Appellant, William Edward Planter, was convicted of solicitation of capital murder. The jury assessed his punishment at seventeen years confinement. The Court of Appeals affirmed the conviction. Planter v. State, 976 S.W.2d 866 (Tex. App.--Eastland 1998). We granted appellant's petition for discretionary review on the ground that "[t]he Court of Appeals, in holding that the evidence was sufficient to support appellant's conviction for the offense of solicitation of capital murder, has seriously misconstrued state law in conflict with the applicable decisions of the Court of Criminal Appeals."

The record shows that appellant, a former peace officer, contacted Lex Baquer and stated that he had information concerning the murder of Baquer's daughter. After consulting the sheriff's department, Baquer met with appellant on two occasions, each time wearing a transmitter provided by the sheriff's department. Appellant told Baquer that Bob Fratta, the estranged husband of Baquer's daughter, had hired two hit men to kill Baquer's daughter. The tapes from the meetings between appellant and Baquer show that appellant offered to kill Fratta if Baquer would pay appellant $10,000.

On appeal, appellant complained, inter alia, that the evidence was legally and factually insufficient to support his conviction. His complaint focused on the indictment⁽¹⁾ and jury charge,⁽²⁾ both of which read, in relevant part, that appellant "requested, commanded and attempted to induce Lex Baquer to engage in specific conduct, namely, to kill Bob Fratt[a]."

The Court of Appeals found that nothing in the record showed that appellant had requested or attempted to induce Baquer "to kill" Fratta. Id. at 867. However, it found that there was evidence showing that appellant had requested or attempted to induce Baquer to pay appellant to kill Fratta and, therefore, to be a party to the killing of Fratta. Id. The court noted that the jury charge included an abstract instruction on the law of parties, but did not apply the law of parties to the facts of the case and did not refer to the law of parties in the application paragraph. Id. However, based on our decisions in Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997), and Blanco v. State, 962 S.W.2d 46 (Tex. Crim. App. 1998), as well as a court of appeals decision relying on Malik, Nesbitt v. State, 958 S.W.2d 952 (Tex. App.--Beaumont 1998, no pet.), the court found that the hypothetically-correct jury charge for the case would have applied the law of parties to the facts. Planter, 976 S.W.2d at 867-868. Therefore, it held that the evidence in the case was legally and factually sufficient to show that appellant was guilty as a party to the offense of solicitation of capital murder. Id. at 868.

The reasoning of the Court of Appeals does not withstand scrutiny. Neither Blanco nor Nesbitt supports the Court of Appeals' holding. In both of these cases, the issue was whether the convictions were authorized, given the "deficiencies" in the jury charge as to the law of parties.⁽³⁾ Nothing in the records indicate that the proof at trial did not comport with the conduct alleged in the respective indictments and set out in the respective jury charges.⁽⁴⁾

In contrast, that is the precise issue in the instant case; does the proof at trial comport with the conduct alleged in the indictment and set out in the jury charge? The offense in the instant case, as alleged in the indictment and set out in the jury charge, was that appellant "requested, commanded and attempted to induce Lex Baquer to engage in specific conduct, namely, to kill Bob Fratt[a]." The evidence does not show that appellant attempted to request, command or attempt to induce Bacquer to kill Fratta. Instead, it shows that appellant attempted to request, command or attempt to induce Bacquer to pay appellant to kill Fratta. The evidence introduced at trial by the state proved an offense different from the offense alleged in the indictment and set out in the jury charge and is therefore insufficient to show that appellant is guilty, as either the primary actor or as a party, of the conduct alleged by the state⁽⁵⁾. Appellant was never charged with or indicted for the offense that the evidence appears to support: capital murder by soliciting Bacquer to hire appellant to kill Fratta. The evidence presented at trial does not comport with the conduct alleged in the indictment and set out in the jury charge, and the jury verdict cannot, therefore, be supported logically by either the actual jury charge or the hypothetically-correct jury charge that was formulated by the Court of Appeals.⁽⁶⁾

Based on the foregoing, the judgment of the Court of Appeals is reversed, and the cause is remanded to the trial court for the entry of a judgment of acquittal.

Johnson, J.

Date Delivered: December 15, 1999

En Banc

Publish

1. The indictment against appellant read, in its entirety, as follows:

William Edward Planter...on or about December 22, 1994, did then and there unlawfully with intent that a capital felony be committed, namely Capital Murder . . . requested, commanded and attempted to induce Lex Baquer to engage in specific conduct, namely, to kill Bob Fratt[a], and that under the circumstances surrounding Lex Baquer's conduct as the Defendant believed them to be, would constitute Capital Murder or make Lex Bacquer a party to its commission.

