recognizing that although the gravamen of robbery or assault can be generally termed the defendant's assaultive conduct against each victim, the individual gravamina of assault or robbery by threat and assault or robbery causing bodily injury differ significantly, thereby allowing for multiple punishments for both crimes. See Garfias, 424 S.W.3d at 60-61 (citing Landrian v. State, 268 S.W.3d 532, 540 (Tex.Crim.App. 2008); Denton, 399 S.W.3d at 546); see also Hall v. State, 225 S.W.3d 524, 536 (Tex.Crim.App. 2007) (aggravated assault was not a lesser-included offense of murder, despite the use of the same weapon in the commission of both offenses, where the defendant was charged with one count of aggravated assault, which alleged that defendant had threatened victim with a weapon by displaying the weapon, and one count of murder, by shooting the victim with the same weapon; the two counts did not rely on the same facts, and the charge of aggravated assault by threat required proof of additional facts not alleged in the murder charge); see generally Douglas v. State, 915 S.W.2d 166, 168 (Tex.App.--Corpus Christi 1996, no pet.) (noting that the Texas Court of Criminal Appeals has repeatedly held that bodily injury crimes and crimes involving threats are two distinct categories of crimes, requiring different proof).

We too conclude that by charging Appellant with committing the aggravated robbery and the murder by different means, -- one by committing a threat and the other by shooting -- the two offenses did not rely on the same set of facts, and the gravamen of the two offenses was therefore different, thereby allowing for multiple punishments for the two offenses. Garfias, 424 S.W.3d at 61. We overrule Issues Two and Three.

EVIDENCE OF APPELLANT'S EXTRANEOUS DRUG DEALING

In Issue Four, Appellant argues that the trial court erred by allowing various State witnesses to testify regarding his extraneous drug dealing offense. At trial, defense counsel objected to the introduction of evidence suggesting that Appellant was a “drug dealer.” Appellant objected both on relevance grounds under Rule 404(b) of the Texas Rules of Evidence, and on the ground that the probative value of the evidence was outweighed by its prejudicial effect. 11 The State responded that the evidence was relevant to prove motive, based on the theory that Bustos was being targeted due to his reputation as a “snitch,” making the fact that Appellant, Acosta and Bustos were in the “drug trade together” relevant to the case. Appellant's attorney argued that the evidence did not support this link, as the only evidence established that Acosta believed Bustos was a “snitch,” but the subject of his snitching was not clear, and there was no evidence to suggest that he snitched about anything to do with the drug trade.

The trial court overruled the objection, but allowed Appellant a running objection to the introduction of such evidence. Appellant contends that the trial court abused its discretion in overruling his objection and admitting the evidence of his alleged drug dealing.

Applicable Law and Standard of Review

Rule 404(b) of the Texas Rules of Evidence provides that evidence of a defendant's extraneous offenses, i.e., other crimes, wrongs, or acts committed by the defendant, is generally not admissible unless it has some relevance apart from character conformity, such as to prove identity or intent, to establish motive, or to show opportunity or preparation. TEX.R.EVID. 404(b); Moses v. State, 105 S.W.3d 622, 626 (Tex.Crim.App. 2003). Evidence of other crimes is not admissible to prove the defendant is a criminal or to demonstrate his bad character. See Wintters v. State, 616 S.W.2d 197, 200 (Tex.Crim.App. 1981).

Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Henley v. State, 493 S.W.3d 77, 83 (Tex.Crim.App. 2016) (citing TEX.R.EVID. 401) (“[e]vidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action”)). Only relevant evidence is admissible at trial, and the trial court's decision of whether to admit or deny evidence is reviewed under an abuse of discretion standard. Id.; see also Torres v. State, 71 S.W.3d 758, 760 (Tex.Crim.App. 2002). However, “[e]vidence need not by itself prove or disprove a particular fact to be relevant; it is sufficient if the evidence provides a small nudge toward proving or disproving some fact of consequence. Stewart v. State, 129 S.W.3d 93, 96 (Tex.Crim.App. 2004).

