Saturday, October 17, 2015

We Conspire To Party in Texas (Part I of II)

Follow me down this Texas criminal law rabbit hole for a bit.

Ready? Let's go.....

There are two boys - one an 18 years old high school junior, the other a 19 year acquittance. The 18 year old decides to go to the Big Box store to act as a lookout while his older friend shoplifts. After stealing gaming equipment valued at a little over $100, both are confronted by an inventory control clerk (clerk) after they walk past the cashier and out the front door. When confronted, the younger boy yells, "RUN. RUN!" and the older boy obliges.

While fleeing the older boy knocks down a 66 year old Big Box greeter (Greeter) attempting to step in front of the boy and stop him. The Greeter suffers a scrape or two as a result of the collision, but nothing (thank goodness) major.

What can the 18 year old lookout be charged with in Texas?

You say Theft? Sure, but that is the obvious crime. What else? Robbery? Yes, potentially. Anything else? Aggravated Robbery - a first degree felony in Texas?


First, here are the Robbery statutes in the Texas Penal Code.
Sec. 29.01.  DEFINITIONS.  In this chapter:
(1)  "In the course of committing theft" means conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft.
(2)  "Property" means:
(A)  tangible or intangible personal property including anything severed from land;  or
(B)  a document, including money, that represents or embodies anything of value
Sec. 29.02.  ROBBERY.  (a)  A person commits an offense 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.
(b)  An offense under this section is a felony of the second degree.
Sec. 29.03.  AGGRAVATED ROBBERY.  (a)  A person commits an offense if he commits robbery as defined in Section 29.02, and he:
(1)  causes serious bodily injury to another;
(2)  uses or exhibits a deadly weapon;  or
(3)  causes bodily injury to another person or threatens or places another person in fear of imminent bodily injury or death, if the other person is:
(A)  65 years of age or older;  or
(B)  a disabled person.
(b)  An offense under this section is a felony of the first degree.
How does this 18 year old lookout travel the statutes of the Texas Penal Code from a theft  to an Aggravated First Degree Felony punishable by up to life in prison?

 By use of party criminal liability.

Here are the two provisions in the Texas  Penal Code used most widely by prosecutors to establish party criminal liability. They do it all the time. Here are the magic provisions:

Sec. 7.02.  CRIMINAL RESPONSIBILITY FOR CONDUCT OF ANOTHER.  (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;  or
                                             *     *     *     *     *
(b)  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.

Here's how it would work with our erstwhile 18 year old lookout:

The 18 year old knew he was going in to the Big Box to commit a crime. He participated in making that crime happen. He then encouraged his confederate, the 19 year old, to run after being caught with the ill gotten gain. The older boy caused "bodily injury" (defined in Texas with the very low threshold of "[P]hysical pain, illness, or any impairment of physical condition.") to the Greeter as a result. Now the crime is Robbery, a second degree felony, distinct from the original theft. And because the Greeter is older than 65 years, the crime is aggravated to a first degree felony, Aggravated Robbery.

There is more. 

Let's change it up now and add a large dose of tragedy: After knocking the Greeter down, a Good Samaritan gives chase to the 19 year old. When the older boy reaches the car driven to the store, he secures a weapon laying on the front seat and shoots the Good Samaritan, killing him.

What now potentially for the 18 year old lookout?

If you guess Capital Murder, you are correct. It is one several criminal options on the table for a prosecutor. The older boy intentionally shot and killed the Good Samaritan. That is murder. It happened during the course of a robbery (the underlying crime does not have to be aggravated robbery-think about that a bit) which adds the aggravating factor to the murder necessary for the Texas Capital Murder scheme to apply.

Well you say, the 18 year old lookout did not act with the intent to promote or assist the commission of the Murder committed by the older boy. The younger boy is guilty of some crime, as he intended to thieve from the Big Box. He DID aid and encourage the older boy to run to avoid being caught, BUT the lookout did not intend the Good Samaritan to be shot and killed.

This is where the second conspiracy party liability provision (7.02(b) above) lends a hand to elevate the criminal liability of the 18 year old lookout. It does not matter that the younger boy did not intend the Good Samaritan be shot and killed. It is enough if the Capital Murder occurred during and in furtherance of the attempt to commit another felony (the so called "plus" crime - Robbery) and the murder should have been anticipated as a result of carrying out the conspiracy to commit the Robbery.

