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NO. ___________________



THE STATE OF TEXAS

V.
JOHN DOE

§ IN THE ________DISTRICT COURT

§

§ OF

§

§ _____________ COUNTY, TEXAS


DEFENDANT'S MOTION FOR DIRECTED VERDICT OF ACQUITTAL
TO THE HONORABLE JUDGE OF SAID COURT:

Comes now, JOHN DOE, Defendant herein, by and through his attorney of record, and based the facts herein, applicable law and the supporting arguments below, moves the Court to take the case away from the jury and to direct a verdict of not guilty as a matter of law. The jury should not be permitted an opportunity to convict Defendant, because either there is a fatal variance between the allegations of the indictment and the proof offered by the State or the State failed to present sufficient evidence from which a rational trier of fact could find beyond a reasonable doubt that Defendant is criminally responsible as the primary actor or as a party for committing each essential element of the crime alleged in the charging instrument and each lesser-included offense thereto.


Respectfully submitted by Defendant's attorney,


______________________________

Attorney for Defendant


ARGUMENT

The court should so acquit Defendant based on the following authorities.



Insufficient Evidence to Convict: Defendant contends there is legally insufficient evidence for the court to conclude beyond a reasonable doubt that Defendant was either the primary actor or criminally responsible as a party for the acts of another. Defendant argues that though the trial's evidence may show knowledge of the crime(s) about to be committed, there is no evidence upon which the jury could find beyond a reasonable doubt and convict Defendant of acting either “alone” or as a primary actor in the offense(s) charged herein. Defendant also contends no proof shows he had the intent to promote or assist in the commission of charged offense(s) or any lesser included offense thereof.

Constitutional Requisites: In Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 2080-2081, 124 L.Ed.2d 182 (1993), the Court said (footnote omitted):

The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury...." In Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491 (1968), we found this right to trial by jury in serious criminal cases to be "fundamental to the American scheme of justice," and therefore applicable in state proceedings. The right includes, of course, as its most important element, the right to have the jury rather than the judge, reach the requisite finding of "guilty." See Sparf v. United States, 156 U.S. 51, 105-106, 15 S.Ct. 273, 294-295, 39 L.Ed. 343 (1895). Thus, although a judge may direct a verdict for the defendant if the evidence is legally insufficient to establish guilt, he may not direct a verdict for the State, no matter how overwhelming the evidence. Ibid. See also United States v. Martin Linen Supply Co., 430 U.S. 564, 572-573, 97 S.Ct. 1349, 1355-1356, 51 L.Ed.2d 642 (1977); United Brotherhood of Carpenters & Joiners v. United States, 330 U.S. 395, 410, 67 S.Ct. 775, 783, 91 L.Ed. 973 (1947).


What the factfinder must determine to return a verdict of guilty is prescribed by the Due Process Clause. The prosecution bears the burden of proving all elements of the offense charged, see, e.g., Patterson v. New York, 432 U.S. 197, 210, 97 S.Ct. 2319, 2327, 53 L.Ed.2d 281 (1977); Leland v. Oregon, 343 U.S. 790, 795, 72 S.Ct. 1002, 1005, 96 L.Ed. 1302 (1952), and must persuade the factfinder "beyond a reasonable doubt" of the facts necessary to establish each of those elements, see, e.g., In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970); Cool v. United States, 409 U.S. 100, 104, 93 S.Ct. 354, 357, 34 L.Ed.2d 335 (1972) (per curiam). This beyond-a-reasonable-doubt requirement, which was adhered to by virtually all common-law jurisdictions, applies in state as well as federal proceedings. Winship, supra.
It is self-evident, we think, that the Fifth Amendment requirement of proof beyond a reasonable doubt and the Sixth Amendment requirement of a jury verdict are interrelated. It would not satisfy the Sixth Amendment to have a jury determine that the defendant is probably guilty, and then leave it up to the judge to determine (as Winship requires) whether he is guilty beyond a reasonable doubt. In other words, the jury verdict required by the Sixth Amendment is a jury verdict of guilty beyond a reasonable doubt. Our per curiam opinion in Cage, which we accept as controlling, held that an instruction of the sort given here does not produce such a verdict. Petitioner's Sixth Amendment right to jury trial was therefore denied.

Standard of Review on Legal Sufficiency: A challenge to the trial judge's ruling on a motion for an instructed verdict is in actuality a challenge to the sufficiency of the evidence to support the conviction. Cook v. State, 858 S.W.2d 467, 471 (Tex.Cr.App. 1993). Such challenge to the sufficiency of the evidence to support the conviction requires the trial judge to review all the submitted evidence in the light most favorable to the State to determine if any rational trier of fact could have found each essential element of the charged crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2788-2789, 61 L.Ed.2d 560 (1979); Zavala v. State, 956 S.W.2d 715 (Tex. App.–Corpus Christi., 1997, no pet.).

