The issue in this case is whether a court's charge to the jury may authorize conviction on the theory that the defendant was criminally responsible for the conduct of another when the State did not plead that theory.
In 1996, the defendant engaged in the conduct for which he was prosecuted. At that time, a person committed the offense of delivery of controlled substance if he knowingly or intentionally delivered or possessed with intent to deliver a controlled substance. (1) "Deliver" meant to transfer, actually or constructively, to another, or to offer to sell. (2) There were, therefore, at least four ways to intentionally or knowingly commit such an offense: by actual transfer, by constructive transfer, by possession with intent to deliver, and by offer to sell.
By the law of parties in our Penal Code, a person is criminally responsible as a party to an offense if the offense is committed in any of three ways: by his own conduct, by the conduct of another for which he is criminally responsible, or by both. (3)
Since a person could be criminally responsible as a party in three ways for each of the four ways in which the offense could be committed, there were at least twelve theories of criminal prosecution for an offense of delivery of controlled substance in 1996.
The indictment of this appellant alleged that he did "intentionally or knowingly deliver to D.A. Torsiello a controlled substance, namely cocaine of less than one gram, including any adulterants or dilutants, by actually transferring said controlled substance"). On its face, this seemed to allege only one theory: actual transfer by the appellant's own conduct. The State presented no evidence of this.
The State's evidence was that the appellant actually transferred cocaine to a person named Whorley, who was buying the cocaine at Torsiello's request, and Whorley transferred the cocaine to Torsiello. This evidence tends to prove an offense in at least four ways: that the appellant, by his own conduct, actually transferred the cocaine to Whorley; that he, by his own conduct, constructively transferred it to Torsiello through Worley; that he actually transferred it to Torsiello by the conduct of Worley for which he was criminally responsible; and that he possessed it with intent to transfer.
Although none of these ways was alleged on the face of the indictment, the trial court's charge authorized a conviction under one of these theories: actual transfer to Torsiello by the conduct of Worley for which the appellant was criminally responsible. The appellant complains that he was not given adequate notice of this theory of criminal culpability. He raised the issue by objecting to such an authorization in the court's charge.
It seems to me that we must consider the general law for indictments, our application of this law to indictments of principals and accomplices under former penal codes, and the application of the law to indictments of parties under the present penal code.
The generally applicable law of indictments is stated in Article 21.03 of the Code of Criminal Procedure: "Everything should be stated in an indictment which is necessary to be proved." We must be mindful also of the protections of the Sixth Amendment to the United States Constitution ("In all criminal prosecutions, the accused shall enjoy the right … to be informed of the nature and cause of the accusation") and Article I, Section 10 of the Texas Constitution ("In all criminal prosecutions the accused … shall have the right to demand the nature and cause of the accusation against him").
Under prior penal codes, the courts of this state consistently held that the indictment need not allege the particular acts of each principal to an offense.
The law of principals and accomplices was our state's law of criminal responsibility for the conduct of others before 1974. Principals included:
-- "persons … who are guilty of acting together in the commission of an offense," (4)
-- "others [who] are present, and knowing the unlawful intent, aid by acts or encourage by words or gestures, those actually engaged in the commission of the unlawful act, or who not being actually present, keep watch"; (5)
-- "persons who shall engage in procuring aid, arms or means of any kind to assist in the commission of an offense, while others are executing the unlawful act, and all persons who endeavor at the time of the commission of the offense to secure the safety or concealment of the offenders"; (6)
-- "one [who] by employing a child or other person who cannot be punished to commit an offense … by any means … by which a person may injure himself"; (7)and
-- a "person who advises or agrees to the commission of an offense and who is present when the same is committed … whether he aid or not in the illegal act." (8)
Accomplices generally were persons whose acts were all performed before the commission of the offense and who were not present when it was committed. The statute said:
An accomplice is one who is not present at the commission of an offense, but who, before the act is done, advises, commands or encourages another to commit the offense; or
Who agrees with the principal offender to aid him in the commission of the offense, though he may not have given such aid; or
Who promises any reward, favor or other inducement, or threatens any injury in order to procure the commission of the offense; or
Who prepares arms or aid of any kind, prior to the commission of an offense, for the purpose of assisting the principal in the execution of the same. (9)
The leading cases under the former law of principals were decided in 1874. In the first case:
[Joe Cruit,] the appellant is charged, jointly with Charles King, with taking two bales of cotton, with the intent to appropriate them to the use and benefit of himself and said King. The court instructed the jury, if King stole the cotton with the intent to appropriate it to the use of appellant and himself, and appellant was present when said cotton was stolen, and, knowing the unlawful intent of King, did aid by acts in the taking, stealing, and carrying it away, they would find him guilty. (10)
Cruit "insisted, in an ingenious argument," that the court's instruction would have been correct if he had been indicted as a principal, that is, if the indictment alleged that King stole the cotton, and that appellant, knowing the unlawful intent, was present, aiding and assisting him. But since he was indicted as he was, it was wrong for the court's charge to authorize him to be convicted as a principal. Our Supreme Court "regard[ed the argument] as more specious than sound."
