CHRISTOPHER CARRERA v. THE STATE OF TEXAS--Appeal from 197th District Court of Cameron County

NUMBER 13-00-723-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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CHRISTOPHER CARRERA, Appellant,

v.

  THE STATE OF TEXAS, Appellee.

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On appeal from the 197th District Court of Cameron County, Texas.

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O P I N I O N

Before Justices Dorsey, Ya ez, and Chavez[1]

Opinion by Justice Chavez

A jury found appellant guilty of capital murder and the trial court assessed his punishment at life in prison. We reverse and remand the case due to fundamental errors contained in the charge to the jury.

Appellant was indicted for capital murder by intentionally and knowingly killing three individuals by shooting them with a firearm during the same criminal transaction.[2] A second count in the indictment was dropped at a previous trial. The record shows that on April 25, 1998, appellant and Ricky Gomez Hernandez, AEl Boy@, were riding around in a maroon Mustang GT automobile most of the day. Appellant was driving because Ricky did not know how to drive a car with a standard transmission. Around 9:00 p.m. they came abreast three other young men that were in a dark brown Camaro. After passing each other a couple of times, the Camaro slowed down and one of the individuals asked Ricky and appellant if they had any beer or knew where they could get some Amota@ (marijuana). Ricky asked them to follow their car since he knew where to get some beer. Appellant drove off and the others followed. Eventually, appellant turned onto a dirt road near the airport and into a darkened area. As they drove on the dirt road, Ricky exhibited a gun and told appellant to stop because he wanted to Arip them off.@ Appellant, according to the statement given to police, told Ricky ANo!@ but stopped the car anyway.[3] Appellant told police that he sat in the car while Ricky walked back to the Camaro. The driver of the Camaro got out of the car and talked to Ricky, then raised his hands and dropped to the ground as Ricky shot him. Appellant heard additional shots and heard Ricky yell to one of the individuals not to run and proceeded to shoot the other two occupants of the Camaro. Appellant told the detective taking his statement that he had seen all of this through his rear view mirror while sitting in the car.

After the shooting, Ricky ran back to the Mustang and appellant sped off. Appellant stated he did not know why Ricky had shot the occupants of the Camaro and that Ricky had just laughed when he got back in the car. Afterwards, appellant called his girlfriend, Cindy Medrano, and then drove over to her house. When appellant and Ricky arrived at Cindy=s house, Ricky=s girlfriend was there also. Cindy testified that appellant appeared to be mad and would not talk much to her. After spending some time with the girls, Ricky and appellant left and went to a bar where they drank late into the night. While at the bar, Ricky began bragging to those in the bar that he had killed three individuals. A witness at the bar testified that, while he did not believe him, Ricky did brag about the shootings.

After the murders, tips received by police caused them to have a juvenile officer bring appellant, Cindy, and Ricky=s girlfriend from the high school to the police station for questioning. All three were questioned separately and released. Because appellant=s and the girls= statements were inconsistent, police decided to question appellant again the next day. However, when police arrived at the school, they were informed that appellant had unexpectedly withdrawn and was no longer in school. Appellant=s family, when questioned by police, informed them that appellant had gone to San Antonio to live with his brother and look for work. Police located appellant at the address given to them by his family. After being questioned again, appellant agreed to and did give police the statement that was admitted into evidence.

First, we note that appellant was indicted alone and charged with killing three individuals, Jason Sexton, Ricardo Mata, and Roberto Medrano, by shooting them with a firearm, all murders being committed during the same criminal transaction. Appellant was tried under the law of parties.[4] There is no allegation in the indictment that appellant conspired with another, nor that the killings were committed in the course of committing or attempting to commit a robbery or any other felony offense. We mention this because the application paragraph in the court=s charge authorized conviction if the jury found that appellant conspired with Ricky Hernandez to rob the victims, and that pursuant to said conspiracy, Ricky Hernandez murdered the three victims while in the course of committing or attempting to commit robbery, and that appellant aided and assisted Ricky Hernandez in committing or attempting to commit the robbery when the shootings occurred. No objections were made to the court=s charge or the state=s argument on the instructions just mentioned. On appeal, appellant does not complain about this portion of the charge although it is obvious that he was convicted on theories not charged in the indictment. Conviction under theories not charged in the indictment is fundamental error requiring reversal. Williams v. State, 612 S.W.2d 934, 935 (Tex. Crim. App. 1981); Ross v. State, 487 S.W.2d 744, 745 (Tex. Crim. App. 1972). It is important that the trial judge not deviate from the allegations of the indictment. Green v. State, 881 S.W.2d 27, 31 (Tex. App.BSan Antonio 1994, no pet.).