Beyond a Reasonable Doubt Standard: In Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 329-330, 112 L.Ed.2d 339 (1990), the Court said (footnote omitted):
In state criminal trials, the Due Process Clause of the Fourteenth Amendment "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970); see also Jackson v. Virginia, 443 U.S. 307, 315-316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560 (1979). This reasonable-doubt standard "plays a vital role in the American scheme of criminal procedure." Winship, 397 U.S., at 363, 90 S.Ct., at 1072. Among other things, "[i]t is a prime instrument for reducing the risk of convictions resting on factual error." Ibid. The issue before us is whether the reasonable-doubt standard instruction in this case complied with Winship.
*****
It is our view, however, that the instruction at issue was contrary to the "beyond a reasonable doubt" requirement articulated in Winship.
In construing the instruction, we consider how reasonable jurors could have understood the charge as a whole. Francis v. Franklin, 471 U.S. 307, 316, 105 S.Ct. 1965, 1972, 85 L.Ed.2d 344 (1985). The charge did at one point instruct that to convict, guilt must be found beyond a reasonable doubt; but it then equated a reasonable doubt with a "grave uncertainty" and an "actual substantial doubt," and stated that what was required was a "moral certainty" that the defendant was guilty. It is plain to us that the words "substantial" and "grave," as they are commonly understood, suggest a higher degree of doubt than is required for acquittal under the reasonable-doubt standard. When those statements are then considered with the reference to "moral certainty," rather than evidentiary certainty, it becomes clear that a reasonable juror could have interpreted the instruction to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause.

Timing of Standard of Review: An appellate court is not required to pass on the contention that the evidence was insufficient at the time the State rested its case-in-chief once the appellate court has determined, after considering all the evidence presented at trial by both the State and the defendant, the evidence is sufficient to sustain the conviction. Cook v. State, 858 S.W.2d 467, 471 (Tex.Crim.App. 1993).

Essential elements of charged crime: A person commits an offense if he intentionally or knowingly causes the death of an individual. Tex. Pen. Code § 19.02(b)(1) (1996). The statutory elements of that crime are:

(a) a person

(b) intentionally or knowingly

(c) causes the death



(d) of an individual.

See Braudrick v. State, 572 S.W.2d 709, 710 (Tex.Cr.App. 1978) [construing pre-1994 Tex. Pen. Code § 19.02(a)(1)].

Conduct Elements of the Crime: Intentional murder under Tex. Pen. Code § 19.02(a) (1) is a "result of offense" offense. Cook v. State, 884 S.W.2d 485, 487-491 (Tex.Crim.App. 1994) [construing pre-1994 Tex. Pen. Code § 19.02(a)(1), and holding it is error for a trial judge to not limit the definitions of the culpable mental states as they relate to the conduct elements involved in the particular offense, since the most basic and fundamental concept of criminal law is that in order to constitute a crime, the act or actus reus must be accompanied by a criminal mind or mens rea, which the Texas Legislature recognized by enacting four separate culpable mental states in Tex. Pen. Code § 6.03].

Precedent: The evidence is insufficient to convict under Tex. Pen. Code § 19.02(a)(1) (1974), where the only evidence was that the defendant was present at scene of the stabbing, and the medical examiner testified the wound could have been self-inflicted, and since the burden of proof never shifted from the State, conviction could not rest only on disbelief of the defendant's exculpatory testimony, where the State did not exclude every reasonable hypothesis except the defendant's guilt. Wright v. State, 603 S.W.2d 838 (Tex.Crim.App. 1979) (on rehearing) [judgment reversed and trial court ordered to enter an acquittal].

Jackson Standards: In reviewing the legal sufficiency of the evidence, the Court must employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This calls on the Court to view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991); Skillern v. State, 890 S.W.2d 849, 879 (Tex.App. Austin 1994, pet. ref'd). The standard of review is the same in both direct and circumstantial evidence cases. King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995); Green v. State, 840 S.W.2d 394, 401 (Tex.Crim.App. 1992). In a circumstantial evidence case, proof amounting only to a strong suspicion is not enough. Vaughn v. State, 607 S.W.2d 914, 921 (Tex.Crim.App. 1980). Nevertheless, every fact need not point directly and independently to the accused's guilt; a conclusion of guilt can rest on the combined and cumulative force of all the incriminating circumstances. Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex.Crim.App. 1981), cert. denied, 456 U.S. 910, 102 S.Ct. 1760, 72 L.Ed.2d 169 (1982).

The State may prove its case by circumstantial evidence if it proves all of the elements of the charged offense beyond a reasonable doubt. Easley v. State, 986 S.W.2d 264, 271 (Tex.App. San Antonio 1998, no pet.) (citing Jackson, 443 U.S. at 319). The sufficiency of the evidence is determined from the cumulative effect of all the evidence; each fact in isolation need not establish the guilt of the accused. Alexander v. State, 740 S.W.2d 749, 758 (Tex.Crim.App. 1987). It is important to remember that all the evidence the jury was permitted, properly or improperly, to consider must be taken into account in determining the legal sufficiency of the evidence. Garcia v. State, 919 S.W.2d 370, 378 (Tex.Crim.App. 1994); Johnson v. State, 871 S.W.2d 183, 186 (Tex.Crim.App. 1993); Nickerson v. State, 810 S.W.2d 398, 400 (Tex.Crim.App. 1991); Rodriguez v. State, 939 S.W.2d 211, 218 (Tex.App. Austin 1997, no pet.).

