Texas Stamp

Dora, James, Jr.

PD-0198-24 06/05/2024

“Did the court of appeals err in holding that the jury need only find the defendant acted recklessly to convict him of aggravated robbery under the ‘intent to promote or assist’ theory of party liability?”

Dora and his accomplices conspired to use a gun to rob a drug dealer of drugs, money, and guns. Dora acted as the getaway driver. His accomplices entered the dealer’s apartment and then robbed and shot him. Dora was “mad as hell” that someone had been shot. He was charged with aggravated robbery, with use of a deadly weapon as the aggravating fact. The underlying robbery allegation included a reckless mental state as to causing bodily injury during the theft. The application paragraph of the jury charge tracked this language and included that Dora either acted alone or acted with intent to promote or assist his accomplices’ commission of the offense. Dora objected to the inclusion of recklessness as to causing bodily injury; he argued that accomplice liability required a higher mental state—intent to promote or assist an aggravated robbery. Nava v. State, 415 S.W.3d 289 (Tex. Crim. App. 2013), provides that the intent-to-promote-or-assist theory of party liability requires that a defendant act intentionally with respect to the result elements of a result-oriented offense (in Nava, the felony murder). Dora’s objection was overruled. The jury charge also included a co-conspirator-liability instruction (which imposed liability for unintended felonies if they should have been anticipated), but this was given only in the abstract and not included in the application paragraph. The jury returned a general verdict of guilt for aggravated robbery.

On appeal, Dora again challenged the inclusion of recklessness in the charge. He argued that the charge should have permitted a conviction only if he intended that the victim be shot during an aggravated robbery. The court of appeals affirmed. It held that the jury charge was not erroneous because aggravated robbery doesn’t require an additional mental state beyond robbery. Dora was wrong because, in aggravated robbery cases, the State need only prove the defendant had the mental state required in the robbery statute.  

Dora argues that the decision directly contradicts Nava, which acknowledges that, for some offenses, the State will assume a higher burden for accomplices than for the primary actor by pursuing an intent-based theory of party liability for a non-intent crime. He cites other courts of appeals that have required an accomplice to intend the result of serious bodily injury for aggravated assault. Another case holds that aggravated robbery is a result-oriented crime with injury as the result. He contends that the charge error was not harmless given that the State argued in closing that it did not have to prove that Dora anticipated bodily injury would result.     

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