In general, a trial court's ruling admitting evidence will not be reversed on appeal absent a clear abuse of discretion. Jordy v. State, 413 S.W.3d 227, 231 (Tex.App.--Fort Worth 2013, no pet.) (citing Tillman v. State, 354 S.W.3d 425, 435 (Tex.Crim.App. 2011)). The trial court does not abuse its discretion by admitting evidence unless its determination lies outside the zone of reasonable disagreement. Id. (citing Lozano, 359 S.W.3d at 817). The trial court's ruling will be upheld if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Id. (citing Ramos, 245 S.W.3d at 418; State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App. 2006)).

The Evidence of Appellant's Drug Dealings was Relevant

At trial, the State presented evidence that Bustos was a drug dealer who sold cocaine, marijuana, and methamphetamine. In particular, the State presented evidence that on a prior occasion in January of 2011, Bustos had been driving a vehicle in which Appellant and another individual were passengers, and had been stopped and arrested for possession of a controlled substance. Bustos was “no billed” for that offense.

The State also presented evidence that Bustos, Acosta, and Appellant had been involved in at least one drug deal together. In particular, their mutual friend, Jesus Hernandez, testified that while he was at Bustos's cousin's house, he observed the three men in one of the bedrooms with cocaine on a bed. Hernandez recalled that the cocaine was “bagged up” into about five bags, and that the men were discussing selling the drugs, and delivering it to different people at different locations. He further testified that he had personal knowledge that Bustos was a drug dealer, and that he also believed that Appellant and Acosta were as well. However, Hernandez acknowledged that this was the only occasion on which he had heard Appellant discuss selling drugs and that his opinion that Appellant was a drug dealer was based solely on “hearsay.”

Evidence was also presented to establish that Acosta believed Bustos was a “snitch,” and that he had been giving information to the police implicating Appellant and his friends in criminal activity in order to get out of jail. The State even presented the testimony of a detective, who expressed his opinion that drug dealers do not look favorably on “snitches,” and that he has heard of snitches being “assaulted, threatened [and] intimidated,” adding that he has heard of one that was killed.

Appellant contends that this evidence should not have been admitted because there “were no first hand witnesses to any drug dealing on the part of Appellant,” and that even if there had been firsthand witnesses, there was no nexus between his alleged drug dealing and Bustos's murder. He further argues that the State's purported reason for admitting the evidence -- to demonstrate that Bustos's “snitching” was a motive for the murder -- was simply a pretext to allow in the evidence for the true purpose of demonstrating that he was a drug dealer, and therefore of bad character.

The State counters that the evidence was admissible for a variety of purposes. First, it was relevant to demonstrate the res gestae of the offense and explain the surrounding circumstances leading to the commission of the offense and the relationship of the parties. It has long been the rule in this State that the jury is entitled to know all the relevant surrounding facts and circumstances of the charged offense. An offense is not tried in a vacuum. See Moreno v. State, 721 S.W.2d 295, 301 (Tex.Crim.App. 1986). Extraneous offense evidence may be admissible as same-transaction contextual evidence, where “several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction.” Prible v. State, 175 S.W.3d 724, 731 (Tex.Crim.App. 2005).

We agree with the State that the evidence of the drug transactions in which Appellant, Acosta, and Bustos were involved was relevant to explain the nature of their relationship and to demonstrate a possible motive for the robbery and murder. Although perhaps not directly linked, the evidence that the three had been involved in drug deals together could have explained why Acosta believed that Bustos was a “snitch.” Appellant himself admitted at trial that he was a methamphetamine addict with an expensive $200 a day habit, that Bustos was his “drug dealer,” and that he and Acosta were both high on methamphetamine at the time of the crime. This was sufficient to allow the jury to infer that Appellant and Bustos may have planned the murder in part to obtain money or drugs from Bustos. In turn, the evidence of their mutual drug transactions would support the fact that Appellant and Acosta would have known that Bustos either had drugs at his apartment, cash from drug sales, weapons or other valuables they could have taken in the robbery.12 This evidence not only explained the context within which the offense occurred, but supplied a possible motive for the robbery and murder. See Russell v. State, 155 S.W.3d 176, 183 (Tex.Crim.App. 2005) (evidence of defendant's extraneous drug offense was relevant to establish that defendant had a motive to murder his victim, who was acting as a confidential informant in cooperation with an undercover agent, which led to the defendant's arrest); see also Prewitt v. State, 133 S.W.3d 860, 865–66 (Tex.App.--Amarillo 2004, pet. ref'd) (recognizing that evidence pertaining to defendant's drug use and involvement in drug trading activities was relevant to demonstrate a possible motive in the victim's murder); Saxer v. State, 115 S.W.3d 765, 780 (Tex.App.--Beaumont 2003, pet. ref'd) (evidence of defendant's drug use was admissible to demonstrate his state of mind at the time of the victim's murder); Toliver v. State, 279 S.W.3d 391, 394–96 (Tex.App.--Texarkana 2009, pet. ref'd) (extraneous evidence of defendant's drug sales was relevant in murder case as evidence of defendant's possible motive to murder confidential informant); Worsham v. State, No. 2-02-464-CR, 2004 WL 1067772, at *4 (Tex.App.--Fort Worth May 13, 2004, pet. ref'd) (mem. op.) (not designated for publication) (evidence of extraneous drug dealing was relevant to State's theory that defendant's motive to kill his victim was the result of defendant's belief that the victim was not giving him a “fair cut” in their dealings).