The jury is the exclusive judge of the facts proved, the weight to be given the testimony, and the credibility of the witnesses. See Tex. Crim. Proc. Code article 38.04; Alvarado v. State, 912 S.W.2d 199, 207 (Tex.Crim.App. 1995); Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). The jury is free to accept or reject any or all of the evidence presented by either party. Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). The jury maintains the power to draw reasonable inferences from basic facts to ultimate fact. Welch v. State, 993 S.W.2d 690, 693 (Tex.App. San Antonio 1999, no pet.); Hernandez v. State, 939 S.W.2d 692, 693 (Tex.App. Fort Worth 1997, pet. ref'd). Moreover, the reconciliation of evidentiary conflicts is solely within the province of the jury. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex.Crim.App. 1995).

Under the Jackson standard, neither trial nor reviewing courts are to position itself as a thirteenth juror in assessing the evidence. Rather, it is to position itself as a final due process safeguard insuring only the rationality of the fact finder. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988). It is not the reviewing court's duty to disregard, realign, or weigh the evidence. Id.; see also Pesina v. State, 949 S.W.2d 374, 377 (Tex.App.-San Antonio 1997, pet. ref'd). The jury's verdict must stand unless it is found to be irrational or unsupported by more than a "mere modicum" of evidence, with such evidence being viewed in the light of Jackson. Id. The legal sufficiency of the evidence is a question of law. McCoy v. State, 932 S.W.2d 720, 724 (Tex.App. Fort Worth 1996, pet. ref'd).

Parties Law: A person is criminally responsible as a party to an offense if the offense is committed by .... the conduct of another for which he is criminally responsible. Tex. Pen. Code § 7.01(a). A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Tex. Pen. Code § 7.02(a)(2).

Under the law of parties, the State is able to enlarge a defendant's criminal responsibility to acts in which he may not be the primary actor. See Goff v. State, 931 S.W.2d 537, 544 (Tex.Crim.App. 1996); Romo v. State, 568 S.W.2d 298, 300 (Tex.Crim.App. 1977) (op. on reh'g). When an accused promotes or assists in the commission of an offense, he also shares the criminal responsibility. See Haddad v. State, 860 S.W.2d 947, 950 (Tex.App. Dallas 1993, pet. ref'd). If the State is to prove the accused's guilt as a party, it must first prove the guilt of another person as the primary actor. See Richardson v. State, 879 S.W.2d 874, 882 (Tex.Crim.App.1993); Forbes v. State, 513 S.W.2d 72, 79 (Tex.Crim.App. 1974); Godwin v. State, 899 S.W.2d 387, 389 (Tex.App. Houston [14th Dist.] 1995, pet. ref'd).



Before undertaking a determination of the legal sufficiency of the evidence to support appellant's conviction as a party, the court must examine the law of parties. When an accused promotes or assists in the commission of an offense, he also shares the criminal responsibility. Haddad, 860 S.W.2d at 950. If the State is to prove the accused's guilt as a party, it must first prove the guilt of another person as the primary actor. Richardson v. State, 879 S.W.2d 874, 882 (Tex.Crim.App. 1993), cert. denied, 513 U.S. 1085, 115 S.Ct. 741, 130 L.Ed.2d 643 (1995); Forbes v. State, 513 S.W.2d 72, 79 (Tex.Crim.App. 1974), cert. denied, 420 U.S. 910, 95 S.Ct. 830, 42 L.Ed.2d 840 (1975); Godwin v. State, 899 S.W.2d 387, 389 (Tex.App. Houston [14th Dist.] 1995, pet. ref'd). If the evidence is insufficient to convict the named or unnamed co defendant as a primary actor, it follows that the trial court has authorized a conviction of the defendant as a party on a theory unsupported by the evidence. Richardson, 879 S.W.2d at 882. To prove Defendant was a party, the State had to prove Defendant committed an act, which solicited, encouraged, directed, aided, or attempted to aid in the commission of the offense of conviction. See Tex. Pen. Code § 7.02(a)(2). In order to establish liability as a party, it must be proven that, in addition to the illegal conduct by the primary actor, the accused harbored the specific intent to promote or assist in the commission of the offense, i.e., intentional murder. Lawton v. State, 913 S.W.2d 542, 555 (Tex.Crim.App. 1995), cert. denied, 519 U.S. 826, 117 S.Ct. 88, 136 L.Ed.2d 44 (1996), overruled by Mosely v. State, 983 S.W.2d 249 (Tex.Crim.App. 1998); Tucker v. State, 771 S.W.2d 523, 530 (Tex.Crim.App. 1988), cert. denied, 492 U.S. 912, 109 S.Ct. 3230, 106 L.Ed.2d 578 (1989); Barnes v. State, 62 S.W.3d 288, 296 (Tex.App. Austin 2001, pet. ref'd); Pesina v. State, 949 S.W.2d 374, 382 (Tex.App. San Antonio 1997, no pet.); Garcia v. State, 871 S.W.2d 279, 281 (Tex.App. El Paso 1994, no pet.) (holding evidence must show conduct constituting offense plus an act or acts by accused done with the intent to promote or assist such conduct). The accused must know that he or she is assisting in the commission of an offense. Amaya v. State, 733 S.W.2d 168, 174 175 (Tex.Crim.App. 1986); Pesina, 949 S.W.2d at 382; Price v. State, 911 S.W.2d 129, 131 (Tex.App. Corpus Christi 1995, pet. ref'd). The agreement, if any, must be before or contemporaneous with the criminal event. See Beier v. State, 687 S.W.2d 2, 3 4 (Tex.Crim.App. 1985); Miranda v. State, 813 S.W.2d 724, 732 (Tex.App. San Antonio 1991, pet. ref'd). The evidence must show that at the time of the commission of the offense, the parties were acting together, each doing some part of the execution of the common design. Brooks v. State, 580 S.W.2d 825, 831 (Tex.Crim.App. 1979); Thomas v. State, 915 S.W.2d 597, 599 600 (Tex.App. Houston [14th Dist.] 1996, pet. ref'd); Cornejo v. State, 871 S.W.2d 752, 755 756 (Tex.App. Houston [1st Dist.] 1993, pet. ref'd). The essential principle of parties' culpability is the common design to do a criminal act. Brooks, 580 S.W.2d at 831.