In the hypothetical, the gun was in the front seat. This evidences the 18 year old lookout knew it was there on the ride to the store. He knew they were going to thieve. Whether he could or did anticipate the gun would be used (they DID leave it in the car) may be a bone of contention, but you get the drift. The 18 year old could potentially be charged with Capital Murder under principles of conspiracy party liability and face, at a minimum, life without possibility of parole (LWOP) if indicted, tried and convicted.

There is yet still more.

Lets take it up another notch. What about the death penalty?

Under Texas law a non-triggerman (sorry for the gender distinction) is still eligible for the death penalty. If found guilty of Capital Murder under the principles outlined above the same jury is submitted the following question at punishment, along with others related to future dangerousness and the presence of mitigating factors against death.
                                 *    *    *    *
Sec. 2
                                  *    *   *    *
(b) On conclusion of the presentation of the evidence, the court shall submit the following issues to the jury:
                                   *    *   *   * 
(2) in cases in which the jury charge at the guilt or innocence stage permitted the jury to find the defendant guilty as a party under Sections 7.01 and 7.02, Penal Code, whether the defendant actually caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken. (emphasis added).
This means in the 18 year old lookout may potentially be sentenced to death though he did not cause or even intend the Good Samaritan be killed. It is enough that there be legally sufficient evidence that a jury could find beyond a reasonable doubt the 18 year old lookout anticipated the Good Samaritan's life (or any human life) would be taken.

This language is consistent with what the Supreme Court of the United States (SCOTUS) requires before a non-triggerman can be sentenced to death.

But hey, at least the jury's decision on this question and the other two questions required to be answered by Texas juries must be answered unanimously for death.


Texas allows non-unanimous criminal verdicts in certain applicable criminal cases, including Capital Murder. Yep. Juries are always told in the applicable factual situation they do not have to agree if the defendant acted as a principal (pulled the trigger) a party (aided, encouraged or assisted in the Capital Murder), or as acted as a party co-conspirator (should have anticipated a murder could occur as a result of the Theft turned Robbery conspiracy).

The jury is told they have only to agree only that one of those three theories of criminal liability applies to convict for Capital Murder. For example, 4 jurors could believe beyond a reasonable doubt a defendant is a principal, 4 other jurors believe the defendant acted as a party, and the remaining 4 jurors believe the defendant a party conspirator. If the jury so splits, they are told, the verdict they must return is Guilty. The punishment will automatically be LWOP if the death penalty is waived.

Only in the death decision is the jury told they must be unanimous that the non-triggerman must have anticipated a human life would be taken.

I understand many say they have no problem with any of this. Even if my hypothetical 18 year old thought he was doing nothing more than helping his older buddy score some free X-Box games, these folks believe the consequences to him are legally defensible, even justified because of what happened. To those of you, I say I get it, but wonder if the 18 year old was your neighbor's son, your nephew, or God forbid your own impulsive 18 year old high school junior, whether your perspective would change.

Never happen, you say? Are you so very sure?

SCOTUS has never held that jury unanimity is required by the Federal Constitution as it applies to state prosecutions. According to our Court of Criminal Appeals, however, both the Texas Constitution and Texas Code of Criminal Procedure guarantee jury unanimity, but only as to the offense charged. Whether the defendant is a principal or some variant of party to the offense matters not for unanimity purposes so long as there is unanimity the defendant committed the offense. The result of their decisions on jury unanimity on both the principal/party issue as well as to the way the offense is alleged but later proven at trial has made for some complex and technical legal applications over the years.

One result of this? In 25 years of active state criminal practice I do not think I have ever seen a defendant charged under the Texas Conspiracy statute, Section 15.02 of the Texas Penal Code. The reason? Why would any prosecutor charge a defendant with conspiracy to commit an offense with a maximum punishment of one grade level below the completed offense when they can allege the same elements of conspiracy and prosecute as a party to the completed offense with a higher punishment range? It renders a stand alone conspiracy charge, a staple of federal criminal prosecutions, irrelevant in Texas state prosecutions.

 My next post will be about SCOTUS decisions on jury unanimity, and how this area of Texas law may be ripe for attack under federal constitutional principles in the coming years. I will also write about some persuasive theories on how both party conspiracy as used in Texas and the lack of unanimity have contributed to our mass incarceration problem. 

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