The indictment does not, as it seems to be supposed, charge the taking to have been with the intent to appropriate the cotton to the use of King alone, but to the joint use of appellant and King. And if the objection should be sustained, it would result that, in all cases where there are two or more principal offenders, it would be necessary to set forth in the indictment the particular acts done by each of the parties connected with the transaction. This certainly has never been the practice in prosecutions of this character, and has always been held to be unnecessary. (11)
Later in the same year, the Supreme Court said that the State could, but was not required to, plead the facts that made a person a principal.
It has been repeatedly held that it is not necessary to allege in the indictment the facts relied upon to show the defendant to be a principal, although the offense with which he is charged may not have been actually committed by him. But if he is a principal offender by reason of the part performed by him in the commission of the offense, he may be convicted under an indictment charging him directly with its actual commission. If, however, the pleader, instead of proceeding under a general indictment, prefers to do so under a special bill charging each of the defendants with the particular acts done or part performed by them respectively, should the facts alleged as to some of them be insufficient to show their guilt, the indictment as to them must be held bad. (12)
In that case, a prodigiously long and detailed indictment (13) failed to allege that the principals knew the unlawful intent of the persons who committed the offense. The convictions of the principals were reversed.
One hundred years later, in 1974, the statute enacting a new penal code became effective. Section 7.01 of the code says:
(a) 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.
(b) Each party to an offense may be charged with commission of the offense.
(c) All traditional distinctions between principles and accomplices are abolished by this section, and each party to an offense may be charged and convicted without alleging that he acted as a principal or accomplice.
The leading case since the changes of 1974 is Pitts v. State. (14) There a closely divided Court said:
In the new penal code, the legislature eliminated the distinction between principals and accomplices and the attendant complexities in drafting indictments. Under the former code it was not necessary to allege the facts to show that a defendant was a principal; a principal offender could be charged directly with the commission of the offense although it was not actually committed by him; [citations omitted]; and [the] Penal Code, Sec. 7.01(c) now plainly requires that we hold a party to an offense may be charged with the offense without alleging the facts which make the defendant a party to the offense and criminally responsible for the conduct of another. If the evidence supports a charge on the law of parties, as it does here, the court may charge on the law of parties even though there is no such allegation in the indictment. (15)
The statement in the Pitts opinion that "a party to an offense may be charged with the offense without alleging the facts which make the defendant a party to the offense and criminally responsible for the conduct of another" is subtly different from those in the leading cases under the former penal codes, that the "particular acts" that made one a principal need not be alleged. It seems to me that the 1974 statute did make the change in the rule that was stated in Pitts.