Appellant was not Harmed by the Admission of the Evidence

Even if we were to find that the evidence was improperly admitted, we would nevertheless conclude that error was harmless and does not require reversal of Appellant's conviction. When faced with a non-constitutional error, such as the erroneous admission of evidence, an appellate court must determine whether the error affected the substantial rights of the appellant. See TEX.R.APP.P. 44.2(b); see also Murkledove, 437 S.W.3d at 28 (recognizing that the erroneous admission of evidence is non-constitutional error). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. Clement v. State, 499 S.W.3d 153, 157–58 (Tex.App.--Fort Worth 2016, pet. ref'd) (citing King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997)). Conversely, an error does not affect a substantial right if we have “fair assurance that the error did not influence the jury, or had but a slight effect.” Id. at 158 (citing Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App. 2001)). In applying the “harmless error” test, our primary question is whether there is a “reasonable possibility” that the error might have contributed to the conviction. Murkledove, 437 S.W.3d at 28 (citing Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998) (op. on reh'g), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999)).

In making this determination, we review the record as a whole, including any testimony or physical evidence, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with the other evidence, the jury instructions, the State's theory and any defensive theories, whether the State emphasized the error, closing arguments, and even voir dire if applicable. Clement, 499 S.W.3d at 158 (citing Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2002)).

Appellant maintains that the admission of the evidence harmed his case because the State referred to him as being a drug dealer on at least five different occasions and it was heavily emphasized by prosecutors throughout the trial. Further, Appellant contends that there was no evidence presented that “would tend to show Appellant possessed the specific intent to murder Bustos and Rodriguez.” In effect, he appears to believe that the admission of his drug dealing was the only evidence that led to his conviction.

Appellant admitted that he helped plan the robbery, and the evidence indicated that he was responsible for procuring the gun used in the robbery. He further admitted that he voluntarily went to Rodriguez's apartment to commit a robbery, and knowing that Acosta had a gun, the State was not required to prove that Appellant had any specific intent to assault, murder, or otherwise harm his victims while he was participating in the criminal transaction with Acosta. Instead, it was enough that he was present and intended to promote or assist the commission of the offense, and he was therefore subject to conviction for Acosta's actions in assaulting Rodriguez. Bleil, 496 S.W.3d at 202 (recognizing that the law of parties, as set forth in section 7.02 of the Texas Penal Code, does not require the State to prove that the defendant had a specific intent to commit an offense, and that it is enough if he had the intent to promote or assist the commission of the offense). Given the overwhelming evidence of Appellant's guilt, we conclude that the admission of the evidence that Appellant engaged in drug transactions, even if erroneously admitted, would not have had a substantial impact on the jury's verdict. We overrule Issue Four.

THE TEXAS “LAW OF PARTIES” IS NOT UNCONSTITUTIONAL

In his fifth, sixth, and seventh issues on appeal, Appellant contends that the Texas “law of parties” statute is unconstitutional because it lowers the burden of proof necessary to sustain a conviction, because it is “vague and indefinite,” and because it violates the “right to free expression.” We disagree with each of these arguments.

