MAREIO DEWAYNE ANDERSON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed July 12, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-00233-CR
............................
MAREIO DEWAYNE ANDERSON, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F06-00008-IQ
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OPINION
Before Justices Morris, Wright, and FitzGerald
Opinion By Justice FitzGerald
        A jury convicted Mareio Dewayne Anderson of capital murder, and he received an automatic life sentence. Anderson raises three points of error on appeal: (1) the jury instructions failed to require a unanimous verdict on the elements of capital murder, in violation of the Texas Constitution and the Texas Code of Criminal Procedure; (2) the failure to require a unanimous verdict violated the United States Constitution; and (3) three of the four application paragraphs in the charge omitted one of the three alleged murder victims. We affirm the judgment of the trial court.
        Anderson accompanied three men-Troy Dorn, Freeman Evans, and Tim Scoggins-to a Dallas apartment, ostensibly to purchase drugs. The apartment was owned by Chateto Brown. Dorn and Evans went into the apartment and met Alejandro Pena and Elihu Hernandez. Anderson and Scoggins remained outside and acted as lookouts. After some time passed, and various participants left and then re-entered the apartment, Dorn called Anderson and summoned him to the apartment. Soon thereafter, gunshots were fired inside the apartment and out in the parking lot. Inside the apartment, the drug deal had gone bad. Evans shot and killed Pena; Dorn and Hernandez shot each other; after Hernandez fell, Evans shot him as well. Outside the apartment, Scoggins fired on the car in which the dealers had arrived. Anderson, on his way up to the second-floor apartment, shot and killed Brown. Anderson left with Evans; they took the cocaine and divided it among themselves and Scoggins. There was evidence at trial the a robbery was planned from the outset, but Anderson and Evans both testified and denied they had planned a robbery as opposed to a drug purchase. Anderson and Evans also testified they shot the victims in self-defense.
        Anderson was indicted for capital murder. His indictment alleged, in relevant part, that Anderson did:
 
unlawfully then and there intentionally and knowingly cause the death of an individual, to-wit: ELIHU HERNANDEZ, by shooting ELIHU HERNANDEZ with a firearm, a deadly weapon, and during the same criminal transaction said defendant did then and there intentionally and knowingly cause the death of another individual, to-wit: ALEJANDRO PENA, by shooting ALEJANDRO PENA with a firearm, a deadly weapon, and during the same criminal transaction said defendant did then and there intentionally and knowingly cause the death of another individual, to-wit: CHATETO BROWN, by shooting CHATETO BROWN with a firearm, a deadly weapon . . . .
 
Thus, the State charged Anderson had committed capital murder by murdering more than one person in the same criminal transaction. See Tex. Pen. Code Ann. § 19.03(a)(7)(A) (Vernon Supp. 2007).   See Footnote 1          On appeal, Anderson's complaints involve the application paragraphs in the trial court's jury charge. Stated briefly, the four paragraphs applied the law of capital murder to the following factual scenarios:
(1)
 
the murder of Brown by Anderson and Anderson's responsibility as a party for the murders of either Hernandez or Pena;
 
(2)
 
Anderson's responsibility as a party for the murders of Hernandez and Pena;
 
(3)
 
Anderson's participation with Dorn and Evans in a conspiracy to commit robbery, during which Hernandez and Pena were murdered; and
 
(4)
 
Anderson's participation in a conspiracy with Dorn and Evans to commit felony drug possession, during which Hernandez and Pena were murdered.
 
These paragraphs were submitted disjunctively; none of the scenarios required unanimous consent of the jurors. We first analyze a jury-charge point of error to decide whether error exists; if we find error, we analyze it for harm. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).
        In his first and second points of error, Anderson complains that the jury charge failed to require a unanimous verdict and thus violated both his federal and state constitutional rights and his statutory rights to such a verdict. The Texas Constitution requires jury unanimity in felony cases, and our state statutes require unanimity in all criminal cases. Id. at 745. However, neither the state constitution nor the federal constitution requires the jury to reach unanimous agreement on alternative factual theories offered by the State to support a conviction. Price v. State, 59 S.W.3d 297, 301 (Tex. App.-Fort Worth 2001, pet. ref'd); see also Jefferson v. State, 189 S.W.3d 305, 313 (Tex. Crim. App. 2006) (dispensing with unanimity on acts comprising single offense does not violate federal due process rights). When an indictment alleges more than one method or means of committing a crime in the conjunctive, the trial court may properly charge the jury in the disjunctive. Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991). This rule applies in capital murder cases. See Martinez v. State, 129 S.W.3d 101, 103 (Tex. Crim. App. 2004) (“When an indictment alleges differing methods of committing capital murder in the conjunctive, the jury may properly be charged in the disjunctive.”). A trial court runs afoul of the unanimity requirement only if it instructs the jury disjunctively on more than one separate offense and fails to require unanimity on one specific criminal act. See, e.g., Ngo, 175 S.W.3d at 749 (charge erroneously submitted three different credit-card offenses disjunctively without requiring unanimity on one).   See Footnote 2 
        Our inquiry thus is whether the charge in Anderson's case submitted four different methods of committing a single offense or whether it submitted four separate offenses. Thus narrowed, the answer is clear. All four application paragraphs describe different methods of committing the single offense of capital murder. Indeed, despite Anderson's complaints about expanded allegations or charges, each of the four paragraphs describes a statutory method of committing capital murder that includes the murders of more than one person during the same criminal transaction. Each describes a violation of section 19.03(a)(7)(A). See Saenz v. State, 166 S.W.3d 270, 273 (Tex. Crim. App. 2005) (“The aggravating circumstance for a capital murder prosecution under Section 19.03(a)(7)(A), however, is the murder of 'more than one person during the same criminal transaction.'”). The court of criminal appeals has at least twice affirmed disjunctive submissions of different methods of committing capital murder. See Martinez, 129 S.W.3d at 103; Kitchens, 823 S.W.2d at 258. Capital murder is a single offense, regardless of how it is committed. Indeed, regardless of the number of murders and felonies a defendant commits in a criminal transaction, he can be convicted of only one count of capital murder. See Saenz, 166 S.W.3d at 274 (capital murder statute intended single capital murder prosecution when more than one murder proved). We conclude the jury charge in Anderson's case did not impermissibly allow for a non-unanimous verdict. See Kitchens, 823 S.W.2d at 258 (jury returns unanimous verdict of guilty, even if jurors did not agree in what manner appellant committed murder). We overrule Anderson's first two points.
        In his third point of error, Anderson complains that the jury charge eliminated from three of the four application paragraphs the indictment allegation that Anderson murdered Chateto Brown. As was discussed above, Brown was one of three persons alleged by the indictment to be victims of Anderson. Anderson admitted killing Brown, although he claimed he did so in self defense. The first application paragraph included the murder of Brown as one of the charged murders; the other three paragraphs did not. Under the heading “Incomplete Application,” Anderson's brief cites authority declaring a jury charge fundamentally defective if it:
 
