IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD–0408–12
RODNEY YOUNG ANDERSON, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE NINTH COURT OF APPEALS
MONTGOMERY COUNTY
M EYERS, J., delivered the opinion for a unanimous Court.
OPINION
Appellant, Rodney Anderson, was charged with possession of methamphetamine
with intent to deliver, over four grams but less than 200 grams, and aggravated assault of
a public servant.1 The jury found him guilty, and he was sentenced to 40 years’
imprisonment in the Texas Department of Criminal Justice–Correctional Institution
Division for the possession offense, and life imprisonment for the aggravated assault.
1
The aggravated assault charge alleged that Appellant used or exhibited a deadly weapon,
a motor vehicle, to threaten the officer with serious bodily injury.
Anderson–Page 2
Appellant appealed, asserting that the evidence was legally insufficient to support his
conviction of aggravated assault of a public servant. The court of appeals held that a
rational jury could find that Appellant was guilty of aggravated assault of a public servant
under the conspiracy theory of party liability. Anderson v. State, No. 09-10-00061-CR,
2011 Tex. App. LEXIS 10038 (Tex. App.–Beaumont December 21, 2011) (not
designated for publication). Appellant filed a petition for discretionary review, which we
granted to consider whether the court of appeals erred in holding that the evidence was
legally sufficient to support Appellant’s conviction for aggravated assault under the law
of parties in Texas Penal Code Section 7.02(b). We hold that the evidence is sufficient to
support Appellant’s conviction for the aggravated assault charge under the conspiracy
theory of the law of parties. We will affirm the judgment of the court of appeals.
FACTS
Appellant and Timothy Sherber had sold methamphetamine to Jeffery Harmon on
numerous occasions. Harmon, who was acting as a paid confidential informant for the
Texas Department of Public Safety, arranged to meet Appellant and Sherber in a parking
lot to purchase methamphetamine. Appellant and Sherber arrived at the arranged location
in Sherber’s truck, and Harmon approached Appellant, who was sitting on the passenger
side. When Appellant showed Harmon the drugs, Harmon removed his hat, which was a
signal to the undercover officers waiting in the parking lot. On Harmon’s signal, the
undercover officers pulled their weapons, identified themselves as police, and yelled at
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Appellant and Sherber to get out of the vehicle. Instead, Sherber backed his truck out of
the parking space before officers were able to block him in. One of the officers who
approached Sherber’s truck on foot struck the driver’s side window with the barrel of his
gun and repeatedly yelled at Sherber to stop.
As he attempted to flee, Sherber hit two unmarked patrol cars. One of the
detectives fired his weapon several times, and Appellant suffered a gunshot wound to the
chin. Sherber continued to drive forward and hit the side of a marked patrol car as he
exited the parking lot. The officer driving the marked patrol car was injured in this
collision. Another officer rammed the side of Sherber’s truck to bring it to a stop, and
Appellant and Sherber were arrested. Officers searched Sherber’s truck and found a
plastic bag containing methamphetamine on the passenger side of the floorboard. They
also collected loose methamphetamine from inside Sherber’s truck and on the ground
outside the passenger door. Appellant was tried by a jury and found guilty of possession
with intent to deliver four grams or more but less than 200 grams of methamphetamine
and with aggravated assault on a public servant. He was sentenced to 40 years’
imprisonment in the Texas Department of Criminal Justice-Correctional Institution
Division for the possession charge, and life in prison for aggravated assault.
COURT OF APPEALS
Appellant appealed, contending that the evidence was legally insufficient to
sustain his conviction of aggravated assault of a public servant. The court of appeals
Anderson–Page 4
noted that the jury charge in this case authorized the jury to convict Appellant of
aggravated assault if the jury determined beyond a reasonable doubt that 1) Appellant
intended to promote or assist Sherber in the aggravated assault of the officer; or 2) the
aggravated assault was committed by Sherber in furtherance of a conspiracy to commit
the felony offense of possession with intent to distribute a controlled substance, and that
Appellant should have anticipated that an aggravated assault of a public servant could
result from the parties’ carrying out their conspiracy. Anderson, 2011 Tex. App. LEXIS
10038 at *15-16. The court of appeals evaluated whether Appellant’s conviction could
be affirmed under a conspiracy theory and determined that,
[b]ased on the evidence, it was reasonable for the jury to infer from the
circumstances that Sherber committed the aggravated assault in furtherance
of his conspiracy with Anderson to commit the felony offense of possession
with intent to deliver a controlled substance. The evidence is also sufficient
to support the reasonable inference that Anderson should have anticipated
that, under the circumstances of this case, police officers would face injury
as a result of Sherber’s attempt to flee.