The Statute does not Impermissibly Lower the Burden of Proof for the State

Appellant correctly points out that in all criminal cases, the State has the burden of proving beyond a reasonable doubt the existence of every fact necessary to constitute the crime with which he is charged. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072-73, 25 L.Ed.2d 368 (1970); see also Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560 (1979). Appellant then contends that the “law of parties' ” doctrine unconstitutionally dilutes the State's burden of proof because it does not require the State to prove the underlying elements of an offense, and instead, only requires the State to establish that the defendant solicited, encouraged, directed, aided or attempted to aid another person in committing an offense with the intent to promote or assist the commission of the offense. This is not an accurate reflection of the State's burden of proof.

The relevant portion of the statute, which is found in section 7.02(a)(2) of the Texas Penal Code, provides that: “(a) 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; see also TEX.PENAL CODE ANN. § 7.01 (a person is a criminally responsible 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”). In determining whether a defendant participated in an offense as a party, the court may examine the events occurring before, during, and after the commission of the offense and may rely on actions of the defendant that show an understanding and common design to commit the offense. See Hanson v. State, 55 S.W.3d 681, 690 (Tex.App.-- Austin 2001, pet. ref'd) (citing Burdine v. State, 719 S.W.2d 309, 315 (Tex.Crim.App. 1986); Beier v. State, 687 S.W.2d 2, 4 (Tex.Crim.App. 1985)). The evidence must show that at the time of the offense the parties were acting together, each contributing some part towards the execution of their common purpose. Burdine, 719 S.W.2d at 315; see also Beltran v. State, 472 S.W.3d 283, 290 (Tex.Crim.App. 2015) (recognizing that there must be sufficient evidence of an understanding and common design to commit the underlying offense); see also Bleil, 496 S.W.3d at 203 (recognizing that “circumstantial evidence may be used to prove party status as long as there is sufficient evidence of an understanding and common design to commit the offense”).

Courts have recognized that to establish a defendant was a party to an offense under section 7.02, the State is “constitutionally required” to prove all elements of both the underlying offense, and the defendant's participation in the offense. Hanson v. State, 55 S.W.3d 681, 689 (Tex.App. --Austin 2001, pet. ref'd). In particular, the State must prove the following beyond a reasonable doubt: “(1) another person committed a criminal offense, (2) the defendant had the intent to promote or assist that person, and (3) the defendant solicited, encouraged, directed, aided or attempted to aid that person in the commission of the criminal offense.” Id. (citing TEX.PENAL CODE ANN. § 7.02(a)(2); Pesina v. State, 949 S.W.2d 374, 382 (Tex.App.--San Antonio 1997, no pet.)).

In the abstract portion of the charge, the trial court instructed the jury that a person could be found criminally responsible as a party to an offense under the statute, as well as the elements of the various offenses with which Appellant was charged. In the application portion, the trial court expressly instructed the jurors that they were required to find “beyond a reasonable doubt” that Appellant “either by his own conduct or as a party,” committed the various offenses with which he was charged. This instruction was sufficient to ensure that the jury knew that they were required to find beyond a reasonable doubt, not only that the underlying offenses were committed, but that Appellant was a party to committing those offenses. See e.g., Vasquez v. State, 389 S.W.3d 361, 371 (Tex.Crim.App. 2012) (approving similar instruction and noting that the jury would not have been confused or misled about what was required to find the defendant criminally responsible); see also Chatman v. State, 846 S.W.2d 329, 332 (Tex.Crim.App. 1993) (approving similar instruction).

The Austin Court of Appeals rejected a similar attack on the constitutionality of the doctrine in which a defendant argued that it relieved the State of its burden of proving that a defendant had the requisite mental state to be held criminally responsible for committing an offense. See, e.g., Gravis v. State, 982 S.W.2d 933, 938 (Tex.App.--Austin 1998, pet. ref'd). In rejecting that argument, the court noted that under the law of parties doctrine, the State was still required “to show that the defendant had both the mens rea to engage in a conspiracy and the culpable mental state to commit ․ the intended, felony.” Id. (recognizing that the “mental state required for the underlying felony supplies the mens rea for the felony actually committed by the co-conspirator”); see also Smith v. State, 187 S.W.3d 186, 194 (Tex.App.--Fort Worth 2006, pet. ref'd) (statute requiring proof of intent to engage in a conspiracy to commit felony offense that resulted in capital murder was not unconstitutional as applied to defendant, even though defendant argued that statute allowed him to be convicted of capital murder without proof that he possessed requisite intent to kill; statute conformed to and preserved traditional mens rea requirement of criminal law, and ample evidence showed that defendant intended to engage in conspiracy to commit robbery that resulted in capital murder in his case). We conclude that the law of parties statute does not unconstitutionally dilute the State's burden of proof.