(1)
 
authorizes conviction without proof of all the requisite elements of the offense;
 
 
 
(2)
 
authorizes conviction on a different theory than alleges in the indictment;
 
 
 
(3)
 
authorizes conviction on the theory alleged in the indictment and on additional unalleged theories; or
 
 
 
(4)
 
authorizes conviction for conduct which is not an offense.
 
However, each of the cases cited by Anderson involves the omission from the charge of at least one element of the offense charged. See Selman v. State, 663 S.W.2d 838, 840 (Tex. Crim. App. 1984) (omitting portions of definition of voluntary manslaughter); Doyle v. State, 631 S.W.2d 732, 737-38 (Tex. Crim. App. 1980) (omitting culpable mental state); Flores v. State, 48 S.W.3d 397, 402 (Tex. App.-Waco 2001, pet. ref'd) (omitting requirement defendant's conduct caused death of victim). See also Soria v. State, 2005 WL 851080 **4-5 (Tex. App.-Waco 2005, no pet.) (not designated for publication) (omitting requirement property be taken “without consent” in theft charge). In Anderson's case, each application paragraph correctly includes all elements of a capital murder offense. Thus, these cases do not support a finding of error in Anderson's jury charge.
        Moreover, each application paragraph in Anderson's charge includes allegations of the murders of more than one person during the same criminal transaction. See Tex. Pen. Code § 19.03(a)(7)(A). As discussed above, the fact that each identifies a different method or means of committing more than one murder during the same criminal transaction does not mean there is error in the charge. Anderson was not somehow convicted of a different offense if the jury were persuaded by a factual scenario that did not include Brown's murder. That is the settled principle underlying disjunctive submissions of allegations that were made conjunctively in an indictment. See, e.g., Martinez, 129 S.W.3d at 103. Each of Anderson's application paragraphs submitted met the elements of capital murder with which he was charged. See Saenz, 166 S.W.3d at 273 (aggravating circumstance for capital murder prosecution under section 19.03(a)(7)(A) is murder of more than one person during same criminal transaction). We find no error in the omission of Brown's murder from three of the four application paragraphs. We overrule Anderson's third point of error as well.
        We have decided all of Anderson's points against him. Accordingly, we affirm the judgment of the trial court.
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
060233F.U05
 
Footnote 1 A second charge in the indictment alleged the same three murders were committed during different criminal transactions, but the same scheme or course of conduct. See Tex. Pen. Code § 19.03(a)(7)(B). The State abandoned this allegation before the case was submitted to the jury.
Footnote 2 Anderson relies heavily on Ngo, but his reliance is misplaced. In that case, the indictment charged appellant with three different criminal acts:
 
 
(1)
 
stealing the complainant's credit card;
(2)
 
receiving the complainant's credit card, knowing it had been stolen, and acting with intent to use it; and
(3)
 
presenting the complainant's credit card with the intent to obtain a benefit fraudulently, knowing the use was without the effective consent of the complainant.
 
175 S.W.3d at 744. These offenses clearly required entirely different criminal acts, despite the fact that they represented violations of the same criminal statute. See Tex. Pen. Code § 32.31(b). Indeed, the first two acts appear to be mutually exclusive: either the appellant stole the credit card or he received it, knowing it had been stolen by someone else. However, the State charged these three offenses disjunctively, without requiring jurors to agree on any one of the specific offenses. The Court of Criminal Appeals concluded this was error because it was possible for the jury to agree that some offense was committed, but not on what offense was committed. Ngo, 175 S.W.3d at 749. In Anderson's case, as will be discussed infra, the four alternative paragraphs each represented a different manner or means of committing the same offense - capital murder - in the same criminal transaction. Thus, a unanimous verdict would require agreement as to what offense Anderson committed; unanimity is not required in deciding how he committed that single offense. See id. at 745.