March-April 2013

A dire remedy for the proper jury charge

Emily Johnson-Liu

Assistant Criminal ­District Attorney in Collin County

Judges sometimes rule against us, keep out important evidence, and overrule proper
    objections, but seldom do these decisions ever warrant the extraordinary act of asking a higher court to compel the judge to do as the State says. In a recent case, In re State ex rel. David Weeks, prosecutors in the middle of a capital murder trial concluded they had no option other than a writ of mandamus to get a fair shot at presenting their case to the jury.1 And through their efforts, the Court of Criminal Appeals has clarified the law on accomplice liability, jury charges, and even mandamus itself.
    And if that was not enough, for the very first time, the Court of Criminal Appeals favorably referenced the State Bar Association’s new criminal pattern jury charges, stating that the pattern charges’ “modern format may assist both the members of the jury and the advocates who must explain the jury instructions to the jury.”2

Facts of the capital case  
Jerry Martin and John Falk were prison inmates at TDCJ’s Wynne Unit in Huntsville. While at work in the prison onion patch, Martin and Falk took a guard’s revolver and made a run for it. Another guard, Susan Canfield, who was mounted on horseback, exchanged fire with Falk. When Canfield ran out of ammunition in her revolver, Falk jabbed the gun he had stolen into her side, forcing Canfield to give up her other weapon, a rifle. Falk took the rifle and backed away. Martin, meanwhile, had stolen a pickup truck, and he drove toward Canfield and struck her and her horse with the truck, ultimately killing her. Falk jumped into the truck, and the two men drove off, only to be captured later.3    
    Martin and Falk were charged with capital murder for killing Canfield while attempting to escape a penal institution.4 Martin, as the principal actor in Canfield’s death, was convicted and sentenced to death, and his conviction was affirmed on appeal. Then Falk’s capital murder trial began. During the jury charge conference, prosecutors encountered two problems. First, the trial judge refused outright the State’s request for an aiding-and-abetting law of parties instruction. The judge believed there was no evidence that Falk had aided Martin’s offense of driving the truck into Canfield or her horse. Second, the trial judge severely restricted the jury charge on co-conspirator party liability under Penal Code §7.02(b). That statute provides that where multiple people act together in pursuit of a felony, each one is liable for a collateral crime, even though unplanned and unintended, if that crime is both committed “in furtherance” of the intended felony and “should have been anticipated as a result” of carrying out the conspiracy.5
    In Falk’s case, joining up with Martin in the escape would make him liable for Martin murdering a guard to further their escape—as long as the jury thought Falk should have anticipated the murder. But the judge in Falk’s trial wanted to instruct the jury that to convict Falk, they would have to find that Falk should have anticipated not just that Martin would kill a guard but that Martin would kill her by striking her with the truck. Anticipating the precise method an accomplice would use to commit murder would be a significant increase in the State’s burden of proof.  
    In the typical case, such as where the robber’s gun-wielding accomplice actually shoots the victim instead of just scaring him, it would not matter too much if the State were required to prove that the robber should have anticipated both the murder and how it was committed. After all, in a typical robbery turned capital murder, the defendant often knows his accomplice has brought a gun or often carries one with him, and when the accomplice ends up killing the victim, it is usually by shooting him with the gun. Even where an accomplice brings a gun to a knife fight or a knife to a fist fight, just how someone might get killed in the process is still fairly foreseeable.
    But predicting that Martin would run a guard down with a truck is not the usual course of events, even in a prison escape. The State was understandably concerned that jurors who believed Falk should have anticipated Martin would kill a guard to further their escape might not believe Falk could have anticipated the precise way Martin killed Canfield. Also, in addition to the co-conspirator theory, the judge was denying the State the right to a conviction if the jury thought Falk intended to aid Martin in killing Canfield. 
    Faced with the risk that the jurors might acquit Falk based on the law the judge was going to give them, the State opted to file a petition for writ of mandamus in the court of appeals. In its petition, the State asked that the jury be allowed to convict under both theories of accomplice liability: aiding and abetting and co-conspirator party liability, without Falk having to anticipate the particular method Martin would use to commit the murder. The court of appeals granted the State a temporary emergency stay, putting the capital murder trial on hold. But while the intermediate court of appeals felt the State was probably right about the law, it held that the State could not meet the high burden of a “clear right to relief” required of a mandamus action. For mandamus, the State would have to show that 1) it had no adequate remedy at law, and 2) instructing the jury the way the State wanted was a ministerial act where the State had a clear right to relief. The court of appeals agreed that the State had no other adequate remedy because it could not immediately appeal the jury charge issue and would be barred by double jeopardy from appealing if the jury acquitted Falk. But the court of appeals did not believe the State established a clear right to relief.