While an agreement of the parties to act together in a common design seldom can be proved by direct evidence, reliance may be had on the actions of the parties, showing by either direct or circumstantial evidence, an understanding and common design to do a certain act. Burdine v. State, 719 S.W.2d 309, 315 (Tex.Crim.App. 1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1590, 94 L.Ed.2d 779 (1987); Ex parte Prior, 540 S.W.2d 723, 727 728 (Tex.Crim.App. 1976); Bratcher v. State, 771 S.W.2d 175, 183 (Tex.App. San Antonio 1989, no pet.). Circumstantial evidence alone may be sufficient to show that one is a party to the offense. Wygal v. State, 555 S.W.2d 465, 469 (Tex.Crim.App. 1977); see also Beardsley v. State, 738 S.W.2d 681, 684 (Tex.Crim.App. 1987).

The State must show more than mere presence to establish participation in a criminal offense. Valdez v. State, 623 S.W.2d 317, 321 (Tex.Crim.App. 1981). Mere presence or even knowledge of an offense do not make one a party to the offense. Oaks v. State, 642 S.W.2d 174, 177 (Tex.Crim.App. 1982); Acy v. State, 618 S.W.2d 362, 365 (Tex.Crim.App. 1981); see Monroe v. State, 47 Tex.Crim. 59, 81 S.W. 726, 727 (Tex.Crim.App. 1904) (holding mere fact defendant who was present but did not participate or aid in homicide, concealed the offense for a time or failed to report killing, did not make him guilty of any offense). Mere presence at the scene of a crime is not alone sufficient to prove that a person is a party to the offense, although mere presence is a circumstance tending to prove that a person is guilty as a party to the offense, which, when taken and combined with other facts, may suffice to show that the accused was a participant. Beardsley v. State, 738 S.W.2d 681, 685 (Tex.Crim.App. 1987); see Wygal, 555 S.W.2d at 469; Barnes v. State, 62 S.W.3d 288, 297 (Tex.App. Austin 2001, pet. ref'd). In determining whether an accused participated in the offense as a party, the fact finder may examine the events occurring before, during, and after the commission of the offense, and may rely on the actions of the defendant which show an understanding and common design to commit the offense. Beier v. State, 687 S.W.2d 2, 4 (Tex.Crim.App. 1985); see Thompson v. State, 697 S.W.2d 413, 416 (Tex.Crim.App. 1985); Diaz v. State, 902 S.W.2d 149, 151 152 (Tex.App.-Houston [1st Dist.] 1995, no pet.). The evidence must show that, at the time of the offense, the parties were acting together, each contributing some part toward the execution of the common purpose. Burdine v. State, 719 S.W.2d 309, 315 (Tex.Crim.App. 1986).

One's acts committed after the offense is completed cannot make him a party to the offense. Morrison v. State, 608 S.W.2d 233, 235 (Tex.Crim.App. 1980); Guillory v. State, 877 S.W.2d 71, 74 (Tex.App. Houston [1st Dist.] 1994, pet. ref'd). Standing alone, proof that an accused assisted the primary actor after the commission of the offense is insufficient, although the accused's conduct may constitute the independent offense of hindering apprehension or prosecution.1 See Urtado v. State, 605 S.W.2d 907, 912 (Tex.Crim.App. 1980). The 1925 Texas Penal Code provision (article 77) that an accessory after the fact was a party to the crime has been repealed. Urtado, 605 S.W.2d at 912; see also Wygal, 555 S.W.2d at 470; Easter v. State, 536 S.W.2d 223, 228 229 (Tex.Crim.App. 1976); 42 George E. Dix and Robert O. Dawson, Criminal Practice and Procedure, § 31.163 at 252 (Texas Practice 1995).

Case's Analysis: With this background, the Court must examine the evidence to determine if the evidence is legally sufficient to establish beyond a reasonable doubt that Defendant was "acting alone" or as a primary actor in the murder alleged. The State's theory from voir dire examination to its opening statement to its final argument was that Defendant's guilt depended upon the law of parties. The State urges now that a general verdict by the jury would support Defendant's conviction as a party to the offense of _________. To the contrary, Defendant contends that if the jury in the instant case returns a general verdict, that verdict cannot be upheld on any theory discussed above although submitted.

