COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00194-CR

DAMIAN LAMON MURKLEDOVE APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

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DISSENTING OPINION

Respectfully, I must dissent from the majority opinion. The conscientious 

majority follows the precedent set out by the Texas Court of Criminal Appeals in 

Montoya v. State.

1

The Montoya opinion states that section 7.02 in toto covers 

only the law of parties, not criminal responsibility for the acts of others as stated 

in its caption.2 The result is a peculiar rule that provides that a person acts as a 

 

1

810 S.W.2d 160 (Tex. Crim. App. 1989), cert. denied, 502 U.S. 961

(1991).

2See id. at 165.
2

party whether he acts as a party or as a co-conspirator.3 That is, he is a party 

whether he is guilty of the offense alleged in the indictment (or a lesser included 

offense) or guilty of an offense alleged nowhere. The jury, then, is instructed to 

convict the defendant of the offense charged in the indictment whether they find 

him guilty of that offense or a totally different offense that is not a lesser included 

offense of that alleged.

The fact that conspiracy to commit murder is a different offense from 

murder is the distinction that allowed the Tarrant County District Attorney to

secure the convictions of Christopher William Brosky for both the murder of 

Donald Thomas as a party and conspiracy to murder Donald Thomas.4 After 

Brosky’s murder conviction, for which he received a ten-year probated sentence, 

the public outrage caused the district attorney’s office to seek a second bite of 

the apple. The district attorney sought and obtained an indictment against 

Brosky for conspiracy to commit the murder of Donald Thomas. Brosky filed a 

pre-trial application for writ of habeas corpus on the basis of double jeopardy. 

The trial court denied relief, and he appealed to this court. This court stated,

Brosky asserts his prosecution for conspiracy is barred by the 

double jeopardy clause of the Fifth Amendment. We find the double 

jeopardy clause does not bar the prosecution for conspiracy in this 

case.

 

3See id.; see also Tex. Penal Code Ann. § 7.02 (West 2011).

4Brosky v. State, 915 S.W.2d 120, 139–40 (Tex. App.—Fort Worth, pet. 

ref’d), cert. denied, 519 U.S. 1020 (1996).
3

. . . .

We find conspiracy is not a lesser included offense of the law 

of parties. An offense is a lesser included offense if:

(1) it is established by proof of the same or less than all the 

facts required to establish the commission of the offense charged;

(2) it differs from the offense charged only in the respect that a 

less serious injury or risk of injury to the same person, property, or 

public interest suffices to establish its commission;

(3) it differs from the offense charged only in the respect that a 

less culpable mental state suffices to establish its commission; or

(4) it consists of an attempt to commit the offense charged or 

an otherwise included offense.

Both criminal conspiracy and engaging in organized criminal 

activity require proof of a fact—an agreement to commit an 

offense—that murder as a party does not.5 

“Brosky argue[d] that the offense of murder as a party under [p]enal [c]ode 

section 7.02(a)(2) requires proof of ‘acts of the parties,’ from which an agreement

to commit the offense can be inferred.”

6

 We explained that

[i]rrespective of whether the jury may have inferred the existence of 

an agreement from Brosky’s and his co-defendants’ overt acts, this 

argument is beside the point. The court’s charge at the 

guilt/innocence phase of the murder trial did not instruct the jurors 

they could infer an agreement existed from the overt acts. Rather, 

the jury was merely instructed that it could find Brosky guilty of 

murder if it found that he “acted with intent to promote or assist the 

commission of the offense by encouraging, directing, aiding or 

attempting to aid” his co-defendants in the murder of Donald 

Thomas. 

 

5Ex parte Brosky, 863 S.W.2d 783, 784 (Tex. App.—Fort Worth 1993, no 

pet.) (citations and footnote omitted).

6

Id. at 785.
4

The only portion of the law of parties that refers specifically to 

a conspiracy is [section] 7.02(b), which the trial court excluded from 

the charge at the defense’s request. Brosky does not contend, and 

the record does not show, that the State argued to the jury that 

Brosky acted as part of a conspiracy. In short, the record is devoid 

of evidence that the State proved the fact of an agreement to commit 

murder in the murder trial.7

This court stated unequivocally that “conspiracy does not differ from 

murder as a party in any of the ways set out in article 37.09. Thus, conspiracy is 

not a lesser included offense of murder as a party under that article.”

8

 Then, we 

spelled it out:

The offense of murder as a party requires proof that the defendant, 

acting as a party, caused the death of an individual. Criminal 

conspiracy and engaging in organized criminal activity do not. 

