This section is here to enlighten the public about what the Law of Parties(LOP) of Texas is. First and foremost, the politically correct name for the LOP is CRIMINAL RESPONSIBILITY FOR CONDUCT OF ANOTHER, which is found in 7.02 of THE TEXAS PENAL CODE. This doctrine is called THE FELONY MURDER RULE (The Law of Parties is moreso slang). The statutes and legislation that define what CAPITAL MURDER is are found under 19.03 of THE TEXAS PENAL CODE.
The above is important because to understand the law, politics, legislation, prosecutions, convictions, appeal errors, etc., one MUST know the root of the law. What we have found is that the average citizen simply doesn’t study these things, therefore cannot be effective in challenging it. The second twist is those laws often change and change again over time many times depending on who is in political office.
Therefore the key to effective change is being vigilant on an issue that means something to you. The LOP means something to us because it has affected us personally and it continues to affect others by sentencing people to death and life who did not kill nor intended to kill and we believe this is the ultimate human rights and constitutional violation. Here we have a very important document to share with you. This document explains:
1) how the Law of Parties began, and
2) how it changed (for the worse and has been a curse to the system since).
The following is a concurring opinion from a judge in the Texas Criminal Court of Appeal. You may google the case at: Nava v. State, 415 S.W. 3d 289.
As you read this opinion I will navigate you through the document. *everything highlighted is the most important part of the text. *my commentary\emphasis is red and in parentheses.
Nava Text Below:
III. DISPOSITION
We affirm the judgment of the Court of Appeals. COCHRAN, J., joined as to part II.
COCHRAN, J., filed a concurring opinion in which ALCALA, J., joined.
WOMACK and JOHNSON, JJ., concurred.
COCHRAN, J., filed a concurring opinion in which ALCALA, J., joined.
I join Part II (“Jury Selection—Missing Record”) of the majority opinion, and I concur in the judgment. I agree that any erroneous “intent to promote or assist” parties instruction given in this case did not cause appellants egregious harm. I cannot, however, agree with all of the majority’s reasoning in Part I because I think that the jury charge should have said that the appellants acted with the “intent to promote or assist the commission of the offense of murder,” not “ felony murder.” There is no such thing as an intent to commit felony murder.
As a general proposition, when the charged offense is felony murder, the only theory of party liability that should be submitted for accomplices is that of conspiracy liability under Section 7.02(b). Normally, the “intent to promote or assist” theory of party liability under Section 7.02(a)(2) does not apply to an unintentional killing under the felony-murder rule. It is most unusual (though not impossible) for an accomplice to the offense of felony murder to intend to promote or assist in the commission of murder while the person who actually does the killing does not intend to commit a murder. In such a case, the State must prove that the accomplice has a greater mens rea than the actual killer who just intended to commit a felony, such as theft, and then, during that theft, committed an act clearly dangerous to human life that did cause a death.
This is the unusual case in which the jury could have found that one of the accomplices, Andres Nava, intended for the shooter, Roberto Carrillo, to kill the undercover officer when he shouted, “¡Tírale!” (“Shoot him!”) even though the State was not required to prove that Carrillo himself intended to cause the undercover officer’s death. Although there is no evidence that would support a finding that the other accomplice, Xiomara Mendez, intended that Carrillo kill the undercover officer, I agree that she, like Nava, did not suffer egregious harm by the ambiguous wording of the jury instructions concerning party liability under Section 7.02(a)(2).
(Here is where our understanding of the current Law of Parties begins. 1970 was when the original statute was created. 1974 was when it changed).
The present problem was anticipated and resolved by the drafters of the 1970 Proposed Revision to the Texas Penal Code. As a part of Section 19.02, our murder statute, the drafters proposed a subsection (4) that explicitly addressed party liability in the context of felony murder. That provision reads as follows:
(4) he is a party to a felony and another party to the felony commits murder as defined in Subdivision (3) [felony murder], and the actor:
(A) solicits, directs, aids, or attempts to aid the homicidal act; or
(B) is armed with a deadly weapon; or
(C) is reckless with regard to whether the other party is armed with a deadly weapon; or
(D) is reckless with regard to whether the other party intends to commit an act clearly dangerous to human life.
(A-D was the original Law of Party wording.)
The Committee Comment to this Section (4) noted that this was “a special theory of complicity” by which one felon may be held responsible for his cohort’s unintended felony murder, because “[t]he general complicity test, Section 7.02, would not impose responsibility on the non perpetrating felon unless he acted with intent to promote or assist the killing.” The Committee thought that the four different actions (aiding in the homicidal act, being reckless about the possibility of a death occurring, being armed with a weapon, or being reckless about the killer having a deadly weapon) justified the co-felon’s vicarious liability “because of the great danger accompanying most violent felony commissions and the absence of social utility in this type of conduct.”
However, when the revised Penal Code was actually enacted in 1974, the special co-felon criminal responsibility provisions for felony murder in 19.02(4) were simplified and turned into a general conspiratorial liability theory in Section 7.02(b). The Practice Commentary to the 1974 Code explained that its drafters had restored the
constructive malice doctrine to punish more severely a homicide growing out of a conspiracy to commit any felony. Section 7.02(b) [an entirely different provision than that proposed in the 1970 Code] makes co-felons vicariously responsible for all felonies committed by any one of them, so long as the felony actually committed was committed in furtherance of the object felony, if the felony actually committed was one that should have been anticipated as a result of committing the object felony.