Where no eye witnesses to the offense testified, there is no direct evidence supporting the allegations that Defendant intentionally or knowingly and acting alone or as a primary actor ________ the victim with _______. No showing was made of any prior relationship between Defendant and the victim and there was certainly no direct evidence which placed Defendant in the company of the victim until after the infliction of the fatal wound. Suspicions abound, but neither the direct nor circumstantial evidence is sufficient to support Defendant's conviction as a primary actor or as "acting alone." It is appropriate, where alternative theories of committing the same offense are submitted to the jury in the disjunctive, for the jury to return a general verdict if the evidence is sufficient to support a finding under any of the theories submitted. Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App. 1991), cert. denied, 504 U.S. 958, 112 S.Ct. 2309, 119 L.Ed.2d 230 (1992).

Illuminating insufficiency cases are:

1. Cotella v. State, 860 S.W.2d 618, 622 (Tex.App.))Corpus Christi 1993, no pet.). Even though the trier of fact may look at events occurring before, during, and after the offense in determining whether the accused participated in the offense charged, the appeals court ordered an acquittal since appellant acted recklessly, not with the intent to promote or assist the two murders charged beyond a reasonable doubt, although appellant knew or reasonably should have known that her husband was going to kill the men if appellant continued to lie about them raping her.

2. Wygal v. State, 555 S.W.2d 465, 468-470 (Tex.Crim.App. 1977). The court reversed the judgment revoking probation, since under the circumstances the evidence was by a preponderance of the evidence insufficient to show that appellant acting alone or as a party had committed the theft of the Mark IV automobile. The court noted: (a) the record is silent as to any direct burden of any common purpose or design to participate in the criminal enterprise; (b) the case's circumstances are not sufficient to show appellant acted with intent to promote or assist the commission of the offense, by soliciting, encouraging, directing, aiding, or attempting to aid another person to commit the offense charged; and (c) since appellant's acts came after the offense had been completed, she could not be convicted as a party because the 1974 Tex. Pen. Code abolished criminal liability for an accessory after the fact except under Tex. Pen. Code § 38.05, which is inapplicable herein.

3. Sewell v. State, 578 S.W.2d 131, 136-137 (Tex.Crim.App. 1979). The court reversed the judgment below and ordered an acquittal since: (a) the State must prove that the defendant acted with intent to promote or assist in the commission of the offense of Smith's possession of more than four ounces of marihuana by soliciting, encouraging, directing, aiding, or attempting to aid the other person in its commission under Tex. Pen. Code § 7.02(a)(2); and (b) although the State's proof can be circumstantial evidence and the evidence is viewed in regards to events before, during and after commission of the offense, the only evidence in this case involving appellant was as to events before the offense occurred; but there is no evidence of any aiding in the carrying out of the offense in any way other than riding in the car before that car was loaded at the trailer.

4. Morrison v. State, 608 S.W.2d 233 (Tex.Crim.App. 1980) (appeals court ordered reversal of the judgment of conviction for aggravated robbery and ordered an acquittal, because: (a) in determining whether an individual is a party to an offense and bears criminal responsibility therefor, the court may look to events before, during, and after the commission of the offense; (b) circumstantial evidence may be sufficient to show that one is a party to the offense; (c) the issue on appeal is whether the circumstances in this case sufficiently establish that appellant, acting with intent to assist or promote the robbery, committed an act that encouraged, directed, aided or attempted to aid Clement in his commission of the aggravated robbery; (d) acts committed after the robbery was completed could not make appellant a party to the offense; (e) the circumstances must prove some culpable act before or during the robbery; (f) since appellant was not the primary actor, the presumption that one in unexplained possession of recently stolen property was the thief could not apply; (g) the conclusion that appellant committed some culpable act rests entirely on conjecture; and (h) the evidence was not sufficient to show that appellant committed some act with intent to promote or assist the commission of the offense, by encouraging, directing, aiding, or attempting to aid clement to commit the robbery.

5. Porter v. State, 634 S.W.2d 846 (Tex.Crim.App. 1982). The court set aside and reformed the judgment of conviction for murder to show an acquittal, since in this felony murder prosecution under Tex. Pen. Code § 19.02(a)(3) the evidence was insufficient to support conviction of appellant as a party responsible for Felder's guilt in murdering the victim, Ivan Stout, in the course and furtherance of the commission of the burglary of a habitation. The court noted: (a) the issue presented is whether the evidence could have reasonably been interpreted by the jury to show appellant's participation in the offense in such a manner so as to render appellant guilty as a party to Felder's actions; (b) a defendant is guilty as a party to an offense when he is physically present at the commission of the offense and encourages the commission of the offense by words or other agreement; (c) in determining whether the accused participated as a party in committing an offense, the fact finder may look to events occurring before, during and after the offense and reliance may be placed on actions which show an understanding and common design to do a certain act; (d) however, mere presence alone will not be sufficient to show a defendant's guilt as a party to an offense; (e) the State did not present direct evidence which proved appellant was a party to the burglary or subsequent murder of Stout; and (f) while appellant's presence at the scene of the offense and her actions in screaming at Stout and providing a false name raise a suspicion, such proof alone is insufficient to support appellant's conviction that she acting with the intent to promote or assist in the commission of the burglary and murder, solicited, encouraged, directed, aided, or attempted to aid Felder in the commission of the offense.