The Statute is not Unconstitutionally Vague or Overbroad

Appellant next argues that the doctrine is unconstitutionally vague on its face because it fails to give “fair notice” to citizens of what may constitute an unlawful act and because it impermissibly restricts a citizen's right to the exercise of free speech right. The facial validity of a statute is a question of law. See Cruz v. Abbott, 177 F.Supp.3d 992, 1017 (W.D. Tex. 2016), rev'd in part, 849 F.3d 594 (5th Cir. 2017) (citing Vill. of Hoffman Estates, Inc. v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494–95, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982); Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 662 (5th Cir. 2006)). When a party challenges a statute as both overbroad and vague, we first consider the overbreadth challenge. See State v. Stubbs, 502 S.W.3d 218, 232 (Tex.App.--Houston [14th Dist.] 2016, pet. ref'd); see also Cruz, 177 F.Supp.3d at 1017. In conducting an overbreadth analysis, a court must determine whether the statute reaches a “substantial amount of protected conduct.” Cruz, 177 F.Supp.3d at 1017 (citing U.S. v. Clark, 582 F.3d 607, 612 (5th Cir. 2009)); see also Stubbs, 502 S.W.3d at 232 (a statute or ordinance is facially overbroad if it reaches a substantial amount of constitutionally protected conduct, such as speech or conduct protected by the First Amendment). If the challenged statute is not overbroad, then the court must “examine the facial vagueness challenge and, if the enactment implicates no constitutionally protected conduct, [the Court] should uphold the challenge only if the enactment is impermissibly vague in all of its applications.” Cruz, 177 F.Supp.3d at 1017-18 (citing Hoffman, 455 U.S. at 494–95, 102 S.Ct. at 1186).

Overbreadth and First Amendment Considerations

In what appears to be an overbreadth argument, Appellant contends that the statute violates a citizen's First Amendment right to free expression, because it allows an individual to be prosecuted for simply “encouraging” another individual to engage in conduct. Appellant argues that the word “encourage” as used in the statute likely refers to both “verbal and non-verbal speech,” which subjects it to “strict scrutiny.” He then argues that the use of this language is too broad, as the Legislature could have achieved its intended result of prohibiting people from participating in a criminal offense, by restricting criminal responsibility to situations in which a defendant aided or solicited another person to commit a crime. He contends that by using the word “encourage,” the State “unlawfully restricts freedom of speech and expression [,]” and “punishes innocent activity as well as criminal activity.”

Appellant only directs us to one case in support of his argument that the statute is unconstitutional. Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971). There the Supreme Court held that a criminal ordinance prohibiting three or more persons from assembling in a manner “annoying to persons passing by,” was not only unconstitutionally vague but was also overbroad, as it infringed on a defendant's right to free speech and assembly. The court found it significant that although the ordinance encompassed many types of conduct that the City had the authority to prohibit, such as preventing people from blocking sidewalks, obstructing traffic, or littering, it was unconstitutionally overbroad, as its enforcement “may entirely depend upon whether or not a policeman is annoyed.” Id. at 614, 91 S.Ct. at 1688. In other words, the statute allowed for prosecution in cases in which the defendant was not acting in a criminal manner whatsoever, but was simply acting in an innocent manner that might have offended a particular officer's sensibilities. Id.

