An analysis for understanding why Severance and Law of Party Bills have not been passed

On August 30, 2007 the death sentence of Kenneth Foster was commuted to life (Capital Life, under Texas law, a person must serve 40 years before being eligible to see parole).

On May 6, 1997, Foster was sentenced to death for his role in the 1996 capital murder of Michael Lahood Jr. Foster sought to have his death sentence commuted to a life sentence arguing that he did not shoot the victim, nor conspired to rob, but merely drove the car in which the actual killer was riding. In addition, Foster was tried along side the actual killer, Mauriceo Brown, and the jury that convicted Foster also considered punishment for both him and his co-defendant in the same proceeding.

After local political support, and an International outcry, the Board of Pardons and Paroles voted 6-1 to recommend commutation (a recommendation that the Governor does not have to accept). The Governor signed the commutation and stated:

After carefully considering the facts of this case, along with the recommendations from the Board of Pardons and Paroles, I believe the right and just decision is to commute Foster’s sentence from the death penalty to life imprisonment. I am concerned about Texas law that allows capital murder defendants to be tried simultaneously, and it is an issue I think the legislature should examine.” (emphasis added)

The latter part of that statement is what would spark the Law of Party/Severance bill. But, as you can see, Governor Perry’s words were only geared towards the Severance issue- not the Law of Parties.

In 2009 Rep. Terri Hodge (D- Dallas) and Senator Chuey Hinojosa (D-McAllen) decided to take on the 2 laws. House bill 2267 was created. The bill would eliminate the death penalty as a sentencing option under the controversial Texas Law of Parties. It would also require separate trials of co-defendants in capital cases.

Initially the bill seemed to be an instance success. On May 15, 2009 the Texas House of Representatives passed HB2267. However, as quickly as it caught wind it met violent opposition. The next step for the bill was the Senate, but Governor Rick Perry threatened to veto the bill if it passed the Senate with a provision to end the death penalty in Law of Party cases.

The bottom line is that Texas does not want to get rid of death penalty options for those that do not kill.

As of now the Texas Law of Parties (7.02 of the Texas Penal Code) reads: a person that does not kill may be eligible for the death penalty if:

(1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense of (2) 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 or (3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense and (4) (b) if, in the attempt to carry out a conspiracy to commit a 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 the furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.” (emphasis added)

Upon appearance this law may seem fair for a person who does not personally kill but consciously encourages or aids in the crime. That gives a culpable mental state.

This is why the State of Texas does not want to get rid of the Law of Parties. However, the problems are arising as you travel down further on the law. Once you get to section (b) of 7.02 things begin to change slightly. You no longer have to have intent and instead of being held responsible for what you engaged in, you are held responsible for what you should have “anticipated” as a result of that conspiracy. This bottom part seems to contradict the top part. It simultaneously says you must have intent, but then goes on to say “though having no intent”.

This is why the law of parties is being challenged. The easy cop-out from the State would be that Prosecutors will use proper judgment on what Law of Party cases they seek the death penalty. But, time and time again it has been shown that under public or political pressure prosecutors become over zealous and pursue death at all cost even when not deserved. Cases like that of Joseph Nichols (who has been executed) comes to mind, and cases that are still pending like Jeff Wood and Rudy Medrano.

The only way the Law of Parties will be applied properly is to adjust the way it is worded. Thus far this has not been done and this ultimately led to why the bill never got out of the Senate.

Facing the veto politicians sought to amend the bill. During the legislative tango breaking news came from Clint Magee (chief of staff for Rep Terri Hodge):

I wanted to let you know we had a meeting with Governor Perry yesterday concerning our bill, HB2267 (Law of parties). We’ve drafted an amendment that Senator Hinojosa will attempt to add on to the bill in the Senate. The bill is on the Senate intent calendar, meaning it’s eligible to be heard, but it’s up to the Lt. Governor to call the bill up. Basically, the amendment is doing the following-

The amendment will ensure that for a person found guilty in a capital felony only as a party under section 7.02 (b), a jury shall take into consideration all the evidence of the case, specifically to determine if the defendant could reasonably forsee that their actions might result in the death of another person during the course of the crime.

The State must prove beyond a reasonable doubt that the defendant is guilty under 7.02 (b) and the jury must submit a verdict of “yes” or “no” on the issue.

The court shall charge the jury that during their deliberation, they need not agree on what particular evidence supports an affirmative finding, and they shall consider mitigating evidence concerning the defendant’s moral blameworthiness.

Should the jury agree and submit a “yes” verdict where 10 or more jurors agree, the defendant shall be sentenced to death.

However, should the jury submit a “no” verdict where they agree unanimously, the defendant shall be sentenced to life imprisonment without parole.