In his fourth point of error, appellant contends that the court committed fundamental error when it instructed the jury that mere presence alone, or even flight from the scene was sufficient to find appellant guilty of the offense. Before closing arguments in a felony case, the trial court is required to deliver to the jury a written charge distinctly setting forth the law applicable to the case. Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 2002). Charge error does not require reversal unless the record shows that the error was calculated to injure the rights of the defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981). All objections to the charge shall be made at the time of trial. We have already said that no objections were made to the charge.

The evidence is undisputed that appellant was the driver of the car and that he did not shoot any of the three persons that were killed. Appellant=s sole defense was that he was merely present at the time of the killings. In his motion for directed verdict after the state rested, appellant=s counsel stated to the court:

I believe the State=s evidence, at best, is not most favorable to the State and shows that the defendant was merely present at the scene. It shows that he fled the scene. The court will instruct the jury in a few minutes from now that mere presence alone is not enough or even flight from the scene is insufficient to sustain a conviction as a party to the offense.

The court overruled appellant=s motion for instructed verdict and gave the jury the following charge:

You are further instructed that the mere presence alone, of the defendant, Christopher Carrera, at the scene of the murders, if any, or even flight from the scene without more, is sufficient to sustain a conviction as a party to an offense and mere knowledge that an offense is about to be committed will not make Christopher Carrera a party to the offense; nor will knowledge that an offense is being committed, or has been committed, nor will his failure to give alarm, his silence or inaction make him a party to the offense, and if you should find from the evidence beyond a reasonable doubt that Ricky Hernandez did in the course of committing or attempting to commit robbery, shoot Ricardo Mata, Roberto Moreno or Jason Sexton with a firearm in the course of the same criminal transaction and that the defendant, Christopher Carrera was present, but you further find from the evidence, or you have a reasonable doubt thereof, that the defendant, Christopher Carrera, did not, with intent to promote or assist the commission of the robbery, if any, solicit, encourage, aid or attempt to aid Ricky Hernandez in committing such robbery, if any, then you will find the defendant, Christopher Carrera not guilty of Capital Murder. (emphasis added)

The state argues that the erroneous charge does not rise to egregious error because both parties in their closing statements informed the jury that mere presence alone was not sufficient to make one a party to the offense. While defense counsel did make such a statement, the state did not. The state=s argument, however, is without merit because even if both counsel had made such an argument to the jury, the argument had to be disregarded under the instructions of the charge. That is, the court further instructed the jury as follows:

You are instructed that the statements of counsel made during the course of the trial or during argument, if not supported by evidence, or statements of law made by counsel, if not in harmony with the law as stated to you by the Court in these instructions, are to be wholly disregarded.

The court=s instructions are obviously erroneous and harmful. Mere presence has never been sufficient to make one a party to the offense. Oaks v. State, 642 S.W.2d 174, 177 (Tex. Crim. App. 1982); Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. 1981) (The state must show more than mere presence to establish participation in a criminal offense.) Because error was not preserved at the trial court level, we must determine if such error constitutes egregious harm requiring reversal. Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). Errors which result in egregious error are those which affect >the very basis of the case,= deprive the defendant of a >valuable right,= or >vitally affect a defensive theory.= Hutch, 922 S.W.2d at 171. We have said that appellant=s sole defense was that he was merely present at the time of the murders and did not participate in them. We hold that the charge given by the court constituted egregious error which deprived appellant of a fair and impartial trial.

Accordingly, we reverse.

MELCHOR CHAVEZ

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

6th day of June, 2002.

[1]Retired Justice Melchor Chavez, assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. '75.002 (Vernon 1998).

[2]Tex. Pen. Code Ann. ' 19.03(7) (Vernon 1994).

[3]These facts are taken from appellant=s statement, which was admitted in evidence over his objection. Appellant did not testify.

[4]Although appellant was not charged as a party, it was unnecessary to do so because the law of parties may be applied to a case even though no such allegation is contained in the indictment. Pesina v. State, 949 S.W.2d 374, 377 (Tex. App.BSan Antonio 1997, no pet.).