Opinion
Nos. 05-07-00536-CR, 05-07-00537-CR
Opinion issued July 17, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F06-14106-S F06-14107-S.
Before Justices MORRIS, WRIGHT, and MOSELEY.
MEMORANDUM OPINION
Chandara Nuon appeals his convictions for murder and engaging in organized criminal activity. After the jury found appellant guilty, it assessed punishment at 20 years' confinement and a $5000 fine in each case. In three issues, appellant contends (1) the trial court erred by charging the jury regarding party liability of conspirators, and (2) that under a hypothetically correct jury charge, the evidence is legally and factually insufficient to support his conviction. We overrule appellant's issues and affirm the trial court's judgments. In his first and second issues, appellant contends the trial court's charge in each case was fundamentally defective because it authorized a conviction on a different theory than alleged in the indictment. Specifically, appellant argues that because neither the murder nor the engaging in organized criminal activity indictment alleged conspiracy, the trial court erred by instructing the jury that it could convict appellant as a party under Texas Penal Code 7.02(b). We disagree. The court of criminal appeals has repeatedly rejected similar claims that a charge on the law of parties constitutes an impermissible amendment to an indictment. In Marable v. State, 85 S.W.3d 287 (Tex.Crim.App. 2002), the court reiterated, "it is well-settled that the law of parties need not be pled in the indictment." Id. at 287. This rule applies to the law of parties found in both section 7.02(a)(2) and section 7.02(b) of the penal code. Montoya v. State, 810 S.W.2d 160, 165 (Tex.Crim.App. 1989). Nevertheless, appellant maintains that conspiratorial liability requires proof of a conspiracy before general party principles apply, and therefore due process requires conspiracy to be alleged in the indictment. We decline to find well-settled law unconstitutional. We overrule appellant's first and second issues. In his third issue, appellant contends the evidence is legally and factually insufficient when viewed under a hypothetically correct jury charge. Appellant's argument is premised on our finding that the jury charges were fundamentally erroneous because the jury was authorized to convict appellant under a theory of conspiratorial liability. Because we have rejected that argument, we conclude appellant's challenges to the sufficiency of the evidence lack merit. We overrule appellant's third issue. Accordingly, we affirm the trial court's judgments.
Section 7.02(b) provides as follows:
If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.
Tex. Penal Code Ann. § 7.02(b) (Vernon 2003).