The Texas law of parties is not so broadly worded as to infringe upon any such innocent activity protected by the First Amendment. The statute clearly states that a person is criminally responsible for an offense committed by the conduct of another only if the person acted “with intent to promote or assist the commission of the offense ․ encourages ․ the other person to commit the offense[.]” TEX.PENAL CODE ANN. § 7.02(a). The statute makes it clear that the encouragement must be directed at the commission of a criminal offense. In other words, the statute requires the State to prove both that the defendant acted with the intent to promote or assist a crime, and that his encouragement was directed at the commission of a crime. Appellant has not pointed to any impermissible applications of the statute which could possibly implicate a defendant's First Amendment rights, and given the limiting language in the statute, we cannot conceive of any. See Martin v. State, 704 S.W.2d 892, 894 (Tex.App.--Houston [14th Dist.] 1986, no pet.) (rejecting appellant's argument that the law of parties statute was unconstitutionally overbroad); see generally Stubbs, 502 S.W.3d at 234 (statute that prohibited online impersonation, which required the State to prove that it was performed with a criminal intent, was not unconstitutionally overbroad despite implicating a defendant's speech); see also Ex parte Harrington, 499 S.W.3d 142, 148 (Tex.App.--Houston [14th Dist.] 2016, pet. ref'd) (concluding that identity theft statute is not constitutionally overbroad and rejecting argument that it was a “thought crime,” noting that the “thought itself would not be punishable, but the proscribed activity would be.”).

Vagueness

Appellant next argues that the law of parties statute is unconstitutionally vague as it prohibits a person from acting in a way that “encourages” another individual to commit an offense, but does not define that term and therefore does not give “fair notice” of the type of activity that is prohibited. He points out that a statute may be deemed unconstitutionally vague under the “void-for-vagueness” doctrine, if it does not define the criminal offense with sufficient definiteness that would allow ordinary people to understand what conduct is prohibited. The statute must be sufficiently definite so that it does not open up the possibility of arbitrary and discriminatory enforcement. See Sanchez v. State, 995 S.W.2d 677, 689 (Tex.Crim.App. 1999) (the Due Process Clause requires that a law be specific enough to: (1) give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, and (2) establish determinate guidelines for law enforcement); see also Kramer v. Price, 712 F.2d 174 (5th Cir. 1983). Appellant maintains that because the statute does not define the term “encourage,” it is not sufficiently definite for a citizen to understand what type of conduct is prohibited, and we should declare the statute unconstitutional on its face.

Once again, Appellant relies solely on Coates, 402 U.S. at 611. The Supreme Court reviewed a criminal ordinance that prohibited three or more persons from assembling in a manner “annoying to persons passing by.” Id. In addition to finding the statute overly-broad, the court also found that it was unconstitutionally vague by its use of the term “annoying,” noting that “[c]onduct that annoys some people does not annoy others.” Id. at 614, 91 S.Ct. at 1688. In reaching this conclusion, the court noted that the statute was impermissibly vague, not in the sense that it required a person to “conform his conduct to an imprecise but comprehensible normative standard,” but “no standard of conduct is specified at all.” Id. Indeed, the court concluded that “men of common intelligence must necessarily guess at its meaning.” Id. (citing Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322). Appellant seeks to analogize the statute to the one in Coates, contending that although the statute makes it a crime to engage in conduct that “encourages” another individual, it fails to define that term, and provides no “articulable standard” to “help the public understand what ‘encourage’ means” in that context. We reject this analogy.

First, if a litigant wishes to challenge a statute as being unconstitutionally vague on its face under the Due Process Clause, the litigant must establish that the statute is vague in all its applications, and must necessarily prove that it is vague as to the litigant himself. See Sanchez, 995 S.W.2d at 683.13 If the defendant has engaged “in some conduct that is clearly proscribed,” he is not in a position to complain of the vagueness of the statute; in other words, he may not complain about the vagueness of the statute, “as applied to the conduct of others.” Id. (citing Village of Hoffman Estates, 455 U.S. at 495, 102 S.Ct. 1186)); see also Kuhl v. State, 497 S.W.3d 128, 130 (Tex.App.--Texarkana 2016, no pet.) (it is incumbent upon a defendant asserting a facial vagueness challenge to a statute to show that in its operation the statute is unconstitutional to him in his situation; that it may be unconstitutional as to others is not sufficient). As various courts have recognized, “ ‘[o]bjections to vagueness under the Due Process Clause rest on the lack of notice and hence may be overcome in any specific case where reasonable persons would know that their conduct is at risk.’ ” See United States v. Clark, 582 F.3d 607, 613 (5th Cir. 2009) (quoting Maynard v. Cartwright, 486 U.S. 356, 361, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988)). Thus, “[i]f a reasonable person would know his conduct was covered by the statute, then there has been no failure of notice to that individual.” See Cruz, 177 F.Supp.3d at 1018 (citing Maynard, 486 U.S. at 361, 108 S.Ct. at 1853). We must first determine whether the statute was vague as applied to Appellant's conduct, and if it is, we will then address the facial challenge to the statute. If not, our inquiry will end.

