Danny Marin v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

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99-00226 Marin v State of Texas.wpd No. 04-99-00226-CR
Danny MARIN,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 98-CR-0729-C
Honorable Mary Roman, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: August 16, 2000

AFFIRMED

Danny Marin was tried by a jury and convicted of capital murder. On appeal, he raises two points of error contending that the trial court erred in overruling his objection to the jury charge submitted and in improperly applying the law to the facts to support its instruction on the law of parties. We find that the jury charge was proper and affirm the judgment of the trial court.

Factual and Procedural Background

The record reflects that Marin and several others were at the home of Glenn Bennett during the late evening of November 11, 1997, and the early morning of November 12, 1997, waiting for customers to buy drugs and using drugs themselves. Two of Bennett's female guests left Bennett's home to prostitute themselves for money. When they returned, these two women along with at least five of Bennett's other guests, including Marin, discussed robbing the house from which the women had just returned.

Having apparently reached an agreement regarding the robbery, the group took several guns and knives from Bennett's home and departed. Marin drove the group to the house the two prostitutes pointed out. The passengers got out of the car and approached the house while Marin stayed in the car. Once inside the house, the group robbed and killed Guadalupe Hernandez. After the shooting started, a female member of the group ran back toward Marin's car. She got into the car and told Marin that someone had been shot. Marin drove the woman back to Bennett's house where they were soon joined by the remaining members of the group.

Argument and Authority

Marin was charged with capital murder under the law of parties. At the close of his trial, the court submitted a jury instruction, which defined the law of parties and applied it to the facts of Marin's case as follows:

...if you find from the evidence beyond a reasonable doubt that Defendant, Danny Marin, entered into an agreement with Donny Greene, or David Rodarte, or Terrance Druman, or Kelly Zapata, or Berniece Noack, or Rhonda Williams, or any one or more of them, to commit the offense of robbery as defined above, of Guadalupe Hernandez, and pursuant to that agreement they or one or more of them did carry out their conspiracy and that on or about the 12th day of November, 1997, in Bexar County, Texas, while in the course of committing such robbery, Donny Green, or David Rodarte, or Terrance Druman, or Kelly Zapata, or Berniece Noack, or Rhonda Williams, or they or any one or more of them, intentionally caused the death of the said Guadalupe Hernandez by shooting the said Guadalupe Hernandez with a deadly weapon, namely; a firearm, with the specific intent to kill the said Guadalupe Hernandez, and the defendant, Danny Marin, at the time of the shooting, was acting with the intent to aid or attempt to aid the said Donny Green, or David Rodarte, or Terrance Druman, or Kelly Zapata, or Berniece Noack, or Rhonda Williams, or they or any one of them, in the execution of the robbery of Guadalupe Hernandez, if any, and the shooting of Guadalupe Hernandez was committed in furtherance of the conspiracy, if any, of Danny Marin and Donny Green, or David Rodarte, or Terrance Druman, or Kelly Zapata, or Berniece Noack, or Rhonda Williams, or they or any one or more of them, to rob Guadalupe Hernandez, and that the shooting of Guadalupe Hernandez, if any was an offense that should have been anticipated as a result of the carrying out of the conspiracy, then you will find the defendant guilty of capital murder as charged in the indictment.

Marin objected to the charge and bases his first point of error on his contention that the charge allowed the jury to hold him criminally responsible for the acts of the entire group without regard to whether he was a party to the agreement to commit the crime. To illustrate his point, Marin points to the portion of the court's charge that provides that the jury could find him guilty if it found that he:

...entered into an agreement with Donnie Greene, or David Rodarte, or Terrance Druman, or Kelly Zapata, or Berniece Noack, or Rhonda Williams, or any one or more of them, to commit the offense of robbery as defined above...and pursuant to that agreement they or one or more of them did carry out their conspiracy....

(Marin's emphasis). According to Marin, this portion of the charge required the jury to convict him if any two members of the group agreed to commit robbery, whether he had knowledge of the agreement or not. We do not read the charge in this way. Other than being somewhat confused by the inclusion of the names of so many co-conspirators, the charge quite clearly follows the requirement of the law of parties, which authorizes conviction if an individual enters into a conspiracy to commit a felony and another felony is ultimately committed by one or more of the co-conspirators. See Tex. Penal Code Ann. 7.02(b) (Vernon 1994). Contrary to Marin's assertions, the charge clearly requires the jury to find that Marin himself entered into an agreement with one or more of his co-conspirators to rob Hernandez.

Marin's reliance on Zuckerman v. State, 591 S.W.2d 495 (Tex. Crim. App. 1979), is misplaced. In Zuckerman, the court of criminal appeals reversed a conviction where the jury charge authorized the conviction of the defendant even if the jury found that his co-defendant was the guilty party. See Zuckerman, 591 S.W.2d at 495. The charge in that case provided that the jury should find the defendant guilty of burglary if it found that "[he] and [his co-defendant], or either of them,...did enter a building...without effective consent..." Id. (emphasis added). The court's reversal was based on the fact that the charge inappropriately allowed the jury to convict Zuckerman if it found that Zuckerman and his co-defendant entered the building together, or if it found that Zuckerman entered the building alone, or if it found that the co-defendant entered the building alone. It is this final option that is objectionable absent evidence of a prior agreement under the law of parties. In fact, the Zuckerman court notes that "the charge is completely silent on the law of parties." Id.

The present case, however, turns on the law of parties and the instruction regarding the law of parties makes up a significant portion of the court's charge. The portion of the charge at issue does not authorize conviction based solely upon the actions of others as did the charge in Zuckerman, but instead it authorizes conviction based upon Marin's agreement with any one or more of his co-conspirators to commit robbery. This is an appropriate application of the law of parties. See Tex. Penal Code Ann. 7.02(b) (Vernon 1994). Marin's first point of error is overruled.

In his second point of error, Marin contends that the court's charge is erroneous because it did not specifically allege how Marin participated in the crime as a party and therefore did not properly apply the law to the facts of the case. According to Marin, the court's failure to apply the specific facts of the case to an abstract instruction on the law of parties prohibited the jury from finding him guilty as a party. We disagree.

First, as noted above, the law of parties permits the conviction of all conspirators when, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by another one of the conspirators. See Tex. Penal Code Ann. 7.02(b) (Vernon 1994). The threshold requirement for conviction then is the defendant's participation in an agreement to commit one felony. The charge in the present case specifically applied this law to the facts of the case by authorizing Marin's conviction only where the jury found that he agreed with one or more of his co-conspirators to rob Hernandez and that Hernandez was murdered in the course of that robbery. Accordingly, the application paragraph of the charge properly authorized conviction if Marin acted as a party as defined in the instructional paragraphs of the charge.

Further, we note that Marin lodged no objection to the charge in terms of its application of the law to the facts. In the absence of a request to more explicitly apply the law of parties to the facts, a general application of the law of parties is usually sufficient to refer the jury to the abstract instructions on the law of parties. See Jackson v. State, 898 S.W.2d 896, 899 (Tex. Crim. App. 1995), overruled on other grounds, Malik v. State, 953 S.W.2d 234, 239 (Tex. Crim. App. 1997). In this case, we find that the jury was sufficiently informed of the conduct necessary to convict Marin of capital murder. Marin's second point of error is overruled.

The judgment of the trial court is affirmed.

KAREN ANGELINI

JUSTICE

DO NOT PUBLISH