Felix Sanchez v. The State of Texas--Appeal from 278th District Court of Madison County

IN THE

TENTH COURT OF APPEALS

No. 10-91-004-CR

FELIX SANCHEZ,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 278th District Court

Madison County, Texas

Trial Court # 8724

O P I N I O N

A riot among Hispanic and black prison inmates resulted in the stabbing death of a black inmate. A jury convicted Felix Sanchez of riot by murder, and the court assessed his punishment at forty-five years in prison. See Tex. Penal Code Ann. 42.02 (Vernon 1989). Sanchez contends the riot statute is unconstitutional as applied to him, raises questions about the charge, and argues the insufficiency of the evidence. He also complains about the admission of evidence over his objection and the court's refusal to allow him to voir dire a witness to test his qualifications as an expert. We will affirm.

THE RIOT

A fight broke out among some of the 100 to 118 inmates locked in the dayroom of Cell Block D of the Ferguson Unit. A black inmate, Donovan Ingram, died from stab wounds suffered in the melee, which lasted approximately two to five minutes. There was evidence that, although outnumbered two to one by the blacks, Hispanic inmates initiated the riot by attacking the blacks. Prison guards, who used tear gas to stop the riot, recovered several knives or "shanks," padlocks attached to belts, and shards of glass from broken dayroom windows that inmates had used as weapons. Prison employees said the number of weapons found in the dayroom indicated that the riot was planned and not a spontaneous occurrence. Numerous inmates also testified.

CONSTITUTIONALITY

Sanchez asserts in his first two points that the riot statute is unconstitutional as applied to him, arguing that it violates his rights of free speech, assembly, due process, and equal protection guaranteed him under the federal and state constitutions. He generally argues that, as applied to him, the statute is unconstitutional because it:

" punished his participation in a lawful assembly.

" did not require him to have knowledge of the assemblage's unlawful conduct, which thus authorized his conviction without a finding that he knowingly participated in a riot.

" made him criminally responsible for other crimes not caused by his own conduct.

Sanchez also seems to contend that errors he perceives in the charge rendered the riot statute unconstitutional as applied to him.

The riot statute does not inhibit freedom of expression or peaceable assembly but, instead, proscribes a knowing participation in an unlawful assembly. Ferguson v. State, 610 S.W.2d 468, 471 (Tex. Crim. App. 1979); Faulk v. State, 608 S.W.2d 625, 631 (Tex. Crim. App. 1980) (on rehearing). Moreover, the provision extending criminal responsibility to all persons knowingly participating in a riot, knowing of the assemblage's wrongful conduct, comports with due process by requiring a "community of illicit intent" to extend criminal liability. Ferguson v. Estelle, 718 F.2d 730, 736 (5th Cir. 1983) (citing Scales v. United States, 367 U.S. 203, 81 S. Ct. 1469, 6 L. Ed. 2d 782 (1961)).

As applied to Sanchez, the statute did not punish him for participating in a lawful assembly. By providing a defense to one who withdraws from a lawful assembly that subsequently turns violent, the statute clearly envisions that an unlawful assembly can grow out of a lawful one. See Tex. Penal Code Ann. 42.02(c). The evidence, discussed later in the opinion, establishes that the assembly of inmates, though initially peaceful, soon turned violent. Ignoring the question of whether and under what circumstances prisoners have the constitutional right of free assembly, we hold that any right of assembly ended when the riot began. See Faulk, 608 S.W.2d at 631 (citing State v. Bad Heart Bull, 257 N.W.2d 715 (S.D. 1977)).

Nor did the statute authorize his conviction without a finding that he knowingly participated in the riot. It clearly requires a knowing participation in an unlawful assemblage, knowing of the unlawful conduct of the group. Faulk, 608 S.W.2d at 631. The evidence, discussed below, establishes his knowing participation in the riot.