Id. at *16-17. The court of appeals concluded that a rational jury could have found
Appellant guilty under the conspiracy theory of the law of parties. Appellant filed a
petition for discretionary review, which we granted to determine whether the court of
appeals erred in holding that the evidence was legally sufficient to support Appellant’s
aggravated assault conviction under the conspiracy theory of the law of parties.
ARGUMENTS OF THE PARTIES
Appellant’s Arguments
Anderson–Page 5
Appellant argues that the court of appeals erred in holding that the evidence was
legally sufficient under the law of parties’ conspiracy prong because Appellant did not
anticipate the second felony of aggravated assault of a public servant, and thus cannot be
guilty under the conspiracy theory of party liability. Appellant argues that it is well
settled law that co-conspirators are responsible only for conduct they anticipate.
Appellant contends that he had no reason to anticipate violence or assault because he and
Sherber were conducting “a drug transaction between old friends who always and
repeatedly bought and sold drugs peaceably and amicably.” He also could not anticipate
that the truck would be used as a deadly weapon because its obvious intended and
immediate purpose was merely a means of transporting the men and the drugs. Appellant
argues that the truck “does not fall into the category of obvious, apparent, and innately
understood deadly weapons in the same fashion as a firearm or switchblade.”
Finally, Appellant asserts that the application paragraph of the jury charge failed to
instruct the jury to find that he should have anticipated the aggravated assault, and no
rational juror could have found beyond a reasonable doubt that Appellant anticipated
Sherber’s actions. Because Appellant “could not anticipate, as a 7.02(b) conspiracy
requires, the truck’s use as a deadly weapon, and the jury was not instructed to first find
this fact in the application paragraph of the charge, his conviction under 7.02(b) for party
liability fails for insufficient evidence.”
State’s Arguments
Anderson–Page 6
The State argues that the evidence is sufficient to establish that Appellant should
have anticipated aggravated assault of a public servant as a result of his conspiracy to
distribute methamphetamine. Although the application paragraph of the jury charge did
not include the “should have anticipated” language from Penal Code Section 7.02(b), the
State points out that a review of the sufficiency of the evidence is based on a
hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). Thus, the State contends that the court of appeals’ analysis of the sufficiency of
the evidence was correct.
The State says that case law supports a finding that Appellant should have
anticipated violence as a result of his conspiracy to commit the felony offense of
possession of a controlled substance with intent to distribute. Ervin v. State, 333 S.W.3d
187 (Tex. App.–Houston [1st Dist.] 2010, pet. ref’d); Love v. State, 119 S.W.3d 447 (Tex.
App.–Houston [1st Dist.] 2006, pet. ref’d) (defendant should have anticipated that
violence would occur when co-conspirator was armed with a deadly weapon); Hernandez
v. State, 171 S.W.3d 347 (Tex. App.–Houston [14th Dist.] 2005, pet. ref’d); Moore v.
State, 24 S.W.3d 444 (Tex. App.–Texarkana 2000, pet. ref’d) (even when co-conspirators
were unarmed, a defendant should have anticipated that a deadly weapon might be
acquired during the commission of the offense); Rue v. State, No. 05-97-00482-CR, 1998
Tex. App. LEXIS 3458 (Tex. App.–Dallas, June 10, 1998, no pet.) (defendant should
have anticipated that his co-conspirator would commit aggravated assault when he tried to
Anderson–Page 7
flee the scene of the offense in his vehicle).
The State contends that a jury may make reasonable inferences from the evidence
to determine whether a particular offense should have been anticipated as a result of
carrying out the conspiracy. Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007). The
State says that it is well known that drug transactions include risks and that the jury made
reasonable inferences from the evidence in determining that Appellant should have
anticipated that his conspiracy to deliver drugs could result in the use of the truck in a
violent effort to escape from law enforcement.
The State concludes that the question of whether Appellant should have
anticipated the secondary felony is one for the jury and that the evidence, when viewed in
the light most favorable to the verdict, is sufficient to establish Appellant’s guilt as a party
to the offense of aggravated assault under the conspiracy theory of the law of parties.
APPLICABLE LAW
Standard of Review
In assessing the legal sufficiency of the evidence to support a criminal conviction,
the reviewing court must “consider all the evidence in the light most favorable to the
verdict and determine whether, based on the evidence and reasonable inferences
therefrom, a rational juror could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). When the record
supports conflicting inferences, the reviewing court presumes that the trier of fact
Anderson–Page 8
resolved the conflicts in favor of the State and defers to that determination. Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Juries are permitted to draw
multiple reasonable inferences from the evidence as long as each inference is supported
by the evidence presented at trial, but they are not permitted to draw conclusions based on
speculation. Hooper, 214 S.W.3d at 15. In Hooper, we explained that “an inference is a
conclusion reached by considering other facts and deducing a logical consequence from
them. Speculation is mere theorizing or guessing about the possible meaning of the facts
and evidence presented.” Id. at 16. While a conclusion that is reached by speculation
may not be completely unreasonable, such conclusion is not sufficiently based upon facts
or evidence to support a conviction beyond a reasonable doubt. Id.