6. Beier v. State, 687 S.W.2d 2 (Tex.Crim.App. 1985). The appeals court reversed the judgments below and ordered an acquittal in a prosecution for selling obscene materials in violating of Tex. Pen. Code § 43.23(c)(1), since the evidence is insufficient to sustain appellant's conviction. The court noted: (a) where the evidence shows that the defendant was not a "primary actor," but at most responsible for the actions of the "primary actor," the State must prove another's conduct constituting an offense plus an act by the accused done with the intent to promote or assist such conduct; (b) evidence is sufficient to convict the defendant under the law of parties where he is physically present at the commission of the offense either by words or other agreement; (c) the agreement, if any, must be before or contemporaneous with the criminal conduct; (d) mere presence alone without evidence of intentional participation is insufficient; (e) in determining whether the accused participated as a party, the court may look to events occurring before, during and after the commission of the offense, and may rely on actions of the accused which show an understanding and common design to do the prohibited act; (f) circumstantial evidence may be used to prove one is a party to an offense; (g) under Texas law a person is not punished for his status, but for his conduct; (h) the law does not authorize the accused's conviction based upon proof of his status as the manager of an enterprise, so long as he knew that the enterprise had criminal potential; (i) applying the law of parties as set forth in Tex. Pen. Code § 7.02(a)(2) to the allegations in the charging instrument, the essential elements of the offense are that the accused solicited, encouraged, directed, aided, or attempted to aid the sales clerk in the sale of the named film, and that accused did so, not inadvertently, but with intent to promote or assist the sale of said film, and that accused had knowledge of the character and content of the film; (j) since the State failed to prove an act by the accused that directed, aided, encouraged, or assisted in the commission of the charged offense, no rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt; and (k) therefore, the evidence is insufficient to support appellant's conviction.

7. Skelton v. State, 795 S.W.2d 162, 166-170 (Tex.Crim.App. 1990). The court held evidence was not sufficient beyond a reasonable doubt to convict appellant either as a sole actor or as a party of capital murder, because the evidence does not exclude every other reasonable hypothesis.

8. Medrano v. State, 658 S.W.2d 787, 790-794 (Tex.App.))Houston [1st Dist.] 1983, pet. ref'd). The appeals court affirmed the conviction as to Roland Medrano and ordered an acquittal as to Ronald Medrano, pointing out that (a) agreement of parties to act together in committing an offense may be established by circumstantial evidence, but a conviction will not be sustained on appeal if the evidence does not sufficiently establish all material elements of the offense charged; (b) to determine whether an individual is criminally responsible for the conduct of a primary actor, a court may look to events before, during, and after the commission of an offense, but there must be evidence of a common purpose or design prior to or contemporaneous with the criminal event; (c) accessory conduct is no longer recognized under Texas law as conduct making one a party; and (4) such acts are now prohibited under Tex. Pen. Code § 38.05 (1974), which defines a separate and distinct crime of "hindering apprehension or prosecution."

STATE'S PROOF OMISSIONS: In this instance, the State may try to prove Defendant could be convicted as the primary actor. If so, the State is required to prove Defendant intentionally or knowingly caused the death of the alleged victim by _______ the victim with ________, a deadly weapon. The specific allegations in the indictment became "facts required to establish the charged offense." Wray v. State, 711 S.W.2d 631, 633 (Tex.Crim.App. 1986); Windham v. State, 638 S.W.2d 486, 487 488 (Tex.Crim.App. 1982).

This is where the evidence fails. There is no evidence that Defendant intentionally or knowingly did any act making him/her criminal responsible as the primary actor for committing the crime alleged in the charging instrument.

On the other hand in this instance, the State may try to prove Defendant could be convicted as a party. As such, the State was required to prove the crime alleged in the charging instrument, plus an act by Defendant committed with the specific intent to promote or assist in the commission of the crime alleged in the charging instrument. This is where the evidence fails. There is no evidence that Defendant did any act with an intention to promote or assist the crime alleged in the charging instrument or that he knew he was assisting in the commission of an offense.

Reviewing the evidence that is most favorable to a possible verdict favoring the State, the Court should find that Defendant was merely present during another's commission of the crime alleged in the charging instrument. None of Defendant's actions show any intent to assist in the commission of a crime. There is no evidence as to which of the parties drove the vehicle. There is no evidence as to whether Defendant was armed with a firearm or other deadly weapon at the time in question. There is no evidence of any actions showing Defendant and the other parties had an understanding or design to commit a felony. After reviewing the relevant evidence in the light most favorable to the jury's possible verdict of conviction, the Court has to determine that a rational trier of fact could not find beyond a reasonable doubt the essential elements to convict Defendant either as the primary actor or as a party to the offense charged in the indictment. Thus, the Court should find that the evidence is legally insufficient, direct a verdict of not guilty, and render a judgment of acquittal.