After speaking with defense attorney’s, if the jury cannot reach an agreement- if there is a “hung” jury- then the defendant would be sentenced to life imprisonment without parole.

So while the amendment would not completely remove the death penalty as a punishment option for a defendant found guilty only as a party it would give 2 out of 3 chances of avoiding the death penalty for a person who did not kill.”

Apparently that was still too much. The bill was never called up and it died in the Senate. There is no public explanation of why the bill was not called. It would be theory to say there were too many issues already on the plate for the Senate. And it would be theory to say the following, though more facts lean towards it- while HB2267 had a lot of support it simply contained something the System did not want to change- no death penalty for people who did not kill. They didn’t want to change it, so they never addressed it.

This is what should have happened when the threat for veto came.

When the resistance to the bill came it should have been accepted. It was known that the issue that was up for addressing was SEVERANCE. Afterall, this is specifically what Perry said should be examined by the legislature. The bill should have been written to address severance ONLY and the law of parties should have been put on the shelf to be fought for on another day. Step by step. One thing at a time, because that’s the only way to make progress on such issues. It is not feasible to think you can take such mighty leaps on death penalty issues in Texas. If the bill had simply been reworded to automatically Sever trials in capital trials that bill would have passed and one more brick in the wall of capital punishment would be taken out. Brick by brick you pick the wall apart. Now, today, we still have the same two bricks in the wall that need to be plucked out. Instead of being one ahead we are two behind. By the time the severance bill would be written correctly (in 2011 in HB 2200 ) it would be too late.

In 2010 Rep. Terri Hodge was charged for tax evasion.

As a result she took a plea and was sentenced to 1 year in Federal prison. Therefore, the one who spearhead the fight on these 2 issues was no longer around to help push the bill. Supporters of Foster- who were still invested in fighting these 2 issues – scrambled to gather help to push the bill again in 2011. This time it was understood that the Law of Parties and Severance issues must be filed separately. Law of Party bills would be submitted by Senator Harold Dutton and at last minute the Severance bill (properly written) was picked up by Senator Boris Miles. However, the topic had grown cold and the Severance bill never made it out of the 1st stage of legislature.

Foster’s hope rest with getting a Severance bill passed. This issue is the base for his conviction and punishment. If Foster had never been tried with Mauriceo Brown his future may have been different and perhaps he would be out of prison now (see the case of Peter Dowdle who was a party to the capital murder case of Jonathan Moore [whom shot and killed a police officer in the midst of burglarizing a home with Dowdle and fellow co-defendant Paul Cameron]). Each defendant received their own trial. Moore was found guilty and received death, Cameron received life and Dowdle (the driver) made out with a 25 year sentence and was released from TDC on June 4, 2009. The cases are almost identical except Dowdell knew he was going to the house to rob it. Foster did not. SO, why is Dowdell free and Foster serving time until 2036? If it’s not race (all 3 of the above defendants are white) nor behind the scene politics, then it must be the law that allowed Foster to be tried next to Mauriceo Brown that made the difference.

A Severance Bill must be passed to ensure these types of injustices do not happen again in the future.

Returning to the Law of Parties. The reality is that the Law of Parties will not be abolished in Texas. Nor will the death penalty for people that do not directly kill. However, what activist and politicians must do is strategically word the Law of Parties where it will give a defendant a fair chance in the face of over zealous prosecution. Prosecutors are going to continue to misapply this law (as they continuously show). Therefore, until the make-up of Texas government changes (Governor, CCA, Senate etc.) they must seek to get this law worded properly.

As of now issues 1-3 (as cited earlier) of the Law of Parties carry a sense of fairness. It convicts a person by their own actions- and that is when one “solicits, encourages, directs, aids or attempts to aid.”

It’s 7.02 (b) that is allowing prosecutors to wrongly send men to death row and allows jurors to be confused on what the standard of law is. As long as 7.02 (b) is worded in that fashion the System will continue to hand down wrongful death sentences.

All efforts need to be focused on adjusting (b). We have formulated a breakdown of the statue concerning the law of parties and its surrounding stipulations. Any person (lawyer, politician, public citizen) must understand all of the ramifications surrounding this statue if it is to be successful. The following is a comprehensive analysis of the statues and what needs to be done.