Appellant admitted at trial that he planned to conduct a robbery with Jose Acosta, and that he procured a gun to use in the robbery. Further, the evidence indicated that Appellant entered Bustos's apartment at Acosta's request, knowing that Acosta was already inside the apartment with a gun, and thereafter willingly participated in robbing both Bustos and Rodriguez at gunpoint. While Appellant did not directly shoot the victims, his actions in procuring the gun and participating in the robbery clearly amounted to conduct that either encouraged, aided, or assisted Acosta in committing the offenses for which Appellant was accused. We conclude that a reasonable person would have known that this conduct, which was directed at assisting another individual to commit a criminal offense, was covered by the statute. Appellant is therefore not in a position to complain about the vagueness of the terms used in the statute.

Moreover, unlike the statute in Coates, the law of parties statute provides fair notice to citizens of what type of conduct is prohibited. It makes clear that the prohibited activity is the participation in criminal conduct, and we therefore do not believe that it would be difficult for a person of ordinary intelligence to understand exactly what type of participation is prohibited by the statute. See, e.g., Martin, 704 S.W.2d at 894 (rejecting appellant's argument that the law of parties statute was unconstitutionally vague, noting that when read in its entirety, it is clear that the statute, “[w]hen each or all of the challenged words are read in conjunction with the beginning phrase ‘acting with intent to promote or assist the commission of the offense,’ we fail to understand any basis for a constitutional attack”); see also Koonce v. State, 654 S.W.2d 705, 711 (Tex.App. --Houston [14th Dist.] 1983, pet. ref'd) (rejecting appellant's argument that the law of parties statute was void for vagueness for failing to give “fair notice of forbidden conduct” when an individual is acting in conspiracy with others). We overrule Issues Five, Six, and Seven and affirm the judgment below.

Hughes, J., not participating

FOOTNOTES

1.   This case was transferred from the Fort Worth Court of Appeals, and we apply the precedent of that Court to the extent required by TEX.R APP P. 41.3.

2.   Although Appellant's convictions arose from two separate indictments, he was tried and convicted in a single jury trial, and he filed a single brief covering his appeals from both convictions.

3.   The court instructed the jury on this aspect of the law of parties as follows: “A person is criminally responsible for an offense committed by the conduct of another if, 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. Mere presence alone will not constitute one a party to an offense.”

4.   In Ladd, the trial court instructed the jury as follows: “You are ․ instructed that, if, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, then all conspirators are guilty of the felony 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 the carrying out of the conspiracy. Capital murder, murder, robbery, burglary of a building, aggravated sexual assault, and arson are felonies. By the term “conspiracy” as used in these instructions, is meant an agreement between two or more persons, with intent that a felony be committed, that they, or one or more of them, engage in conduct that would constitute the offense. An agreement constituting a conspiracy may be inferred from acts of the parties.” Ladd, 3 S.W.3d at 565.

5.   In Montoya, the Court gave the following instructions in its charge to the jury: “If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, then all conspirators are guilty of the felony 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 the carrying out the conspiracy. Capital Murder, murder, robbery, and attempted robbery are felonies. By the term ‘conspiracy’ as used in these instructions, is meant an agreement between two or more persons, with intent that a felony be committed, that they, or one or more of them, engage in conduct that would constitute the offense. An agreement constituting a conspiracy may be inferred from acts of the parties.” 810 S.W.2d at 164.

6.   Among other things, a defendant may be convicted of capital murder if, under circumstances, he murders a peace officer, a fireman, a judge, or a person under ten years of age, or if he commits the murder in the course of committing another specified felony, commits the murder for remuneration, or while escaping from a penal institution, or, as in this case, he murders more than one person in the same criminal transaction or pursuant to the same scheme or course of conduct. TEX.PENAL CODE ANN. § 19.03 (West Supp. 2017).