Finally, as applied to Sanchez, the riot statute did not unconstitutionally extend criminal liability for the murder to him. As noted later, the evidence establishes that the riot was planned and that Sanchez participated in it. He was convicted and punished based on evidence that he shared a "community of illicit intent" with the other rioters. This satisfied due-process requirements. See Estelle, 718 F.2d at 736.

Sanchez does not brief or argue under his first two points that the riot statute somehow impinged on his right of free speech or that it violated his right to equal protection under the law. Accordingly, we do not discuss these contentions.

As for the contention that errors in the charge would somehow affect the constitutionality of the riot statute, the constitutionality of statutes logically could not be made to depend upon the trial judge's ability to put together an error-free charge. We reject any such premise.

We hold that in its application to Sanchez the riot statute is not unconstitutional under either the federal or state constitutions. Points one and two are overruled.

CHARGE

The charge contained an abstract instruction tracking the language of the riot statute and also contained the following pertinent paragraph applying the law to the facts:

Now bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt, that [Sanchez] did . . . knowingly 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 or injury to persons, and person or persons engaged in said riot did then and there commit the offense of murder of . . . Donovan Ingram, and said offense was in furtherance of the purpose of the assembly or should have been anticipated as a result of the assembly[,] then you will find [Sanchez] guilty of the offense of murder during the course of a riot . . . .

Sanchez' third point is that the court erred when it refused to instruct the jury that, to find him guilty, it had to find beyond a reasonable doubt that he knowingly participated in the riot after knowing of the assemblage's wrongful conduct. He argues that the court thus failed to instruct the jury on an essential element i.e., that he knowingly participated in a riot.

A person commits an offense if he knowingly participates in a riot, which is defined as the assemblage of seven or more persons resulting in conduct that, among other things, creates an immediate danger of damage to property or injury to persons. Tex. Penal Code Ann. 42.02(a)(1), (b). Requiring a "knowing participation" in an assemblage necessarily includes the requirement that the defendant also know that the conduct of the assemblage is resulting in unlawful activity. Hirschi v. State, 683 S.W.2d 415, 417 (Tex. Crim. App. 1984) (citing Faulk, 608 S.W.2d at 631). Thus, the question raised by the third point is whether the charge required the jury to find that Sanchez participated in the assembly of rioting inmates knowing that their conduct was creating an immediate danger of damage to property or injury to persons. See Ferguson, 610 S.W.2d at 471.

The charge required the jury to find that (1) Sanchez knowingly participated in the assemblage of seven or more persons, and (2) that he "did then and there while so assembled and acting together create an immediate danger of damage to property or injury to persons." (Emphasis added). By requiring the jury to find that he participated in the creation of the danger, the charge necessarily required it also to find that he knew of the resulting wrongful conduct of the assemblage. See Faulk, 608 S.W.2d at 632; but cf. Hirschi, 683 S.W.2d at 418. This was sufficient // to charge the essential element of the offense i.e., that he knowingly participated in the assemblage knowing of its wrongful conduct. See Faulk, 608 S.W.2d at 632. Point three is overruled.

The fourth point, like point three, is based on the premise that the court failed to require the jury to find that he knowingly participated in a riot. Sanchez argues under point four that, by failing to require the jury to find an essential element of the offense, the charge rendered the court's instructions "unconstitutional." Having rejected Sanchez' basic premise in disposing of the third point, we likewise overrule point four.

The sixth point is a complaint that the court erred when it refused to instruct the jury that "mere presence at a riot does not make one a knowing participant in a riot." The court instructed the jury that a person "commits the offense of participating in a riot if he knowingly participates in a riot." Moreover, in applying the law to the facts, the court required the jury to convict only if they found that Sanchez knowingly participated in the assemblage and, while so assembled and acting together, that he created the wrongful conduct. As noted above, this fairly charged the essential element of knowingly participating in a riot. See id. An instruction is sufficient if the charge fairly presents the law applicable to the facts. Garcia v. State, 634 S.W.2d 888, 893 (Tex. App. San Antonio 1982, no pet.) (citing Adams v. State, 113 Tex. Crim. 501, 21 S.W.2d 1057, 1060 (1929)). The instruction requiring Sanchez' knowing participation in the riot, both in the abstract and as applied to the facts, fairly presented the applicable law and was thus sufficient to protect his rights. There was no error in refusing to instruct on mere presence. We overrule the sixth point.