Law of Parties
Texas Penal Code Section 7.02(b) states that “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.”
When reviewing the sufficiency of the evidence, the essential elements of the
offense are those of a hypothetically correct jury charge: “one that accurately sets out the
law, is authorized by the indictment, does not unnecessarily increase the State’s burden of
proof or unnecessarily restrict the State’s theories of liability, and adequately describes
Anderson–Page 9
the particular offense for which the defendant was tried.” Malik, 953 S.W.2d at 240.
When the charge authorizes the jury to convict the defendant on more than one theory, as
it did in this case, the verdict of guilt will be upheld if the evidence is sufficient on any
theory authorized by the jury charge. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim.
App. 2004) (citing Rabbani v. State, 847 S.W.2d 555, 558 (Tex. Crim. App. 1992)).
ANALYSIS
For a defendant to be found guilty as a party to a secondary offense,2 the jury must
determine that the second felony was committed in furtherance of the unlawful purpose
and was one that the co-conspirator should have anticipated as a result of carrying out the
conspiracy. T EX. P ENAL C ODE § 7.02(b). Section 7.02(b) does not require the State to
prove that Appellant actually anticipated the secondary felony, only that the crime is one
that should have been anticipated.
The hypothetically correct jury charge in this case would have included the
“should have been anticipated” language in the application paragraph. Thus, to find
Appellant guilty of aggravated assault of a public servant under Section 7.02(b), the jury
must have determined beyond a reasonable doubt that:
(1) Appellant and Sherber engaged in an attempt to carry out a conspiracy
to possess and deliver methamphetamine;
(2) in that attempt, Appellant’s co-conspirator committed aggravated assault
of a public servant;
(3) the aggravated assault was committed in furtherance of the conspiracy to
2
In this context, a secondary offense is another felony that is committed by one of the
conspirators during the attempt to carry out the originally agreed upon felony.
Anderson–Page 10
possess and deliver methamphetamine; and
(4) the aggravated assault was an offense that Appellant should have
anticipated as a result of carrying out the conspiracy to commit the drug
offense.
The question before us is whether it was rational for the jury to infer that Appellant
should have anticipated the second offense. Because the party-conspirator theory of
liability under which Appellant was convicted is similar to the federal rule of co-
conspirator liability under Pinkerton v. United States, 328 U.S. 640 (1946),3 we will adopt
the approach used by federal courts, which focuses on an examination of the totality of
the circumstances to determine whether, on the facts of each case, a particular offense
committed by a co-conspirator was “reasonably foreseeable” within the scope of the
unlawful agreement. See id.
In cases involving large-scale conspiracies to distribute drugs, federal courts have
generally taken note of a link between the size of the drug operation and frequent use of
weapons and violence. In such cases (for example, those involving tens of thousands of
dollars worth of illicit drugs and/or multiple kilograms being sold in a single transaction),
federal courts have typically applied the Pinkerton rule to find that co-conspirators’
crimes involving violence or weapons were reasonably foreseeable to other members of
the conspiracy, thereby triggering co-conspirator liability. See, e.g., United States v.
Dean, 59 F.3d 1479, 1490 n. 20 (5th Cir. 1995) (taking note of “connection between the
3
Under Pinkerton, co-conspirators are liable for the overt acts of every other conspirator
done in furtherance of the conspiracy, but only if those acts were reasonably foreseeable.
Anderson–Page 11
amount of drugs involved in a transaction, and hence the amount of money, and the
foreseeability for Pinkerton purposes” of a co-conspirator’s use of weapons or violence);
Gutierrez, 978 F.2d at 1468 (noting that “the illegal drug industry is a dangerous and
violent business,” and holding that, because defendants agreed to sell two kilograms of
cocaine for $60,000, it was “reasonably foreseeable that a gun would be carried” in
relation to the transaction); United States v. Diaz, 864 F.2d 544, 549 (7th Cir. 1988)
(noting that “[w]hen an individual conspires to take part in a street transaction involving a
kilogram of cocaine worth $39,000, it certainly is quite reasonable to assume that a
weapon of some kind would be carried”); but see United States v. Castaneda, 9 F.3d 761,
767 (9th Cir. 1993) (reversing firearm-possession conviction under Pinkerton theory
because defendant, wife of a high-level drug dealer, merely answered telephone and took
messages, and thus played no more than a “passive role” in drug conspiracy), overruled
on other grounds, United States v. Nordby, 225 F.3d 1053, 1059 (9th Cir. 2000).