The Court of Criminal Appeals rules
Fortunately for the State, the Court of Criminal Appeals disagreed. The court decided that the judge should have given the jury the chance to convict Falk of capital murder by aiding and abetting Martin. Falk’s act of disarming Canfield, who had been shooting at the pair, was some evidence that he aided Martin in her murder, and the jury could infer he did so intending to assist Martin in committing the murder. Importantly for the mandamus petition, the court concluded a judge has the duty to submit a theory of party or accomplice liability when some evidence raises the issue, even though the judge may not himself find that evidence credible. And, although there may have not been a previous case spelling out that the State is entitled to mandamus relief where the judge refuses to instruct the jury on the law of parties and the evidence raises the issue, the court held the State was clearly entitled to relief.6 The court reiterated that an issue of first impression can sometimes qualify for mandamus relief.7 Also, the court suggested mandamus would be appropriate if the judge refused to include in the jury charge one of the indicted offenses, where some evidence supported it. Submitting instructions under those circumstances constituted a ministerial duty—not a matter of discretion with the judge.        
    The court also decided that the State was right on the law concerning the co-conspirator jury instruction. That result was not too surprising. Requiring Falk to anticipate that Martin would try to run down a guard with a stolen truck is like requiring a defendant to anticipate his accomplice to an armed robbery will end up strangling the victim instead of shooting him. Taken to the extreme, if he has to anticipate his accomplice’s method, why not require that the defendant also anticipate exactly who the victim will be? But the defendant’s culpability for his accomplice’s crime seems to rest on the fact that he continues in the criminal enterprise despite his anticipation that his accomplice might kill at all. Surely he is no less culpable if the murder varies in the details from the one he imagined. If it varies too widely, a jury would still be free to find the defendant could not have anticipated the murder. But the judge in Falk’s case would not even let the issue go to the jury, unless it first found Falk should have anticipated the way Martin committed the murder. In essence, he would be blameless for Canfield’s death, unless he should have anticipated Martin driving a truck into her and her horse.
    But while it was not so surprising that the State would ultimately prevail on what the law required for co-conspirator liability, it was surprising that the State would establish this in a petition for writ of mandamus. Remarkably, although no case or statute had ever addressed it, the court determined that this issue was so unequivocal, well-settled, and dictated by clearly controlling legal principles that mandamus was an appropriate remedy to compel the State’s requested jury instruction. The court concluded that there was only one rational answer to the legal question presented based on the “combined weight” of the court’s precedents. Specifically, in Johnson,8 a case issued in the last year, the court explained that the method of committing murder is not relevant to determining sufficiency of the evidence for murder. Therefore, the State does not have to prove its allegation of how a murder was carried out (e.g., shooting, stabbing, or strangling). It is what we used to call surplusage, or what the court called in another recent case, “sheer lagniappe.”9 Because the State is entitled to the broadest submission of its theories of liability that are authorized by the indictment and supported by the evidence, a gratuitous allegation such as the manner and means of a murder should not be in the jury charge.10
    So it seems that in Martin’s trial, the allegation that Martin killed Canfield by striking her or her horse with a motor vehicle need not have been in the jury charge because the State did not have to prove it. And if it need not have been in Martin’s jury charge for liability as a principal actor, it need not be in Falk’s jury charge as an accomplice either.
    In a single opinion, the court holds that mandamus is available to the State where the judge refuses to submit an offense to the jury or an instruction on the law of parties, that the State could establish a clear right to relief for mandamus by combining caselaw and logic, and that the manner and means in an assault or murder case need not be set out in the jury charge.

A word of caution
While the road to mandamus may seem a little easier after this case, it is a remedy that still must be pursued with extreme caution and only in the most egregious cases. For even in this case, after emerging victorious from the Court of Criminal Appeals, prosecutors returned to the trial court for the resumption of their capital murder trial only to have the judge order a mistrial on his own motion, creating new issues about whether there was a manifest necessity for such action and potentially jeopardizing a future prosecution. 

A special thanks to my co-conspirator for As the Judges Saw It, the ever-witty and double-board-certified David Newell, for filling in for me last fall while I prepared for the board certification exam.


1 In re State ex rel. Weeks, Nos. AP-76953 & AP-76954, 2013 WL 163460 (Tex. Crim. App. Jan. 16, 2013).
2 Weeks, 2013 WL 163460, at n.6.
3 In re State of Texas ex rel. David P. Weeks, No. 10-12-00443-CR, 2012 WL 6218205 (Tex. App.—Waco Dec. 12, 2012, orig. proceeding); In re State ex rel. Weeks, Nos. AP-76953 & AP-76954, 2013 WL 163460 (Tex. Crim. App. Jan. 16, 2013).
4 Tex. Penal Code §19.03(a)(4).
5 Tex. Penal Code §7.02(b); Curtis v. State, 573 S.W.2d 219, 223 (Tex. Crim. App. 1978).
6 Weeks, 2013 WL 163460, at *3-4.
7 Id., at *3.
8 Johnson v. State, 364 S.W.3d 292, 296 (Tex. Crim. App. 2012). Johnson was an aggravated assault case, not a murder case, so strictly speaking, anything Johnson explained about murder could be considered dicta. But because both murder and assault are result-of-conduct offenses, Johnson’s holdings concerning assault probably apply with equal force to murder.
9 Daugherty v. State, No. PD-1717-11, 2013 WL 85365 (Tex. Crim. App. Jan. 9, 2013). A lagniappe, according to the Cajun French-English Glossary hosted by Louisiana State University, is something extra given at no cost. See artsci/frenchweb.nsf/$Content/Cajun+French+Glossary?OpenDocument
10 There had been some doubt among prosecutors about just what to include in the jury charge when the parties discovered during trial that there was an immaterial variance in pleading and proof. Should the court submit the theft charge with the corrected Go-Kart serial number or leave it as it was indicted? The court seems to indicate the remedy: Discard the gratuitous allegation that caused the variance and submit the offense broadly.