Mario Cervantes v. The State of Texas--Appeal from 278th District Court of Madison County

IN THE

TENTH COURT OF APPEALS

No. 10-90-216-CR

MARIO CERVANTES,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 278th District Court

Madison County, Texas

Trial Court # 8703

OPINION ON REHEARING

Mario Cervantes urges in a motion for rehearing that we erred in reforming his conviction for "murder during the course of a riot" to a conviction for riot. See Tex. Penal Code Ann. 42.02 (Vernon 1989). We deny his motion.

Cervantes' indictment reads:

did then and there knowingly and intentionally participate in an assemblage of seven or more persons, and did then and there while so assembled and acting together create an immediate danger of damage to property and injury to persons, and person or persons engaged in said riot did then and there commit the offense of murder of an individual, to-wit: Donovan Ingram, and said offense was in the furtherance of the purpose of the assembly and should have been anticipated as a result of the assembly....

The offense of riot carries the same classification as any offense of a higher grade committed by anyone engaged in the riot if the higher-grade offense was in furtherance of the purpose of the assembly or should have been anticipated as a result of the assembly. See id. 42.02(f). Cervantes was indicted for the offense of riot for intentionally and knowingly participating in an assemblage of seven or more persons, who while assembled and acting together, created an immediate danger of damage to property and injury to persons. See id. 42.02(a), (b). The murder was alleged only for the purpose of raising the classification of a riot conviction to the same classification as a murder conviction. See id. 42.02(f).

The application paragraph of the charge correctly required the jury to find all of the elements of the offense of riot. It further required the jury to find that a murder was committed in furtherance of the riot, which should have been anticipated as a result of the riot. The charge authorized the jury to find Cervantes guilty of "murder in the course of a riot." The verdict form provided for the jury read: "We, the jury find the defendant, Mario Cervantes, guilty of the offense of murder during the course of a riot as charged in the indictment."

Although we do not approve of this charge or the verdict form, we do not find that the court's mischaracterization of the name of the offense is of any consequence.

The evidence shows that Cervantes knowingly participated in a riot as set forth in the indictment. The evidence further shows that a murder was committed in furtherance of the riot, which should have been anticipated as a result of the riot. In fact, Cervantes himself stabbed the deceased in the course of the riot. Our reformation of the judgment to find Cervantes guilty of riot as alleged in the indictment is correct. We deny the motion for rehearing.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Rehearing denied

Opinion delivered and filed April 29, 1992

Do not publish