On the other hand, in recognition of the fact that small-scale drug operations are
less likely to lead to the use of weapons or violence, federal courts have frequently found
that co-conspirators’ violent acts in furtherance of a drug conspiracy were not reasonably
foreseeable in situations involving small quantities of drugs, small amounts of money,
small-time drug dealers, or minor participants in the conspiracy. See, e.g., United States
v. Bingham, 653 F.3d 983, 997 (9th Cir. 2011) (defendants with “extremely minor roles in
the conspiracy” not liable for firearm possessed by co-conspirator); United States v.
Anderson–Page 12
Wade, 318 F.3d 698, 703-04 (6th Cir. 2003) (finding “scant evidence” to support finding
of foreseeability as to co-conspirator’s gun possession where defendant was “retail
dealer” in $1,100 sale of crack); United States v. Cochran, 14 F.3d 1128, 1133 (6th Cir.
1994) (holding that co-conspirator’s firearm possession was not reasonably foreseeable
when gun was hidden from defendant’s view and there was no evidence that conspiracy
involved violence or large quantities of drugs). Among all relevant circumstances,
federal courts have considered the quantity of the illegal narcotics, its value, the amount
of money possessed by the conspirators, the degree of a defendant’s involvement in the
conspiracy, the prior relationship of the co-conspirators, the length of time that a
defendant may have been involved in the drug trade, and the visibility of any weapons.
Wade, 318 F.3d at 702.
Considering the totality of the circumstances in this case, we conclude that
Appellant and Sherber were acting together in a criminal business to sell moderate
amounts of methamphetamine and that, given the volume of drugs involved, Sherber’s
assault of the officer in this case was one that should have been anticipated as a result of
the carrying out of the conspiracy. The intended delivery to the informant in this case
was for two ounces of methamphetamine, an amount that suggests more than personal
use. From the 8.51 grams of methamphetamine that were strewn throughout the truck, it
appears that Appellant and Sherber intended to sell smaller amounts of methamphetamine
to other people in the future. On the six prior occasions when Appellant sold
Anderson–Page 13
methamphetamine to the informant, the sales ranged from 3.8 grams to one ounce of
methamphetamine, and Appellant told the informant that he was in the process of selling
a total of one-half of a kilogram so that he could obtain another one-half of a kilogram to
sell. Appellant had $3,500 cash in his possession when he was arrested in this case.
These facts suggest that, although they were not likely engaged in the large-scale transfer
of multiple kilograms and tens of thousands of dollars of drug money, Appellant and
Sherber were more than just small-time dealers.
The prior and present relationship between Appellant and Sherber suggests that
they were acting jointly to engage in the continuous operation of an enterprise to market
and distribute methamphetamine in quantities of grams and ounces. On the six prior
occasions when he sold methamphetamine to the informant, Appellant was usually
accompanied by Sherber. Furthermore, on this occasion, Sherber drove Appellant across
several Texas counties to deliver the drugs and sat in the driver’s seat of the truck while
Appellant discussed the sale with the informant. Because of the number of repeat
transactions, the distance traveled to complete the sale, the quantity of drugs involved,
and the amount of cash possessed, Appellant should have anticipated that he and Sherber
might become the target of a thief or a police investigation, and that violence might be
used either to protect the drugs or to escape.
As we stated in Hooper, juries are permitted to draw multiple reasonable
inferences from direct or circumstantial evidence. 214 S.W.3d at 16. It was reasonable
Anderson–Page 14
for the jury to infer that Appellant should have anticipated that the police could bust the
drug transaction, and reasonable for the jury to infer that Appellant should have
anticipated that an officer could be injured while attempting to bust the drug transaction.
The evidence supports the jury’s finding that Appellant should have anticipated the
aggravated assault of a public servant in furtherance of the conspiracy to commit the
offense of possession of a controlled substance with intent to deliver. There is no
indication that the jury engaged in speculation or guessing about the meaning of the
evidence or facts to reach this conclusion.
CONCLUSION
We conclude that a rational jury could find beyond a reasonable doubt that
Appellant should have anticipated his co-conspirator committing aggravated assault of a
public servant as a result of carrying out their conspiracy to deliver methamphetamine.
The court of appeals properly held that the evidence was sufficient to support Appellant’s
conviction for aggravated assault of a public servant under the conspiracy theory of the
law of parties. The judgment of the court of appeals is affirmed.
Delivered: November 27, 2013
Publish
Anderson, Rodney Young
Combined Opinion