Insufficiency for Accomplice Witness(es) Not Corroborated: In challenging the sufficiency of the evidence, Defendant submits that aside from the testimony of the accomplice witnesses, the nonaccomplice evidence shows no more than his nervousness before, and his presence at the time of, the officers' arrival, which are legally insufficient to support the conviction. This Court should agree.

MURDER CASE: Having each been also prosecuted for the offense for which defendant was being tried, state's witnesses ______________ and____________ were each an accomplice as a matter of law. McFarland v. State, 928 S.W.2d 482, 544 (Tex.Crim.App. 1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 966, 136 L.Ed.2d 851 (1997). As accomplice witnesses, __________ and ____________ were each discredited to the extent that either's testimony alone or jointly cannot furnish the basis for the conviction, Walker v. State, 615 S.W.2d 728, 731 (Tex.Crim.App. 1981), "unless corroborated by other evidence tending to connect [defendant] with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense." Tex. Crim. Proc. Code article 38.14 (Vernon 1974).

The sufficiency of the corroboration is tested by eliminating from consideration the testimony of the accomplice witness, and then examining the other evidence to ascertain if it tends to connect appellant with the commission of the offense. It is not necessary that the corroboration directly link the accused to the crime or be sufficient in itself to establish guilt. In testing the sufficiency of corroboration, each case must be considered on its own facts and circumstances. Callaway v. State, 818 S.W.2d 816, 832 (Tex.App. Amarillo 1991, pet. ref'd).

Aside from the testimony of each accomplice, the State presented, and relies upon, evidence that Defendant was merely present. Upon initial contact with the officer, defendant appeared nervous. Though Defendant was present at the scene, no other evidence linked him to crime charged.

DRUG CASE: Defendant was not shown to be the renter or possessor of the premises. None of the controlled substance nor the drug paraphernalia were in Defendant's plain view. Indeed, the controlled substance was found in an enclosure in a bedroom closet and not readily accessible to Defendant. There was no indication of an odor of contraband around Defendant or that he possessed any contraband when arrested. Neither was there any suggestion that he made furtive gestures, made incriminating statements when arrested, or attempted to flee when the officers entered the room.

At most, the nonaccomplice evidence shows Defendant's presence at the scene where a controlled substance offense occurred, and his earlier appearance of nervousness to the officer. However, the mere presence of Defendant in the living area, even if in the company of an accomplice who was in the bedroom, shortly before or after the commission of the offense is not, in itself, sufficient corroboration. Meyers v. State, 626 S.W.2d 778, 780 (Tex.Crim.App. 1982).2 Nor is Defendant's appearance of nervousness to the officer, who never explained why he thought defendant appeared nervous, sufficient corroboration, either alone or coupled with defendant's presence, for the appearance of nervousness is consistent with innocent activity. Holladay v. State, 805 S.W.2d 464, 472 473 (Tex.Crim.App. 1991);3 Glass v. State, 681 S.W.2d 599, 602 (Tex.Crim.App. 1984).

It follows that the nonaccomplice evidence is legally insufficient to tend to connect Defendant with the commission of the offense charged. As a result, any rational trier of fact could not return any verdict except an acquittal. Ex parte Reynolds, 588 S.W.2d 900, 902 (Tex.Crim.App. 1979). Consequently, any judgment of conviction must be reversed and acquittal ordered. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978); Meyers v. State, 626 S.W.2d at 781.