Another statement in Pitts that "the court may charge on the law of parties even though there is no such allegation in the indictment," is not plainly required, or even justifiable, under the language of the 1974 statute. All that Section 7.01(c) says on the subject of pleading is that "each party to an offense may charged and convicted without alleging that he acted as a principal or accomplice." The law could hardly be otherwise, since there are no longer any such things as principals or accomplices. In the same sentence of the statute, the traditional distinctions between principals and accomplices were abolished, having been replaced (two sentences earlier) by the law of parties. But these statutory provisions do not come close to saying that a conviction may be authorized by a charge on the law of parties when the indictment said nothing like that. I see nothing in Section 7.01 that is contrary to the general command of Article 21.03 that everything be alleged in the indictment that is required to be proved.
The Pitts constructions of Section 7.01(c) are not only unsupported by the language of the statute; they also create a conflict with the general law that indictments must allege everything that is required to be proved.
Section 7.01 may be construed in a way that gives effect to both it and Article 21.03, that avoids potential conflicts with the constitutions, and that comports with our decisions under prior penal codes, thus: A person may be charged and convicted without alleging that he acted as a principal or accomplice, as Section 7.01(c) of the Penal Code expressly says. The rights that are recognized in the constitutions, and the statutory command of Article 21.03, require that the State allege (as well as prove) that a defendant may be criminally responsible for the conduct of another. The long history of our decisions under this penal code and its predecessors establish that the allegations need not include the particular acts that make a defendant criminally responsible for the other's conduct. But the indictment must generally allege, in the statutory language, that the defendant is criminally responsible for the conduct of another person who is named.
The State argues that the appellant waived his point by failing to object before trial. Our law usually requires that complaints about lack of notice in an indictment be raised before trial by way of exception to the substance. This requirement obviously cannot be applied to this issue. When an indictment adequately alleges that the defendant committed an offense by his own conduct, there is nothing to indicate that the State may try to prove that he is criminally responsible for the conduct of another. So he cannot be required to except to the indictment because it lacks such an allegation. Indeed, this lack of notice is the very evil against which the constitutions and Article 21.03 are directed. If there is nothing in the indictment to suggest such a theory, the first notice to the defendant that the State relies on it may not come until the court proposes to authorize a conviction on such a theory in its charge to the jury. This was the procedure of which the appellant complains in this case. His objection to the court's charge came as soon as the ground of objection became apparent, which is all that can be required.
I would hold that the trial court erred in charging the jury over objection that it could convict the appellant if he was criminally responsible for the conduct of another. I would remand the case to the court of appeals to consider whether this error requires a new trial. I respectfully dissent to the affirmance of this conviction which was obtained without the notice that our laws require.
En banc.
Filed September 18, 2002.
Publish.
1. Act of June 19, 1993, 73d Leg., R.S., ch. 900, § 2.02, sec. 481.112(a), 1993 Tex. Gen.
Laws 3586, 3705, 4. This was Article 214 of the Penal Code of 1856, Article 74 of the Penal Code of 1879,
Article 74 of the Penal Code of 1895, Article 74 of the Penal Code of 1911, and Article 74 of the
Penal Code of 1925.
5. Article 66 of Penal Code of 1925.
13. June 25, 1874, the grand jury of Fayette county presented an
indictment charging that Dick King, Ike Smith, Offer Alexander,
Henry Williams, and Anderson Satterfield "on the 10th day of
December, 1873, with force and arms, in the County of Fayette,
State of Texas, did then and there willfully, feloniously, and of
their malice aforethought, together and with each other, by the aid
and assistance each of the other," * * * "in and upon the body of
one Deitrich Mueller * * * * make an assault. And that the said
Dick King, a certain pistol (which said pistol was then and there a
deadly weapon, which said pistol was then and there of the value
of ten dollars, which said pistol he the said Dick King in his hand
then and there had and held) at, to, towards and upon the body of
him the said Deitrich Mueller, did then and there draw and present,
and that he the said Dick King with the said pistol as aforesaid, did
then and there strike, cut, beat, bruise, wound, and abuse him the
said Deitrich Mueller, in and upon the head and in and upon the
body of him the said Deitrich Mueller, giving to him the said
Deitrich Mueller, one
Id., at 392-93.
14. 569 S.W.2d 898 (Tex. Cr. App. 1978).