The following is what the 1974 legislator changed the Law of Parties to. It became:
Section 7.02(a) of the Texas Penal Code sets out several things that can make you criminally responsible for the actions of someone else under the Law of Parties:
- You cause or aid an innocent or non-responsible person to engage in criminal behavior;
- You intentionally promote or assist the commission of the offense, solicit, encourage, direct, aid, or attempt to aid another person to commit the crime; or
- You have a legal duty to prevent the commission of a crime and you intentionally promote or assist the commission of the crime and fail to make a reasonable effort to prevent it.
As you can see, Texas has specifically abolished any distinctions between “accomplice” and “principal” culpability. That makes each person criminally responsible as a “party” to the offense. This is sometimes referred to as the “Law of Parties in Texas” and is codified under Section 7.01 of the Texas Penal Code.
Texas also has what’s called the Felony Murder Rule under 7.02(b) of the Texas Penal Code. If you are engaged in a criminal conspiracy to commit one felony, then you can be held criminally responsible for any other felony committed by a co-conspirator that was one you should have anticipated.
For example, if you conspire to commit an armed robbery by acting as the get-away driver, and during the aggravated robbery an innocent bystander is shot and killed, you could be charged with capital murder even though you never had the specific intent to hurt someone and you were not involved in the shooting yourself. In Texas, a person can even be charged with a capital offense under the Felony Murder Rule.
The 1974 Code painted the conspiracy concept with a broad brush and took the type of vicarious responsibility that once applied only to felony-murder co-felons and applied it to the unintended commission of any felony. The Practice Commentary to Section 7.02 took a dim view of subsection (b) which “codifies a vicarious responsibility doctrine of the common law that is foreign to a major objective of this code: the requirement of individual culpability as a prerequisite to imposition of criminal responsibility.” But that is the law that the Legislature adopted and it has not been amended since.
Thus, by charging the jury with both theories of criminal responsibility for Carrillo’s act of shooting and killing Officer Canales, the State took on the burden of proving either
(1) appellants, Nava and Mendez, intended “to promote or assist the commission of the offense of murder”… and they solicited, encouraged, directed, aided, or attempted to aid “Roberto Carrillo to commit the offense of murder”; or
(2) appellants, Nava and Mendez, along with Roberto Carrillo, “entered into an agreement to commit felony theft,” … and “while in the course of committing such theft, Roberto Carrillo committed an act clearly dangerous to human life that caused the death of” Officer Canales, and that the [act] causing Officer Canales’s death was committed in furtherance of the conspiracy and was an [act] that [appellants] should have anticipated as a result of the conspiracy.”
Under the first prong, the State was required to prove that appellants had the intent to have Carrillo commit the offense of murder and that they assisted him to commit the offense of murder, even though appellants were not charged with murder, only felony-murder.
Appellants are correct that the jury charge is ambiguous because the “intent to promote” party liability application instruction simply says that the jury must find that each appellant intended to assist the commission of “the offense, if any” and that they solicited, encouraged, directed, aided or attempted to aid Roberto Carrillo to commit “the offense” without specifying what offense the instruction was referring to. But, precisely for the reasons given by the majority, I agree that this instruction, though ambiguous on its face, did not cause appellants egregious harm under Almanza.
Nava v. State, 415 S.W.3d 289, (Tex. Crim. App. 2013)
The above is a document that EVERY Legislative member who is filing a Bill to change the LOP should read, because it shows (from a judge’s words) how the LOP statute lowered its culpability standards and in that change became unconstitutional because it openly contradicts its own standards by:
1) Section A requiring INTENT,
2) Section B is saying NO INTENT is required.
A PRECEDENCE should not say both. When legislative members say its original form, then view the change, they may understand how the law became unconstitutional. They must study the entire law. And we feel this is why Legislative members have not been successful in reforming the LOP.
Today, several Legislative members seek to reform the LOP. We currently stand with the efforts of State Representative Jeff Leach because we believe his bill–although not as far-reaching as it should be–is the best form of what will save lives. https://legiscan.com/TX/text/HB1736/2023
This bill has the potential to not execute people who did not kill nor intended to kill. While we believe the right change is to reword section B of 7.02 to remove the wording NO INTENT (because a person should never be held accountable for something he\she didn’t intend to do), we realize change comes in steps and we will embrace the first steps of change.
We recognize that Representative Leach has put in sincere time and effort on this issue as we saw when he visited LOP defendant Jeff Wood http://savejeffwood.com/ on death row.
https://www.texastribune.org/2016/08/17/state-rep-leach-speaks-out-against-jeff-wood-execu/
https://www.texastribune.org/2017/12/07/jeff-wood-death-sentence/
We continue to work with State Rep Leach to achieve these goals.
It’s essential that we level the playing field with change in this law as enough people who never killed anyone have been executed by the State of Texas. The Criminal Justice System nor Humanity does not improve under this demented type of regime. If you would like to add a voice to this change you can email us at this website and we will gladly share information on how you can do that. However, you can always visit https://legiscan.com/TX to view all Bills being filed by Legislative members and you can always directly contact them with your views and opinions.