Frankie Green v. The State of Texas--Appeal from 278th District Court of Leon County

IN THE

TENTH COURT OF APPEALS

No. 10-91-105-CR

FRANKIE GREEN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 278th District Court

Leon County, Texas

Trial Court # 7397-B

OPINION ON REHEARING

Green points out in his motion for rehearing that we mischaracterized his eleventh point as an attack on the evidence. His eleventh point is that the charge improperly authorized his conviction on theories not constituting an offense. Accordingly, we will reexamine and dispose of the contention as a point of law.

The charge on guilt-innocence contained this application paragraph:

Now, if you find from the evidence beyond a reasonable doubt that . . . Nicholas Edwards did intentionally or knowingly, while in the course of committing theft of property, and with intent to obtain and maintain control of said property, cause bodily injury to Percy Westmoreland and said Percy Westmoreland was then and there older than sixty-four years of age, and that . . . Frankie Green, acted with intent to promote or assist the commission of the offense by Nicholas Edwards by encouraging, aiding, or attempting to aid Nicholas Edwards to commit the aforesaid offense, by entering into an agreement with Nicholas Edwards to rob Percy Westmoreland and being present when Nicholas Edwards robbed Percy Westmoreland, or by fleeing the scene of the robbery and assisting Nicholas Edwards in fleeing the scene of the robbery and the defendant, Frankie Green, knew that Nicholas Edwards had robbed Percy Westmoreland, or entered into an agreement with Nicholas Edwards to rob Percy Westmoreland and assisted Nicholas Edwards in hiding the proceeds of the robbery[,] then you will find the defendant, Frankie Green, guilty of aggravated robbery as charged in the indictment.

The charge authorized a conviction under the law of parties on three alternate theories, all of which were disjunctively premised on a finding that Green agreed with Edwards to commit the robbery. Thus, if the jury found beyond a reasonable doubt that he agreed to the robbery, then it could convict him if it also found beyond a reasonable doubt that he (1) was present at the scene, (2) assisted Edwards in fleeing the scene, or (3) assisted Edwards in hiding the proceeds of the robbery. Green questions whether either of the last two acts, even if supported by the evidence, would make him criminally liable as a party.

As noted in the opinion, the jury can consider events occurring before, during, or after the offense in determining whether a person is guilty as a party. Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987). Moreover, the court can look to acts before, during, or after an offense which show a common design to commit the offense. Alexander v. State, 607 S.W.2d 551, 553 (Tex. Crim. App. [Panel Op.] 1980). Consequently, the court could authorize Green's conviction based on an agreement to commit the offense and a subsequent act or acts that aided or attempted to facilitate the commission of the offense. See id. Accordingly, the charge properly authorized the jury to base Green's conviction as a party on acts occurring after the robbery.

Point eleven is again overruled. Otherwise, the motion for a rehearing is denied.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Rehearing denied

Opinion delivered and filed September 30, 1992

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