In point seven, Sanchez complains about the following abstract instruction:

A [person] acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

See Tex. Penal Code Ann. 6.03(b) (Vernon 1974). He contends that "murder by riot" is a result-oriented offense, rather than a conduct-oriented offense, because the riot statute allows a conviction for murder without any intent on the accused's part. Accordingly, he first argues that the court should have charged on intent.

Sanchez was not convicted of murder; he was convicted of riot by murder. A conviction for simple riot is a Class B misdemeanor. Id. 42.02(e) (Vernon 1989). Sanchez was susceptible, however, to the increased range of punishment for murder a crime of greater degree committed by the participants in the riot. See id. 42.02(f). The riot statute requires only a knowing participation in a riot. Id. 42.02(d). Thus, the court was not required to charge on intent.

He also asserts under point seven that the court should not have included the first sentence of the quoted instruction in the charge because murder by riot, as he characterizes his conviction, is a result-oriented offense. Neither of his objections were made in the trial court. Assuming that his last complaint has merit, however, the question is whether he suffered egregious harm from the charging error. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1986) (on rehearing). That is, he must show that the charging error denied him a fair and impartial trial. See id. Considering the entire charge, the evidence and its weight, the contested issues, and the arguments of counsel, we find that the assumed charging error did not deny Sanchez a fair and impartial trial. Point seven is overruled.

The riot statute contains a defense: "It is a defense to prosecution under this section that the assembly was at first lawful and when one of those assembled manifested an intent to engage in conduct [constituting a riot], the actor retired from the assembly." Tex. Penal Code Ann. 42.02(c). The court included an abstract instruction on the defense and then repeated it in the portion of the charge applying the law to the facts:

It is a defense to this prosecution if the assembly was at first lawful, and when one of those assembled manifested an intent to engage in conduct which would create an immediate danger of damage to property or (injury to persons), [Sanchez] retired from the assembly.

Therefore, even if you believe from the evidence beyond a reasonable doubt that [Sanchez] committed the offense of riot, as alleged, but you further believe, or you have a reasonable doubt thereof, that the assemblage, if any, was at first lawful, and that when one of those assembled manifested an intent to engage in conduct which would create an immediate danger of damage to property and (injury to persons), if anyone so did, [Sanchez] retired from the alleged assemblage, you will find [him] not guilty.

(Emphasis added).

Sanchez asked the court to expand the abstract instruction to require the jury to acquit him if it found that he "retired from the assembly to the extent reasonably possible under the circumstances." Because the evidence established that the inmates were locked in the dayroom when the riot erupted, he argued that the expanded instruction was necessary to keep the jury from rejecting the defense on the ground that he did not "retire from the assembly" by leaving the dayroom area. His eighth point is based on the refusal of his requested instruction.

An instruction is sufficient if the charge fairly presents the law applicable to the facts. Garcia, 634 S.W.2d at 893. The charge with the defensive instruction, which tracked the language of the statute and was fairly applied to the facts, fairly presented the law and was sufficient to protect Sanchez' rights. Thus, the court did not err in refusing to expand the instruction. Point eight is overruled.

Point nine is a complaint that the charge did not contain an accomplice-witness instruction with respect to six inmate-witnesses who testified for the State. Sanchez contends the evidence established that four of the six were accomplices as a matter of law and two were accomplices as a matter of fact. This complaint was not raised in the trial court, which means he must show that the omitted instruction resulted in egregious harm. See Solis v. State, 792 S.W.2d 95, 97 (Tex. Crim. App. 1990). If evidence independent of an accomplice-witness' testimony clearly supports a conviction, then no harm results from the omission of the instruction. Id. at 98 (citing Thompson v. State, 493 S.W.2d 913 (Tex. Crim. App. 1971)).