Proposed Legislation for Texas Penal Code 7.02(b)

According to 1.07 (a) (22) of the Texas Penal Code, the requisite elements of a criminal offense are:

  1. The forbidden conduct (the defined offense in the Penal Code);

  2. Any required result (the actus reus); and

  3. The required culpability (the mens rea).

According to 6.02 (d) of the Penal Code the requisite mens rea for any criminal offense are as follows:

  1. Intentionally;

  2. Knowingly;

  3. Recklessly; and

  4. Criminal Negligence.

When charging a criminal defendant with engaging in a criminal conspiracy, proving the mens rea of the conspiracy is (and should be in the State’s burden of proof) absolutely intrinsic of the charge itself, because according too Article 15.02 of the Penal Code:

A person commits criminal conspiracy if, with intent that a felony be committed:

  1. The person agrees with one or more persons that they, or one or more of them, engage in conduct that would constitute the offense [see Turner v. State, 720 SW 2d 161, 164 (Tex. App.- San Antonio, 1986, pet. Ref.) (person must know that the offense will be committed and agree in advance to aid in its commission)]; and/or

  2. The person, or one or more of the persons, performs an overt act in pursuance of the agreement.

According to 6.03(b) of the Penal Code:

“A person acts knowingly, or with knowledge, with respect to the nature of the person’s conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of the person’s conduct when the person is aware that the conduct is reasonably certain to cause the result.”

It is by the Penal Code’s own defined requisite culpable mental states that 7.02(b) is fundamentally flawed and unjust, and thus should be amended.

The language of the statue reads:

“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 responsible for the felony actually committed, although 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 carrying out the conspiracy.”

This statue is generally a good law, and a deterrent for conspiring to commit felony offenses, however, the quintessential flaw to this law is the “should have been anticipated” part.

If the act of a co-conspirator occurs as a result of an independent pulse and not as a part of the conspiracy, or the act was not an action that “should” have been anticipated as a result of carrying out the conspiracy (i.e., the defendant was not put on notice [i.e., was not aware, did not, or could not, have knowingly been aware of the co-conspirator’s independent act]), the other conspirators are not liable. See Hooper v. State, 170 SW 3d 736 (Tex. App.- Waco 2005, no pet. Hist.) (while defendant intended to assist codefendant in robbery by driving getaway car, there was insufficient evidence that he intended to assist codefendant to shoot at pursuing police officer.)

Although the State’s proof may fail if the jury finds that the actions of a co-conspirator were an independent pulse, this doctrine has not been enacted in the statue, which overrides case law, and it should be. In our American Criminal Justice System an offense is not proven unless every elements of the offense is proven beyond a reasonable doubt. In a conspiracy liability context, the essential elements are the mens rea. This is manifested in Hooper, supra, where there was no evidence to show that Hooper had knowledge that his co-defendant would shoot at a peace officer, effectively turning a 2nd degree felony into a Capital one. It is akin to saying- for not wearing your seatbelt, you should have known a car would smash you from the rear and break your neck or toss you from the vehicle.

Further, the burden of proof in criminal offenses is on the State. Why shouldn’t the evidence be mandated to show, as was the case in Hooper, that the defendant reasonably had knowledge that the offense would occur? Especially if a criminal offense must be proven beyond a reasonable doubt. Too many times have Texas defendants been convicted on abstract clairvoyance due to the “should have been anticipated” language of 7.02(b). This, as Hooper implicitly recognizes, is a flaw.

Therefore, because criminal elements of an offense are to be proven beyond a reasonable doubt, and because the kernel of a conspiracy, and any act of a conspiracy, is the defendant’s knowledge, 7.02(b) should be amended 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, although having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one the conspirators knowingly anticipated as a result of carrying out the conspiracy.”

For the purpose of this section, a conspirator acts knowingly, with respect to another felony committed by one of the conspirator’s, when the conspirators are aware that the conduct is reasonably certain to cause the result.

For the average eye it may seem that not much has changed. But, it has. By lifting this statue to “knowingly anticipated” from “should have anticipated” you raise (and rightfully so) the burden on the state. Prosecutors and Judges must be forced to follow the statues set forth to the by the Texas Penal Code (which, thus far, so many have not). When a defendant is judged on his actions, then thus held to that awareness, it creates a fair prosecution. People should not be tried and convicted based on an assumption or psychic ability. What “should have been anticipated” is too easily manipulated. Let’s raise this standard of proof.

The legislature is now in session. Let’s contact the proper officials and accomplish this much needed goal.

Two bills are currently pending:

1) HB 261 filed by Representative Boris Miles concerning the Severance law. This bill is well written and should be greatly supported. Please write to Senate members about supporting this law.

2) HB 319 filed by Representative Harold Dutton. This bill needs to be greatly corrected (which is what this analysis addresses). Please contact the Senator and ask him to research the facts behind this analysis and look into amending his bill. Also, encourage him to launch a study about law of party cases in Texas. Perhaps a Texas law school would be interested in spearheading this.

We thank you ahead of time for your efforts. Please stay in touch with us and let us know about your work and responses.


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