Similarly, conspiracy and engaging in organized criminal activity 

require proof that the defendant entered into an agreement, or 

conspired, with others, which murder as a party does not.9

After his jury trial for conspiracy to commit murder, Brosky appealed his 

conviction. We summarily dismissed his double-jeopardy claim, stating,

This court has already evaluated and rejected each claim that 

Brosky now asserts on the issue of double jeopardy. We have 

already determined that engaging in organized crime and conspiracy 

is not a species of the lesser included offense of murder by 

complicity. We applied the Blockburger test and concluded that 

“both criminal conspiracy and engaging in organized criminal activity 

require proof of a fact—an agreement to commit an offense—that 

murder as a party did not.” Next, in the murder prosecution, the jury 

was not instructed on the conspiratorial theory of parties, nor did the 

 

7

Id. at 785 (citation omitted).

8

Id.

9

Id. at 788. 
5

prosecutor argue that Brosky acted as part of a conspiracy. This 

court also rejected Brosky’s arguments based on Pereira v. United 

States and United States v. Dixon and held that the controlling 

precedent was United States v. Felix, where the United States 

Supreme Court recognized that a prosecution for conspiracy is not 

precluded by a prior prosecution for the substantive offense. Brosky 

has presented nothing new to this court requiring us to deviate from 

our holding in Ex parte Brosky.

10

The holding of the Montoya court now causes trial and appellate courts, 

including this court, to take a curious step. Under the guise of the law of parties, 

we increase the burden of the State in a parties’ prosecution beyond the burden 

established by the legislature. The legislature has never suggested that the 

State must prove an agreement among parties to an offense to convict a party of 

that offense. Often, the obvious lack of planning among parties is astounding. 

But, acting with intent to promote or assist the commission of the offense, they 

solicit, encourage, direct, aid, or attempt to aid the other person to commit the 

offense, and they manage to do so with startling frequency, sometimes amazing 

ingenuity, a total lack of appreciation of consequences, and usually a total 

absence of any evidence of planning.11 They are guilty as parties to the offense 

because they did more than think about or plan the offense. They did an act. 

Conspirators, on the other hand, are guilty of thinking or planning, even though 

they commit no act. That is why the penalty for conspiracy is a degree lower 

than the offense that is the subject of the conspiracy. But when a person is 

 

10See Brosky, 915 S.W.2d at 140 (citations omitted).

11See Tex. Penal Code Ann. § 7.02.
6

convicted of conspiracy under the cloak of the law of parties, that person may be 

convicted of the offense of planning or even just talking about committing the 

offense although he committed no act in furtherance of the conspiracy, and the 

State must prove the extra element of the agreement. And, suddenly, the State 

has an extra element added to its burden of proof.

The plain reading of section 7.02, “Criminal Responsibility for Conduct of 

Another” means just that. There are only two ways a person can be criminally 

responsible for the acts of another. A person is criminally responsible for the 

acts of another if he is guilty as a party (7.02(a)) or if he is a co-conspirator 

(7.02(b)). We presume the legislature means what it says.12 

In the case now before this court, the learned trial judge recognized the 

distinction between guilt as a party and guilt as a co-conspirator under penal 

code section 15.02, Criminal Conspiracy, a different offense from the offense 

charged and carrying a penalty one degree lower than the target offense.13 

Although the charge instructed the jury to add to the State’s burden of proof 

beyond that required by the legislature, the jury charge carefully included the 

requirement that the jury find Appellant committed an act: 

then and there at the time of the shooting was acting with and aiding 

or attempting to aid Dominique Jones in the execution of the robbery 

or burglary of Daniel Garner, if any, and that the shooting of Daniel 

 

12See Tex. Gov’t Code Ann § 311.021 (West 2013); Clinton v. State, 354 

S.W.3d 795, 801–02 (Tex. Crim. App. 2011).

13See Tex. Penal Code Ann. § 15.02(d) (West 2011).
7

Garner was committed in furtherance of the conspiracy, if any, of 

Damian Murkledove and Dominique Jones to rob Daniel Garner or to 

burglarize the home of Daniel Garner and that the shooting of Daniel 

Garner, if any, was an offense that should have been anticipated as 

a result of the carrying out of the conspiracy, then you will find the 

defendant, Damian Murkledove, guilty of Capital Murder as charged 

in the indictment. 

I understand that this is an attempt to explain and apply the law of 

transferred intent. But it is the unhappy attempt to improperly merge the law of 

parties with the law of conspiracy as required by Montoya. For the reasons 

stated above, I would admit that the Montoya court was incorrect in holding that 

section 7.02 is exclusively the law of parties, hold that following Montoya is error, 

and do away with this impossible burden we have placed on the trial court to craft 

a jury charge that reconciles the irreconcilable. The State has no burden to 

prove any prior planning, any malice aforethought, any agreement, or 

premeditation to convict a defendant as a party. We have no authority to add 

that which the legislature did not include in the State’s burden of proof.

For all these reasons, I respectfully dissent from the majority opinion.

/s/ Lee Ann Dauphinot

LEE ANN DAUPHINOT

JUSTICE

PUBLISH

DELIVERED: May 15, 2014