Sanchez could be convicted of riot by murder upon proof that he knowingly participated in the riot; that the murder resulted from the riot; and that the murder was in furtherance of the purpose of the riotous assembly or should have been anticipated as a result of the riot. See Tex. Penal Code Ann. 42.02(a)(1), (b), (f)(1), (2). If he knowingly participated in the riot, he is criminally responsible for the murder even though he did not solicit, encourage, direct, aid or attempt to aid in the stabbing of the deceased inmate. See Faulk, 608 S.W.2d at 629-30 (holding that the vicarious criminal responsibility under the riot statute is much broader than that under the law of parties).

Sergeant Dalton, a prison guard, testified that only the Hispanic inmates were wielding weapons during the riot and that black inmates were using benches in the dayroom as a barricade and as shields against attacks by approximately forty Hispanics. Officer Denard Williams saw all of the Hispanic inmates in the dayroom participating in the riot. He said the number of weapons found in the dayroom indicated that the Hispanic inmates had planned the attack on the blacks. Officer Brad Taylor saw Sanchez during the riot in the front line of the attacking Hispanic inmates, where their leaders normally position themselves. Furthermore, the evidence is undisputed that the inmate who died from stab wounds was injured during the riot. This evidence, which is independent of any testimony given by any inmate-witnesses who might be considered accomplices, is sufficient for any rational jury to find all of the elements of riot by murder. Consequently, assuming that an accomplice-witness instruction should have been given, Sanchez did not suffer any harm let alone, egregious harm from its omission. See Solis, 792 S.W.2d at 98. We overrule point nine.

ADMISSION OF EVIDENCE

Sanchez has three points relating to the admission of testimony over his objection and the court's refusal to allow him to take a witness on voir dire during testimony. In point ten he contends that the court improperly admitted the opinion testimony of Officer Williams that, based on his over four years' experience as a corrections officer, the riot appeared to have been planned by the Hispanic inmates. The eleventh point is based on the refusal to allow Sanchez to test Williams' qualifications as an expert by voir dire.

Sanchez objected to Williams' opinion testimony on the grounds of "assumptions and speculation" and that he was being "unresponsive." Only after these objections were overruled and Williams had stated his opinion that the riot was planned did Sanchez request that he be allowed to test his qualifications as an expert by voir dire.

Points ten and eleven are overruled for the following reasons. First, the objections at trial do not comport with the complaint on appeal i.e., the State never qualified Williams as an expert. Therefore, nothing is presented for review. See Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991), cert. denied, 112 S. Ct. 202, 116 L. Ed. 2d 162 (1991). Second, the request to take the witness on voir dire came too late because the opinion testimony had already been properly admitted over the objections. See Tex. R. App. P. 52(a).

Finally, his last point is a complaint that the court improperly admitted hearsay and opinion testimony of inmate Roosevelt Trammel that the riot was planned. Evidence that the riot was planned had already been properly admitted through the expert opinion testimony of prison guards before Sanchez objected to Trammel's testimony. Thus, the objection came too late to preserve a complaint for appellate review. See id. We overrule point twelve.

SUFFICIENCY OF THE EVIDENCE

Sanchez alleges in his fifth point that the evidence is insufficient to prove that the murder of Donovan Ingram was in furtherance of the purpose of the riotous assemblage or should have been anticipated as a result of the riot. As already noted, the evidence is sufficient to prove that the riot was planned by the Hispanic inmates and that they came prepared with shanks (knives) and other weapons to aid them in their purpose. Any rational jury could find beyond a reasonable doubt from this evidence that a stabbing death should have been anticipated as a result of the riot. Point five is overruled.

We affirm the judgment.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and file March 31, 1993

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