(Emphasis added.)

2. At trial, the charge submitted to the jury read, in its entirety, as follows:

The defendant, William Edward Planter, stands charged by indictment with the offense of solicitation to commit capital murder, alleged to have been committed on or about the 22^nd day of December, 1994, in Harris County, Texas . . .

A person commits the offense of solicitation to commit capital murder if, with intent that a capital murder be committed, he requests, commands, or attempts to induce another to engage in specific conduct that, under the circumstances surrounding his conduct as the defendant believes them to be, would constitute capital murder or make the other a party to its commission.

A person commits the offense of murder if he intentionally or knowingly causes the death of an individual.

A person commits the offense of capital murder if he employs another to commit the murder for remuneration or the promise of remuneration.

A person acts intentionally, or with intent, with respect to the nature of his conduct when it is his conscious objective or desire to engage in the conduct.

A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist.

All persons are parties to an offense who are guilty of acting together in the commission of the offense. A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.

A person is criminally responsible for an offense committed by the conduct of another if, 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. Mere presence alone will not constitute one a party to an offense.

Now, if you find from the evidence beyond a reasonable doubt that in Harris County, Texas, on or the 22^nd day of December, 1994, the defendant, William Edward Planter, did then and there unlawfully, with intent that a capital felony be committed, namely capital murder, the defendant requested, commanded and attempted to induce Lex Baquer to engage in specific conduct, namely, to kill Bob Fratta, and that under the circumstances surrounding Lex Baquer's conduct as the defendant believed them to be, would constitute capital murder or make Lex Bacquer a party to its commission, then you will find the defendant guilty as charged in the indictment.

Unless you so find from the evidence beyond a reasonable doubt or if you have a reasonable doubt thereof you will acquit the defendant and say by your verdict "Not Guilty."

(Emphasis added.)

3. In Blanco, the defendant was convicted of burglary of a habitation. Blanco, 962 S.W.2d at 46. On original submission, the court of appeals found the evidence insufficient because the application paragraph of the charge to the jury did not refer to the law of parties. Id. Therefore, the court found that the sufficiency of the evidence, when measured against the application paragraph, entitled the defendant to an acquittal on appeal because he was guilty only as a party. Id. We remanded for reconsideration in light of Malik. Id. at 47.

In Nesbitt, the defendant was convicted of murder. Nesbitt, 958 S.W.2d at 953. Like the defendant in Blanco, he complained that the evidence was legally insufficient to support the conviction because the application paragraph of the jury charge did not include language incorporating the abstract definition of the law of parties. Id. at 954. Therefore, he argued that the jury was authorized to convict only if the evidence established that the defendant had personally committed an act clearly dangerous to human life and that the defendant personally caused serious bodily injury to the victim. Id. The Court of Appeals found that there was evidence that the defendant had instigated and actively participated in a series of assaults for the express purpose of extorting property or services from the victim, and that the beatings inflicted upon the victim were so severe as to be clearly dangerous to human life. Id. at 955. Therefore, it found that the evidence was sufficient to support a finding by the jury that the defendant, acting alone or as a party, committed each element of the offense beyond a reasonable doubt, even in the absence of evidence that the defendant personally executed the fatal blow. Id.

4. Because it is not necessary to specifically allege in an indictment that an accused is being charged as a party, there was no dispute in those cases as to whether the convictions were authorized by the indictments.

5. Judge Womack's dissent uses ellipses to alter significantly the import of this sentence, omitting "as either the primary actor or." Post, at ___ (slip op. at 1-2) (Womack, J., dissenting).

Presiding Judge McCormick's dissent argues that Malik "clearly requires that evidentiary sufficiency is to be measured against the elements of the offense," but then omits and ignores the rest of the standard, "and set out in the jury charge." Post, at ___ (slip op. at 3-4) (McCormick, P.J., dissenting). That omission results in an argument that runs contrary to the plain language of Malik, 953 S.W.2d at 240, which states that

sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Such a charge would be 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 the particular offense for which the defendant was tried.

(Emphasis added.)

In combination with the omission in Judge Womack's dissent, this results in the state being able to ignore the indictment as the basis for the allegations which must be proved. This is contrary to Malik, which states that the hypothetically correct jury charge used to measure sufficiency of the evidence is to be authorized by the indictment. Id.

6. Judge Keller's dissent argues that the indictment authorized a conviction under a theory other than the one that Planter requested, commanded or attempted to induce Baquer to cause Fratta's death by killing him. Post, at ___ (slip op. at 2-3) (Keller, J., dissenting). However, this interpretation runs contrary to the plain language of the indictment. See supra note 1.