7.   The federal court did not address whether the defendant could be convicted of the remaining two counts of attempted capital murder. However, this issue was addressed in a subsequent habeas proceeding in Ex parte Milner, in which the Court of Criminal Appeals concluded that Milner's double jeopardy rights were violated due to his conviction and sentences in the two attempted capital murder convictions. Ex parte Milner, 394 S.W.3d at 510. In reaching this conclusion, the court noted that in analyzing cases in which a defendant is charged with two violations of the same statutory provisions, a court does not apply the Blockburger test, and instead goes directly to the “allowable units of prosecution” test. Id. at 505, 510. Utilizing that test, the court concluded that the allowable units of prosecution for attempted capital murder is the attempted murder of more than one victim, and therefore, a defendant may not be convicted of multiple counts of attempted capital murder using the same underlying victims as an aggravating circumstance in each case. Id.; see also Saenz v. State, 166 S.W.3d 270, 272-73 (Tex.Crim.App. 2005) (defendant could not be convicted of multiple counts of capital murder using the same victims as an aggravating circumstance). Here, Appellant was not charged with violating the same statutory provisions. Instead, he was charged with murder in violation of section 19.02(b) of the Penal Code, and attempted capital murder under sections 19.03 (capital murder) and 15.01 (attempt) of the Penal Code. We must start our inquiry with the Blockburger test to determine if the two distinct statutory provisions are legally the same for double jeopardy purposes.

8.   A somewhat similar conclusion was reached by the Virginia Supreme Court in Buchanan v. Com., 384 S.E.2d 757 (Va. 1989), in which the court held that a defendant could be convicted of capital murder based on the aggravating circumstance that he killed three other victims during the murder, as well as three counts of first-degree murder of those same victims. In that case, the defendant killed four family members, his father, his stepmother and two half-brothers. Id. at 760-61. He was charged and convicted with one capital murder offense for the death of his father, based on the allegation that he killed multiple victims in the same criminal transaction. Id. at 772-73. He was also convicted and sentenced on four first-degree murder charges naming as victims, his father, his brothers and his stepmother as victims. Id. The court ruled that the defendant could not be convicted of both the capital murder of his father and the first-degree murder of his father, noting that he was being punished for the same killing of the same victim twice, and therefore set aside the first-degree murder conviction. Id. at 773. The court let stand the capital murder conviction for the father's death—which was based on the fact that the father was killed along with the other three family members—and the three other first-degree murder charges involving the remaining three family members. Id.

9.   In turn, an attempt is defined in section 15.01(a) of the Penal Code, which provides that, “A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.” TEX.PENAL CODE ANN. § 15.01(a) (West 2011). In addition, subsection (b) provides that: “If a person attempts an offense that may be aggravated, his conduct constitutes an attempt to commit the aggravated offense if an element that aggravates the offense accompanies the attempt. TEX.PENAL CODE ANN. § 15.01(b). Ex parte Milner, 394 S.W.3d 502, 508 (Tex.Crim.App. 2013).

10.   Obviously, when only one victim is involved there can only be one murder, but conversely when more than one victim is involved, there can be more than one conviction, regardless of how the murder was committed. Johnson, 364 S.W.3d at 296. Therefore, if the State had simply charged Appellant with the attempted murder of Rodriguez and the murder of Bustos, with no aggravating circumstance, there would be no question that Appellant could suffer two convictions for those two acts.

11.   Appellant does not argue on appeal that the trial court should have excluded the evidence under Rule 403, which provides that a court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.

12.   Rodriguez, the only other witness who testified to the events, recalled that she heard Appellant and Acosta say that they were looking for an AK-47 they believed Bustos had, but which she claimed was no longer in the apartment.

13.   We recognize that if a statute implicates the free-speech guarantee, then the defendant, in making a vagueness challenge, “is relieved of the usual requirement of showing that the statutory subsection was unduly vague as applied to his conduct.” Scott v. State, 322 S.W.3d 662, 668 (Tex.Crim.App. 2010), abrogated on other grounds by Wilson v. State, 448 S.W.3d 418 (Tex.Crim.App. 2014); see also Long v. State, 931 S.W.2d 285, 288 (Tex.Crim.App. 1996) (when a “vagueness challenge involves First Amendment considerations, a criminal law may be held facially invalid even though it may not be unconstitutional as applied to the defendant's conduct”). As we have already concluded that the statute did not violate the First Amendment, we conclude that Appellant is subject to this requirement.

ANN CRAWFORD McCLURE, Chief Justice

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