In Rios v. State, 982 S.W.2d 558, 560-561 (Tex.App.-San Antonio 1998, pet. ref'd), the court stated:
Rios asserts the trial court erred in denying his motion for an instructed verdict because the nonaccomplice testimony was insufficient to connect him with possession of marijuana.
An appeal from the denial of an instructed verdict is a challenge to the sufficiency of the evidence. Badillo v. State, 963 S.W.2d 854, 856 (Tex. App.  San Antonio 1998, pet. ref'd); Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993). In deciding whether corroborating evidence is sufficient, this court must "eliminate from consideration the evidence of the accomplice witness and then [] examine the evidence of other witnesses" to determine whether there is "evidence of incriminating character which tends to connect the defendant with the commission of the offense." Edwards v. State, 427 S.W.2d 629, 632 (Tex. Crim. App. 1968). Thus, we do not review the nonaccomplice testimony to determine if it is sufficient to support a finding of guilt but to determine whether it tends to create a connection between the accused and the offense. See Cox v. State, 830 S.W.2d 609, 611 (Tex. Crim. App. 1992).
It is well settled that the mere presence of an accused in the company of the accomplice during the commission of the crime is not, by itself, sufficient to corroborate accomplice testimony. See Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996); Cox, 830 S.W.2d at 611; see, e.g., Howard v. State, 972 S.W.2d 121, 128 (Tex. App.  Austin 1998, no pet. h.) (holding evidence that defendant was seen leaving a room just before drugs were found in that room led "only to the weakest of inferences" regarding actual possession); Moreno v. State, 761 S.W.2d 407 (Tex. App.  Houston [14th Dist.] 1988, pet. ref'd) (finding insufficient corroborating evidence to support delivery of cocaine charge where testimony showed defendant, a passenger in accomplice's vehicle, talked with accomplice before the attempted drug transaction, stayed in the car while accomplice attempted to complete sale, and looked at undercover police while they waited to arrest the parties); Navejar v. State, 760 S.W.2d 786 (Tex. App.  Corpus Christi 1988, pet. ref'd) (finding insufficient corroborating evidence for delivery of heroin charge where testimony only showed defendant followed accomplice in another car, parked next to accomplice, and stayed in his car while accomplice attempted to sell drugs). But "proof that an accused was at or near the place where the crime occurred at or about the time that it happened, along with evidence of other circumstances can be sufficient corroboration to support a conviction." Cox, 830 S.W.2d at 611. Other circumstances, which, when coupled with the presence of the defendant, have been found to constitute sufficient corroborating evidence, include a defendant's furtive behavior. See Spratt v. State, 881 S.W.2d 65, 67 (Tex. App.  El Paso 1994, no pet.), and flight from the scene. See Passmore v. State, 617 S.W.2d 682, 684 85 (Tex. Crim. App. 1981), overruled on other grounds by Reed v. State, 744 S.W.2d 112 (Tex. Crim. App. 1988).
Here, the nonaccomplice testimony establishes Rios was a passenger in the car in which the bag of marijuana was found and Sifuentes looked at Rios before he consented to a search of the trunk. The mere fact that Rios was present in the car where the drugs were found is not enough to sufficiently corroborate Sifuentes' testimony. Dowthitt, 931 S.W.2d at 249. The only other circumstance the State can point to as corroborating evidence is Sifuentes' glance at Rios. But nothing in the record shows Rios replied to Sifuentes' glance either verbally or nonverbally  there is no evidence that connects Sifuentes' glance to the crime of possession. The record is completely lacking in evidence that Rios acted suspiciously during the police pursuit, stop, or arrest. We therefore hold the corroborating evidence is insufficient to support Rios' conviction for possession of marijuana because it does not tend to connect Rios with the commission of the offense. See Navejar, 760 S.W.2d at 788 (holding there was no evidence to connect accusatory statements by one of the accomplices at the scene that appellant "is the guy" with the crime of delivery of heroin; therefore, the only corroborating evidence was appellant's presence at the scene, which is insufficient by itself). Because there was insufficient corroborating evidence, the trial court erred in not instructing a verdict in favor of Rios. TEX. CODE CRIM. PROC. ANN. arts. 38.14, 38.17 (Vernon 1979).
The question then is whether the trial court's error is harmless or reversible under Texas Code of Criminal Procedure Rule 44.2. Because the rule requiring sufficient corroborating evidence in a case based on accomplice testimony is statutory and not constitutional, Badillo, 963 S.W.2d at 857, we conduct the harm analysis required by Rule 44.2(b). Under 44.2(b), any nonconstitutional "error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." TEX. R. APP. P. 44.2(b). "A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). If, on the record as a whole, it appears the error "did not influence the jury, or had but a slight effect," we must consider the error harmless and allow the conviction to stand. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

Here, the court's failure to grant an instructed verdict had a great effect on the jury because they were able to find Rios guilty when they should have been instructed to acquit Rios by operation of law. Only if the jury had returned a verdict of not guilty could we find the court's error was harmless. Consequently, we hold the trial court committed reversible error by not granting Rios an instructed verdict based on the insufficiency of corroborating evidence. Because we find reversible error on this point, we need not reach Rios' other points of error. We reverse the court's judgment and enter a judgment of acquittal.


NO. ___________________



THE STATE OF TEXAS

V.
JOHN DOE

§ IN THE ________DISTRICT COURT

§

§ OF

§

§ _____________ COUNTY, TEXAS


O R D E R

The above motion came on for timely hearing in open Court at the close of the State's case-in-chief and after considering the above Defendant's motion for directed verdict of not guilty, the Court ruled. It is ordered that the motion is in all things ___________________ and a verdict of not guilty is hereby directed as to the offense and each lesser included offense thereof that is alleged in count numbered one, ____ and _____.

Signed for entry today, _____________, 2005.

______________________________

JUDGE PRESIDING


NO. ___________________



THE STATE OF TEXAS

V.
JOHN DOE

§ IN THE ________DISTRICT COURT

§

§ OF

§

§ _____________ COUNTY, TEXAS



O R D E R

The above Motion came on for timely hearing in open Court at the close of all the evidence in this cause and IT IS ORDERED BY THE COURT that said Motion be and the same is hereby in all things _________________ and a verdict of not guilty is hereby directed as to the offense and each lesser included offense thereof that is alleged in count numbered one, ____ and _____.

SIGNED AND ENTERED this ____ day of _______________, 2005.
____________________________

JUDGE PRESIDIN



1 See Tex. Pen. Code § 38.05 (Vernon 1994).

2 Meyers was overruled on another point by Reed v. State, 744 S.W.2d 112, 125 n.10 (Tex.Cr.App. 1988).

3 Holladay was overruled on another point by Hunter v. State, 955 S.W.2d 102, 106 (Tex.Cr.App. 1997).


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